—Richard Albert, Boston College Law School
Today, the Supreme Court of Canada issued its long-awaited ruling on the Anti-Terrorism Act passed by Parliament in the aftermath of the terrorist attacks on the United States on September 11, 2001.
Writing for a unanimous panel in two interrelated cases, Chief Justice Beverley McLachlin upheld the controversial anti-terrorism law. The Court addressed many issues in today’s cases but two appear most salient after an initial reading: (1) the constitutionality of the “motive clause” in the law; and (2) the constitutionality of extraditing Canadian citizens to the United States for trial on terrorism charges.
In today’s first case, the Court upheld the “motive clause” in the law, whose relevant language defines “terrorist activity” as “an act or omission, in or outside Canada, that is committed in whole or in part for a political, religious or ideological purpose, objective or cause … .” Criminal Code, R.S.C. 1985, c. C-46, s. 83.01(1)(b)(i)(A) [emphasis added].
Mohammad Momin Khawaja had been convicted of five terrorism offenses relating to “terrorist activity.” Khawaja appealed his convictions, arguing that the motive clause is unconstitutional because: (1) it chills the exercise of his freedoms of expression, religion and association, entrenched in Section 2 of the Canadian Charter of Rights and Freedoms; and (2) it authorizes law enforcement officials to target individuals for suspicion based on their religious, political or ideological beliefs.
In rejecting the first part of Khawaja’s argument—that the motive clause has a chilling effect—the Court distinguished violent from non-violent exercises of freedoms. The motive clause, wrote the Court, does not chill the non-violent exercise of expressive, religious or associational freedoms. It punishes only violent conduct or threats of violent conduct that go beyond the legitimate exercise of expressive, religious or associational freedoms:
Anyone who reads the entire provision will take notice of s. 83.01(1.1), which expressly declares that “terrorist activity” within the meaning of the Criminal Code does not include the non-violent expression of a political, religious or ideological thought, belief or opinion. Only individuals who go well beyond the legitimate expression of a political, religious or ideological thought, belief or opinion, and instead engage in one of the serious forms of violence — or threaten one of the serious forms of violence — listed in s. 83.01(1)(b)(ii) need fear liability under the terrorism provisions of the Criminal Code. [para. 82]
The Court also rejected the second part of Khawaja’s argument—that the law legitimizes law enforcement conduct based on religious, political or ideological stereotyping—by relying on the same distinction between the violent and non-violent exercise of freedoms:
Criminal liability should not be based on a person’s political, religious or ideological views. Police should not target people as potential suspects solely because they hold or express particular views. Nor should the justice system employ improper stereotyping as a tool in legislation, investigation or prosecution. In the present case, the impugned provision is clearly drafted in a manner respectful of diversity, as it allows for the non-violent expression of political, religious or ideological views. It raises no concerns with respect to improper stereotyping. [para. 83]
As an aside, it is interesting to note that the Court’s ruling makes reference to the absence of a similar motive clause in the anti-terrorism laws of some, though not all, other countries. The Court emphasized that its analysis was “not altered by the fact that terrorist legislation in some countries does not contain a motive clause, or by the argument that the clause is unnecessary to the Canadian legislative scheme.” [para. 84]
In today’s second case, the Court upheld the decision of the Canadian Minister of Justice to extradite two Canadian citizens to the United States to stand trial on terrorism charges.
The two Canadian citizens, Suresh Sriskandarajah and Piratheepan Nadarajah, had been alleged to have separately assisted the Tamil Tigers. Sriskandarajah had allegedly smuggled goods, laundered money and provided other support to the Tamil Tigers. For his part, Nadarajah had allegedly been involved in an attempt to acquire weapons from an undercover police officer in the United States for use by the Tamil Tigers. At the request of the United States, the Minister of Justice extradited both of them. Sriskandarajah and Nadarajah relied on Section 6 of the Charter to argue in part that their extradition to the United States violates their right as citizens to remain in Canada.
The Court rejected their claims. In doing so, the Court distinguished between the right to remain in Canada as applied to extradition versus exile or banishment. The former, the Court wrote, does not violate the Charter right to remain in Canada, but the latter might:
Although the surrender of a Canadian citizen to a foreign country impairs the individual’s right to remain on Canadian soil, s. 6(1) is primarily aimed against exile and banishment, i.e. exclusion from membership in the national community. [para. 9]
The Court explained that extradition does not violate the right to remain in Canada insofar as it does not deny any extradited citizen the ability to return to Canada if acquitted, or for that matter even if convicted:
The common theme is that extradition, unlike exile and banishment, does not lie at the core of the right to remain in Canada under s. 6(1) of the Charter. A Canadian citizen who is extradited to stand trial in a foreign state does not necessarily become persona non grata: the accused may return to Canada if he is acquitted or, if he is convicted, at the end of his sentence or even to serve his sentence in accordance with the International Transfer of Offenders Act, S.C. 2004, c. 21. Extradition does not violate the core values of s. 6(1), but rather, it fulfills the needs of an effective criminal justice system. [para. 20]
This is an early summary of today’s important Canadian Supreme Court case. For readers who want more information about these cases, I recommend the journalistic accounts at the Globe and Mail and on the CBC.