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Ontario High Court Upholds "Motive" Clause In Canada's Anti-Terrorism Law

By Howard M. Friedman

In Regina v. Khawaja, (Ct App. ON, Dec. 17, 2010), the Court of Appeal for Ontario reversed the holding of a trial court below and upheld the constitutionality of the "motive clause" in the definition of "terrorist activity" in Canada's anti-terrorism law. An element of that law's definition of "terrorist activity" is that the act must have been "committed in whole or in part for a political, religious or ideological purpose, objective or cause." The trial court had found that because this provision will focus prosecutorial scrutiny on political, religious and ideological beliefs, its chilling effect renders it unconstitutional under Canada's Charter of Rights and Freedoms. (See prior posting.) The appeals court, however, reasoned:

There are many potential explanations for why people might feel a chilling effect when it comes to expressing extremist Islamic views. Perhaps, most obviously, there is the reality of the world we live in. Terrorism and the fear and uncertainty terrorism creates are facts of life. Fear can generate many things, including suspicion based on ignorance and stereotyping. Many, but by no means all, of the major terrorist attacks in the last 10 years have been perpetrated by radical Islamic groups fueled by a potent mix of religious and political fanaticism. It is hardly surprising that, in the public mind, terrorism is associated with the religious and political views of radical Islamists. Nor is it surprising that some members of the public extend that association to all who fit within a very broad racial and cultural stereotype of a radical Islamist.

In making these observations, we do not intend to condone profiling or stereotyping. We do, however, mean to say that the most obvious cause of any ?chilling effect? among those whose beliefs would be associated in the public mind with the beliefs of terrorist groups is the temper of the times, and not a legislative provision that in all probability is unknown to the vast majority of persons who are said to be ?chilled? by its existence....

The Toronto Star reports that this is one of six decisions released by Ontario's highest court on Friday which increased the prison sentences of three individuals and ordered two others extradited to the United States. The other 5 cases are R. v. Amara, R. v. Banwait, R. v. Gaya, R. v. Houssari,and R. v. Khalid.

Full post as published by Religion Clause on December 19, 2010 (boomark / email).