R. v. Khawaja 2012 SCC 69

The Constitutionality of a Particular Terrorism Offence

The summary of this case is that terrorism offences in the Canadian Criminal Code (see s.83.18) do not violate the Canadian Charter of Rights and Freedoms.  

 The crime found in  s. 83.18 is this:

  Every one who knowingly participates in or contributes to, directly or indirectly, any activity of a terrorist group for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist activity is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

The Supreme Court made clear that the offence requires that the conduct of the accused create a risk of harm beyond a mere minimum.  Thus s.83.18 excludes convictions for innocent or socially useful conduct and for conduct that a reasonable person would not view as capable of materially enhancing the abilities of a terrorist group to facilitate or carry out a terrorist activity. 

More telling, the offence requires the accused to have the specific intent to enhance the ability of a terrorist group to carry out or facilitate a terrorist activity.  This may mean, for example, that if you assist terrorists for a valid purpose or do so unwittingly, then you are not guilty of the offence. 

 It was also argued that the wording of the crime violates a person`s freedom of expression.  The Supreme Court said, however, that threats of violence are not protected by the Charter`s freedom of expression. 

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