Ontario Court of Appeal Gets Tough on Terror with Canada’s First Terrorist

Editor’s Note: This is the first in a two-part series on the recent judgments the Ontario Court of Appeal handed down addressing the post-9/11 terrorism laws.

Just before recessing for the holidays, the Ontario Court of Appeal (“ONCA”) gave supporters of a “tough-on-crime” policy an early Christmas present. In a string of six decisions released on December 17, 2010, Ontario’s highest court made it unequivocally clear that terrorism will be dealt with in the most severe fashion available by increasing the sentences of known terrorists.  The court also upheld and increased prison terms given to 3 members of the Toronto 18.

The leading judgment of R v Khawaja, 2010 ONCA 862, coming in at almost 100 pages (complete with a table of contents!) forms the foundation for the 6-case series of groundbreaking judgments on terrorism in Ontario. The main issues on this specific appeal were as follows:

1. The constitutionality of the motive clause;
2. Various other grounds for conviction; and
3. The sentencing appeal

Due to the lengthy and complex nature of the legal issues contained in the judgment, this post will form the first of a two-part series on this decision. This first post in the series will discuss the most groundbreaking and newsworthy aspect of the appeal – the sentencing decision.  The next post, to be released on January 24, 2011 will review the court’s consideration of the constitutionality issues as well as the court’s decision on the smaller conviction appeals.

Background

Mohammad Momim Khawaja, a software programmer in Ottawa, was charged on seven counts of acting for the benefit of and in conjunction with a group of persons in England (the “Khyam group”). The Khyam group was alleged to constitute a “terrorist group” within the meaning of the Criminal Code, RSC 1985, c C-46, and were allegedly engaged in “terrorist activity” as defined in the Criminal Code. The seven charges laid encompassed various subsections within s. 83 of the Criminal Code, which contains the terrorism provisions introduced into the statute after the attacks of 9/11.

An extraordinary amount of evidence against Khawaja was introduced at trial, establishing proof of his severe anti-Western sentiment.  In many instances, written communications by Khawaja showed him to be vehemently committed to the advance of violent “Jihad” actions and showed his intent to physically destroy those who (in his mind) wished to destroy Islam and Muslims.  I will not go into further details here, but I urge readers to read the judgment beginning at paragraph 22 for an in-depth and graphic account of Khawaja’s behaviour and beliefs before his arrest.

Sentencing At Trial

After being found guilty (in part or in full) on 6 out of 7 counts, Khawaja was sentenced to 10.5 years in prison by the trial judge, in addition to the time Khawaja had already served in custody.  This sentencing decision is quite significant as it was the first sentencing under Canada’s Part II.1 Terrorism provisions.  As a result, the trial judge likely had every reason to assume his decision would immediately be appealed to the ONCA.

On appeal, Khawaja argued that his sentence was unfair and should be reduced to the time he had served, which would rendered him a free man!  In a way, the Court agreed. According to the Court of Appeal, 10.5 years wasn’t fair – in that it was not anywhere near long enough, as they increased his sentence to life imprisonment.

In handing out the tougher sentences, the Court divided their reasons into two separate categories, which I will deal with separately.

Three Errors Were Made in the Sentencing Reasons

(1) The Trial Judge Erred in Assessing the Appellant’s Level of Determination

In refusing to award a life sentence for Khawaja’s involvement in a UK fertilizer terrorist bomb plot, the trial judge stated:

I am not persuaded that Momin Khawaja should be characterized as a similar offender in similar circumstances as those [Khyam’s] men. He was a willing helper and supporter, but Khyam [and his associates] were away out in front of Momin Khawaja in terms of their determination to bring death, destruction and terror to innocent people. In my view, Momin Khawaja’s offences, the circumstances in which they were committed and his personal circumstances do not warrant his being sentenced to life imprisonment.

The Court found this to be an error.  The evidence before them (and the trial judge) clearly showed that Khawaja was willing to do anything in order to promote violent Jihadism.  The fact that he had not yet reached the same stage in his activities as his British counterparts could not, according to the appellate court, be seen as a lower level of determination.

(2) The Trial Judge Erred in Failing to Treat the Absence of Any Evidence of the Appellant’s Rehabilitative Prospects as a Critical Factor in Sentencing

Next, the issue of willingness to reform and be rehabilitated is a sentencing concern.  Neither Khawaja nor his parents were willing to be interviewed in the pre-sentence report.  Because of this, the judge was left with no indication Khawaja intended to alter his future behaviour in any way.  The sentencing judge took this to be a neutral factor in the sentencing process, however, the bench disagreed.

Instead, according to the written reasons, “Far from being a neutral factor, the absence of any evidence of the appellant’s remorse or of his prospects for reformation should have been treated as a significant indicator of his present and future dangerousness.”  Rightly so, the Court indicated that a terrorist who, in his earlier writing had agreed that the killing of innocents was necessary and who had shown no willingness to change must be viewed as a serious security threat and that this factor should absolutely be considered in the sentencing process.

It is unfortunate that Mr. Khawaja and his parents declined to participate in a pre-sentence report in this case. Rehabilitation becomes a more treacherous question for any court when dealing with charges as serious as this with no real basis on which to base sentencing leniency. Although courts likely take no pleasure in assuming the worst in a case like this, my opinion is that the harsher judgment is a more objective reading of the evidence than the trial judge’s decision. Mr. Khawaja and his family had every right to decline this test, but this choice played a strong part in sealing his fate.

(3) The Trial Judge Erred in Interpreting s. 83.26 of the Criminal Code

Section 83.26 of the Criminal Code reads (in part):

83.26 A sentence, other than one of life imprisonment, imposed on a person for an offence under any of sections 83.02 to 83.04 and 83.18 to 83.23 shall be served consecutively to

(a) any other punishment imposed on the person, other than a sentence of life imprisonment, for an offence arising out of the same event or series of events;

While the trial judge followed the consecutive requirement of the section, he also cited the “totality” principle established in R v M(CA), [1996] 1 SCR 500, which “requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender” (para 42).

Disagreeing again, the Court of Appeal found that the C.A.M decision also stated that there was no outer limit for sentencing judges and that the totality principle was custom, not law. The reasoning goes further to indicate that sentencing must always be an individual decision and that, particularly in the case of terrorism, sentencing should be harsher than normal due to the “indiscriminate killing of innocent human beings” (para 223).

The Trial Judge Erred in his Overall Approach to Sentencing

(1) The Sentence Does Not Reflect the Unique Nature of Terrorism-Related Offences

The Court also found the trial judge failed to consider more overarching policy considerations, the first being the unique nature of terrorism. According to the Court, terrorism  “is far more insidious in that it attacks our very way of life and seeks to destroy the fundamental values to which we ascribe – values that form the essence of our constitutional democracy.” The decision had an extensive review of literature describing the unique nature of terrorism, but this comment gives the gist of the appellate court’s complaint; the trial judge did not put nearly enough emphasis on the specific treatment terrorist sentencing requires. To do this, the Court feels that terrorism-related offences require a departure from the traditional approach to sentencing.

(2) The Sentence Fails to Adequately Reflect the Continuing Danger that this Offender Presents to Society

As discussed above, although it was submitted at trial for Khawaja that his intended victims were those fighting for the West in Afghanistan, the factual record showed that this was not true. Additionally, the Court felt that to suggest a lower sentence was justified if soldiers were the only target is highly insulting to the value Canada puts on those serving overseas.

(3) The Sentence Does not Adequately Deter Would-be Terrorists

Finally, the Court found that the trial judge did not give enough weight to the deterrent effect of a harsh sentence. This was yet another reason for the imposition of the far harsher sentence.

It is likely this case will end up at SCC as a result of its novelty and overreaching policy concerns. However, in the meantime, it is a breath of fresh air for those (like me) who believe in the power of both deterrence and retribution. As stated in the decision, “terrorism is a crime like no other. Once detected, it must be dealt with in the severest of terms.”

On January 24, 2010, the second post in this series surrounding this vital series of cases will be published. It will assess the Court of Appeal’s analysis of the constitutionality of the new terrorism provisions in the Criminal Code.