Terrorism Offences

R. v. Khawaja 2012 SCC 69 upholds the terrorist sections of the Criminal Code. The Court holds that Section 83.18 does not violate s. 7 of the Charter.  A purposive interpretation of the actus reus and mens rearequirements of s. 83.18 excludes convictions (i) for innocent or socially useful conduct that is undertaken absent any intent to enhance the abilities of a terrorist group to facilitate or carry out a terrorist activity, and (ii) 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.  The legitimate purpose of the Terrorism section of the Criminal Codeis to provide means by which terrorism may be prosecuted and prevented.  This purpose commands a high mens rea threshold.  To convict under s. 83.18, a judge must be satisfied beyond a reasonable doubt that the accused specifically intended to enhance the ability of a terrorist group to facilitate or carry out a terrorist activity.  There may be direct evidence of this intention.  Or the intention may be inferred from evidence of the knowledge of the accused and the nature of his actions.  The use of the words "for the purpose of" in s. 83.18 requires a subjective purpose of enhancing the ability of a terrorist group to facilitate or carry out a terrorist activity.  The accused must specifically intend his actions to have this general effect.  Further, the actus reus of s. 83.18 does not capture conduct that discloses, at most, a negligible risk of enhancing the abilities of a terrorist group to facilitate or carry out a terrorist activity.  The scope of the provision excludes 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.  The determination of whether a reasonable person would view conduct as capable of materially enhancing the abilities of a terrorist group to facilitate or carry out a terrorist activity hinges on the nature of the conduct and the relevant circumstances.  When the tailored reach of s. 83.18 is weighed against the objective of the law, it cannot be said that the selected means are broader than necessary or that the impact of the section is disproportionate. The purpose of the law does not infringe freedom of expression.  While the activities targeted by the Terrorism section of the Criminal Code are in a sense expressive activities, most of the conduct caught by the provisions concerns acts or threats of violence.  Threats of violence, like acts of violence, are excluded from the scope of the s. 2(b) guarantee.  Moreover, the particular nature of the conduct enumerated in ss. 83.01(1)(b)(ii)(A), (B), (C) and (D) justifies treating counselling, conspiracy or being an accessory after the fact to that conduct as being intimately connected to violence — and to the danger to Canadian society that such violence represents.  As such, the conduct falls outside the protection of s. 2(b) of the Charter.  However, it is not necessary to decide whether counselling, conspiracy or being an accessory after the fact fall outside the s. 2(b) guarantee as a general matter. Read as a whole and purposively, s. 83.01(1)(b)(ii)(E), which is directed to acts that intentionally interfere with essential infrastructure without which life may be seriously disrupted and public health threatened, is also confined to the realm of acts and threats of violence. However, it cannot be ruled out that s. 83.01(1)(b)(ii)(E) might in some future case be found to capture protected activity. In such a case, the issue would be whether the incursion on free expression is justified under s. 1 of the Charter.