Justice Douglas Rutherford''s recent ruling in R. v. Khawaja invalidated the motive element included in the definition of "terrorist activity" in s 83.01(1) of the Criminal Code. The striking nature of the ruling should not distract from its reasoning and evidentiary foundation.
This complex definition is made up of a number of specific and general elements. In specific terms, it designated acts listed in a number of United Nations conventions, e.g., hijacking planes, assassinations, hostage-taking, and bombings, as terrorist acts.
In general terms, it defined "terrorist act" by stipulating three necessary elements - intention, resultant harm and, most controversially, motive.
The intention stipulation narrowed the offence to acts intimidating the public or compelling a person, a government or an organization (domestic or international) to act or refrain from action.
The harm stipulation narrowed the offence to intentional causation of death or serious bodily harm, endangering life, causing a serious risk to health or safety, and property damage implicating these stipulated harms. It also included substantial interference with an essential service, excluding cases where "advocacy, protest, dissent or stoppage of work" produced this result without intention.
The motive stipulation required an act or omission whose "purpose, objective or cause" was political, religious, or ideological. By increasing the Crown's prosecutorial burden, this stipulation would operate to the advantage of an accused.
Rutherford invalidated the motivation proviso on a pre-trial motion, taking judicial notice of academic commentary, political statements, and some comparative material. He noted the lack of resources available to him.
The reasons for judgment do not offer a full account of the written and oral submissions by counsel. It is not clear, for example, whether Momin Khawaja's lawyer Lawrence Greenspon asserted a violation of his client's Charter rights.
Prosecutor David McKercher's argument, for the federal attorney general, undermined the force of such a claim, on the ground that the Charter does not extend protection to expressions of religious, political, or ideological belief that otherwise fall within the definition of "terrorist act", i.e, take the form of violence.
The judgment suggests that the motive proviso may involve proof relating to the purposes and beliefs of the terrorist group to which the indictment ties Khawaja. It then notes the possibility that "Canadians who might share the political, religious or ideological stripe . . . could not help but fall under some sort of shadow," which might lead to racial or ethnic profiling and prejudice in and beyond the investigative and prosecutorial process.
Rutherford concludes that "the inevitable impact" of the motive clause is to "focus investigative and prosecutorial scrutiny" on the beliefs, opinions, and expressions of a large number of people, producing an "equally inevitable" chilling effect on the exercise of Charter freedoms.
The s.1 analysis follows the same pattern. Rutherford notes that Greenspon chose to make submissions in respect to minimal impairment only, but does not set them out. Rather, after considering other academic commentary, a few political statements and selected references to comparative and international material, Rutherford balances the "objective versus [the] impairment." He finds "no compelling benefit or justification" for the motive clause to be weighed against its infringement of Charter freedoms.
In this context, Rutherford notes that motivations don't matter to those affected by acts of terrorism, because one cannot impute rational principles to those who perpetrate terrorist acts.
This analysis is unclear for a number of reasons. The finding of infringement is insufficiently delineated for both the infringement and justification stages of analysis. In the absence of analysis on the earlier steps of the Oakes test, elements crucial to the minimal impairment test are missing, i.e., the delineation of the pressing purpose of the motive clause, its function within the larger definition of "terrorist activity," and its rational connection to this function. It is also unclear if the appropriate onuses were engaged.
Furthermore, the judgment does not apply the doctrinal test for minimal impairment that is crucial for its conclusion. Instead, without explanation, it skips forward to the benefit-burden analysis in the last step of the Oakes test.
The academic commentary relied upon raises concerns and hypothetical possibilities precluded by the full statutory framework. Some of the questions raised pertain to state action, not statutory validity. While assertions as to the chilling effect of the motive provision must involve speculation, the litigation process and analytic framework should test these claims to the extent possible.
The ruling takes seriously certain questions of stereotype and prejudice in a sensitive manner; it also makes assumptions about attitudes to violence and terrorism in minority communities that warrant further examination.
It is not satisfactory for a constitutional ruling as important as this, correct or not in its result, to rest on an incomplete account of the argumentation, on Charter analysis that omits or misapplies established doctrine, and on an untested evidentiary record.
Lorraine Weinrib is a professor at the faculty of law, University of Toronto.
