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De-Conflicting Canada’s Anti-Terrorism Legislation: Khawaja and the Ongoing Challenges of the 'Armed Conflict' Exclusion

28 Pages Posted: 23 Apr 2011  

Christopher K. Penny

Carleton University

Date Written: 2009

Abstract

The definition of ‘terrorist activity’ is fundamental to Canada’s anti-terrorism legislation. Following the recent trial of Momin Khawaja before the Ontario Superior Court of Justice, it is clear that the ‘armed conflict’ exclusion – exempting wartime activities undertaken in accordance with international law – poses serious challenges to the coherence of this legislative regime, threatening the effectiveness of future domestic terrorism prosecutions. This article examines the ‘armed conflict’ exclusion and its judicial treatment in Khawaja, identifying key challenges and making specific recommendations to address them. Coupled with other issues arising from the ‘armed conflict’ exclusion, Khawaja serves to highlight a clear and pressing need for amendment of the statutory definition of ‘terrorist activity.’

Suggested Citation

Penny, Christopher K., De-Conflicting Canada’s Anti-Terrorism Legislation: Khawaja and the Ongoing Challenges of the 'Armed Conflict' Exclusion (2009). Windsor Yearbook of Access to Justice, Vol. 27, No. 2, p. 403, 2009. Available at SSRN: https://ssrn.com/abstract=1817802

Christopher K. Penny (Contact Author)

Carleton University ( email )

1125 colonel By Drive
Ottawa, Ontario K1S 5B6
Canada

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