R. v. Khawaja: At the Limits of Fundamental Justice
Supreme Court Law Review (2013), 63 S.C.L.R. (2d), 403-416
14 Pages Posted: 22 May 2015
Date Written: 2012
In R. v. Khawaja, the Supreme Court of Canada rejected a number of constitutional challenges to the terrorism offences in the Criminal Code. This paper focuses on the claim that the “participating or contributing” offence in section 83.18 was contrary to the principles of fundamental justice because it was overbroad or grossly disproportionate. The Court held that the purpose of the offence was to facilitate the prosecution and prevention of terrorism, without punishing conduct that was “innocent, socially useful or casual” or performed for a “valid reason”. In light of this purpose, the Court interpreted both the mens rea and the actus reus of the offence narrowly. As stated in the statute, the mens rea required proof not just of knowledge but also of a purpose to enhance the ability of a terrorist group to carry out its activity; but in some tension with the wording of the statute, the actus reus required proof of participation or contribution that is material or beyond de minimis. With this interpretation in hand, the Court readily rejected the claim that the offence was overbroad. The Court also rejected the disproportionality claim, in effect refusing to constitutionalize a norm against remoteness in the definition of criminal offences. This response to the section 7 claims in Khawaja illustrates two trends in recent Charter jurisprudence: the Court’s willingness to interpret statutes, rather than striking them down, so as to control the scope of criminal liability, and the Court’s reluctance to recognize new principles of fundamental justice.
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