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14 February 2019

The Evolving Common Law Jurisprudence Combatting the Threat of Terrorism in the United Kingdom, United States, and Canada

Head of McLaughlin College, Associate Professor, School of Public Policy and Administration, York University, 224 McLaughlin College, 4700 Keele Street, Toronto, ON M3J 1P3, Canada
Laws2019, 8(1), 5;https://doi.org/10.3390/laws8010005
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Abstract

Terrorism is a concept that defies a simple and straightforward legal definition. Therefore, it is not surprising to find that there is no Comprehensive Convention on Terrorism with a universally accepted definition of what constitutes “terrorism.” Consequently, States have devised their own definitions of what constitutes terrorism that are typically found in their criminal law. This raises the fundamental question of whether there is a convergence or divergence in jurisprudential trends on what constitutes terrorism among States? Presumably, a convergence in jurisprudential trends is more likely to contribute to combatting the threat of terrorism at the international and national levels. Accordingly, this article comparatively analyzes the definition of terrorism in three common law jurisdictions: the United Kingdom, the United States, and Canada. It finds that although there are a number of similarities in the definition of terrorism in these three States, they have significantly different definitions of what constitutes terrorism. The UK definition, ostensibly, has the broadest definition of terrorism of the three States. The US has, undoubtedly, the most unique, with separate definitions for “international terrorism” and “domestic terrorism.” Additionally, Canada has the most international definition of terrorism, drawing on 13 functional terrorism Conventions to define offenses such as hijacking, hostage taking, and bombing, etc. The second part of the article comparatively analyzes seven of the leading Supreme Court cases on terrorism in these three States. From the ratio or rationes decidendi in each of these cases, it draws out the twelve legal principles that underlie these judgements and finds that they are similar and overall consistent. The conclusion reached is that there is, at least in these three common law jurisdictions, an apparent convergence in jurisprudential trends in the law of terrorism. This augurs well for the development and emergence of a common definition of what constitutes terrorism at the international and transnational levels, as well as more rigorous and effective counter-terrorism laws and policies within and across States.

1. Introduction

Terrorism is a concept that defies a simple and straightforward legal definition. This is perhaps most evident from the voluminous legal literature on terrorism.1 Ben Saul has noted that “Few words are plagued by so much indeterminacy, subjectivity, and political disagreement as ‘terror’, ‘terrorize’, ‘terrorism’, and ‘terrorist’.”2 The famous aphorism that “one person’s terrorist is another person’s freedom fighter,” encapsulates the essence of defining what is inherently perceived to be the fundamental “political” nature of terrorism. Therefore, it is not surprising to find that there is no universally accepted definition of terrorism and that States have devised their own definitions of terrorism that are typically found in their criminal law. The importance and relevance of developing a common definition for what constitutes terrorism should be self-evident.3 Legal principle demands that there be certainty in the law with respect to crimes and their penalties. There should be no doubt or ambiguity with respect to what constitutes a crime of terrorism, prior to its alleged commission.
Human history has amply demonstrated that the use of extreme violence, in the form of terrorism, to advance any cause, no matter how seemingly meritorious, noble, or necessary, is not only highly devastating and destructive, but diminishes and undermines the very ends that it seeks to achieve.4 The use of terrorism, in any of its variants, such as State-sponsored terrorism, religious terrorism, right or left-wing terrorism, and cyberterrorism,5 is morally wrong and condemns all those who espouse and/or practice it.6
The absence of a comprehensive and universal definition of terrorism has made it more difficult to undertake effective counter-terrorism strategies and policies at both the international and transnational levels.7 The development of a consensus of what terrorism is and how it ought to be defined is essential to combatting terrorism in all its manifestations.8
Various criticisms have been levelled at States for having legislated vague and over-broad definitions of terrorism. The attendant effect could lead to an “abuse of power” by the State.9 The way that the term terrorism is defined can have “a vital effect in determining the overall scope and application of an anti-terrorism law regime.”10 The legislative basis on how the term “terrorism” is defined affects how the courts will apply and interpret the term to the factual situation of any case before them. In common law jurisdictions, it is both the statute and the court’s interpretation of the statute that shape the law at any given time.
Accordingly, this article will first examine and comparatively analyze the manner in which the term terrorism is defined in the most recent relevant legislation within three common law jurisdictions: the United Kingdom (UK), the United States (US), and Canada. This will be followed with an examination of some of the most recent and relevant jurisprudence on the issue of terrorism by the Supreme Courts (SCs) of these leading common law jurisdictions. This is important and relevant because the SCs in each of these jurisdictions deal exclusively with the most pertinent and significant constitutional law issues that need to be resolved with respect to any legal matters arising within their court systems or that may be referenced to them by their Governments. Given the principle of stare decisis11, the judgements of the SCs, in these common law jurisdictions, will determine how the law will be applied and interpreted by the lower courts and administrations within their States.
These three States have been selected not only because their legal systems are based on common law, but also because they all share common histories, cultures, and traditions. Not only are these countries close allies and partners in trade and commerce, but Canada and the United States originated as colonies of Great Britain and, as a consequence, the three share many similarities.12 However, there are, of course, also important and significant differences. For example, the United Kingdom has a unitary parliamentary system of government without a codified constitution, whereas both Canada and the United States have federal parliamentary and congressional systems of government with written constitutions and with an entrenched Charter or Bills of Rights.
Geographically, of course, Canada and the United States are contiguous, sharing the world’s longest undefended border, while the United Kingdom is within relative close proximity and together they constitute the famous North Atlantic Triangle.13 Hence, given all the commonalities and similarities, what impacts one of these countries will affect, inevitably, the others. This should help to facilitate the comparative legal analysis across jurisdictions, as well as provide greater confidence on any conclusions that are drawn from the findings of this comparative legal analysis. For the purposes of this article, it is important to stress that the judgements of the respective Supreme Courts are closely followed and, as a consequence, influence each other’s judgements.14
The main argument presented is that despite the differences in the way terrorism is legally defined in these three jurisdictions, there is a common legal understanding of what constitutes terrorism and that the legal principles emerging from some of the leading terrorism jurisprudence are, overall, rather similar and consistent, which indicates that there appears to be a convergence in the criminal law on terrorism across these three States. This indicates that there is a greater potential for more consistent and effective counter-terrorism laws and policies across these three jurisdictions.
The main argument is presented in four parts. The first examines and comparatively analyzes the legal definitions of terrorism in the UK, the US, and Canada. The second examines and comparatively analyzes some of the superior courts’ leading cases dealing with the definition and other aspects of terrorism in these three jurisdictions. The third part comparatively analyzes the principles of law that emerge from the ratio decidendi or the rationes decidendi of the seven terrorism judgements, employing two cases each from the UK and the US and three cases from Canada, and finds that they appear to comprise a coherent whole that points to a convergence of the criminal law on terrorism among these three States. (See Appendix A for the list of cases that are considered for each jurisdiction.) The article concludes with some reflections on the definition and the development of the criminal law on terrorism across these three jurisdictions. It also argues that these findings suggest that there is common ground, at least among these three States, for the development of a comprehensive universal definition of what constitutes terrorism on both an international and transnational law basis. Moreover, it augurs well for the development of more rigorous and effective counter-terrorism strategies and policies to combat terrorism, at least across these three States.

3. The Leading Jurisprudence on Terrorism in the United Kingdom, the United States, and Canada

3.1. Introduction

This section of the article will analyze some of the recent leading jurisprudence on terrorism in the UK, the US, and Canada. It will do so by examining how the SCs in each of these jurisdictions have applied and interpreted the relevant statutes that define terrorism to discern how these final courts of appeal have addressed the constitutional issues involved in these leading terrorism cases. This section of the dissertation will examine how the respective SCs have dealt with some of the leading terrorism cases within each of their jurisdictions.
The cases for the jurisprudential analysis were selected on the basis that they dealt with some aspect of terrorism that was relevant to the definition of terrorism in the Criminal Codes and statutes in these jurisdictions. Seven current cases were selected for jurisprudential analysis for this study: two each from the UK and US and three from Canada. Three cases were selected for Canada because the Supreme of Canada provided a definition of terrorism in Suresh69, one of the Canadian cases analyzed below, that is still being applied in immigration and refugee law in Canada, in addition to the definition of terrorism found in the Canadian Criminal Code, which is the subject of the other two Canadian cases presented herein.70 The cases do not purport to be representative of all of the cases that have dealt with terrorism or some aspects of terrorism within these jurisdictions. The respective SCs select the cases that are granted leave to appeal with great care and only if the case deals with important constitutional issues that need to be resolved. In that sense, then, each of the cases that are accepted for judicial review by each of these SCs is quite different and unique. The cases differ on the facts, the legal issues, and the constitutional questions that need to be resolved and/or decided. Accordingly, there is no pretense that these cases are representative samples of the terrorism cases that appear before the SCs in each of these jurisdictions or across these three jurisdictions. Nonetheless, a jurisprudential analysis of these seven cases should allow for some meaningful conclusions with respect to the manner in which the law of terrorism is applied and interpreted in these three States and most importantly, whether the jurisprudential trend is towards convergence or divergence on the law of terrorism. A divergence in jurisprudential trends with respect to the definition of what constitutes terrorism, as noted previously, would not auger well for robust and effective counter-terrorism strategies and policies across these three jurisdictions. In an ever globalized environment, with the attendant emergence of the threat of international terrorism, the necessity for consistent and collaborative legal effort becomes ever more evident.

3.2. The Leading UK Jurisprudence on Terrorism

The two cases selected from the UKSC are R v Gul and Beghal v Director of Public Prosecutions. The first case dealt directly with the definition of terrorism in the Terrorism Act 2000 and the second case dealt with Schedule 7 of the Terrorism Act that gives immigration and border officials the right to stop and question a person at the border and ports of entry who they suspect may be involved in terrorism. In both cases, the UKSC upheld the legislation as constitutional and not in breach of the European Convention of Human Rights (ECHR).

3.2.1. R v Gul

In R v Gul71, the UK Supreme Court addressed the issue of the meaning of “terrorism” in section 1 of the UK Terrorism Act 2000. The case involved a British national who was born in Libya. In 2009, the police exercised a search warrant on his home and found videos on his computer that depicted attacks by Al-Qaeda and the Taliban and other proscribed groups on military targets in Chechnya and on Coalition Forces in Iraq and Afghanistan; the use of improvised explosive devices (IEDs) against Coalition Forces; excerpts from “martyrdom videos”; and clips of attacks on civilians, including the 9/11 attacks on New York City. The appellant was charged, prosecuted, and convicted on five of six counts for committing an offence under section 2(1) of the Terrorism Act of 2006 for distributing or circulating “a terrorist publication.”72 He was then sentenced to five years, with appropriate time spent in remand.73
On appeal, the Court of Appeal certified the following question of general public importance:
Does the definition of terrorism in section 1 of the Terrorism Act 2000 operate so as to include within its scope any or all military attacks by a non-state armed group against any or all state or intergovernmental organisation armed forces in the context of a non-international armed conflict?74
The Court of Appeal answered the certified question in the affirmative, rejected all other grounds to appeal, and upheld the judge’s sentence. The appellant’s appeal to the UKSC was based on the argument that its answer to the certified question should be in the negative.75
The UK Supreme Court duly acknowledged the Court of Appeal’s judgement that the definition of terrorism, in the 2000 Terrorism Act, is “comprehensive” in scope and “broad” in nature.76 Under the Act, the definition of terrorism can be broken down into three strands: the first is the “use or threat of action,” inside or outside the UK, where that threat to action consists of “serious violence,” “serious property damage” or creating a serious risk to public safety or health.77 The use or threat of violence must be designed “to influence government (the UK or any other country), or an international governmental organization (IGO) or to intimidate the public.”78 Furthermore, the use or threat of action is “made for the purposes of advancing a political, religious, racial or ideological cause,”79
The Court made the point that “the definition of terrorism in section 1 in the 2000 Act is, at least when read in its natural sense, very far reaching indeed.”80 However, this is tempered by the fact that section 117 calls for any prosecution under the 2000 Terrorism Act to require the consent of the Director of Public Prosecutions (DPP), or, if the activities under consideration occurred abroad, then the consent of the Attorney General.81
The appellant contended “terrorism” ought to be given a meaning in statutes that accords with international norms and with the definition that is found in the relevant international instruments. It was further argued that the 2000 and the 2006 Acts criminalize certain “terrorist” actions that are committed outside the UK; accordingly, the meaning of “terrorism” in those statutes should not be wider than is accepted by international norms.82
The UK Supreme Court noted that the common obstacle that both of the appellants’ arguments face is that there are no accepted international law norms as to what constitutes terrorism. The Court cited its judgement in Al-Sirri v. Secretary of State for the Home Department (United Nations High Commissioner for Refugees intervening) [2013] 1 AC 745, para 37, “’there is as yet no internationally agreed definition of terrorism’ and ‘no comprehensive international Convention binding Member States to take action against it’.”83
The UK Supreme Court pointed out that in its Al-Sirri judgement, an attack on the International Security Assistance Force in Afghanistan could be seen as an act contrary to the purposes and principles of the United Nations and that such an attack, therefore, could constitute an act of terrorism.84 Further, there have been UN resolutions referring to the activities of al-Qaida and the Taliban as “terrorism,” notwithstanding allegations that their acts involved insurgents attacking states and IGOs in non-international armed conflicts.85
The UK Supreme Court came to the decision that the answer to the certified question was “yes,” and, consequently, the appeal was dismissed.
Antonio Coco has noted that the UKSC, in R v. Gul, found “the terrorism definition in UK law to be both unwise and undesirable but then relied on it to confirm the defendant’s conviction.”86 Coco goes on to observe that
The definition is practically very broad … It seems to label as terrorist most acts of warfare in a NIAC, regardless of whether they are lawful or unlawful under International Humanitarian Law (IHL) and whether they are carried out by the armed forces of a State or by a non-State armed group. Indeed, most hostile acts in an armed conflict are likely to cause serious violence to persons or serious damage to property, and all of them are motivated by a political or ideological cause. Arguably, any hostile act in an armed conflict is designed to influence a government or involves the use of firearms or explosives. According to this definition, every person embracing weapons in a NIAC is considered a terrorist.
… Arguably, a definition of terrorist attacks in war-time—as ‘acts or threats of violence the primary purpose of which is to spread terror among the civilian population’—is envisaged by art. 51(2) of Additional Protocol I (AP I) to the Geneva Conventions and art. 13(2) of Additional Protocol II (AP II), both deemed to have reached customary status (See the ICRC Study on customary IHL, Rule 2).87
In essence, Coco appears to argue that the UKSC has acquiesced to the UK government’s broad definition of terrorism under its counterterrorism laws.
Alan Greene’s case note on R v Gul takes a more sanguine view of the judgement, which he argues provides, in its powerful obiter dictum, a refined definition of terrorism “without hampering the apparent ‘operational necessity’ for a broad malleable definition.”88

3.2.2. Beghal v Director of Public Prosecutions

Sylvie Beghal was married to Djamel Beghal, who was being prosecuted on terrorism charges in France, at the time this case was being decided at the UK Supreme Court.89 Mrs. Beghal was returning from Paris, France, with her three children after visiting her husband, and while passing through East Midlands Airport on January 4, 2011, she was stopped and questioned by the authorities under Schedule 7 of the Terrorism Act 2000. Persons who are stopped for questioning under the Act are required to answer questions put to them by police officers, immigration officers, and customs officers.90 Mrs. Beghal was questioned by the authorities for less than half an hour and she refused to answer most of the questions put to her.91 She was charged with the offense under the Act of willful failure to comply with the requirement to answer questions.92 Following an unsuccessful application of stay of proceedings before a District Judge, on the grounds of an abuse of process, she pleaded guilty and was sentenced to a conditional discharge.93 Nonetheless, she appealed her conviction on the grounds that Schedule 7 of the Terrorism Act 2000 was contrary to the ECHR, especially, Article 8 (right to respect for family and private life), Article 5 (right to liberty), and Article 6 (privilege against self-incrimination).
The majority judgement of the Court begins with the relevant statutory provisions of the 2000 Terrorism Act:
4. The statutory purpose for which the questions may be asked is thus for determining whether the person questioned appears to fall within section 40(1)(b). That in turn defines “terrorist” for the purposes of the Act, and does so in these terms:
(1)
In this Part ‘terrorist’ means a person who—
(a)
has committed an offence under any of sections 11, 12, 15 to 18, 54 and 56 to 63, or
(b)
is or has been concerned in the commission, preparation or instigation of acts of terrorism.
5. “Terrorism” is defined for the purposes of the Act in section 1. Shorn of inessential detail it means the use or threat of action which meets all of three conditions: (1) it must be done for the purpose of advancing a political, religious, racial or ideological cause, (2) it must be designed to influence the government or an international governmental organisation or to intimidate the public and (3) it must involve serious violence to a person or to property, danger to life or serious risk to public health or the risk of serous interference with an electronic system. “Acts of terrorism” are therefore to be construed as acts or omissions having these characteristics.94
The Court goes on to remark that Schedule 7 of the Terrorism Act 2000 creates the power for the authorities to stop and question people who are passing through ports and borders to detect terrorists or those who “have been concerned in the commission, preparation or instigation of acts of terrorism.”95 If the person willfully fails to comply with the obligations of Schedule 7, then they may be subject to conviction of an offense that could result in a fine and/or an imprisonment of up to three months.96
“(1) A person commits an offence if he—
(a)
willfully fails to comply with a duty imposed under or by virtue of this Schedule;
(b)
willfully contravenes a prohibition imposed under or by virtue of this Schedule; or
(c)
willfully obstructs, or seeks to frustrate, a search or examination under or by virtue of this Schedule.”97
It is important and relevant to note two things. The first is that there is a Code of Practice that is available publicly, for all those who exercise authority under Schedule 7 of the 2000 Terrorism Act.98 Additionally, the second is that the officers’ power of questioning under Schedule 7 is separate from the general power to arrest, detain, and question persons who are reasonably expected of having committed an offense, and, in the context of terrorism, from the specific power to arrest on reasonable suspicion of having been concerned in the commission, preparation, or instigation of an act of terrorism.99
The test for determining whether Schedule 7 interferes with Articles 8, 5, and 6 of the ECHR is whether it is: (1) in accordance with the law; and, (2) a proportionate means to a legitimate end.100 On the question of legality, the Court notes that “there must be a lawful domestic basis for it, that this law must be adequately accessible to the public and that its operation must be sufficiently foreseeable, so that people who are subject to it can regulate their conduct.”101 However, the law must go beyond this “to contain sufficient safeguards to avoid the risk that power will be arbitrarily exercised and thus that unjustified interference with a fundamental right will occur.”102 The Court positively cites Lord Reed in the R(T) judgement, who noted that to satisfy the test of “legality there must be sufficient safeguards in place to demonstrate that the State has properly addressed the issue of proportionality of any interference and enabled it to be examined in a particular instance.”103 Nevertheless, legality is distinct from proportionality and is a prior test which is designed to ensure that interference with a Convention right is proportional.104
The Court concluded that there are sufficient effective safeguards in the manner of operation to meet the requirements of legality.105 A list of ten of these safeguards is provided by way of illustration.106 It asserts that the principle of legality is satisfied for Schedule 7 port questioning power and that the “need for safeguards by the quality of intrusion into individual liberty and the risk of arbitrary misuse of the power.”107 It observes that there are sufficient safeguards against the use of arbitrary power and there are effective controls via judicial review and the Independent Reviewer to provide a corrective if it should occur.108
With regard to proportionality, the Court relies on Lord Sumption’s formulation of proportionality in four questions, as found in Bank Mellat v HM Treasury (No 2) [2013] UKSC 39; [2014] AC 700, 770–771, para 20.109 The four questions are as follows:
(i)
is the objective sufficiently important to justify limitation upon a fundamental right?
(ii)
is the measure rationally connected to the objective?
(iii)
could a less intrusive measure have been adopted? and,
(iv)
has a fair balance been struck between individual rights and the interests of the community?110
As to question one above, the Court stated that the objective of Schedule 7 “is clearly not border control per se but rather the prevention and detection of terrorism.”111 It is plainly evident, the Court observes, that the power of questioning and search is rationally connected to the objective. With respect to questions (iii) and (iv) above, the Court notes that there is a plain rational reason for connecting questioning and search that is aimed at the prevention and detection of terrorism with border controls.112
The Court also stresses the value of the questioning and search power at the port of entry/exit to be a valuable intelligence gathering tool that would be lost with a system based on suspicion on reasonable grounds.113 It therefore finds that the port questioning and search powers represent a fair balance between the rights of the individual and the interests of the community at large and do not breach Article 8 of the ECHR.114
On the question of whether a breach of Article 5 of the ECHR had taken place due to the appellant’s detention, the Court ruled that her deprivation of liberty was for no longer than necessary for the completion of the process and there was no requirement for her to attend a police station. Consequently, there was no breach of Article 5.115
In Sean O’Bierne’s case comment on Beghal v. DPP, he notes that David Anderson, QC, the Independent Reviewer for the Terrorism Legislation in the UK, raised the following concerns regarding Schedule 7 of the Terrorism Act 2000:
  • the fact that no suspicion is required for the exercise of most Schedule 7 powers;
  • the fact that answers given under compulsion are not expressly rendered inadmissible in criminal proceedings; and
  • the need for clear and proportionate rules governing the data taken from electronic devices.116
At present, there are no provisions planned to address these particular concerns regarding the application of Schedule 7.
The case has gone to the European Court of Human Rights, where the applicant claims that the exercise of Schedule 7 powers breached her rights under Articles 5, 6, and 8 of the ECHR.117

3.3. Some US Jurisprudence on Terrorism

The two cases selected from the US Supreme Court are Hamdan v. Rumsfeld and the Holder v. Humanitarian Law Project. In Hamdan v. Rumsfeld, the accused was charged with “conspiracy.” USSC found, in a five to three judgement, that there was no such charge under International Humanitarian Law and it went on to strike down the legality of the Military Commissions that were established by the Bush Administration to try the detainees that were held at Guantanamo Bay, the so-called “enemy combatants.” The USSC ruled that the Military Commission violated the detained suspects’ rights under the Geneva Conventions and the US Code of Military Justice. This was, undoubtedly, one of the most important judgements ever rendered by the USSC based virtually entirely under international law.118 In the Holder v. Humanitarian Law Project, the USSC ruled that the material support bar against terrorism did not violate the US Bill of Rights.

3.3.1. Hamdan v. Rumsfeld

This case involved a Yemeni national, Salim Ahmed Hamdan, who was held in the US prison at Guantanamo Bay, Cuba. He was captured initially by militia forces in Afghanistan in November 2001 and turned over to the US military and in June 2002, he was transferred to Guantanamo Bay.119 He was deemed eligible to be tried on unspecified charges by military commission by the US President over a year later.120 Another year passed before he was eventually charged with “one count of conspiracy ‘to commit … offenses triable by military commission.’”121
Hamdan filed writs of habeas corpus and mandamus challenging the legal authority of the military commissions and the charges filed against him.122 He argued that the military commissions lack authority to try him for two principal reasons: (1) “neither the Congressional Act nor the common laws of war supports trial by this military commission for the crime of conspiracy,”123 which Hamdan argued, is not a violation of the laws of war; and, (2) “the procedures that the President has adopted to try him violate the most basic tenets of military and international law,”124 including the fundamental legal principle that the defendant is entitled to see and to hear the evidence against him.125
The background and context for this case are critical. The September 11, 2001, terrorist attacks on the US mainland, the worst terrorist attacks in modern history, were precipitated by agents of al-Qaeda. The US Supreme Court notes that, “Americans will never forget the devastation wrought by these attacks.”126 The response of the US Government was swift and thorough. Congress passed a Joint Resolution calling on the President to “’use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks … in order to prevent any future acts of terrorism against the United States by such nations, organizations or persons.’”127 After determining that the Taliban regime in Afghanistan supported al-Qaeda, the President ordered the Armed Forces of the United States to invade Afghanistan.128 Hamdan was one of hundreds of individuals who were captured and eventually detained at Guantanamo Bay.
The USSC points out that none of the alleged acts that Hamdan was charged with took place on any specific date after September 2001 or in a Theatre of War.129 Nor did any of the acts that he was alleged to have committed violate the laws of war.130 All of this clearly casts doubt on the legality of the charges laid and, indeed, the military commissions.131 However, the most serious defect in the charges laid, the Court notes, is the alleged offence is not triable by a law-of-war military commission.132 Congress has not identified “conspiracy” as a war crime. This crime does not appear, the Court states, in either the Geneva Conventions or the Hague Conventions.133
The Court ruled that the military commission lacks the authority to try Hamdan. It further noted that the procedures that were adopted to try Hamdan are not consistent with those governing court-martial and their deviation is not justified through any evidence of practical necessity and, therefore, fail to afford the requisite guarantees.134 Moreover, the Court notes that provisions of the military commission dispense with the principles in Article 75 of Protocol I of 1977 of the Geneva Conventions of 1949 and that are part of customary international law and stipulate that an accused must be, absent of disruptive behavior, present for their trial and to hear the evidence against him/her.135
In essence, the Court ruled that the military commission convened to try Hamdan does not conform to the requirements of Common Article 3 of the Geneva Conventions of 1949.136 Ultimately, the Supreme Court simply stated that “the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.”137

3.3.2. Holder v. Humanitarian Law Project

In the Holder v. Humanitarian Law Project,138 the United States Supreme Court, in a six to three majority judgement delivered by Chief Justice John Roberts, decided on the constitutional validity of the 18 U. S. C. §2339B, which makes it a federal crime to “knowingly provid[e] material support or resources to a foreign terrorist organization.”139 The justification for the prohibition on the provision of “material support or resources” to specified foreign terrorist organizations is that they “are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct.”140 The plaintiffs in this matter argued that the statute was too vague and violated the Fifth Amendment, the right to due process, the double jeopardy prohibition, and not having to testify against one’s self, etc., and that it also violated the First Amendment in relation to freedom of speech and association.141
In 1997, the US Secretary of State designated the Kurdistan Workers’ Party, the Partiya Karkeran Kurdistan or PKK, the Liberation Tigers of Tamil Eelam (LTTE), and 28 other organizations, as foreign terrorist organizations.142 The plaintiffs filed a law suit in federal court in 1998 challenging the constitutionality of the material-support statute, §2339B, on the grounds that they wanted “to provide support for the humanitarian and political activities of the PKK and the LTTE in the form of monetary contributions, other tangible aid, legal training, and political advocacy,”143 but they were prohibited from doing so for fear of prosecution under §2339B. The plaintiffs claimed that the statute was unconstitutional because it violated their rights under the First Amendment, freedom of speech, and freedom of association, by criminalizing their material provision of support to the PKK and LTTE without requiring the Government to prove that the plaintiffs had a specific intent to further the unlawful ends of these organizations.144 The plaintiffs also argued that the statute was too vague and, hence, unconstitutional.145
Ultimately, on the question of material support, the Supreme Court states that it is meant to “promot[e] peaceable, lawful conduct … can [in fact] further terrorism by foreign groups in multiple ways.”146 The point was made that such “support frees up other resources within the organization that may be put to violent ends.”147 It can also add legitimacy to foreign terrorist groups that “makes it easier for those groups to persist, to recruit members, and to raise funds—all of which facilitate more terrorist attacks.”148 Further, the evidence presented indicates that “terrorist groups systematically conceal their activities behind charitable, social, and political fronts.”149 Moreover, there is evidence that indicates that the PKK and the LTTE, especially, have not respected the line between humanitarian and violent activities.150
The US Supreme Court also considered the foreign policy implications and the international counter-terrorism efforts of the material-support statute and stated that providing foreign terrorist groups with material support in any form also furthers terrorism by straining the United States’ relationships with its allies and undermining cooperative efforts between nations to prevent terrorist attacks.151
It goes on to cite a US State Department report that states, “’[t]he experience and analysis of US government agencies charged with combating terrorism strongly suppor[t]’ Congress’s finding that all contributions to foreign terrorist organizations further their terrorism.”152 Specifically, with respect to the kind of support that the plaintiffs wish to provide the PKK and LTTE, training to use humanitarian and international law to resolve disputes peacefully; to instruct PKK members how to petition various representative bodies such as the United Nations for relief; and to engage in political advocacy on behalf of Kurds in Turkey and Tamils in Sri Lanka.153 The Supreme Court ruled that “prohibiting the particular forms of support that plaintiffs seek to provide to foreign terrorist groups, §2339B, does not violate the freedom of speech.”154

3.3.3. Commentaries on Hamdan and the Humanitarian Law Project

With respect to the Hamdan v. Rumsfeld judgement, Glenn Greenwald has argued that the USSC ruled that in the absence of an emergency, the US Constitution requires that the President must comply with Congressional law, even in areas of national security.155 To underscore the point, he quotes Justice Breyer’s opinion that
Congress has denied the President the legislative authority to create military commissions of the kind at issue here. … Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine—through democratic means—how best to do so. The Constitution places its faith in those democratic means. Our Court today simply does the same.156
The US National Constitution Centre came to the conclusion that in the Hamdan v. Rumsfeld judgement,
Beyond stirring controversy around issues of executive action and the treatment of suspected terrorists, these cases [including Rasul v. Bush (2004), Bush v. Boumediene (2008)], raise integral questions about just how far the reach of constitutional protection should extend. Even more pertinently, they highlight the unavoidable and constantly developing conflict between the preservation of national security and the guarantee of constitutional rights—a conflict that will likely never cease.157
The Holder v. Humanitarian Law Project judgement was the first ever challenge of the US Patriot Act at the USSC that examined the “overbroad scope of the prohibition of ‘material support’ to listed terrorist organizations, which effectively criminalized peacebuilding programs of US organizations in conflict zones around the world.”158 David D. Cole, who was the lawyer for the plaintiffs with the Center of Constitutional Rights, stated that “This decision basically says that the First Amendment allows making peacemaking and human rights advocacy a crime.”159
Thus, the Hamdan v. Rumsfeld USSC judgement was celebrated as a major victory for the protection of the rule of law and the constitutional protection of fundamental human rights of those accused of serious crimes in times of armed conflict, while the Holder v. Humanitarian Law Project was roundly criticized for limiting the freedom of speech and criminalizing constructive peacemaking efforts and human rights advocacy.

3.4. The Leading Canadian Jurisprudence on Terrorism

The three judgements selected from the SCC were Suresh, Application under s. 83.28 of the Criminal Code, and Khawaja. In Suresh, the SCC found that the relevant sections of the Immigration Act did not violate the Canadian Charter of Rights and Freedoms and the terms “danger to the security of Canada” and “terrorism” were not constitutionally vague. In Application under s. 83.28 of the Criminal Code, the SCC determined that the Investigative Hearing was constitutionally valid and that it did not infringe on the independence and impartiality of the judiciary. In the important SCC judgement in Khawaja, it not only upheld the definition of terrorism in the Canadian Criminal Code as not being constitutionally vague or overly broad, but also found that it did not infringe on Sections 7 and 2 of the Canadian Charter of Rights and Freedoms. In all three of these high profile terrorism cases, the SCC upheld and endorsed the Canadian government’s anti-terrorism legislation and policies.

3.4.1. Suresh v. Canada (Minister of Citizenship and Immigration)

Manickavasagam Suresh, a Sri Lankan Tamil, arrived in Canada in 1990 and was recognized as a Convention refugee in 1991.160 In 1995, he was detained by the authorities on the grounds that he was a fundraiser and member of the Liberation Tigers of Tamil Eelam (LTTE), an organization known to be engaged in terrorist activities. The government started proceedings to deport him and he challenged the order for his deportation on various grounds of substance and procedure.
The Supreme Court of Canada laid out the issues in the following manner:
On the one hand stands the manifest evil of terrorism and the random and arbitrary taking of innocent lives, rippling out in an ever-widening spiral of loss and fear. Governments, expressing the will of the governed, need the legal tools to effectively meet this challenge.
On the other hand stands the need to ensure that those legal tools do not undermine values that are fundamental to our democratic society—liberty, the rule of law, and the principles of fundamental justice—values that lie at the heart of the Canadian constitutional order and the international instruments that Canada has signed. In the end, it would be a Pyrrhic victory if terrorism were defeated at the cost of sacrificing our commitment to those values. Parliament’s challenge is to draft laws that effectively combat terrorism and conform to the requirements of our Constitution and our international commitments.161
The Solicitor General and the Minister of Citizenship and Immigration filed a certificate under section 40.1 of the Immigration Act alleging that Suresh was inadmissible to Canada on security grounds.162 The section 40.1 certificate was based on the opinion of the Canadian Security Intelligence Service (CSIS) that Suresh is a member of the LTTE that is engaged in terrorist activity in Sri Lanka, and operates in Canada under the auspices of the “World Tamil Movement” (WTM).163
On September 17, 1997, the Minister notified Suresh that she was considering issuing an opinion that would declare him a danger to Canada under section 53(1)(b) of the Act. This section allows the Minister to deport a refugee on security grounds, even where a refugee’s “life or freedom” would be threaten upon return.164 On January 6, 1998, the Minister issued an opinion that Suresh constituted a danger to the security of Canada and should be deported pursuant to section 53(1)(b). He was not given a copy of the Immigration Officer’s, Citizenship and Immigration Canada, memorandum, nor was he given an opportunity to respond either orally or in writing.165 No reasons for the opinion were required under section 53(1)(b) and none were provided.166
Suresh appealed the Minister’s danger opinion to the Federal Court, arguing that it was unreasonable and unfair because the procedures under the Act did not require an oral hearing before an independent decision-maker. Moreover, the Act was unconstitutional because it violated sections 7 and 2 of the Charter.167 The Federal Court denied the appeal on all grounds. Suresh then appealed to the Federal Court of Appeal and his application was again dismissed.
The threshold question before the SCC in Suresh was whether there was a substantial risk of torture if he was deported to Sri Lanka.168 The Court notes that this is a “fact-driven question.”169 This requires the consideration of a number of factors, including: the human rights record of the home state; the personal risk faced by the claimant; any assurances that the home state gives that they will not torture the claimant and their worth; the ability of the home state to control its own security forces; and more.170 The Court opines that the Minister’s opinion as to whether Suresh faces a substantial risk of torture attracts deference by the reviewing Court.171 The reviewing Court cannot reweigh the factors considered by the Minister, but may intervene if the evidence does not support the opinion or fails to consider the appropriate factors.172
The central issue before the Supreme Court of Canada in Suresh was does the Immigration Act permit deportation to torture contrary to the Charter? Section 53 of the Act does permit deportation to a country where a person’s life and freedom may be threatened.173 The critical question is whether it violates section 7 of the Charter on rights to life, liberty, and security and, if so, whether it is in accordance with the principles of fundamental justice.174 If it is not in accordance with the principles of fundamental justice, then section 7 of the Charter is violated and, barring any justification under section 1 of the Charter, then deportation to torture is unconstitutional.175
The principles of fundamental justice are determined by a contextual approach that takes into consideration the nature of the decision to be made.176 It is, essentially, a matter of balancing and as the Court stated in United States v. Burns, [2001] 1 S.C.R. 283, 2001 SCC 7, it is inherent in the “balancing process that the outcome may well vary from case to case depending on the mix of contextual factors put in the balance.”177 Deportation to torture requires a careful consideration of a wide set of factors and the resulting balance struck will be dependent, at least in part, on the personal situation and circumstances of the potential deportee; the general circumstances, including the danger the potential deportee poses to Canadians and the security of Canada; and the threat of terrorism in Canada.178 The balance struck will vary from case to case.
As to the international perspective, the Court states, “A complete understanding of the Act and the Charter requires consideration of the international perspective.”179 However, the Court also acknowledges that treaty norms are not binding in Canada unless they have been incorporated in Canadian legislation. The Court, however, looks to international law not to discern Canada’s binding legal obligations but, rather, to discern the principles of fundamental justice.180 After a thorough review of the relevant international instruments, the Court concluded that “international law rejects deportation to torture, even when national security interests are at stake.”181 Hence, “barring extraordinary circumstances, deportation to torture will generally violate the principles of fundamental justice protected by section 7 of the Charter.”182
The central concern, according to the Court, is not the legislation, section 53(1)(b), that permits deportation to torture, and which the Court ruled was not in violation of section 7 of the Charter, but the Minister’s obligation to exercise the discretion of section 53(1)(b) in a constitutional manner.183
Suresh asserted that “danger to the security of Canada” was unconstitutional because it was vague. The Court ruled that “danger to the security of Canada” is not constitutionally vague and that a fair, large, and liberal interpretation in accordance with international norms be accorded to “danger to the security of Canada” in deportation legislation.184 However, returning a refugee to torture under section 53(1)(b) of the Act, the Court noted, requires evidence of a serious threat to national security: “To suggest that something less than serious threats founded on evidence would suffice to deport a refugee to torture would be to condone unconstitutional application of the Immigration Act.”185 The Court states that the threat must be “serious” in the sense that it should be grounded in “objectively reasonable suspicion based on evidence and in the sense that the threatened harm must be substantial rather than negligible.”186
Regarding the term “terrorism” found in section 19 of the Immigration Act, the Court ruled that the term provides a sufficient basis for adjudication and, hence, is not unconstitutionally vague.187 The Court acknowledged that the term “terrorism” is notoriously difficult to define and that they would not endeavor to do so in this decision.188 Nonetheless, the Court did conclude that even though the term is unsettled, this does not mean that they cannot set the proper boundaries of legal adjudication.189 The Court considers the International Convention for the Suppression of the Financing of Terrorism, GA Res. 54/109, December 9, 1999, which approaches the definitional problem in two ways to be suitable for the task: first, through a functional definition under Article 2(1)(a) that utilizes the definitions of terrorism that are found in nine treaties that cover a range of terrorist activities, such as aircraft hijackings, terrorist bombings, and so on; and, second, it supplements the offence-based list with a stipulative definition of terrorism found in Article 2(1)(b).190
Any … act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.191
The Court argued that this definition catches the essence of what the world understands to be terrorism.192 It is concluded that this definition is sufficiently certain under the Immigration Act to be workable, fair, and constitutional.193
Amnesty International, an intervenor in the Suresh case before the SCC, has argued that international law rejects deportation to torture and that Canada is bound under the norm of customary and conventional international law to the principle of non-refoulement.194 Amnesty International has argued that the SCC judgement is inconsistent with Canada’s absolute obligation under international law not to deport anyone to torture. Accordingly, Amnesty International has continued to advocate that Canada should amend its laws to bring them in line with its obligations under international law.195

3.4.2. Application under s. 83.28 of the Criminal Code (Re)

In Application under s. 83.28 of the Criminal Code (Re) 2004 SCC 42, the Supreme Court of Canada considered the constitutionality of the Investigative Hearing, s. 83.28 of the Criminal Code.196 This case is a companion to Vancouver Sun (Re), [2004] 2 S.C.R. 332, 2004 SCC 43 (the “media appeal”), which was released concurrently with Application under s. 83.28 of the Criminal Code (Re).197 This was the first case in which the SCC had to address the constitutional validity of the Anti-Terrorism Act 2001. It is important to point out that the Anti-Terrorism Act was a legislative response to the 9/11 terrorist attacks in the US and similar legislative responses that took place in the US and UK.198
The subject of this appeal dealt with the invocation of s. 83.29 Criminal Code provisions for conducting an Investigative Hearing relating to alleged acts of terrorism that took place on 23 June 1985. One was an explosion at Narita Airport in Japan that killed two baggage handlers and injured four others while baggage was being transferred to Air India Flight 301. The other was a second explosion that took place less than one hour later on board Air India Flight 182 that crashed off the west coast of Ireland that killed all 329 passengers and crew. These incidents were among the most deadly terrorist incidents in modern history and the Air India bombing was the worst terrorist attack involving an aircraft on record until the coordinated attacks that took place in the United States on 11 September 2001.199
On 6 May 2003, the Crown brought an ex parte application that the appellant attend an Investigative Hearings pursuant to s. 83.28 of the Criminal Code. The British Columbia Supreme Court granted the application and issued an order to gather information on the basis of an affidavit by a member of the RCMP Air India Task Force.200 The appellant sought leave to challenge the constitutional validity of s. 83.28 of the Criminal Code.
The Supreme Court considered five constitutional questions related to s. 83.28 and an additional three other issues related to the conduct of the Investigative Hearing.201 It began its analysis by considering the purpose of the legislation and came to the conclusion that it is the “prosecution and prevention of terrorist offenses.”202 The Supreme Court goes on to note that
At its core, s. 83.28 permits the investigation of terrorism offences, at both a pre- and post-charge stage through testimonial compulsion on the part of the named witness. Consequently, the purpose of the provision is to confer greater investigative powers upon the state in its investigation of terrorism offences.203
The Court identified two ambiguities in the legislation: the first is the role of counsel and the second is the threshold for relevance and admissibility.204 The Court further notes its preference is to take a broad purposive interpretative approach to s. 83.28, “which accords with the presumption of constitutional validity”, as required by the modern principle of statutory interpretation.205
The appellant contended that s. 83.28 violated their absolute right to silence and their right against self-incrimination.206 Here, the Supreme Court sees the role of the judge in an investigative hearing as pivotal. After underscoring the significance of the independence of the judiciary to Canadian law, the rule of law, and its constitutional foundations, the Court states,
The function of the judge in a judicial investigative hearing is not to act as “an agent of the state”, but rather, to protect the integrity of the investigation and, in particular, the interests of the named person vis-à-vis the state.207
Accordingly, the Court ruled that “A failure on the part of a hearing judge to exercise his and her discretion in this manner [to provide the witness with all of the constitutional guarantees of the Charter] will constitute a reviewable error.”208 In the companion Vancouver Sun (Re) case, the Supreme Court ruled that “judicial investigative hearings are to be held presumptively in open court and that the onus was on the Crown to rebut that presumption under the test laid out in Dagenais v. Canadian Broadcasting Corporation [1994] 3 S.C.R. 835, and R. v. Mentuck, [2001] 3 S.C.R. 442, 2001 SCC 76.”209 The presumptive openness of the judicial investigative hearings is a further shield for the independence and impartiality of the judiciary in these proceedings.
The majority opinion in this judgement ruled that the appeal was dismissed because s. 83.28 does not infringe on the Charter and does not infringe on the independence and impartiality of the judiciary.210 It is important to note that dissenting opinions of Justices Bastarache and Deschamps and of Justice Binnie were not on the constitutional validity or its possible compromise of judicial independence or impartiality; rather, it was differences of opinion on the necessity of the openness of the investigative hearing and whether the circumstances of the current appeal constituted an abuse of process.211
In a case note on Application under s. 83.28 of the Criminal Code (Re), Byron M. Sheldrick has argued that the investigative hearing raises a number of problematic issues.212 He has argued that “the judicial branch has been co-opted into the investigation of alleged terrorist offenses.”213 Sheldrick argues that even though there are some judicial safeguards in the legislation, they are rather slim and fall below the usual evidentiary and procedural standards normally applied by the courts.214
It is important to note that s. 83.28 of the Criminal Code was part of the sunset provisions of the Anti-Terrorism Act 2001 and expired on March 1, 2007, and was not renewed but was, subsequently, reintroduced in new legislation, Bill S-7, Combatting Terrorism Act, and passed in 2013.215
Kent Roach has argued that “charter-proofing” has become the standard operating procedure for the federal government.216 Roach has stated that,
The bells and whistles of Charter-proofing—judicial authorization, derivative and use of immunity and the right to counsel—may ensure the provision of investigative hearings is not struck down by the Charter, but it does not remove the danger of abrogating the right of silence that potential suspects have long enjoyed in our adversarial system of criminal justice.217

3.4.3. R v. Khawaja

R. v. Khawaja218 and Sriskandarajah v. United States of America219 raised similar legal issues with respect to the definition of terrorism on appeal and were heard conjointly by the Supreme Court of Canada. At trial, Khawaja claimed that several provisions of the Canadian Criminal Code were unconstitutional.220 The trial judge held that s. 83.01(1)(b)(i)(A), the “motive clause,” which states that a terrorist activity must be an act or omission committed in whole or in part “for a political, religious or ideological purpose, objective or cause,” was a prima facie infringement of s. 2(a), (b) and (d) of the Charter221, and that it could not be justified under s. 1 of its provisions.222 The Court of Appeal found that the trial judge had erred in finding that the motive clause was unconstitutional and stated that “expressive activity that takes the form of violence is not protected under s. 2(b) of the Charter, since violence is destructive of the very values that underlie the right to freedom of expression. For the same reason, threats of violence are not protected by s. 2(b).”223
The SCC considered the constitutionality of the s. 83.18 of the Criminal Code. The appellants challenged this provision on its vagueness and overbreadth. Writing the unanimous judgement for the Supreme Court, Chief Justice Beverley McLachlin opined that a principle of fundamental justice is that criminal laws cannot be overbroad. The appellants asserted that “the combined effect of the definition of terrorist activity (s. 83.01(1)) and the provisions prohibiting participation in terrorist activity (s. 83.18) result in overbreadth, by criminalizing conduct that creates no risk of harm and is only tenuously connected to Parliament’s objective of preventing terrorist activity.”224 “The appellants argue that the law is too broad because it is grossly disproportionate to the objective that it seeks to achieve.”225 Chief Justice McLachlin considered whether “overbreadth” and “grossly disproportionate” are distinct constitutional doctrines that breach the principles of fundamental justice, but she decided instead to consider them together, without deciding whether they are distinct constitutional doctrines.226 She applied a three point analysis in doing so, by: (1) examining the scope of the law; (2) determining the objectives of the law; and (3) asking whether the means selected by the law are broader than necessary to achieve the State’s objective and whether the impact of that law is grossly disproportionate to that objective.227 Chief Justice McLachlin notes that the purpose of the terrorism provisions of the Criminal Code is “’to provide a means by which terrorism can be prosecuted and prevented’ (Application under s. 83.28 of the Criminal Code (Re), at para 39)—not to punish individuals for innocent, socially useful or causal acts which absent any intent, indirectly contribute to a terrorist activity.”228 This requires a high mens rea threshold that includes the person knowingly participating in and contributing to a terrorist activity, but that their actions must be undertaken for the purposes of enhancing the ability of a terrorist group to facilitate or to carry out terrorist activity.229
The SCC ruled that the scope of the law under s. 83.18 was much narrower than claimed by the appellants and that it did not include “innocent or socially useful conduct that is undertaken absent any intent to enhance the abilities of a terrorist group to facilitate or to carry out a terrorist activity” or “for conduct that a reasonable person would not view as materially capable of enhancing the abilities of the terrorist group to facilitate or carry out a terrorist activity.”230
On the question of whether s. 83.18 of the terrorism provisions of the Criminal Code are broader than necessary or have a grossly disproportionate impact on the prosecution or prevention of terrorist activities, it is noted in the judgement that the actus reus does not include “conduct that a reasonable person would not view as capable of materially enhancing the abilities of a terrorist group to facilitate carrying out a terrorist act.”231 In addition, the high mens rea requirement that involves a “specific intent to enhance the abilities of a terrorist group to facilitate or carry out a terrorist activity”232 helps to ensure to those who are complicit in terrorist activities are found guilty under this provision of the Criminal Code. The Crown is required to prove both of these elements beyond reasonable doubt in order to secure a conviction of anyone charged under these provisions. Accordingly, the judgement reached was that when the “tailored reach of the section is weighed against the objective, it cannot be said that the selected means are broader than necessary or the impact of the section is disproportionate.”233 Indeed, the court rules that,
The criminalization under s. 83.18 of a broad range of interactions that have the potential to—and are intended to—materially enhance the abilities of terrorist groups is not grossly disproportionate nor overly broad in relation to the objective of prosecuting, and in particular, of preventing terrorism.234
Accordingly, the court concluded that s. 83.18 does not violate Section 7 of the Charter.
The appellant further asserted that the terrorism provisions of the Criminal Code infringe on s. 2 guarantees of freedom of expression, freedom of religion, and freedom of association in the Charter. The Supreme Court noted that a law may infringe on a right by either its purpose or its effect.235 The appellants contended that the terrorism legislation, by its very purpose, imposes limits on the s. 2 rights in the Charter.
However, the crucial point is that violent activities are not protected under s. 2(b) of the Charter.236 Although this was acknowledged by the appellants, they argued, nonetheless, that the violence exception should be construed narrowly to include only expressive activity that only involves violence.237 The SCC, in a series of previous cases, has taken the position that the violence exception under s. 2(b) also includes threats of violence. As the court noted in the Greater Vancouver Transportation Authority, “violent expression or threats of violence fall outside the scope of the s. 2(b) guarantee (para. 28 (emphasis added)).”238
The Supreme Court then considered whether the effect of the law violated freedom of expression. The appellants argued that the s. 83.01(1)(b)(i)(A), the “motive clause,” is unconstitutional on two grounds:
(1)
it has the effect of chilling the exercise of freedom of expression, freedom of religion, and freedom of association;
(2)
it would legitimize law enforcement action aimed at scrutinizing individuals based on their religious, political, and ideological beliefs.239
The trial judge accepted these arguments and severed the motive clause from the trial. However, the Court of Appeal disagreed and restored it. On the first point, Chief Justice McLachlin found that the appellants had not demonstrated that the motive clause had a chilling effect on the expression of religious or ideological views. The point was made that the trial judge’s finding that there was a chill in the expression of religious and ideological views was, the SCC found, a consequence of the “post-9/11” climate of suspicion, rather than from the motive clause in the terrorism legislation.240
The SCC observed further that a patently incorrect understanding of the terrorism provisions cannot be a basis for a finding of unconstitutionality.241 Furthermore, the Court also argued that police misconduct, such as profiling based on religion or ideology, is not a chill that is a result of the terrorism legislation.242 The Court goes so far as to state that “the impugned provision is clearly drafted in a manner that is respectful of diversity, as it allows for the non-violent expression of political, religious or ideological views.”243
In conclusion, the Supreme Court ruled that the impugned terrorism provisions within the Criminal Code do not infringe either s. 7 or s. 2 of the Charter.
Kirk Makin, justice reporter, for The Globe & Mail, Canada’s national newspaper, described the Khawaja judgement of the SCC in the following terms:
The landmark ruling means that an Islamic terrorist from Ottawa—Mohammed Momin Khawaja—will spend his life behind bars for aiding a violent jihadist group based in England.
It also paves the way for the extradition of two other Ontario men wanted in the U.S for helping acquire arms to be used by Sri Lankan terrorists.
The rulings were a vote of confidence for a contentious wave of legislation enacted following the Sept. 11 attacks in New York City.
The court issued its rulings on three terrorism-related cases simultaneously.
The appeals focused on free speech, religious freedom and the right of an individual to remain in the country and provided the final word on the constitutionality of key provisions in Canadian anti-terrorism laws.244

5. Conclusions

The current world trends indicate that terrorism is likely to be around for quite some time, despite the concerted efforts of the United Nations, the international community, and its’ member States. The United States has taken a lead role in this regard with both its “War on Terror” and, now, “Overseas Contingency Operations,” and with the support of its key allies, the UK and Canada.258 Indeed, current US President Donald Trump has stated that he intends to defeat “radical Islamic terrorism,” a highly emotive and politically charged phrase that others suggest is most unlikely, given the unconventional nature of terrorism.259 The immediate impact of the 9/11 terrorist attacks in the United States was the invasion of Afghanistan in 2001. The turmoil has continued ever since in the Middle East and, in fact, the situation has deteriorated, with the war in Syria becoming the world’s most deadly armed conflict. With the ongoing armed conflicts and instability in the Middle East, it is not surprising to find that this region has experienced the highest number of terrorist attacks over any other.260 However, the UK, the US, and Canada have also had to face terrorist incidents and, as a consequence, have had to respond to ensure that their societies remain safe and secure as much as is reasonably possible.
All three States have passed extensive legislation criminalizing terrorism, including defining what, in fact, constitutes the offense of terrorism. The definitions of terrorism are distinctive, but nonetheless, similar in some respects. The jurisprudence on terrorism in these three jurisdictions and, in particular, the legal principles derived from the ratio or rationes decidendi of these judgements, indicate that despite the definitional differences, there appears to be convergence with respect to the legal principles emerging from the jurisprudence.
A comparative analysis of the legal principles that emerge from the ratios of each of these respective Supreme Court judgements on terrorism reveals a wide range of principles of law that are, in some instances, particularly applicable to their own State’s legal system. What is most evident is that these legal principles are similar and, if taken as a whole, entirely consistent. Accordingly, these legal principles appear to indicate that there is a convergence and not a divergence in this critically important area of domestic criminal law. This augurs well for both transnational and international counter-terrorism strategies, laws, and policies because it indicates that what appears to be emerging is a common understanding of what constitutes terrorism, at least across these three major common law jurisdictions. Moreover, these findings and conclusions also lend support to the notion that what is emerging, not only among these common law States since 9/11, but, potentially internationally, is a consensus on what constitutes terrorism. This further suggests that a Comprehensive International Convention on terrorism may now be within reach.
Furthermore, what the seven terrorism cases presented and analyzed here demonstrate, essentially, is that the Justices of these respective Supreme Courts defer to their respective government to take the lead in the battle against terrorism. The Supreme Courts are conscious of ensuring that constitutional principles and that national and international laws are adhered to when their governments’ introduce and apply counter-terrorism measures to combat terrorism. Consequently, these Supreme Courts ensure that whatever measures their governments’ introduce are constitutionally sound and legally valid. This may be far from revelatory or original, but it is, nonetheless, reassuring given the concerns that the judiciary might fail to serve as the bulwark or defense of civil liberties, human rights, and human dignity, given the rising tide of the “fear of terrorism” over the last two decades.
The prosecution of terrorism cases is, of course, one of the counter-terrorism strategies. The Courts, at all instances, have had to be especially vigilant in ensuring that their governments do not exceed their legal and constitutional authority and that their citizens’ rights are ensured to the highest degree while their security is, at the same time, protected to the maximum degree possible. This is a fine balancing act that is entrusted to the final courts of appeal in these respective jurisdictions. Hopefully, this balance will be found and maintained despite the ongoing struggle against the terrorist onslaught in the world today.

Funding

This research received no external funding.

Conflicts of Interest

The author declares no conflict of interest.

Appendix A

Jurisprudence
Canada
Alam, Shamsul v. Minister of Citizenship and Immigration. (F.C. no. IMM-5226-17), Fothergill, 17 September 2018; 2018 FC 922,
Application under s. 83.28 of the Criminal Code (Re) 2004 SCC 42
Intisar v. Minister of Citizenship and Immigration Canada, (F. C. no. IMM-1627-18), Southcott, November 8, 2018, FC 1128,
R. v. Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555.
Rana R. Khan v Minister of Public Safety and Emergency Preparedness, (F.C. no. IMM-4223-17), Norris, October 29, 2018, FC 1080.
Sriskandarajah v. United States of America, 2012 SCC 70, [2012] 3 S.C.R.
Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1
United Kingdom
Beghal (Appellant) v Director of Public Prosecutions (Respondent) [2015] UKSC 49, p. 2, para 1 and 6, para 12.
R v Gul (appellant) [2013] UKSC 64.
United States
Hamdan v. Rumsfeld, 548 U.S. 557 (2006)
Holder v. Humanitarian Law Project, 561 U.S. 1 (2010), 130 S.Ct. 2705.

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1
Consider the following as examples: (; ; ). (); Nicholas J. Perry states that “The scholarly literature on terrorism is ‘vast and ever expanding.’” in ().
2
().
3
(; ).
4
(; ; ).
5
There are many different typologies of terrorism. Some examples include: (; ; ).
6
(); If murder is wrong and a criminal offense, then murdering people in a systematic campaign to generate shock, trauma, and fear to advance a particular cause is also wrong and must be, clearly, a criminal offense. ().
7
().
8
(; ).
9
().
10
Ibid.
11
().
12
(; ); For instance, for the close relationship between Canada and the United Kingdom, see, () Canada-United Kingdom Joint Declaration, A Strong Partnership for the 21st Century, 22nd of September 2011, Rt. Hon. Stephen Harper, MP, Prime Minister of Canada, and Rt. Hon. David Cameron, MP, Prime Minister of the United Kingdom of Great Britain and Northern Ireland, 2011.
13
(; ; ; ).
14
It is important to note that the Province of Quebec in Canada and the State of Louisiana in the United States have a civil law tradition as they were originally colonies of France. However, for this study, only federal/national jurisdictions will be considered for the purposes of this comparative legal analysis. The main difference between common law jurisdictions and civil law jurisdictions is primarily the importance of case law, in the form of published judicial opinions, in common law jurisdictions, and codified statutes, that predominate in civil law jurisdictions. See () The Robbins Collection, School of Law (Boalt Hall), University of California at Berkeley, The Common Law and Civil Law Traditions, undated.
15
() The Terrorism Act 2000 was amended in 2006 with the expansion of the number of offenses, penalties, and other miscellaneous provisions. However, there were only minor additions to the definition of terrorism in the Terrorism Act 2000 that are listed in section one, above, as F1 and F2. For the Terrorism Act 2006, see (). See also the Counter-Terrorism and Security Act, 2015 that includes further provisions regarding terrorism and additional amendments to the Terrorism Act 2000. ()
16
Ibid.
17
Ibid.
18
Ibid.
19
() Terrorism Act 2000, 2000 Chapter 11.
20
(). Proscription makes it a criminal offence to belong to or to profess to belong to a proscribed organization in the UK or overseas; invite support for a proscribed organization; arrange, manage, or assist in arranging or managing a meeting that is intended to support the activities of a proscribed organization; and to wear clothing or to carry or to display articles in public in such a way or in such circumstances as to arouse suspicion that the individual is a member of a prescribed organization. The penalties for proscription offenses are a maximum of 10 years in prison and/or a fine.
21
Ibid., p. 5.
22
().
23
().
24
(). It is important to point out that the States in the United States also have their own criminal codes. See (). This article will only examine the federal criminal code and its definition of terrorism and not those of the US States.
25
(). There are many other definitions of terrorism in US federal statutes, such as section 212 (a)(3)(B) of the Immigration and Naturalization Act (8 U.S.C. § 1182(a)(3)(B)), or as defined in section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989 (22 U.S.C. § 2656f(d)(2)). See also (). (). This study will only concentrate on the definition of terrorism that is found in Title 18 U.S. Code, Chapter 113B.
26
.
27
The phrase “or of any State” can be interpreted in a number of ways: all other States in the international community; the 50 States that comprise the United States of America; or, indeed, both. Either way, it encompasses a very broad and wide sweeping definition of what constitutes “terrorism”. If it includes all States in the world community, then it would include the UK and Canadian definitions of terrorism that are examined in detail in this article. However, it is generally understood to mean the 50 States of the USA. See ().
28
().
29
Ibid.
30
Ibid.
31
(; ).
32
(; ). This may not be the case in other jurisdictions. For instance, see ().
33
().
34
Ibid., Legal Ramifications of Designation.
35
Ibid.
36
Ibid., Other Effects of Designation.
37
().
38
(; ).
39
().
40
Ibid.
41
().
42
Ibid.
43
(), Part II-1-Terrorism, Section 83.01.
44
Ibid., Section 83.01(1).
45
Ibid., 83.01(1)(a)(i)-(x). There are, in fact, 19 international instruments that have been negotiated under the auspices of the UN that deal with terrorism. See ().
46
(), Part II-1-Terrorism, Section 83.01(1).
47
Ibid.
48
Ibid.
49
Ibid.
50
Ibid.
51
Ibid.
52
().
53
().
54
() Wherein Justice John Norris provides a detailed judicial review of the definition of terrorism in the Canadian Criminal Code and the Supreme Court of Canada’s 2002 Suresh judgement, and the definition of terrorism found there, as it relates to an inadmissibility case dealing with terrorism under section 34(1)(f) of the 2001 Immigration and Refugee Protection Act.
55
().
56
Ibid.
57
(; ; ).
58
().
59
().
60
(), Part II-1-Terrorism, Section 83.01.
61
().
62
(), Part II-1-Terrorism, Section 83.01.
63
().
64
Criminal Code (R.S.C, 1985, c. C-46), Part II-1—Terrorism, Section 83.01 (1)(a)(i) to (x).
65
().
66
(). Section (1)(b) is “the use or threat is designed to influence the government [F1 or an international governmental organisation] or to intimidate the public or a section of the public.”
67
(), Part II-1-Terrorism, Section 83.01.
68
In criminal law, an omission will only incur liability, and constitute an actus reus, when the law imposes a duty to act and a person fails to do so.
69
Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1.
70
See footnote 54 above and, in addition, Intisar v. Minister of Citizenship and Immigration Canada, (F. C. no. IMM-1627-18), Southcott, November 8, 2018, FC 1128, paragraph 12, page 6.
71
R v Gul (appellant) [2013] UKSC 64.
72
Ibid., pp. 2–3.
73
Ibid., p. 4, para 7.
74
Ibid., p. 4, para 8.
75
Ibid., p. 4, para 9.
76
Ibid., p. 11, para 26.
77
Ibid., pp. 11–12, para 27.
78
Ibid., p. 12, para 27.
79
Ibid.
80
Ibid., p. 12, para 29.
81
Ibid., p. 12, para 30.
82
Ibid., p. 16, para 43.
83
Ibid., p. 16, para 44.
84
Ibid., p. 18, para 49.
85
Ibid., p. 18, para 49.
86
().
87
Ibid.
88
().
89
Beghal v. France, ECtHR, Fifth Section, no. 27778/09, September 6, 2011. Complaint deemed inadmissible.
90
Beghal (Appellant) v Director of Public Prosecutions (Respondent) [2015] UKSC 49, p. 2, para 1 and 6, para 12.
91
Ibid.
92
Ibid., pp. 6–7, para 13.
93
Ibid.
94
Ibid., p. 3, para 4–5.
95
Ibid., p. 4, para 7.
96
Ibid., p. 5, para 9.
97
Ibid.
98
Ibid., p. 5, para 10.
99
Ibid., pp. 5–6, para 11.
100
Ibid., pp. 12–13, para 28.
101
Ibid, p.13, para 29.
102
Ibid., para 30.
103
Ibid., p. 14, para 31.
104
Ibid., para 33.
105
Ibid., p. 18, para 43.
106
Ibid., p. 19, para 43.
107
Ibid., p. 20, para 45.
108
Ibid.
109
Ibid., pp. 20–21, para 46.
110
Ibid.
111
Ibid., p. 21, para 47.
112
Ibid.
113
Ibid., para 49.
114
Ibid., p. 23, para 51.
115
Ibid., p. 24, para 56.
116
().
117
().
118
().
119
Hamdan v. Rumsfeld, 548 U.S. 557 (2006), p. 1.
120
Ibid.
121
Ibid.
122
Ibid.
123
Ibid., p. 2.
124
Ibid.
125
Ibid.
126
Ibid., p. 3.
127
Ibid.
128
Ibid.
129
Ibid., p. 36.
130
Ibid.
131
Ibid.
132
Ibid.
133
Ibid., p. 40.
134
Ibid., p. 71.
135
Ibid.
136
Ibid., p. 72.
137
Ibid. Clearly, one of the most direct and biting critiques ever levelled against the Executive branch of the US government by the USSC.
138
Holder v. Humanitarian Law Project, 561 U.S. 1 (2010), 130 S.Ct. 2705.
139
18 U. S. C. §2339B(a)(1). The terms “terrorist activity” and “terrorism” are defined in 8 U. S. C. §1182(a)(3)(B)(iii), and 22 U. S. C. §2656f(d)(2). [All in text citations and references are omitted.]
140
Holder v. Humanitarian Law Project, 561 U.S. 1 (2010), 130 S.Ct. 2705., p. 1. Wherein reference is made to the 1996 Antiterrorism and Effective Death Penalty Act (ADPA), §301(a)(7), §110 Stat. 1247, note following 18 U.S.C. 2339B (Findings and Purpose).
141
Ibid., p. 2.
142
Ibid., p. 3.
143
Ibid.
144
Ibid., p. 5.
145
Ibid.
146
Ibid., p. 25.
147
Ibid.
148
Ibid.
149
Ibid.
150
Ibid., p. 26.
151
Ibid., p. 27.
152
Ibid., p. 28.
153
Ibid., pp. 31–33.
154
Ibid., p. 34.
155
().
156
Ibid., Emphasis added to the original judgement.
157
().
158
().
159
().
160
Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1, para 1.
161
Ibid., paras 3–4.
162
Ibid., para 9.
163
Ibid., para 10.
164
Ibid., para 15.
165
Ibid., para 16.
166
Ibid.
167
Ibid., para 17.
168
Ibid., para 39.
169
Ibid.
170
Ibid.
171
Ibid.
172
Ibid.
173
Ibid., para 43.
174
Ibid.
175
Ibid., para 44.
176
Ibid., para 45.
177
Ibid.
178
Ibid.
179
Ibid., para 59.
180
Ibid., para 60.
181
Ibid., para 75.
182
Ibid., para 76.
183
Ibid., para 79.
184
Ibid., para 85.
185
Ibid., para 89.
186
Ibid., para 90.
187
Ibid., para 93.
188
Ibid.
189
Ibid., para 96.
190
Ibid.
191
Ibid.
192
Ibid., para 98.
193
Ibid.
194
().
195
Ibid.
196
Application under s. 83.28 of the Criminal Code (Re) 2004 SCC 42.
197
Ibid., para 1.
198
Ibid., para 2.
199
(). “Until 11 September 2001, the Air India bombings were the world’s most deadly act of aviation terrorism.” (p. 418); See also (; ).
200
Application under s. 83.28 of the Criminal Code (Re) 2004 SCC 42., p. 262, para 15.
201
Ibid., pp. 266–67, Issues, paras 26, 27.
202
Ibid., p. 272, para 40.
203
Ibid., para 41.
204
Ibid., pp. 273–74, para 45.
205
Ibid.
206
Ibid., p. 282, para 69.
207
Ibid., pp. 289–90, para 87.
208
Ibid., pp. 290–291, para 89.
209
Ibid., p. 291, para 91.
210
Ibid., p. 296, paras 105–6.
211
Ibid., pp. 296–98, paras 107–12.
212
().
213
Ibid., p. 79.
214
Ibid.
215
(; ).
216
().
217
Ibid., p. 136.
218
R. v. Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555.
219
Sriskandarajah v. United States of America, 2012 SCC 70, [2012] 3 S.C.R. 609.
220
Criminal Code, ss. 83.01(1), 83.03(a), 83.18, 83.18(1), 83.18(3)(a), 83.19, 83.2 and 83.21(1).
221
Sections 2 of the Canadian Charter of Rights and Freedoms covers Fundamental Freedoms and subsections (a), (b) and (d) are: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; and (d) freedom of association.
222
Section 1 of the Charter, Guarantee of Rights and Freedoms, states: “… guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
223
R. v. Khawaja, para 17.
224
Ibid., para 35.
225
Ibid., para 38.
226
Ibid., para 40.
227
Ibid.
228
Ibid., para 44.
229
Ibid., para 45.
230
Ibid., para 53.
231
Ibid., para 57.
232
Ibid.
233
Ibid., para 62.
234
Ibid., para 63.
235
Ibid., para 65.
236
Ibid., para 67.
237
Ibid., para 68.
238
Ibid., para 70.
239
Ibid., para 76.
240
Ibid., para 81.
241
Ibid., para 82.
242
Ibid., para 83.
243
Ibid., para 83.
244
().
245
According to USLegal.com (), “Ratio decidendi (plural rationes decidendi) is a Latin phrase meaning “the reason for the decision.” Ratio decidendi refers to the legal, moral, political and social principles on which a court’s decision rests. It is the rationale for reaching the decision of a case. It is binding on lower courts through the principle of Stare decisis. Ratio decidendi is a helpful tool for a lawyer.” It goes on to state the method for discerning the ratio decidendi of a case by:
Ratio is a ruling on a point of law and the decision on a point of law depends on facts of a case. Culling out ratio from a judgment is difficult. A thorough reading of an entire judgment is required to identify a ratio. Ration decidendi can be determined or identified in the following ways:
  • By distinguishing material facts from unimportant facts.
  • By discovering the precedents applied to identify the court’s approach.
  • By restricting analysis to the majority opinions.
  • By reading out subsequent decisions and considering it at several levels.
USLegal, Ratio Decidendi Law and Legal Definition 1997–2016. [Emphasis added.]; Julius Stone, Precedent and Law: Dynamics of Common Law Growth. (Sydney: Butterworths, 1985).
246
(); () state that, “Various judges and academics have tried to define what we mean by ratio decidendi. It is a surprisingly difficult problem.” p. 190; () states, “Although there is nothing like universal agreement on point, the ratio decidendi of a case can be defined as the material facts of the case plus the decision thereon.” pp. 95–96. I have adopted a variety of approaches and methods in deducing the ratio decidendi from each of these cases and their underlying legal principles.
247
The obvious answer to this question might be when terrorism is completely eradicated. But, is that even possible, let alone feasible in a liberal democratic society or, indeed, in any type of society? It is akin to suggesting that crime can be eradicated and, hence, law enforcement will never be required in any society.
248
().
249
(; ; ).
250
(; ; ).
251
().
252
().
253
See footnotes 54 and 69 above and Alam, Shamsul v. Minister of Citizenship and Immigration. (F.C. no. IMM-5226-17), Fothergill, 17 September 2018; 2018 FC 922, paragraphs 25–28, pp. 12–14.
254
().
255
Ibid., p. 2, para 2.
256
().
257
In Suresh, the SCC directed there had to be new deportation hearing consistent with the due process outlined in the reasons for their judgement. In Hamdan, the US SC held that the US President’s authorized military commissions must comply with the laws of the land and international law, in particular, Common Article 3 of the 1949 Geneva Convention.
258
(; ; ).
259
(; ).
260
().

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Legal Capacity and Supported Decision-Making: Lessons from Some Recent Legal Reforms
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