Friday, December 17, 2010

This Week At The Ontario Court Of Appeal: 12-12-17

Each week, Wise Law Blog will review recent decisions from the Ontario Court of Appeal.

R. v. Khawaja. An appeal by Mohammad Momin Khawaja, the first person in Canada to be sentenced under the 2001 Anti-Terrorism Act. Mr. Khawaja's conviction in regard to a 2004 terrorist plot in Britain was appealed on multiple grounds. Mr. Khawaja appealed both his conviction and sentence of ten years; the Crown cross-appealed on the sentence, seeking a lengthier one.

Mr. Khawaja's background and history in terrorist-related plots were largely not contested; the defendant instead argued that he was not involved with the British terrorism plot and had instead been working to support armed conflict in Afghanistan, which by his argument invalidated his first two counts under the Act, and which left his remaining five counts up to the decision of the judge. The trial judge decided that counts 3 through 7 were not restricted to simply the British terror plot and that supporting the insurgency in Afghanistan constituted "enhancing or facilitating... a terrorist group and a terrorist activity," and that Mr. Khawaja's actions did not fall outside the definition of terrorism as they were directed to support the insurgent groups' broader agenda rather than just its front line combat. However, he found that the first two counts against Mr. Khawaja were too specific, and therefore did not convict in those grounds.

At trial, the judge also found that the phrase "terrorist activity" in the Act was violative of s.2 of the Charter of Rights and Freedoms, in that it would potentially have a chilling effect on discourse due to "the government's tendency to focus its investigative resources on persons associated with those views," and that individuals who might not share those views but who had the same ethnicity or general political outlook would suffer the same chilling effect. One of the appellant defendant's appeal grounds was that, since the central definition of terrorist activity was flawed, the judge should therefore have declared the entire definition of no force and effect, and further that this amounted to a criminalization of motive.

The Court disagreed, stating that the conduct prohibited by the Act was violent and therefore not protected by section 2. The chilling effect argument was also considered and discarded by the Court, as they felt the trial judge's conclusion was too speculative and lacking in evidence, and further suggested that
the most obvious cause of any "chilling effect" among those whose beliefs would be associated in the public mind with the beliefs of terrorist groups is the temper of the times, and not a legislative provision that in all probability is unknown to the vast majority of persons who are said to be "chilled" by its existence...
The Court also rejected the appellant's argument that the charges against him should be dropped on the grounds of nonspecifity. Pointing out that from the very beginning, the Crown established its case both on the grounds of Mr. Khawaja's participation in the British terror plot and his general support of activities of the Omar Khyam group which ran the Afghani insurgency, the Court thus decided that this ground completely failed. Similarly, they affirmed the trial judge's decisions regarding the inapplicability of the armed conflict exemption and his judicial notice of the situation in Afghanistan (which was confined to widely available and notorious facts). They also disagreed with the appellant in finding the convictions on counts three through seven inadmissible.

The Court then turned its attention to sentencing. Determining that the trial judge erred in assessing Mr. Khawaja's level of determination in carrying out terrorist attacks (a key factor in the trial judge's decision to only issue a ten-year sentence, as he felt Mr. Khawaja was not nearly so intent on terrorist activity as some of his comrades), allowed the "amateurish" nature of Mr. Khawaja's actions to obscure his intent, and also erred in factoring in the lack of evidence of Mr. Khawaja's prospects for rehabilitation. The Court then stated that the sentence did not reflect the uniquely horrific nature of terrorism in that it is not only an attack on citizens but an attack on the Canadian state and its culture as a whole. Finally, they suggested that the sentence was not adequate enough deterrent to other would-be terrorists.

For these reasons, the Court changed Mr. Khawaja's sentence to life imprisonment, with no prospect of parole for the first ten years, and then four additional sentences adding to 24 years to be served concurrently with the life sentence. Read-the-whole-case rating: 5. It's not often you get to see the Court of Appeal break truly new ground in this manner, and the case will be appealed to the Supreme Court. It's long, but well worth your time.

80 Mornelle Properties Inc. v. Malla Properties Ltd. An appeal regarding who would benefit from a property tax refund: the owner of a property who paid most of the taxes in question, or the current owner of a property who had since purchased it from the original owner. At application level, the judge found that since the City of Toronto Act authorized payment of the refund to the current owner of the property, that the current owner was entitled to the refund. The seller of the property appealed.

The Court of Appeal upheld the seller's appeal. Stating that the right to the refund was not, in fact, transferred along with the sale of the property, as assessment of land and taxation of land are two distinct processes and that therefore the right to the refund was a separate personal property right which would have to be explicitly assigned to the purchaser. Surveying the agreement between the two parties, the Court found that it only conveyed the property, chattels, buildings and lands, and no intangible property rights. On that basis - and also determining that the City of Toronto Act's wording was not intended to punish sellers of property - the Court found for the appellants. Read-the-whole-case rating: 1.5. Just read Khawaja instead.
- Christopher Bird, Toronto
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