New & Notable: SCC sends message on new offence of terrorism

Mohammad Momin Khawaja designed what he called the “hifidigimonster”. It was a remote arming device for explosives. He offered to people, that he believed were terrorists, that he would smuggle it into the United Kingdom and provide training in its use. In addition to making other offers of support to these people, he provided money for explosives for an operation in the United States or in Europe and for other projects. In a nutshell, Khawaja had become obsessed with Osama Bin Laden and his cause, and took steps to offer and provide assistance.


At trial, while Khawaja’s defence partially succeeded in challenging the constitutionality of several of the terrorism offences, he was nevertheless convicted of a number of terrorism offences. The trial judge sentenced Momin Khawaja to ten and a half years in the penitentiary and declined to provide any credit for time in custody prior to the imposition of the sentence on the basis that it would be incompatible with a denunciatory sentence. Parole ineligibility was set at five years to reflect the absence of any evidence of remorse, willingness to make amends or commitment to future compliance with Canada’s laws and values.

As often happens when a new criminal offence goes to court, the matter ultimately goes on to appellate review. The Ontario Court of Appeal granted the Crown’s sentence appeal and imposed a life sentence on a non-terrorism explosives offence found in the Criminal Code. The Court also imposed a ten-year period of parole ineligibility and a series of consecutive sentences on the terrorism offences of which Khawaja was convicted: 2010 ONCA 862.

Ultimately, when Momin Khawaja appealed from this decision, the Supreme Court of Canada was presented with the opportunity to send a message regarding the gravity of the new terrorism offences: 2012 SCC 69.

The Supreme Court decision agreed with much of the analysis of the Court of Appeal’s decision and cited three critical areas identified by the Court of Appeal that the originally imposed sentence failed to adequately reflect:


  • First, the Supreme Court agreed with the Court of Appeal that the original sentence of ten and a half years failed to reflect the gravity of Mr. Khawaja’s actions: he was the willing participant in a terrorist group and was committed to bringing death on all those opposed to his extremist ideology. The bomb detonators he attempted to build would have killed many civilians had his plan succeeded.


  • Second, the Court agreed that the originally imposed sentence did not reflect the continuing danger posed by Khawaja, whom the court described as a committed and remorseless man.


  • Third, the Supreme Court agreed with the Ontario Court of Appeal’s analysis that the sentence imposed by the trial judge failed to send “a clear and unmistakable message that terrorism is reprehensible and those who choose to engage in it [in Canada] will pay a very heavy price.” (Para. 130)


It is a reflection of how seriously the Supreme Court considered the terrorism offences that they did not appear to have any difficulty in upholding sentences for terrorism consecutive to a life sentence, concluding that it did not violate the totality principle:

While I agree with the Court of Appeal that s. 83.26 requires that sentences for terrorist offences be served consecutively, I do not agree that this result is inconsistent with the totality principle on the evidence in this case.  The only restriction imposed by the totality principle is that the sentence not exceed the overall culpability of the offender. While the practice in Canadian courts is to impose sentences of between 15 to 20 years if a life sentence is not appropriate, this practice is not binding and is not part of the totality principle:  see R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 56 (per Lamer C.J.).  The fact that sentences of over 20 years may be imposed more often in terrorism cases is not inconsistent with the totality principle. It merely attests to the particular gravity of terrorist offences and the moral culpability of those who commit them.  I conclude that the heightened gravity of the terrorism offences at issue in this case was sufficient to justify imposition of consecutive sentences running over 20 years, without violating the totality principle [para 126] [Emphasis added].


The Supreme Court of Canada in Khawaja has both settled the question of the constitutionality of the terrorism provisions and sent a clear message about the sentencing approach with these kinds of offences. Without suggesting that terrorism offences attract special sentencing rules or goals, the Supreme Court clearly confirmed the seriousness of terrorism offences and reinforced that as a result of this, denunciation and deterrence, both specific and general, are important principles to be applied. Terrorism sentences imposed in the future will undoubtedly reflect these principles.