The Evolving Common Law Jurisprudence Combatting the Threat of Terrorism in the United Kingdom, United States, and Canada
Abstract
:1. Introduction
2. Terrorism: Legal Definitions
2.1. The Legal Definition of the Crime of Terrorism in the UK
- (1)
- In this Act, “terrorism” means the use or threat of action where—
- (a)
- the action falls within subsection (2),
- (b)
- 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, and
- (c)
- the use or threat is made for the purpose of advancing a political, religious [F2, racial] or ideological cause.16
- (2)
- Action falls within this subsection if it—
- (a)
- involves serious violence against a person,
- (b)
- involves serious damage to property,
- (c)
- endangers a person’s life, other than that of the person committing the action,
- (d)
- creates a serious risk to the health or safety of the public or a section of the public, or
- (e)
- is designed seriously to interfere with or seriously to disrupt an electronic system.
- (3)
- The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.17
- (4)
- In this section—
- (a)
- “action” includes action outside the United Kingdom,
- (b)
- a reference to any person or to property is a reference to any person, or to property, wherever situated,
- (c)
- a reference to the public includes a reference to the public of a country other than the United Kingdom, and;
- (d)
- “the government” means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.18
- (5)
- In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.19
2.2. The Legal Definition of the Crime of Terrorism in the US
- (A)
- involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State;
- (B)
- appear to be intended—
- (i)
- to intimidate or coerce a civilian population;
- (ii)
- to influence the policy of a government by intimidation or coercion; or
- (iii)
- to affect the conduct of a government by mass destruction, assassination, or kidnapping;28
- (C)
- occur primarily outside the territorial jurisdiction of the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum;29
2.3. The Legal Definition of the Crime of Terrorism in Canada
- (a)
- an act or omission that is committed in or outside Canada and that, if committed in Canada, is one of the following offences:44
- (b)
- an act or omission, in or outside Canada,
- (i)
- that is committed
- (A)
- in whole or in part for a political, religious or ideological purpose, objective or cause, and
- (B)
- in whole or in part with the intention of intimidating the public, or a segment of the public, with regard to its security, including its economic security, or compelling a person, a government or a domestic or an international organization to do or to refrain from doing any act, whether the public or the person, government or organization is inside or outside Canada, and46
- (ii)
- that intentionally
- (A)
- causes death or serious bodily harm to a person by the use of violence,
- (B)
- endangers a person’s life,
- (C)
- causes a serious risk to the health or safety of the public or any segment of the public,
- (D)
- causes substantial property damage, whether to public or private property, if causing such damage is likely to result in the conduct or harm referred to in any of clauses (A) to (C), or
- (E)
- causes serious interference with or serious disruption of an essential service, facility or system, whether public or private, other than as a result of advocacy, protest, dissent or stoppage of work that is not intended to result in the conduct or harm referred to in any of clauses (A) to (C),47
and includes a conspiracy, attempt or threat to commit any such act or omission, or being an accessory after the fact or counselling in relation to any such act or omission, but, for greater certainty, does not include an act or omission that is committed during an armed conflict and that, at the time and in the place of its commission, is in accordance with customary international law or conventional international law applicable to the conflict, or the activities undertaken by military forces of a state in the exercise of their official duties to the extent that those activities are governed by other rules of international law. (activité terroriste)48
[i]t is an offence to knowingly participate in or contribute to, directly or indirectly, any activity of a terrorist group. This participation is only an offence if its purpose is to enhance the ability of any terrorist group to facilitate or carry out a terrorist activity.53
This means that violence motivated by any ideology, religion or political motivations that are proportionally outside “the mainstream” are at risk of being labeled as terrorist in nature. Consequently, it is clear that Canadian legislators have not overcome definitional challenges, but rather have resorted to labeling strategies that extend criminalization of violent attacks on mainstream politics, religion, or ideology beyond traditional criminal justice laws into the realm of antiterrorism. This failure is a direct result of the sociopolitical desire to legislate the label of terrorism into law without first overcoming its weaknesses.56
2.4. Comparing and Contrasting the Three Definitions of the Crime of Terrorism in the UK, the US, and Canada
2.4.1. Similarities Amongst the Three States’ Definitions of Terrorism
2.4.2. Differences Amongst the Three States’ Definitions of Terrorism
2.5. Observations Emerging From the Comparative Analysis of the Definition of Terrorism Across These Three States
3. The Leading Jurisprudence on Terrorism in the United Kingdom, the United States, and Canada
3.1. Introduction
3.2. The Leading UK Jurisprudence on Terrorism
3.2.1. R v Gul
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 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
3.2.2. Beghal v Director of Public Prosecutions
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
“(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
- (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
- 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
3.3. Some US Jurisprudence on Terrorism
3.3.1. Hamdan v. Rumsfeld
3.3.2. Holder v. Humanitarian Law Project
3.3.3. Commentaries on Hamdan and the Humanitarian Law Project
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
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
3.4. The Leading Canadian Jurisprudence on Terrorism
3.4.1. Suresh v. Canada (Minister of Citizenship and Immigration)
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
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
3.4.2. Application under s. 83.28 of the Criminal Code (Re)
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 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
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
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
- (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 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
4. A Comparative Legal Analysis of the Judicial Reasoning on These Leading Terrorism Cases
4.1. Emerging Legal Principles and Jurisprudential Trends on Terrorism in the United Kingdom
International law is often necessary and essential to deciding legal issues in domestic law.
The principle of legality can be satisfied when there are adequate safeguards in place to protect individual rights from the risk of arbitrary misuse of power.
4.2. Emerging Legal Principles and Jurisprudential Trends on Terrorism in the United States
The US President’s use of military commissions must comply with the American common laws of war, and the Uniform Code of Military Justice (UCMJ), Common Article 3 of the Geneva Conventions of 1949, and the “rules and precepts of the law of nations.”
Prohibiting material support for foreign terrorist organizations, in the form of monetary contributions, other tangible aid, legal training, and political advocacy, does not infringe the rights in either the First or Fifth Amendments.The consideration of foreign policy implications relevant to a case may be pertinent to deciding determinative questions of law.
The commission said the term had given the Bush administration "spurious justification to a range of human rights and humanitarian law violations," including detention practices and interrogation methods that the International Committee of the Red Cross has described as torture.252
4.3. Emerging Legal Principles and Jurisprudential Trends on Terrorism in Canada
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.Barring extraordinary circumstances, deportation to torture will generally violate the principles of fundamental justice protected by section 7 of the Charter.The term “terrorism” found in section 19 of the Immigration Act, is not constitutionally vague and provides a sufficient basis for adjudication. The International Convention for the Suppression of the Financing of Terrorism definitional approach to terrorism is endorsed that utilizes two methods: first, through a functional definition under Article 2(1)(a) that is found in the nine treaties that cover the range of terrorist activities such as aircraft hijackings, terrorist bombings, etc., and, second, offers a stipulative definition of terrorism found in Article 2(1)(b).Fundamental justice requires that a person facing deportation to torture under section 53(1)(b) must be informed of the case to be met. This includes the full disclosures of documents, save those that must remain confidential for public security. The person should also have the right to provide written submissions that must be considered by the Minister. If the Minister is relying on the written assurance of a foreign government that a person would not be tortured, then, the appellant must have an opportunity to present evidence and to make submissions as to the value of those assurances. The Minister must present reasons for his decision.
Judicial investigative hearings are to be held presumptively in open court and that the onus is on the Crown to rebut the presumption. The presumptive openness of judicial investigative hearings is a further shield for the independence and impartiality of the judiciary in the proceedings.
There is a high mens rea requirement when a person knowingly participates in contributing to a terrorist activity. The person’s actions must be undertaken for the purposes of enhancing the ability of a terrorist group to facilitate or to carry out terrorist activity.
Violence or threats of violence undermine the rule of law and they take away freedom of choice while undermining freedom of action. Violence and the threat of violence undermine the very values and social conditions that are necessary for the continued existence of the freedom of expression.
4.4. The Legal Principles Identified Across These Three Jurisdictions Compared
4.5. Comparisons Across These Three Common Law Jurisdictions
5. Conclusions
Funding
Conflicts of Interest
Appendix A
References
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1 | Consider the following as examples: (Terrorism Research n.d.; Justice Canada 2015; Allyson 2012). (Roser and Nagdy 2016); Nicholas J. Perry states that “The scholarly literature on terrorism is ‘vast and ever expanding.’” in (Perry 2004). |
2 | (Ben 2008). |
3 | (Alan 2017; Gregor 2018). |
4 | |
5 | There are many different typologies of terrorism. Some examples include: (Gus 2017; Lizardo and Bergesen 2003; Terrorism Research n.d.). |
6 | (UN News Centre 2015); 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. (Edwards 2018). |
7 | (UNODC n.d.). |
8 | |
9 | |
10 | Ibid. |
11 | (Oyen 2017). |
12 | (Granastein and Azzi 2015; Government of Canada 2016); For instance, for the close relationship between Canada and the United Kingdom, see, (Harper and Cameron 2011) 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 (School of Law n.d.) The Robbins Collection, School of Law (Boalt Hall), University of California at Berkeley, The Common Law and Civil Law Traditions, undated. |
15 | (legislation.gov.uk 2000) 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 (legislation.gov.uk 2006). See also the Counter-Terrorism and Security Act, 2015 that includes further provisions regarding terrorism and additional amendments to the Terrorism Act 2000. (legislation.gov.uk 2015) |
16 | Ibid. |
17 | Ibid. |
18 | Ibid. |
19 | (legislation.gov.uk 2000) Terrorism Act 2000, 2000 Chapter 11. |
20 | (UK Home Office 2016a). 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 | (Walker 2008). |
24 | (Cornell University Law School 2018a). It is important to point out that the States in the United States also have their own criminal codes. See (Cornell University Law School n.d.). This article will only examine the federal criminal code and its definition of terrorism and not those of the US States. |
25 | (Cornell University Law School 2018b). 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 (U.S. Department of Justice et al. 2019). (U.S. Department of Justice et al. 2019). 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 (Jenkins 2003). |
28 | |
29 | Ibid. |
30 | Ibid. |
31 | |
32 | (Chanoff 2016; The White House 2015). This may not be the case in other jurisdictions. For instance, see (Schmid 2016). |
33 | |
34 | Ibid., Legal Ramifications of Designation. |
35 | Ibid. |
36 | Ibid., Other Effects of Designation. |
37 | |
38 | |
39 | (Perry 2004). |
40 | Ibid. |
41 | |
42 | Ibid. |
43 | (Justice Laws Website 2018), 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 (UN Office of Counter-Terrorism n.d.). |
46 | (Justice Laws Website 2018), Part II-1-Terrorism, Section 83.01(1). |
47 | Ibid. |
48 | Ibid. |
49 | Ibid. |
50 | Ibid. |
51 | Ibid. |
52 | |
53 | |
54 | (Rana 2018) 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 | (Carver 2016). |
56 | Ibid. |
57 | |
58 | (Walker 2014). |
59 | |
60 | (Justice Laws Website 2018), Part II-1-Terrorism, Section 83.01. |
61 | |
62 | (Justice Laws Website 2018), 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 | (legislation.gov.uk 2000). 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 | (Justice Laws Website 2018), 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 | (Coco 2013). |
87 | Ibid. |
88 | (Greene 2014). |
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 | (Liptak 2010). |
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 | (Roach 2011). “Until 11 September 2001, the Air India bombings were the world’s most deadly act of aviation terrorism.” (p. 418); See also (Worldatlas World Facts 2019; Worst Terrorist Strikes—Worldwide 2017). |
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 | (Roach 2001). |
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 | (Makin 2012). |
245 | According to USLegal.com (USLegal n.d.), “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:
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 | (Crossley 2014); (Holland and Webb 2016) state that, “Various judges and academics have tried to define what we mean by ratio decidendi. It is a surprisingly difficult problem.” p. 190; (Smith 2016) 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 | (UNTS 1999). |
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 | (De Wit 2004). |
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 | (Dominic 2016). |
MEANS | INTENT | MOTIVE | LOCUS | |
---|---|---|---|---|
UK 2000 Terrorism Act 1 (1) | “use or threat of action” “that involves serious violence, damage to property or serious risk to the health or safety of the public, etc.” | “designed to influence the government or international governmental organization or to intimidate the public or section of the public” | “advancing a political, religious, racial or ideological cause” | “includes action outside the United Kingdom” |
US Title 18, US Code, Part 1, Chapter 113B | “violent acts or acts dangerous to human life and are violations of the criminal law of the US or any State” | “intimidate or coerce a civilian population” “influence the policy of a government by intimidation or coercion” “affect the conduct of a government by mass destruction, assassination, or kidnapping” | “international terrorism” and “domestic terrorism” | |
Canada CC Part II-I, Terrorism, s. 83.01 (1) “terrorist activity” “terrorist group” | “act or omission”—that includes 13 functional Conventions and Protocols on Terrorism “death or serious bodily harm to a person by the use of violence” “causes substantial property damage” | “intimidating the public or a segment of the public with regard to security, including economic security, or compelling a person, government or organization” | “committed in whole or in part for a political, religious or ideological purpose, objective or cause” | “in or outside Canada” |
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Simeon, J.C. The Evolving Common Law Jurisprudence Combatting the Threat of Terrorism in the United Kingdom, United States, and Canada. Laws 2019, 8, 5. https://doi.org/10.3390/laws8010005
Simeon JC. The Evolving Common Law Jurisprudence Combatting the Threat of Terrorism in the United Kingdom, United States, and Canada. Laws. 2019; 8(1):5. https://doi.org/10.3390/laws8010005
Chicago/Turabian StyleSimeon, James C. 2019. "The Evolving Common Law Jurisprudence Combatting the Threat of Terrorism in the United Kingdom, United States, and Canada" Laws 8, no. 1: 5. https://doi.org/10.3390/laws8010005
APA StyleSimeon, J. C. (2019). The Evolving Common Law Jurisprudence Combatting the Threat of Terrorism in the United Kingdom, United States, and Canada. Laws, 8(1), 5. https://doi.org/10.3390/laws8010005