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B.C. court rejects appeal to stiffen sentence for Tamil Tiger financier

Prapaharan Thambithurai was convicted of financing terrorism in May, 2010.

Lyle Stafford for The Globe and Mail/lyle stafford The Globe and Mail

The B.C. Court of Appeal has turned down an appeal to increase a six-month sentence to an Ontario man who was convicted of financing terrorism for the now-defeated Tamil Tigers.

The ruling is in sharp contrast to three recent rulings in Ontario, where the appeal court significantly increased the penalties for terrorism imposed by the lower court.

Prapaharan Thambithurai was the first person in Canada to be charged with raising funds for a banned terrorist organization.

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He was charged in March, 2008, in Vancouver with soliciting funds for the Liberation Tigers of Tamil Eelam, a group that was banned in Canada in 2006. He was convicted in May, several months after the Sri Lanka government crushed the rebel group.

The Ontario cases dealt with offenders involved in indiscriminate and widespread destruction, rather than terrorism financing. A sentence of 10 years was increased to life imprisonment with 10 years without parole for a man convicted of planning to bomb targets in Britain. Two men convicted of playing a role in the plot to bomb buildings in Toronto had their sentences increased by six years and a third man had an appeal of his life sentence dismissed.

Madam Justice Kathryn Neilson said in the ruling that she found nothing to criticize in the approach or conclusion of the B.C. judge and no justification for overturning the sentence.

Although the Ontario rulings were not available in May, the trial judge accomplished the same objectives with a six-month sentence, Judge Neilson wrote on behalf of a three-member panel that considered the appeal.

The sentencing judge was "clearly aware of the significant, unique, and far-reaching dangers of terrorism," she said, and recognized that deterrence and denunciation as a primary consideration and acknowledged "the important role that appropriate punishment for terrorist offences will play in maintaining the stability and values of Canadian society."

The judge also said that Mr. Thambithurai's lack of remorse "was perhaps not surprising, given his Tamil heritage, the impact of the war on his family, and his continuing concern for the dire circumstances of the Tamil population in Sri Lanka. The sentencing judge, however, concluded Mr. Thambaithurai did not present an ongoing terrorist threat, given his otherwise good character."

Mr. Thambithurai, 47, pleaded guilty to fund raising for a terrorist group. When he was arrested in March, 2008, he told police he had collected between $2,000 and $3,000 since late 2007. He said the money was for humanitarian aid but he admitted that he knew at least some of the money he collected would make its way to the terrorism organization.

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Mr. Thambithurai had come to Canada as a refugee in 1988 and became a Canadian citizen in 1995.

Judge Neilson dismissed the suggestion that six months was unfit for financing terrorism. "While terrorist offences have unique features, they are governed by the same sentencing framework and objectives as other crimes under the Criminal Code, and Parliament has left the full range of sentencing options, except conditional sentences, open to the courts for consideration in dealing with them," the judge said.

"[The sentencing judge]recognized the unique and serious nature of terrorism but, in my view, properly accepted the Crown's submission that Mr. Thambaithurai's activities fell at the low end of the scale. Despite that, the sentencing judge decided a suspended sentence would not adequately serve the objectives of deterrence and denunciation. Instead, he ordered a custodial sentence of six months, a result that would ordinarily be viewed as a harsh penalty for a first offender with an otherwise unblemished record.

"As well, Mr. Thambaithurai's conviction will have long-lasting effects, as it will interfere with his ability to travel beyond Canada," she also said.

The judge noted that the appeal court should pay substantial deference to the discretion of a sentencing judge in determining what is a fit sentence. "Intervention is not justified simply because we would have ordered a different sentence. Unless the sentencing judge erred in principle, an appellate court will only vary a sentence if it was demonstrably unfit." Judge Neilson said.

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