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Terrorism rulings an early Christmas present from our justice system

As someone smarter than me remarked upon reading the slew of newly released terrorism judgments from the Ontario Court of Appeal, this young country just did a whole lot of growing up.

In a series of six linked decisions, the highest court in the province dramatically upped the sentences for three convicted Canadian terrorists (to life in prison, in the case of Ottawa's Momin Khawaja) and urged judges to ditch their "business as usual" approach with terrorists.

More than that, the decisions in total reflect a hardnosed realpolitik remarkable in a country where sentences rarely match the judicial thunder that often precedes them.

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"Terrorism, in our view, is in a special category of crime and must be treated as such," Justices David Doherty, Michael Moldaver and Eleanore Cronk wrote in the Khawaja case.

With terrorism offences, they said, "sentences exceeding 20 years, up to and including life imprisonment, should not be viewed as exceptional.

"That may not be the traditional approach to sentencing," the court said, "but it is the approach we believe must be taken to repudiate and deter terrorism and denounce it for the insidious crime it is."

The judges noted that though Canada's "sentencing and correctional philosophy also places a premium on the notion of individual dignity and it accepts redemption and rehabilitation as desired and achievable goals," these hallmarks of the justice system "may be seen by those who reject democracy and individual freedom as signs of weakness.

"Terrorists, in particular, may view Canada as an attractive place from which to pursue their heinous activities.

"And it is up to the courts to shut the door on that way of thinking, swiftly and surely."

The panel found that in sentencing Mr. Khawaja, the first person tried in Ontario on terrorism charges, the trial judge had imposed a "manifestly unfit" sentence of 10 and a half years by failing to consider three key factors - the special danger terrorism poses to Canadian society; the threat Mr. Khawaja himself poses and "the need for the sentence imposed to send a clear message to would-be terrorists that Canada is not a safe haven ..."

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The judges' message to the lower courts was unmistakable: There is a "need to let would-be terrorists know that they will pay a heavy price if they choose to pursue their deadly activities in Canada."

In other words, the court has said baldly that the threat is real; that what is threatened isn't mere property or even lives, but fundamental Canadian values, and that if would-be terrorists thought that Canadians could be played as suckers who wouldn't rise to defend those values, they ought to reconsider.

Those values - "the pursuit of truth, participation in the community and individual self-fulfillment" - are the very principles that underpin the right to freedom of expression, the court said. Any Canadian can say anything he or she wants so long as it advances one or more of those ideals.

But "counselling someone to engage in conduct that would cause death or serious bodily harm hardly encourages" any of those things, the court said. It dismissed a challenge to the anti-terrorism legislation on the grounds that it could have a "chilling effect" upon those who may share terrorists' beliefs but stop short of violence.

If authorities overstep their bounds and "sweep within their investigative net persons who had done nothing more than bear a religious, cultural or racial resemblance to persons stereotyped as terrorists," it would be improper and unconstitutional.

But, the court said, there's no evidence of that.

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"There are many potential explanations for why people might feel a chilling effect when it comes to expressing extremist Islamic views," the judges wrote. "Perhaps, most obviously, there is the reality of the world we live in. Terrorism and the fear and uncertainty terrorism creates are facts of life.

"Fear can generate many things, including suspicion based on ignorance and stereotyping.

"Many, but by no means all, of the major terrorist attacks in the last 10 years have been perpetrated by radical Islamic groups fuelled by a potent mix of religious and political fanaticism.

"It is hardly surprising," the judges said, "that in the public mind, terrorism is associated with the religious and political views of radical Islamists."

While in no way condoning such "profiling or stereotyping," the court noted, "Individuals who associate themselves through their conduct or statements with the goals or activities of terrorist groups can expect to be investigated by the police even though it may turn out that those persons have not engaged in any 'terrorist activity.' "

Mr. Khawaja's lawyers had argued that the goal that motivated him to develop a detonator he called the "Hi-Fi Digimonster" and to enthusiastically embrace violent jihad was "to kill Western soldiers in Afghanistan and local troops that support them, not innocent civilians" and that his punishment should be mitigated accordingly.

The judges smacked that argument away. Mr. Khawaja's "own writings belie" it, they said. "Beyond that, we reject outright the notion that the lives of soldiers serving in Afghanistan should be somehow treated as 'less worthy' of protection when fashioning sentences…"

They got every damn thing right: Merry Christmas Canada, from the Ontario Court of Appeal.

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