Mohammad Momin Khawaja v. Her Majesty the Queen

2012 SCC 69

The appellant in this case had been charged with various terrorism offences under the Criminal Code, which had been enacted as the Anti-Terrorism Act, S.C. 2001 c.41. He argued that the impugned provisions violated his Charter rights by being overbroad, and also for their potential chilling effect on s. 2 Charter rights, including the freedoms of expression, religion and association. The overbreadth argument was primarily dealt with in the companion case to this one, Sriskandarajah v. United States of America, 2012 SCC 70. In Khawaja the court focused on the impact of the impugned provisions on freedom of expression. The Supreme Court of Canada upheld the provisions, pointing out that violence and the threat of violence is not included in the guarantees under the Charter. Because the object of the impugned provisions was entirely to target acts or threats of violence, there was no reason to fear it would be applied to non-violent expression. Given the purpose of the law, if it turned out that it was being applied against non-violent expression or for biased profiling activities, then it would be law enforcement officials’ application of the law and not the law itself that would need to be challenged.

Cited in the case was Kent Roach who was counsel for the intervener British Columbia Civil Liberties Association and is Chair of the Asper Centre Advisory Group.


SCC Reasons for Judgement

Faculty of Law Commentary and Research discussing Khawaja v Her Majesty the Queen

Craig Forcese and Kent Roach, “Criminalizing Terrorist Babble: Canada’s Dubious New Terrorist Speech Crime,” (2015) 53:1 Alta L Rev 35-84.

Kent Roach and David Schneiderman, “Freedom of Expression in Canada,” (2013) 61 SCLR (2d) 429-525.

Hamish Stewart, “R v Khawaja: At the Limits of Fundamental Justice,” (2013) 63 SCLR (2d) 403-416.

Kent Roach, “Be careful what you wish for? Terrorism prosecutions in post 9/11 Canada,” (2014) 40 Queen’s LJ 99.


Date Document
2012/02/16 Appellant – Khawaja
Respondent – Her Majesty the Queen
Intervener – Attorney General of Ontario
2012/05/23 Intervener – Groupe d’étude en droits et libertés de la Faculté de droit de l’Université Laval
Intervener – Canadian Civil Liberties Association
2012/05/24 Intervener – The British Columbia Civil Liberties Association