De-conflicting Canada's anti-terrorism legislation : Khawaja and the ongoing challenges of the "armed conflict" exclusion
Host item entries:
Windsor yearbook of access to justice, Vol. 27, 2009, p. 403-430
Christopher K. Penny
The definition of 'terrorist activity' is fundamental to Canada's anti-terrorism legislation. Following the recent trial of Momin Khawaja before the Ontario Superior Court of Justice, it is clear that the 'armed conflict' exclusion - exempting wartime activities undertaken in accordance with international law - poses serious challenges to the coherence of this legislative regime, threatening the effectiveness of future domestic terrorism prosecutions. This article examines the 'armed conflict' exclusion and its judicial treatment in Khawaja, identifying key challenges and making specific recommendations to address them. Coupled with other issues arising from the 'armed conflict' exclusion, Khawaja serves to highlight a clear and pressing need for amendment of the statutory definition of 'terrorist activity.