Criminal Law 

This commentary was published in the Toronto Star on September 30, 2008.

The recent conviction of a young offender in the Toronto terrorism case has raised concerns that his conviction was a form of guilt by association. The Crown's star witness, Mubin Shaikh, was quick to tell reporters that he did not believe the young man was a terrorist. That said, those who read Justice John R. Sproat's 98-page decision will know that the legal issue is not quite so simple.

The young man was charged under a new offence created by the Anti-Terrorism Act enacted in December 2001 in the wake of 9/11. It provides a broad offence of participating in the activities of a terrorist group. To be guilty of this offence, the Crown must prove that the accused knew he was participating or contributing to a terrorist group and was doing so for the purpose of enhancing the ability of the group to facilitate or carry out a terrorist activity.

This commentary was first published on the Jurist website on October 31, 2008.

George W. Bush’s term as president is coming to an end, and he has little to show by way of meting out justice for the terrorist attacks of 9/11. Perhaps this is why his administration seems so desperate to score a victory on the judicial battleground of the military commissions. That its target is Omar Khadr, a child soldier at the time of the alleged offenses, makes the spectacle all the more pathetic to the observer, and tragic for Khadr.

The charges against Khadr include “murder in violation of the laws of war,” and providing material support to the enemy. The most serious allegation against him is that on July 27, 2002 in Afghanistan, he threw a grenade that killed US soldier Sergeant Christopher Speer. Indeed, until a few months ago, the official story went unchallenged in the public domain. Thanks to an inadvertent government leak, we have since learned of evidence supporting at least two alternate scenarios, namely that another combatant might have thrown the grenade or that Sgt. Speer was killed by “friendly fire.”