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In the Supreme Court of Canada (On Appeal from the Court of Appeal for Ontario)

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In the Supreme Court of Canada (On Appeal from the Court of Appeal for Ontario) File Number: 34013 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO) BETWEEN: PIRATHEEPAN NADARAJAH Appellant (Appellant) and THE ATTORNEY GENERAL OF CANADA ON BEHALF OF THE UNITED STATES OF AMERICA and THE MINISTER OF JUSTICE Respondents (Respondents) and ATTORNEY GENERAL OF ONTARIO Intervener RESPONDENTS’ FACTUM (Rule 42 of the Rules of the Supreme Court of Canada) Attorney General of Canada Myles J. Kirvan Department of Justice Deputy Attorney General of Canada Per Croft Michaelson Per Robert Frater M. Sean Gaudet 234 Wellington Street, Room 1161 130 King Street West, Suite 3400 Ottawa, Ontario Toronto, Ontario M5X 1K6 K1A 0H8 Telephone: 416-952-7261 Telephone: 613-957-4763 Fax: 416-973-8253 Fax: 613-954-1920 Email : [email protected] Email : [email protected] Counsel for the Respondents Agent for the Respondents 2 Ms. Breese Davies Brian A. Crane, Q.C. Ms. Erin Dann Gowling Lafleur Henderson LLP Di Luca Copeland Davies Suite 2600 Suite 100 160 Elgin Street 116 Simcoe Street Ottawa, Ontario Toronto, Ontario K1P 1C3 M5H 4E2 Telephone : 416-868-1825 Telephone : 613-786-0107 Fax : 416-868-0269 Fax : 613-563-9869 Email : [email protected] Email : [email protected] [email protected] Counsel for the Appellant Agent for the Appellant Attorney General of Ontario Burke-Robertson Per Susan Magotiaux Per Robert E. Houston, Q.C. 720, Bay Street, 10th floor 70, rue Gloucester Toronto, Ontario Ottawa, Ontario M5G 2K1 K2P 0A2 Telephone : 416-326-5238 Téléphone : 613-566-2058 Fax : 416-326-4656 Télécopieur : 613-235-4430 Email : [email protected] Email : [email protected] Counsel for the Intervener Agent for the Intervener i TABLE OF CONTENTS PART I – FACTS............................................................................................................................ 1 A. Overview .......................................................................................................................... 1 B. Facts ................................................................................................................................. 2 PART II – RESPONSE TO THE QUESTIONS IN ISSUE ........................................................... 7 PART III – ARGUMENT ............................................................................................................... 8 A. The Purpose Of The Anti-Terrorism Provisions .............................................................. 8 B. Section 83.18 Is Not Overbroad And Does Not Infringe Section 7 ............................... 10 1. Legislation Is Only Overbroad If It Is Arbitrary Or Grossly Disproportionate In Its Effects ........................................................................................................................ 11 2. Section 83.18 Is A Substantive Offence Aimed At Deterring Those Who Intend To Enhance The Ability Of Terrorist Groups To Facilitate Or Commit Terrorist Acts ................................................................................................................................. 12 3. The Offence Is Neither Arbitrary Nor Grossly Disproportionate .................................. 16 C. Sections 83.03, 83.18 and 83.21 Do Not Infringe Freedom Of Expression ................... 19 1. The Harmful Acts Defined As Terrorist Activity Are Not Protected Under S. 2(b) Of The Charter ............................................................................................................... 20 a. Terrorist Acts, As Methods Of Expression, Are Excluded ........................................ 20 b. Even If Terrorist Acts Are Presumptively Protected, The Purpose Of The Legislation Is Not To Restrict Freedom Of Expression ............................................. 22 2. The Motive Requirement Does Not Infringe Freedom Of Expression .......................... 23 D. In The Alternative, Any Infringement Is A Reasonable Limit ...................................... 27 1. Proscribing Non-violent Expressive Activities That Cause Serious Harms Is A Proportionate Response .................................................................................................. 27 2. The Inclusion Of A Motive Requirement Is Also A Proportionate Response ............... 27 PART IV – COSTS ....................................................................................................................... 31 PART V – ORDER SOUGHT ...................................................................................................... 31 PART VI – TABLE OF AUTHORITIES ..................................................................................... 32 PART VII – LEGISLATION........................................................................................................ 35 1 PART I – FACTS A. OVERVIEW 1. The Appellant, Piratheepan Nadarajah (the “Appellant” or “Nadarajah”), is wanted in the United States of America for criminal prosecution in relation to his alleged involvement in an attempt to purchase weapons for a terrorist group, the Liberation Tigers of Tamil Eelam (“LTTE”). His extradition hearing was heard together with that of another individual, Suresh Sriskandarajah (“Sriskandarajah”), who is wanted in the United States of America for criminal prosecution in relation to allegations that he provided support and assistance to a terrorist group. 2. The Appellant and Sriskandarajah were both committed for extradition by the extradition judge, and ordered surrendered by the Minister. On appeal to this Court, they seek to avoid extradition to the United States by arguing that the corresponding Canadian offences under sections 83.03, 83.18 and 83.21 are unconstitutional. In particular, they say that s. 83.18 violates s. 7 of the Charter of Rights and Freedoms because it is overbroad, and they assert that ss. 83.03, 83.18 and 83.21 infringe the guarantee of freedom of expression in s. 2(b) of the Charter. 3. This appeal is being heard together with that of Sriskandarajah (file no. 34009) and Mahmoud Khawaja (file no. 34103). Since all of the appellants challenge the constitutional validity of sections 83.03, 83.18 and 83.21 of the Criminal Code, the respondents’ compendious response to their constitutional challenges is set forth in this factum. Simply stated, the respondents’ position is that s. 83.18 is neither arbitrary nor grossly disproportionate to the state interest it protects, and therefore is not overbroad. Furthermore, ss. 83.03, 83.18 and 83.21 do not infringe freedom of expression. Neither do they, as the appellant Khawaja asserts, infringe freedom of religion or freedom of association. 4. Nadarajah and Sriskandarajah also advance additional grounds of appeal. They argue that: (1) this Court should overturn its previous rulings in U.S.A. v. Cotroni1, U.S.A. v. Kwok2, and Lake v. Canada (Minister of Justice)3 and establish an absolute bar to extradition when a citizen can be prosecuted in Canada for the conduct underlying the extradition request; and, (2) the Minister denied them procedural fairness when, in the absence of any evidence of bad faith, 1 [1989] 1 S.C.R. 1469 2 [2001] 1 S.C.R. 532 3 [2008] 1 S.C.R. 761 2 he declined to go behind the exercise of prosecutorial discretion and obtain and disclose the reasons why the relevant prosecutorial authority had decided not to prosecute them in Canada. With respect to these additional grounds of appeal, the respondent relies on the submissions made in its factum filed in Sriskandarajah (34009). B. FACTS 1. The United States’ Extradition Request 5. The Respondent accepts as substantially correct the facts set out in the Appellant’s factum, except for the facts stated in paragraph 10. The Respondent emphasizes the facts set out below. 6. By diplomatic note dated October 20, 2006, amended February 20, 2009, the United States requested Nadarajah’s extradition to stand trial in the United States District Court for the Eastern District of New York for terrorism-related offences.4 On November 20, 2006, the Minister of Justice issued an Authority to Proceed (ATP) under s. 15 of the Extradition Act seeking a committal order against Nadarajah. The ATP sets out the following Canadian criminal offences which correspond to the conduct alleged by American authorities against Nadarajah: • participating in the activity of a terrorist group, contrary to s.83.18 of the Criminal Code; • conspiracy to traffic in weapons, contrary to s. 465(3) of the Criminal Code; and • attempt to traffic in weapons, contrary to s. 99(1) of the Criminal Code.5 7. The evidence supporting the request from the United States was contained in a Record of the Case certified on October 18, 2006, which was also used in support of companion requests seeking the extradition of Sriskandarajah and Ramanan Mylvaganam.6 2. The Allegations against Nadarajah 8. Nadarajah is alleged, along with three other individuals –Sathajhan Sarachandran, Sahilal Sabaratnam and Thiruthanikan Thanigasalam - to have attempted to purchase on behalf of the 4 Joint Appellants’ Record (JAR), volume II, pp. 179-180 and 188 5 JAR, vol. II, p. 181 6 JAR, vol. II, p. 153-178 3 Liberation Tigers of the Tamil Eelam (LTTE) surface to air missiles and AK-47s from an undercover officer posing as a black market arms dealer in Long Island, New York. 9. On August 14, 2006, Sarachandran described Nadarajah to the undercover officer as the “technical” expert of the group. On August 15, 2006, Sarachandran spoke with a confidential U.S. government witness and told him that he and
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