R v Khawaja and the fraught question of rehabilitation in terrorism sentencing

In R v Khawaja, Supreme Court of Canada addressed the question of how courts should handle the sentencing of terrorism offenders. Although it affirmed the Ontario Court of Appeal’s decision to raise the sentence imposed by the trial judge, the Supreme Court took a different approach to the importance of rehabilitation as a goal in terrorism sentencing generally. The Court of Appeal found that because of terrorism’s unique and serious nature, there should be very little consideration of the possibility of rehabilitation. The Supreme Court disagreed, ruling that the weight to be placed on rehabilitation in such cases should be left to trial judges and that, depending on the facts, rehabilitation could be a significant factor even in the context of very serious terror offences. The author reviews the history of R v Khawaja, contrasting the Supreme Court’s decision with the approach of the Ontario Court of Appeal both in Khawaja and in a number of other cases. He reviews the British and Australian jurisprudence drawn on by the Court of Appeal, which looks on terrorism as a distinct type of crime that calls only for an emphasis on deterrence and punishment in sentencing, and argues that the Supreme Court’s decision indicates a significantly different attitude to the issue. Khawaja allows for rehabilitation to potentially factor into the sentencing of terrorism offenders. The author further considers this decision though the lens Antony Duff’s theory of punishment, which suggests that the concepts of moral agency, equality and the possibility of individual redemption are foundational to a sense of political community. He argues that the Supreme Court’s decision constitutes an implicit affirmation of Duff’s view on the importance of the goal of rehabilitation even for the worst offenders.