BC Court of Appeal sentencing decision in first terrorism financing case

NSL, ch. 7.


In R. v. Thambaithurai, 2011 BCCA 137, the BC Court of Appeal upheld the sentencing decision made by the trial court in Canada's first terrorism financing case.  The decision -- in which the accused was fundraising for the Tamil Tigers -- upholds a six month prison sentence.  The Crown had sought an increase in this penalty, urging that the heinous nature of terrorism requires a more stringent response.  The Court demurred:


While terrorist offences have unique features, they are governed by the same sentencing framework and objectives as other crimes under the Criminal Code, and Parliament has left the full range of sentencing options, except conditional sentences, open to the courts for consideration in dealing with them. The sentencing judge accurately outlined the facts and Mr. Thambaithurai’s personal circumstances. He considered the sentencing objectives in the Criminal Code, and reviewed the relevant mitigating and aggravating factors. He recognized the unique and serious nature of terrorism but, in my view, properly accepted the Crown’s submission that Mr. Thambaithurai’s activities fell at the low end of the scale. Despite that, the sentencing judge decided a suspended sentence would not adequately serve the objectives of deterrence and denunciation. Instead, he ordered a custodial sentence of six months, a result that would ordinarily be viewed as a harsh penalty for a first offender with an otherwise unblemished record. As well, Mr. Thambaithurai’s conviction will have long-lasting effects, as it will interfere with his ability to travel beyond Canada.


It would be wrong to read too much into this decision -- its facts were very different from those considered in the Ontario Court of Appeal's recent Khawaja decision (discussed here).  However, the tenor of the BC Court's reasoning -- indeed, the very invocation of deterrence in circumstances where there apparently was little or no remorse -- may suggest that the BC Court of Appeal was not completely persuaded by the Ontario Court of Appeal's more vigorous sentencing approach.