R. v. Khawaja (M.M.),

• Jurisdiction: Ontario
• Judge: Doherty, Moldaver and Cronk, JJ.A.
• Neutral Citation: 2010 ONCA 862
• Citation: (2010), 271 O.A.C. 238 (CA),2010 ONCA 862,103 OR (3d) 321,273 CCC (3d) 415,82 CR (6th) 122,[2010] CarswellOnt 9672,[2010] OJ No 5471 (QL),271 OAC 238,97 WCB (2d) 97,(2010), 271 OAC 238 (CA),103 O.R. (3d) 321,271 O.A.C. 238,[2010] O.J. No 5471 (QL)
• Date: 17 December 2010
• Court: Court of Appeal (Ontario)

R. v. Khawaja (M.M.) (2010), 271 O.A.C. 238 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. DE.038

Her Majesty The Queen (respondent/appellant by way of cross-appeal) v. Mohammad Momin Khawaja (appellant/respondent by way of cross-appeal)

(C50298; C50299; 2010 ONCA 862)

Indexed As: R. v. Khawaja (M.M.)

Ontario Court of Appeal

Doherty, Moldaver and Cronk, JJ.A.

December 17, 2010.

Summary:

The accused was allegedly associated with a "terrorist group" in England that was engaged in "terrorist activity". He was convicted of five terrorism offences: (1) knowingly participating in or contributing to the activity of a terrorist group by receiving training for the purpose of enhancing the ability of the terrorist group to facilitate or carry out terrorist activity (Criminal Code, s. 83.18(1)); (2) knowingly instructing a person to carry out financial activity for the benefit of a terrorist group for the purpose of enhancing the ability of the terrorist group to facilitate or carry out terrorist activity (s. 83.21(1)); (3) providing and making available property and financial services to persons, intending or knowing that they would be used, in whole or in part, for the purpose of facilitating or carrying out terrorist activity (s. 83.03(a)); (4) knowingly participating in or contributing to an activity of a terrorist group for the purpose of enhancing the ability of the terrorist group to facilitate or carry out a terrorist activity, by participating in dialogue, meetings or exchanges of information relating to the development of an explosive device intended to endanger life or cause serious damage to property (s. 83.18); and (5) knowingly facilitating a terrorist activity (s. 83.19). The accused was acquitted of two other terrorism offences, but convicted of the lesser included offences of (1) developing a device with intent to cause an explosion likely to cause serious bodily harm or death and (2) making an explosive substance with intent to enable another person to endanger life. The accused, after credit for five years' pre-trial custody, was sentenced to a total of 10.5 years' imprisonment. The accused appealed his convictions, submitting that: (1) the trial judge erred in severing the "motive clause" in s. 83.01(1)(b)(i)(A) of the definition of "terrorist activity", thereby registering convictions unknown to law; (2) the trial judge erred in convicting the accused on a different case than that set out in the Crown's opening statement at trial; (3) the trial judge erred in finding that the "armed conflict exception" in the definition of "terrorist activity" (s. 83.01(1)(b)(ii) did not apply; (4) the trial judge erred in taking judicial notice of the geo-political situation in Afghanistan and of international law; and (5) the convictions were unreasonable. The accused also sought leave to appeal the sentences imposed. The Crown cross-appealed the sentences.

The Ontario Court of Appeal dismissed the conviction appeal. The Crown's cross-appeal against sentence was allowed and the accused was sentenced to life imprisonment on the explosions count and a total of 24 years' imprisonment (consecutive to each other but concurrent to the life sentence) on the five terrorism offence counts.

Civil Rights - Topic 1803

Freedom of speech or expression - General principles - Freedom of expression - Scope of - The Ontario Court of Appeal stated that "a legislative provision may limit freedom of expression through its purpose or by its effect. If the purpose is to restrict expression that is prima facie protected by s. 2(b), the limit must be justified under s. 1 of the Charter. ... However, if the purpose is not to restrict expression, but the effect of the legislation is to restrict expression, the legislation limits the rights guaranteed under s. 2(b) only if the activity limited by the legislation promotes at least one of the values underlying the right to freedom of expression. These principles are the pursuit of truth, participation in the community and individual self-fulfilment" - See paragraph 112.

Civil Rights - Topic 1854.2

Freedom of speech or expression - Limitations on - Terrorism offences - [See Criminal Law - Topic 1183 ].

Civil Rights - Topic 2063

Freedom of thought, belief or opinion - Denial of - Anti-terrorism efforts and legislation - [See Criminal Law - Topic 1183 ].

Criminal Law - Topic 39.5

General principles - Mens rea or intention - Motive - The Ontario Court of Appeal stated that "the aphorism that 'motive is no part of a crime' does not express a criminal law principle referable to the permitted scope of criminal liability, much less a principle of fundamental justice protected by s. 7 of the Charter. The aphorism refers to the interpretive rule that, ordinarily, when interpreting the mens rea required for criminal culpability, and absent statutory language to the contrary, the reason or reasons that cause an accused to engage in prohibited conduct or to choose to bring about a prohibited consequence are irrelevant to culpability ... The aphorism is also a reflection of the nomenclature used to describe the fault component of crimes and, more specifically, to distinguish between states of mind that are relevant to culpability as described in the statute creating the offence (e.g., intent, purpose), and states of mind that are not relevant to that definition ... Nor do we accept that treating motive as relevant to criminal culpability is foreign to Canadian criminal law. Motive plays a part in many aspects of the substantive criminal law, including the definition of the fault component of some crimes and the definition of exculpatory justifications and excuses ... there are many Criminal Code offences that require that the prohibited conduct be done for a specified purpose that is ulterior to the conduct component of the crime ... The requirement that the Crown prove 'purpose' can refer to different states of mind, including the requirement of proof of the reason that precipitated the conduct that brought about the intended consequence. When purpose is used in this sense, it is effectively indistinguishable from the concept of motive ... Parliament, in defining a crime, can require proof of the perpetrator's motive as an element of that crime ... A statutory provision that requires proof of motive is not constitutionally suspect. The motive clause in the definition of 'terrorist activity' signals that Parliament has determined that motivation for the conduct described in the definition is a central feature of that which distinguishes terrorism from other crimes." - See paragraphs 91 to 93.

Criminal Law - Topic 164

General principles - Elements of criminal conduct - Motive - [See Criminal Law - Topic 39.5 ].

Criminal Law - Topic 1183

Offences against public order - Terrorism offences - "Terrorist activity" defined - Part II.1 of the Criminal Code provided for terrorist-related offences for certain acts or omissions involving "terrorist activity" - Part of the definition of "terrorist activity" (s. 83.01(1)(b)(i)(A)) required proof that the accused's act or omission was committed wholly or partly for a "political, religious or ideological purpose, objective or cause" ("motive clause") - The trial judge held that although conduct constituting "terrorist activity" did not engage s. 2(b) of the Charter (freedom of thought, belief, opinion and expression), the "chilling effect" of the "motive clause" violated the Charter rights of persons who merely shared some or all of the political, religious or ideological beliefs associated with those who actually engaged in "terrorist activity" - The judge severed the offending "motive clause" from the definition - On appeal, the accused argued that the judge should have struck the entire "terrorist activity" definition, which would have rendered all of the terrorist offences in Part II.1 to be of no force and effect - The Ontario Court of Appeal agreed with the Crown that the "motive clause" did not violate s. 2(b) - The purpose of the legislation was to protect persons from physical harm flowing from conduct meeting the "terrorist activity" definition, not to limit expression - None of the conduct falling under the "terrorist activity" definition was protected by s. 2(b) because (1) some, if not all, of the conduct involved the use of violence to convey a meaning and (2) to the extent that some conduct did not involve the conveying of meaning through violence, it involved conveying meaning in a manner contrary to and destructive of the principles underlying the right to freedom of expression - The judge's "chilling effect" finding was speculative in the absence of any evidence - It was wrong to find a "chilling effect" self-evident and beyond question - The judge effectively took judicial notice of a fact that was reasonably open to dispute - The court stated that "the contention that a segment of the community is reluctant to exercise its rights under s. 2 because of the motive clause in the anti-terrorism legislation comes nowhere near to meeting the standard required before judicial notice can be taken" - Further, s. 83.01(1)(1) specifically provided that political, religious or ideological expression which did not engage conduct falling within the "terrorist activity" definition did not constitute "terrorist activity" - The "motive clause" was constitutional and should not have been severed - The error was of no effect, as the Crown proved the required motive - See paragraphs 70 to 138.

Criminal Law - Topic 1184

Offences against public order - Terrorism offences - "Armed conflict" exception - Part II.1 of the Criminal Code provided for terrorist-related offences for certain acts or omissions involving "terrorist activity" - Section 83.01(1)(b)(b)(ii) excluded from "terrorist activity" conduct that was "an act or omission that is committed during an armed conflict and that, at the time and in the place of its commission, is in accordance with customary international law or conventional international law applicable to the conflict" - The Ontario Court of Appeal agreed that the "armed conflict" exception precluded criminal liability for combatants in an armed conflict who acted in accordance with international law - The exception operated as a traditional defence to be left with the jury if it passed the "air of reality" test - The court stated that "the relevant inquiry in respect of the exception was whether there was anything in the evidence to suggest that the [accused's] activities: (1) were undertaken while an armed conflict was in progress, and (2) were in accordance with the rules of war established by international law applicable to that armed conflict" - The court rejected the submission that the exception applied only where the accused actually participated in the theatre of war where the relevant armed conflict was underway - That narrow interpretation was inappropriate - The court stated that "the availability of the exception does not require proof of an accused's physical presence in an area of armed conflict. Nor does it contemplate that an accused's impugned acts or omissions must be carried out within the territorial limits of an area of armed conflict. ... all that is required to trigger the exception is some evidence that: (1) an accused's acts or omissions were committed 'during' an armed conflict; and (2) those acts or omissions, at the time and at the place of their commission, accorded with international law applicable to the armed conflict at issue" - On the trial judge's findings, there was no "air of reality" to the armed conflict exception - See paragraphs 152 to 169.

Criminal Law - Topic 4505.1

Procedure - Trial - Special duties of Crown - Duty to disclose theory of the case - An accused charged with "terrorism" offences under Part II.1 of the Criminal Code argued that the Crown's opening statement alleged that the conduct in issue was the accused's involvement in a specific bomb plot in England, but that the Crown then materially shifted its case at later stages in the trial to expand the alleged conduct to any "violent Jihad wherever it might opportunistically be committed" - The Ontario Court of Appeal rejected the accused's submission that the Crown impermissibly recast the case against him - That argument ignored the basic distinction between formal particulars and the Crown's chosen theory of an accused's criminal liability - While the Crown was bound to prove formal particulars (none sought here), the Crown had the right to modify its theory or strategy as the trial progressed - The court stated that "in the absence of formal particulars regarding the terrorist activity alleged, it would have been unobjectionable for the Crown to adjust the theory of its case in response to the evidence at trial as it evolved" - In any event, it was clear from the outset "that the Crown's theory of liability was not centred exclusively" on the England bomb plot - See paragraphs 135 to 151.

Criminal Law - Topic 4748

Procedure - Information or indictment - Charge or count - Indictable offences - Particulars - [See Criminal Law - Topic 4505.1 ].

Criminal Law - Topic 5804

Sentencing - General - Consecutive sentences - Reduced total term (totality principle) - Section 83.26 of the Criminal Code provided that where an accused was convicted for offences involving terrorist activity under ss. 83.02 to 83.04 and 83.18 to 83.23, all sentences (except life sentences) were to be served consecutively - A trial judge, sentencing an accused on five terrorism offences to which s. 83.26 applied, recognized that he had to impose consecutive sentences, but held that he was constrained by the totality principle (s. 718.2(c)), which required him to impose a total sentence that was not "unduly long or harsh" - The Ontario Court of Appeal held that "s. 83.26 reflects Parliament's intention that the general principle of totality must be moderated or altered in the case of terrorism-related crimes. This provision signals that, when offenders are convicted of a number of such crimes, total sentences will be higher than they otherwise would be, and the customary upper range for consecutive fixed-term sentences will not be applicable. ... Parliament intended to send a message that terrorism is a crime that warrants special consideration and it is to be treated differently for sentencing purposes. It will be the rare case where lighter sentences are imposed on offenders who knowingly engage in terrorist activity that is designed to or is likely to result in the indiscriminate killing of innocent human beings. As indicated, in these cases, life sentences or sentences exceeding 20 years will generally be appropriate." - See paragraphs 204 to 223.

Criminal Law - Topic 5832

Sentencing - Considerations on imposing sentence - Rehabilitation - [See first Criminal Law - Topic 5833.9 ].

Criminal Law - Topic 5833.9

Sentencing - Considerations on imposing sentence - Offences involving terrorism - The Ontario Court of Appeal stated that "consideration of an offender's prospects for rehabilitation is a relevant factor on sentencing even in terrorism cases. That said, the import of rehabilitation as a mitigating circumstance is significantly reduced in this context given the unique nature of the crime of terrorism and the grave and far-reaching threat that it poses to the foundations of our democratic society" - See paragraph 201.

Criminal Law - Topic 5833.9

Sentencing - Considerations on imposing sentence - Offences involving terrorism - [See Criminal Law - Topic 5982 ].

Criminal Law - Topic 5940

Sentence - Explosives (incl. causing injury with intent) - [See Criminal Law - Topic 5982 ].

Criminal Law - Topic 5982

Sentence - Terrorism offences - The 31 year old accused was associated with a "terrorist group" in England that was engaged in "terrorist activity" - He was convicted of five terrorism offences: (1) knowingly participating in or contributing to the activity of a terrorist group by receiving training for the purpose of enhancing the ability of the terrorist group to facilitate or carry out terrorist activity (Criminal Code, s. 83.18(1)); (2) knowingly instructing a person to carry out financial activity for the benefit of a terrorist group for the purpose of enhancing the ability of the terrorist group to facilitate or carry out terrorist activity (s. 83.21(1)); (3) providing and making available property and financial services to persons, intending or knowing that they would be used, in whole or in part, for the purpose of facilitating or carrying out terrorist activity (s. 83.03(a)); (4) knowingly participating in or contributing to an activity of a terrorist group for the purpose of enhancing the ability of the terrorist group to facilitate or carry out a terrorist activity, by participating in dialogue, meetings or exchanges of information relating to the development of an explosive device intended to endanger life or cause serious damage to property (s. 83.18); and (5) knowingly facilitating a terrorist activity (s. 83.19) and one non-terrorism offence (intending to cause an explosion with an explosive device (s. 81(1)) - After credit for five years' pre-trial custody, the trial judge sentenced the accused to a total of 10.5 years' imprisonment - The Ontario Court of Appeal allowed the Crown's sentence appeal, substituting a sentence of life imprisonment on the explosives count and a total of 24 years' imprisonment (consecutive to each other but concurrent to the life imprisonment sentence) on the remaining five terrorism offence counts - The judge erred in assessing the accused's level of determination and commitment to violent Jihad, failed to treat the absence of any evidence of rehabilitative prospects as a critical factor in assessing future dangerousness, and misinterpreted s. 83.26 (re consecutive sentences) - The court stated that "the sentencing of terrorists requires particular regard to three critical factors: (1) the unique nature of terrorism-related offences and the special danger that these crimes pose to Canadian society; (2) the degree of continuing danger that the offender presents to society; and (3) the need for the sentence imposed to send a clear message to would-be terrorists that Canada is not a safe haven from which to pursue their subversive and violent ambitions. In failing to properly apply these considerations, the trial judge imposed a sentence that was manifestly unfit." - See paragraphs 184 to 255.

Evidence - Topic 2265

Special modes of proof - Judicial notice - Particular matters - Human conduct - Reaction of others - [See Criminal Law - Topic 1183 ].

Cases Noticed:

R. v. Khyam, [2008] EWCA Crim. 1612, refd to. [para. 18].

Canada (Attorney General) v. Nadarajah et al., [2009] O.T.C. Uned. 499; 243 C.C.C.(3d) 281 (Sup. Ct.), refd to. [para. 64].

R. v. Ahmad (2009), 257 C.C.C.(3d) 199 (Ont. Sup. Ct.), refd to. [para. 71].

Reference Re Marine Transportation Security Regulations (2009), 395 N.R. 1; 2009 FCA 234, refd to. [para. 71].

R. v. Big M Drug Mart, [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [para. 72].

R. v. Parker (T.) (2000), 135 O.A.C. 1; 49 O.R.(3d) 481 (C.A.), refd to. [para. 72].

R. v. Lewis, [1979] 2 S.C.R. 821; 27 N.R. 451, refd to. [para. 88].

United States of America et al. v. Dynar, [1997] 2 S.C.R. 462; 213 N.R. 321; 101 O.A.C. 321, refd to. [para. 91].

R. v. Hibbert (L.), [1995] 2 S.C.R. 973; 184 N.R. 165; 84 O.A.C. 161, refd to. [para. 92].

R. v. Kerr (J.R.), [2004] 2 S.C.R. 371; 322 N.R. 91; 354 A.R. 114; 329 W.A.C. 114, refd to. [para. 92].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 97].

R. v. Keegstra, [1990] 3 S.C.R. 697; 117 N.R. 1; 114 A.R. 81, refd to. [para. 97].

R. v. Zundel (No. 2), [1992] 2 S.C.R. 731; 140 N.R. 1; 56 O.A.C. 161, refd to. [para. 97].

Montreal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141; 340 N.R. 305, refd to. [para. 97].

Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Local 580, Peterson and Alexander, [1986] 2 S.C.R. 573; 71 N.R. 83, refd to. [para. 100].

Canadian Federation of Students (B.C.) et al. v. Greater Vancouver Transportation Authority et al., [2009] 2 S.C.R. 295; 389 N.R. 98; 272 B.C.A.C. 29; 459 W.A.C. 29, refd to. [para. 100].

Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123; 109 N.R. 81; 68 Man.R.(2d) 1, refd to. [para. 102].

Royal College of Dental Surgeons (Ont.) et al. v. Rocket and Price, [1990] 2 S.C.R. 232; 111 N.R. 161; 40 O.A.C. 241, refd to. [para. 102].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1, refd to. [para. 103].

R. v. C.D., [2005] 3 S.C.R. 668; 343 N.R. 1; 376 A.R. 258; 360 W.A.C. 258, refd to. [para. 104].

Application Under Section 83.28 of the Criminal Code, Re, [2004] 2 S.C.R. 248; 322 N.R. 205; 199 W.A.C. 45; 326 W.A.C. 45, refd to. [para. 110].

R. v. Sharpe (J.R.), [2001] 1 S.C.R. 45; 264 N.R. 201; 146 B.C.A.C. 161; 239 W.A.C. 161, refd to. [para. 118].

R. v. Spence (S.A.), [2005] 3 S.C.R. 458; 342 N.R. 126; 206 O.A.C. 150, refd to. [para. 123].

R. v. Find (K.), [2001] 1 S.C.R. 863; 269 N.R. 149; 146 O.A.C. 236, refd to. [para. 123].

Little Sisters Book and Art Emporium et al. v. Canada (Minister of Justice) et al., [2000] 2 S.C.R. 1120; 263 N.R. 203; 145 B.C.A.C. 1; 237 W.A.C. 1, refd to. [para. 134].

R. v. Groot (N.) (1998), 112 O.A.C. 303; 41 O.R.(3d) 280 (C.A.), affd. [1999] 3 S.C.R. 664, refd to. [para. 143].

R. v. Ranger (R.) (2003), 176 O.A.C. 226; 67 O.R.(3d) 1 (C.A.), refd to. [para. 143].

R. v. Pickton (R.W.) (2010), 404 N.R. 198; 290 B.C.A.C. 264; 491 W.A.C. 264; 2010 SCC 32, refd to. [para. 144].

R. v. Rose (J.), [1998] 3 S.C.R. 262; 232 N.R. 83; 115 O.A.C. 201, refd to. [para. 144].

R. v. Wynnychuk (1962), 133 C.C.C. 227 (Alta. C.A.), refd to. [para. 150].

R. v. Pendleton (1982), 1 C.C.C.(3d) 228 (Ont. C.A.), refd to. [para. 150].

R. v. Motto (M.), [2005] O.T.C. Uned. 66 (Sup. Ct.), refd to. [para. 150].

R. v. Drolet, [1989] R.J.Q. 295; 20 Q.A.C. 94 (C.A.), affd. [1990] 2 S.C.R. 1107; 138 N.R. 305; 55 Q.A.C. 59, refd to. [para. 150].

R. v. Pincemin (D.D.), [2005] 11 W.W.R. 55; 249 Sask.R. 86; 325 W.A.C. 86 (C.A.), refd to. [para. 150].

R. v. N.Y., [2008] O.T.C. Uned. A16; 2008 CanLII 24543 (Sup. Ct.), refd to. [para. 159].

R. v. Cinous (J.), [2002] 2 S.C.R. 3; 285 N.R. 1, refd to. [para. 160].

R. v. Gunning (J.J.), [2005] 1 S.C.R. 627; 333 N.R. 286; 211 B.C.A.C. 51; 349 W.A.C. 51, refd to. [para. 160].

R. v. Ribic (N.N.) (2008), 242 O.A.C. 299; 238 C.C.C.(3d) 225 (C.A.), refd to. [para. 160].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161, refd to. [para. 182].

R. v. Beaudry (A.), [2007] 1 S.C.R. 190; 356 N.R. 323, refd to. [para. 182].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 184].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 208].

R. v. Namouh (2010), 74 C.R.(6th) 376 (C.Q. (Crim. & Pen. Div.)), refd to. [para. 227].

R. v. Barot, [2007] EWCA Crim. 1119, refd to. [para. 227].

R. v. Elomar, [2010] NSWSC 10, refd to. [para. 232].

R. v. Z.A., [2010] O.T.C. Uned. 441; 2010 ONSC 441, refd to. [para. 234].

R. v. Lodhi, [2006] NSWSC 691, affd. [2007] NSWCA 360, leave to appeal refused [2008] HCATrans 225, refd to. [para. 248].

R. v. Sakr (1987), 31 A. Crim. R. 444 (C.C.A.), refd to. [para. 249].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 83.01(1)(b) [para. 80, Appendix]; sect. 83.03(a), sect. 83.2, sect. 83.18(1), sect. 83.19(1), sect. 83.21(1), sect. 83.26 [Appendix].

Authors and Works Noticed:

Canada, Royal Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182, Air India Flight 182: A Canadian Tragedy (2010), vol. 1, p. 159 [para. 236].

Colvin, E., and Anand, S., Principles of Criminal Law (3rd Ed. 2007), pp. 112 [para. 84]; 192, 193 [para. 91].

Fisse, B., Howard's Criminal Law (5th Ed. 1990), pp. 485, 486 [para. 89].

Plaxton, M., Irruptions of Motive in the War on Terror (2007), 11 Can. Crim. L.R. 233, generally [para. 92].

Roach, Kent, Terrorism Offences and the Charter: A Comment on R. v. Khawaja (2007), 11 Can. Crim. L.R. 272, p. 292 [para. 88].

Saul, B., Defining Terrorism in International Law (2008), p. 39 [para. 93].

Stuart, Don, Canadian Criminal Law: A Treatise (5th Ed. 2007), p. 225 [para. 88].

Williams, Glanville, Textbook of Criminal Law (2nd Ed. 1983), p. 75 [para. 91].

Counsel:

Lawrence Greenspon and Eric Granger, for the appellant;

Beverly Wilton, Nicholas E. Devlin and Ian Bell, for the respondent.

This appeal and cross-appeal were heard on May 18-20, 2010, before Doherty, Moldaver and Cronk, JJ.A., of the Ontario Court of Appeal.

The judgment of the Court of Appeal was released by the Court on December 17, 2010.