'Motivation' can't be used to define terrorist activity, Justice Douglas Rutherford rules
For the second time in less than a week, a court has declared a significant anti-terrorism law unconstitutional, undermining the government's intent to fight terrorism by distinguishing it from ordinary crime.
The impugned section of the 2001 Anti-Terrorism Act was intended to place a new standard of proof on police and prosecutors to prove terrorist offences are committed out of religious, ideological or political motivations.
Terrorist acts, the government declared at the time, are unique from ordinary crimes and need to be battled with unique and special laws.
Legal academics and others, however, feared the provision could lead to political and ethnic witch-hunts and turn terrorism trials into political and religious trials.
Yesterday's court decision, the conclusion of the first major legal test of the act's powers, confirmed those concerns.
What's more, along with another court ruling last week striking down as unconstitutional key sections of the related Security of Information Act in the case of Citizen reporter Juliet O'Neill, it explodes the federal government's repeated assurances that the contentious anti-terror laws rushed into service following the 9/11 attacks were "Charter-proof."
Justice Minister Vic Toews yesterday acknowledged that the ruling "changes fundamentally the definition of terrorism." He stopped short of saying the government will appeal the decision. "We'll take a quick look at what this means and decide whether an appeal is necessary.
"I certainly don't think we're dropping the ball in terms of the actual practical steps we're taking to fight terrorism," he told reporters. "I think it's important that we review our legislation to make sure it is responsive to the needs of a modern-day society fighting terrorism."
The ruling raises immediate questions about the status of the upcoming January trial of accused Ottawa terrorist Momin Khawaja, the first Canadian charged under the act.
In September, his legal team launched a constitutional challenge over the act's definitions of a "terrorist" and of "terrorist activities," arguing they were overly broad and unconstitutionally vague.
Ontario Superior Court Justice Douglas Rutherford responded by ruling yesterday that the section of the act requiring authorities to prove terrorism offences are motivated "in whole or in part for a political, religious or ideological objective or cause," violates Section 2 of the Charter of Rights and Freedoms.
That "essential element" of what defines a terrorist activity "is not only novel in Canadian law, but the impact of which constitutes an infringement of certain fundamental freedoms ... including those of religion, thought, belief, opinion, expression and association ... and, therefore, democratic life," Judge Rutherford wrote in a 32-page decision.
Allowing it to stand would, he said, "promote fear and suspicion of targeted political or religious groups, and will result in racial or ethnic profiling by government authorities at many levels."
Such an infringement, he said, "cannot be justified in a free and democratic society."
He rejected, however, arguments the act's definitions are overly broad and unconstitutionally vague and ruled that all other sections of the act remain in force.
They include additional definitions of what constitutes a terrorist activity -- most notably, that such activity "must also intentionally cause death or serious injury, and it must also have the intent to intimidate the public or compel a person, organization or government to do something."
Mr. Khawaja's demand to have seven terrorism-related charges against him quashed was also rejected.
Speaking to reporters afterward, Crown prosecutor David McKercher said the prosecution will continue to prepare for a January trial. The ruling, he said, "removes one element that the Crown would otherwise have to prove, that's the only effect that I can see."
That one element, though, was a radical departure from Canada's basic criminal law principles that criminal prosecutions focus on an accused person's intent, not their motivation.
Mr. McKercher added the ruling will also not affect future terrorism cases related to, for example, possession of explosives, "if it's for the purposes of intimidation. There remain some distinctions."
But Mr. Khawaja's lawyer, Lawrence Greenspon, questioned whether his client's trial can proceed, given that a key section of the act has been invalidated.
"Having made a finding that the heart of the 'terrorist activity' definition is unconstitutional, the charges should be quashed," he said.
"This is a decision which goes to the heart of the Anti-Terrorism Act. I can't see how they can just continue on and say, 'OK, you took out the motive clause, let's just keep going with the prosecution.' They've got an act that's just been constitutionally successfully challenged, they're going to have to do something, either fold their tent or change their tack.
"What this decision says to me and, more importantly, to the RCMP and CSIS is, 'don't think that you can undertake investigations on the basis of people's political, religious or ideological beliefs and pretend that that's something of a terrorist investigation'.
"It throws a dagger at this notion of ethnic profiling, at this notion of profiling people on the basis of their beliefs, and says that can no longer be justified as a way of getting into a terrorism investigation."
If the government does not appeal the ruling before January, Mr. Greenspon said he will, by seeking leave to appeal to the Supreme Court of Canada on the grounds that Judge Rutherford, in finding the motive section unconstitutional, should then have quashed the charges.
In the meantime, Mr. Khawaja remains in an Ottawa jail cell, where he has been held since his March 2004 arrest. The 27-year-old Ottawa software developer is alleged to have plotted with a suspected British terror cell to blow up public sites in and around London in 2004. He denies the charges.
A Commons public safety and national security committee is currently conducting a mandatory parliamentary review of the act. Committee member and NDP MP Joe Comartin told reporters yesterday the committee likely would have recommended scrapping the impugned section of the act even without yesterday's ruling.
"There were a number of other provisions that are bad, but this one was a really obvious one that was not going to survive a Charter challenge," he said.
Ironically though, the ruling could make it easier to prosecute accused terrorists by removing the legal hurdle requiring prosecutors to prove a political, religious or ideological motivation. When the act was enacted in December 2001, some legal scholars said proving such motivation in court would be difficult.
In fact, the first draft of the act introduced in the Commons of what was then Bill C-36 did not contain the now-defunct motivation definition. It was added only after criticism from opposition politicians and legal scholars concerned the act might be broader than the government intended. They argued it might be used to target various forms of political dissent and protest that had nothing to do with terrorism, such as labour strikes and anti-globalization protests.
The government responded by amending the bill to define terrorist motivation, as well as adding another qualifying clause that says traditional forms of advocacy and protests do not constitute terrorist acts. Still, the government has always insisted a chief reason for the act was the need to distinguish acts of terrorism from ordinary crimes.
A Department of Justice document outlining the intent of the act says: "It is important to preserve a definition of terrorism so that it recognizes the unique and insidious nature of this activity.
"Removing the notion of political, religious or ideological motivation would transform the definition from one that is designed to recognize and deal strongly with terrorism to one that is not distinguishable from a general law enforcement provision in the Criminal Code."
But yesterday's ruling does just that, blurring the legal distinctions between terrorist and other crimes, said Wesley Wark, a security intelligence expert at the Munk Centre for International Studies at the University of Toronto.
"The whole purpose behind needing a definition of terrorism was to say that there is something unique about terrorist crime, therefore we need a definition of terrorism and one of the things that is unique about terrorist crimes is that they are motivated by political, religious or ideological purposes.
"You remove that and you begin to blur the difference between terrorist crimes and other forms of crimes and I suppose that does conceivably strike at the whole heart of the argument that you need a separate kind of Criminal Code for terrorism."
Practically speaking, Mr. Wark said, the government still needs a separate and distinct legal code to deal with terrorist offences.
"But the problem that the government now has is, are they going to go back to the drawing board and try and come up with another definition? That doesn't look very likely. So we're going to have live with the removal of this qualifier."
© The Ottawa Citizen 2006