Mohammad Momin Khawaja was the first person to be charged under Canada's Anti-Terrorism Act. In October of 2006, before Khawaja's trial had even begun, Ontario Superior Court Justice Douglas Rutherford severed part of the act — the motive clause — and declared that it was a violation of the Charter of Rights and Freedoms.
Rutherford decided to sever a section in the law that defines ideological, religious or political motivations for criminal acts. The rest of the law remains in place.
"Motive, used as an essential element for a crime, is foreign to criminal law, humanitarian law, and the law regarding crimes against humanity," Rutherford said in his judgment.
When I posted on this at the time I really thought it would send our legislators back to the drawing board. And I wasn't the only one. The next day I drew attention to a column by Thomas Walkom in which he suggested that this was a step in the right direction: away from the hyped up War on Terror™ and towards the proper treatment of acts of terrorism as criminal offences.
But perhaps not.
An Ontario court ruling has revived debate over the definition of terrorism under Canadian law, raising questions that could have repercussions in two key cases.
The judgment, delivered by Justice Laurence Pattillo of Ontario Superior Court two weeks ago, upheld a contentious section of the federal Anti-Terrorism Act that defines terrorism as a crime motivated by ideological, political or religious considerations.
...
... Pattillo flatly contradicted an earlier decision by Justice Douglas Rutherford, who ruled in 2006 that the definition violated the constitutional guarantees of freedom of thought, expression, belief and association enshrined in the Charter of Rights.
The article describes one case on which Pattillo's ruling has a direct bearing and suggests that this development will "force the Conservative government to decide whether it will continue defending the terrorism definition adopted under the former Liberal rule of Jean Chretien."
It certainly comes at an interesting time given Justice Minister Rob Nicholson's recent tabling of Bill C-19 which is intended to reinstate two measures from the original Anti-Terrorism Act. Those two measures — preventive arrests and investigative hearings — were considered controversial enough at the time that the Liberals bowed to pressure and attached sunset clauses to them. Five years later, the Conservative government of the day wanted to renew them but the Liberals combined with the other opposition parties to defeat it. However a subsequent version of that legislation with revisions suggested by parliamentary committees was passed by the Senate and appeared to have the support of the Liberals in the House of Commons before it died on the Order Paper. (It's a real shame about those unscheduled elections, isn't it?) It's this version of the legislation that Nicholson has re-introduced.
For a while it seemed as though common sense was winning out. The most obviously ill-advised elements of a poorly written and hastily passed piece of legislation were falling, one by one. But now it seems the Anti-Terrorism Act is being reassembled before our eyes.
Yeah. It makes you wonder if something is going down. But it's a secret.
Well, yeah, something's going down. The economy. And neither the Cons nor the Liberals have any intention of doing anything effective about it, because anything effective would have to involve reducing the wealth and power of their corporate cronies.
As a result, people are going to start getting pissed. The resulting populist rage may well not have a leftish character, given the blindness of the Canadian people. But it will almost certainly be disruptive to elite interests in *some* way, and the bosses wanna be nicely positioned to start jailing protest leaders before they exercise their free speech too much. Presto! Call 'em terrorists and jail 'em pre-emptively.
The Liberal government of Chretien/Martin et al. steadfastly refused to call the Tamil Tigers "terrorists". That designation had been sought by the Bush government in the United States, and "Canada's new Conservative government" agreed in April, 2006.
Once the Tigers were "listed", then helping them in any way whatsoever becomes aiding "terrorism".
Meanwhile, the UN says that the government forces and the Tigers BOTH commit war crimes.
http://news.bbc.co.uk/2/hi/south_asia/7942051.stm
So why is helping the Tigers a serious crime, while helping the government is "increasing exports to Sri Lanka"?
In this instance, it's all political. These two Tamil young men are political fodder and may become political prisoners if they are extradited. Hopefully, Canada will return to the "status quo ante" and stop taking sides in the Sri Lankan civil war.
On the one hand, I am NAL, but I think the two defence attorneys quoted at the end of the linked article are right, and that Pattillo's ruling can't stand when it's appealed (and I'm glad to read that it is being appealed).
On the other, I agree with PLG in more general terms. North American elites have been militarizing law enforcement, and justifying that encroachment on democracy through laws (or attempts at writing laws) about terrorism. Some of John Yoo's OLC legal memos are attempts to get around the Fourth Amendment (re unreasonable search and seizure, requiring probable cause, etc) in domestic situations, and congresscritturs have been willing to play games with the Posse Comitatus Act, which is supposed to severely restrict the president's ability to use the military domestically. And then we have the creation of NORTHCOM in 2002, under the Department of Homeland Security and including Canada (under NORAD), openly preparing a military response to domestic terrorism.
In each of these cases, terrorism looks less and less like the point, certainly not the only point.
The strange thing is that the Rutherford decision in Khawaja is actually worse than the Patillo decision in the Tamil cases.
That is so because he strikes down a phrase in the definition of terrorism, but upholds the definition otherwise.
So, to give an example, if a terrorist is defined as "a person who, for reasons of political opinion, uses violence to frighten large civilian populations", it does not aid civil liberties to change it to "A person who uses violence to frighten large civilian populations".
Instead, it makes it EASIER to prove terrorism, because it removes the need to prove anything about the operative political opinion of the perpetrator.
For reasons that escape me, Rutherford's actual decision in Khawaja isn't on line. But, for those who have access to an actual physical library, it is reported at (2007) 214 CCC (3d) 399.