Judge Strikes Down Federal Definition of Terrorism

OTTAWA (CP) – A judge has struck down what he calls an “essential element” of Canada’s legal definition of terrorism, saying it infringes on freedom of religion, thought and association guaranteed in the Charter of Rights.

Justice Douglas Rutherford of Ontario Superior Court chose to “sever” the offending clause from the Anti-Terrorism Act and leave the rest of the law in place.

His decision Monday deals another blow to anti-terror legislation rushed into law in the fall of 2001 following the 9-11 terrorist attacks in the United States. Last week, a judge found the secrecy provisions in the act were unconstitutional in the case of Ottawa journalist Juliet O’Neill.

Rutherford was ruling on a constitutional challenge brought by accused terror suspect Mohammed Momin Khawaja. While it’s a partial victory for Khawaja, he remains in jail awaiting trial.

Khawaja was the first person charged under the new anti-terror law, in March 2004, and his case is a test for the terrorism provisions.

Khawaja is alleged to have been involved in a reputed British bomb plot that had a list of potential targets around London. He is also alleged to have been involved in developing remote detonation devices, as well as helping plan and finance the operation.

Rutherford, in a 32-page written decision, zeroed in on the provision that makes proof of terrorism dependent on showing a religious, political or ideological motive for the criminal activity.

He wrote that this definition is “an essential element that 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.”

Such an infringement, said Rutherford, “cannot be justified in a free and democratic society.”

Khawaja’s lawyer, Lawrence Greenspon, said the ruling strikes to the core of the law and should have resulted in the seven terrorism charges being quashed.

“The motive clause is at the heart of the anti-terror law; that clause has been struck down,” he said outside court.

Greenspon argued that pre-existing Criminal Code provisions could have covered all Khawaja’s alleged activities.

Crown attorney David McKercher would not comment on whether an appeal is likely, but suggested any appeal would not likely take place until after Khawaja’s trial, which is scheduled to start in January.