Yesterday, an Ontario Superior Court of Justice decision struck down a key provision in Canada's anti-terrorism law. In Queen v. Khawaja, (Ont. Super. Ct. Justice, Oct. 24, 2006), Justice Rutherford held that the law's definition of "terrorist activity" violates Sec. 2 of Canada's Charter of Rights and Freedoms that protects freedom of religion, thought, belief, opinion, expression and association. The provision at issue, Sec. 83.01(1)(b)(i)(A) of Canada's Criminal Code limits prohibited conduct to activity that is undertaken "in whole or in part for a political, religious or ideological objective or cause". The court said that this definition will focus investigative and prosecutorial scrutiny on political, religious and ideological beliefs and will have a chilling effect on the exercise of protected rights. Relying on writings by academics, the court said that this definition will lead to "the shadow of suspicion and anger falling over" those connected with groups identified with particular terrorist acts.
The court pointed out that one of the purposes of the clause in question was to limit the range of activities that would otherwise be covered by the act. However, the court said, this justification is outweighed by the freedoms-infringing impact of the provision. The court held that the act should be applied as if this clause did not exist. The Toronto Globe & Mail, covering the decision yesterday, pointed out that it will likely make it easier to obtain convictions under the act. Yesterday's New York Times article on the case quotes Lawrence Greenspon, lawyer for defendant Mohammed Momin Khawaja, a Canadian-born software developer who was charged in connection with a bomb plot, as saying that the definition of terrorism as a politically or religiously motivated crime has led to abuses by police and intelligence officers. He added, "That's why they're knocking on Muslim Canadians' doors and questioning and detaining people who are Arab or followers of Islam."
