http://www.vivelecanada.ca/article.php/20061025230505739

Oct. 25, 2006. 01:56 PM
THOMAS WALKOM

Carefully, gradually, the courts are nibbling away at Canada's anti-terror laws. They did it last week when an Ontario Superior Court justice ruled that secrecy provisions of these laws contradict freedom of the press. They did it again yesterday when another Ontario judge declared the very definition of terrorist activity is unconstitutional.

The rulings represent a sharp rebuke to those parliamentarians who rushed through the terror laws in the wake of the 9/11 attacks on New York and Washington. They also call into question the current obsession with terrorism as a unique, world-defining evil.

In yesterday's decision — related to the terror charges brought against Ottawa computer software developer Momin Khawaja — Superior Court Justice Douglas Rutherford concluded that the central definition of what constitutes "a terrorist activity" contravenes constitutional provisions that guarantee freedom of religion, expression and association.

Under the 2001 law, a terrorist activity is defined as an act of violent intimidation that is motivated by religion, politics or ideology. Yet, as Rutherford noted, the government has never been able to satisfactorily explain why mass murder carried out in the name of religion or ideology is somehow worse than mass murder carried out for reasons of profit or personal pathology.

At the time the law was passed, the then-Liberal government's only defence for this motive provision was that, without it, terrorist crimes would be no different from ordinary crimes.

Which, as Rutherford said, is precisely the point.

"The average person would be hard-pressed, I daresay, to recount much about the motives of some if not all of these notorious crimes (such as the 9/11 attacks)," he wrote. "Just what political, religious or ideological objectives or causes the perpetrators felt they were supporting with their actions is largely lost on the populations affected. And for good reason. It doesn't really matter."

What's more, he wrote, the decision to focus on religious or ideological motive will inevitably lead to a chilling effect on the right of Canadians to think and believe what they wish.

Those who are not terrorists, he writes, will inevitably be tarred because they happen to have the same religion or beliefs as those who are.

Right now, anti-terror laws are focused on Muslims. But Rutherford quotes approvingly from an analyst who argues that the law is sufficiently broad that it could be easily used against people with all kinds of beliefs — from environmentalists to anti-abortion advocates.

Ironically, the judge's decision could end up pleasing both fans and critics of tough anti-terror laws.