Part of Anti-terrorism Act violates charter: judge

An Ontario judge has struck down part of the Anti-terrorism Act, but legal experts were divided on whether it will make successful prosecutions more difficult.

An Ontario judge has struck down part of the Anti-terrorism Act, but legal experts were divided on whether it will make successful prosecutions more difficult.

Justice Douglas Rutherford of Ontario Superior Court ruled that a section of the Anti-terrorism Act that defines "terrorism" violates the Charter of Rights and Freedoms.

The ruling does not mean that Mohammad Momin Khawaja, the first person charged under the act,will be freed.

Khawaja has been in custody since he was arrested by police on March 29, 2004 in connection with seven criminal charges related to allegations he took part in and helped an extremist organization in Britain.

Khawaja, 27, a software developer who was living in the Ottawa area, was expected to face a trial in January.

Rutherford decided to sever a section in the law that defines ideological, religious or political motivations forcriminal 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.

"While the hate motive may be an aggravating factor at sentencing, in the traditional criminal law, motive — the reasons 'why' someone commits a criminal act — neither establishes nor excuses a crime."

The case against Khawaja canstill proceed to trial, Rutherford ruled.

Quash all charges, lawyer argues

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," Greenspon said, adding that it was "unfortunate" that his client still had to face trial.

British prosecutors allege Khawaja and seven Britons plotted to blow up that country's electricity supply network, as well as trains, pubs and nightclubs. The Britons have pleaded not guilty in a trial that started in the spring.

Act still has force, MP says

Mark Holland, an Ontario Liberal MP and a member of the House of Commons standing committee on public safety and national security, said the section of the act struck down wasn't the most important part.

"I don't want people to think the act itself is without force," he said. "It is still very much in force. This is one element of it."

The committee is already reviewing the Anti-terrorism Act, Holland said, and will have to revisit the section struck down.

"We will have to go back to that definition and refocus it. We need a definition that is more acceptable to the courts," he said.

"Motivation is a very difficult thing for us because it is difficult for us to understand why someone would want to do us harm."

In June, Justice Minister Vic Toews suggested that the motive clause impeded prosecutors and could have led to accusations of racial profiling.

University of Ottawa law professor David Paciocco said the ruling has advantages for prosecutors.

"Normally in criminal law we don't worry about why the act was done for two reasons," he said. "First, if the harm occurs and it's intentional, it doesn't matter why, and sccondly, the toughest thing to ever prove is why."

Legislators mull extendingspecial powers

The decision comes as an interim parliamentary committee report recommended the extension to 2011 of two anti-terrorism powers granted to police after the Sept. 11, 2001attacks in the United States.

The two provisions, preventive arrest and investigative hearings,will expire in December, five years after they were enacted in December 2001.

Preventive arrest allows police to arrest someone they believe might commit a terrorist act.

Investigative hearings allow judges to compel people to appear as material witnesses and prosecute them should they refuse.

Neither measure has yet been used.

Liberal and Conservative members on the committee argue there are enough protections for civil liberties within the existing law and that the provisions could be needed down the road.

With files from the Canadian Press