Judge Strikes Down Part of Anti-Terrorism Act

Posted by admin on Oct 24th, 2006

Judge Strikes Down Part of Anti-Terrorism Act

A superior court judge has struck down a portion of the Anti-Terrorism Act which defines terrorism, saying it’s in violation of the Charter of Rights. The ruling hands a partial victory to accused terror suspect Mohammed Momin Khawaja, and deals another blow to anti-terror legislation rushed into law after the Sept. 11, 2001 attacks on Washington and New York. Last week, a judge found secrecy provisions contained in the act were unconstitutional in the case of Ottawa journalist Juliet O’Neill.

On Tuesday, Justice Douglas Rutherford of Ontario Superior Court “severed” the clause in the Anti-Terrorism Act dealing with ideological, religious or political motivation for illegal acts.

He left the rest of the law in place.

Rutherford was ruling on a constitutional challenge brought by Khawaja, the first person charged under the anti-terror provisions of the Criminal Code.

Khawaja, however, remains behind bars. He has been in custody since his arrest on March 29, 2004, and was scheduled to go to trial in January.

Rutherford added the case can still go to trial.

Crown attorney David McKercher would not comment on whether an appeal will be launched. But he suggested any appeal would be unlikely until after Khawaja’s January trial.

Khawaja’s lawyer Lawrence Greenspon said the judge’s ruling strikes to the core of the anti-terrorism law — which he suggested was hastily passed by the government in response to political pressures after 9/11.

“The motive clause is at the heart of the anti-terror law; that clause has been struck down,” said Greenspon, adding that pre-existing Criminal Code provisions could have covered all Khawaja’s alleged activities.

“How many times does the Canadian government have to apologize to the next generation, or the generation after, before we learn the lesson of history which is you don’t pass legislation in response to politics,” he told CTV Ottawa outside the Superior Court.

“You don’t pass legislation in response to crisis. Legislation has got to be better based than that; and if it’s not and you pass legislation as a result of showing people that you’re doing something in response to political crisis, then it’s going to come back to haunt you.”

When asked what he believes this ruling would do for alleged terrorists sitting in jails, Greespon responded: “It gives them a very strong tool to challenge the legislation under which they’re being held.”

In his 32-page written decision, Rutherford wrote that the provision he struck down was “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, a 27-year-old software developer, faces seven criminal charges alleging he participated in and gave assistance to an alleged terrorist organization based in Britain.

The court’s ruling also comes as a parliamentary committee is pushing for an extension to two controversial anti-terrorism powers given to police after 9/11.

The measures — preventive arrest and investigative hearings for material witnesses in terror cases — were rushed into law by the previous Liberal government in the three months after the 9/11 attacks.

They’re due to expire next month.

But on Monday, Liberal and Tory MPs on the public safety committee urged the two provisions be extended to 2011, arguing they could be needed down the road and that there are enough protections for civil liberties within existing law.

But Bloc Quebecois and NDP members on the committee want to abolish the preventative arrest provision altogether, arguing it’s unnecessary and prone to abuse.

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