Aboot time

It is actually terribly indecent of Guambat to make fun of the Canadian accent when it is, finally, a Canadian court that has expressed the same conclusion Guambat came to express a year ago. Guambat's sincerest apologies to all maple tree huggers.

Guambat first mentioned the redundancy of terrorism laws in "As I see it, John Howard is a terrorist", and then specifically spoke of his "spew... about the tendency of this government to make new laws where the old ones out to work" in "Dastards" in April 2006.

Now the Canadian courts are carrying the theme:

Rulings question obsession with terrorism
Crime is crime, courts are saying

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.

They also call into question the current obsession with terrorism as a unique, world-defining evil.

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.

Ottawa must redefine 'terror'

[T]he judge did not throw out seven terrorism-related charges against Ottawa resident Mohammed Momin Khawaja, who has been implicated in a London bomb plot.

Instead, the judge severed the troublesome part - the motive clause - from the definition in the act, and would allow Khawaja’s trial, scheduled for January, to go ahead.

Judge Rutherford said “an inevitable impact” of the clause “will be to focus investigative and prosecutorial scrutiny on the political, religious and ideological beliefs, opinions and expressions of persons and groups both in Canada and abroad.”

“Motive, used as an essential element for a crime, is foreign to criminal law, humanitarian law, and the law regarding crimes against humanity.

"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.”

Judging Canada's anti-terror laws

In much the same vein, Justice Lynn Ratushny ruled last week that the Security of Information Act — used by the Royal Canadian Mounted Police to harass Ottawa Citizen journalist Juliet O'Neill who wrote on the Maher Arar case — was so vague, sweeping and open to abuse that it violated the Charter's press freedom guarantee.

The courts are being vigilant in other ways, too. A judge recently barred Ottawa from trying to deport a terror suspect to a country where he might face torture. And other judges have ordered non-Canadian terror suspects who have been held for long periods without being charged or deported to be released into the community under strict supervision.

This judicial vigilance should alert Parliament in general and the Liberal leadership aspirants in particular to the need to bring sharper focus to national security and secrecy laws drafted or amended in haste, and to humanize procedures that flow from them. Courts are properly insistent that Ottawa preserve security without abandoning rights. Michael Ignatieff, Bob Rae, Stéphane Dion and Gerard Kennedy must discuss this because not everyone shares the courts' concern to get the balance right.

Just this week a Commons subcommittee reviewing the Anti-Terrorism Act five years after its adoption in 2001 issued a shallow and complacent interim report that urged Parliament to grant another five-year extension to its most contentious provisions, which have never even been used.

The panel urged that preventive arrest and investigative hearings be kept in force because Parliament has not had enough time to "fully assess their necessity and effectiveness." Conservatives and Liberals who dominate the panel agreed; NDP and Bloc Québécois members dissented.

This is nonsense. Since 9/11 police have successfully investigated and charged terror suspects without relying on these draconian measures. Rather than get another five-year lease on life, they should be retired.

Preventive arrest is particularly offensive. It empowers the police and the courts to arrest even Canadian citizens and hold them in jail for up to a year, without charging them, on mere suspicion that their detention might prevent a terror attack.

Investigative hearings are problematic as well. They force people to give evidence about imminent terror threats or past terror crimes, whether or not it incriminates them. On this point, the subcommittee conceded that the ordinary criminal law is adequate in dealing with old crimes. They urged that investigative hearings be used only when there's reason to fear a terrorist attack. But even here, the law's usefulness is suspect. Can terrorists be expected to tip judges off to attacks? That strains belief.

Rather than rubber-stamp this panel's breezy acceptance of draconian laws, extending them through 2011, Canada's MPs should be no less vigilant than our judges and retire these laws. They have not been needed to safeguard our society. Rather, they pose a threat to civil rights.