Issues with the Anti-terrorism Act

An Ontario Superior Court judge has ruled part of the Anti-terrorism Act unconstitutional as part of the proceedings of the case against Mohammad Momin Khawaja, the first person to be charged under that legislation. The judge ruled that the "motive clause" in the Act, requiring a religious, political or ideological motivation behind a crime to render it an act of terrorism, is a violation of the Charter.

The motive of the accused party is generally not an essential element to the crime, and not part of the actus reus and mens rea required to prove the commission of a crime. By throwing out the motive clause from the Anti-terrorism Act, the ruling theoretically makes it easier to prosecute someone for a terrorist act, since no "terrorist" motive has to be shown. But it also underscores the ever present problem with defining terrorism.

I think the ruling is a positive step, and if the federal government changes the Act accordingly, it will bring anti-terrorism legislation closer to mainstream criminal law, and therefore more in line with constitutional rights and freedoms. The Act has a five year sunset clause, and Justice Minister Victor Toewes had already indicated that the motive clause was problematic, one of the reasons being that it could lead to religious profiling, especially of Muslims.

The Star's Thomas Walkom says that this court ruling questions our obsession with terrorism. Western societies have elevated terrorism (for all the problems with sufficiently defining it) to a sui generis status. It is considered more heinous than, say, "regular" murder - for personal gain or revenge or any other "non-terrorist" motive. And it is this special nature attributed to terrorism that has allowed some democratic states to willingly sacrifice civil liberties supposedly in exchange for security.

Walkom notes:

If the definition of terrorism itself is struck down, there is not much point to having special laws above and beyond those aspects of the criminal code that already ban murder, bombing and mayhem.

But if terrorism loses its privileged place, the political rationale of the war on terror begins to slip away. Terrorism is no longer a unique world-defining struggle. It becomes instead just another mundane horrible crime — like burning down an apartment building to get the insurance, or shooting up a schoolyard to get back at the teacher.

Perhaps that's why defining terrorism has proven so elusive - it is a loaded but ultimately superficial term that doesn't really add anything to the equation. As Walkom concludes, the court ruling's central message is that 'a crime is a crime is a crime.'