Mohammed Khawaja is back! The first person ever convicted under Canada’s controversial Anti-Terrorism Act (ATA) back in 2008, is appealing his sentence at the Supreme Court.
The plot involves Ottawa-based Khawaja, who had been providing material support to a terrorist cell based in Britain in the form of providing an explosive device (dubbed, rather whimsically, the ‘Hi-fi digimonster!’) and instructions on its use.
Khawaja’s lawyers will be attempting to overturn the decision of the appeals court which applied the ATA. Whereas, after his first trial, the judge found him to be exempt, accepting his defense (not entirely convincing, in my opinion) that he had no clue as to how the bomb would be used, and had assumed that the plot was meant for the war in Afghanistan (a sub-clause in ATA doesn’t consider terrorism to apply in cases of ‘armed conflict’). Either way, Khawaga is not walking away from this a free man.
Aside from the technical arguments about the exemption clause, the justices will also be hearing a more interesting exchange of views on the constitutionality of the definition of “terrorism activity” under the act, which the judge who first heard the case, and Khawaja’s lawyers, maintain is too broad and discriminatory towards religious groups, in particular the Muslim community. The crux of the case, basically boils down to whether the so called “motive clause” of the ATA, which states that terrorist acts are anything done for “political, religious or ideological” reasons (section 83.01(1)(b)(i)(A)), is precise enough.
With the ATA, the Canadian government set out to resolve one of the great legal predicaments of our age: defining what a terrorist is in legal terms. But did it succeed? Judge Rutherford, the man who heard the case first, found the provision violates freedom of expression and religion due to the vagueness of the definition which, he maintained, could lead to dangerous assumptions about people being terrorists based solely on their religious or political beliefs, some of which might be construed as being similar to those espoused by actual terrorist groups.
In the post-9/11 era of tighter security, the balance between protecting civil liberties and protecting the public from terrorist threats has always been a precarious one. As with almost any law, much depends on the interpretation and application of the measures by the powers that be. The fact that Khawaja remains the only person convicted for terrorism under the Act would suggest that, thus far, the ATA has been used rather judiciously in prosecuting terror. In fact, Harper falsely claimed that renewing the more controversial sections a few month ago (see my analysis of it here), such as the one that allows the detention of terror suspects for 72 hours or more without charge, was necessary because they had been used by police in previous terrorism cases.
In principle, this definition of terrorist activity may not necessarily be a recipe for abuse of power or a threat to our most cherished basic freedoms. However, in the hands of this unscrupulous federal government, these powers will almost certainly result in the undermining of human rights in Canada, sooner or later.