National Post - Toronto, Canada
Anti-terrorism Act unconstitutional argues lawyer in terror trial
Wednesday, September 13, 2006
OTTAWA - Drunk drivers, restaurant waitresses and political activists could be prosecuted as terrorists under the vague and sweeping provisions of the Anti-terrorism Act, an Ottawa lawyer told court Tuesday.
This "is a piece of legislation so broad and vague in scope that a vast array of activities that nobody would perceive to be terrorism-related risk being caught under these provisions," Lawrence Greenspon told Ontario Superior Court Justice Douglas Rutherford.
"Oh, don't worry, the Canadian government wouldn't do that," he said sarcastically. "I worry. The country should worry."
He made the arguments on the second day of a hearing to have sections of the act declared unconstitutional for violating a host of charter rights, including freedom of religion, association and expression. The 2001 act, the most massive, controversial and complex legislation enacted in Canada, establishes several new Criminal Code offences, including participating in, financing and otherwise facilitating a terrorist activity.
Greenspon's client, Momin Khawaja faces seven charges under the act and, if key sections are struck down or weakened, his current prosecution would be jeopardized, if not derailed.
The 27-year-old Ottawa computer expert is the first person charged under the law, which was rushed into service by Parliament in the wake of the Sept.11, 2001, attacks against the United States. The RCMP alleges Khawaja plotted with a British terror cell to bomb bars, trains and other public sites in and around London in 2004.
A continuing London trial of seven British men accused in the case has heard prosecution evidence that Khawaja played a vital role as the group's explosives expert and was building bomb trigger devices at his Orleans, Ont., home.
He has not been charged with any crime in Britain. Instead, he is to stand trial in Ottawa in January. He denies the accusations.
Greenspon criticized Tuesday key sections of the act that make it an offence to "knowingly" participate in a terrorist activity or to knowingly facilitate or instruct a terrorist group.
The same sections, however, also state the offences are committed "whether or not" the individual knows that "a particular terrorist activity is facilitated," or "knows the specific nature" of the terrorist activity or "knows that a particular act is facilitated."
Greenspon said: "You don't need to know when, you don't need to know how, you don't need to know if. How is it 'knowingly'? What's left? What do you need to know in 'knowingly?'"
What's more, a terrorist "group" can be a single individual. And a terrorist "activity" includes an act or omission committed, "in whole or in part with the intention of .... compelling ... a government or a domestic or international organization to refrain from doing any act ..."
The act also makes it a terrorist offence to "commit any indictable offence for the benefit of, at the direction of, or in association with a terrorist group."
Combined with the narrow definition of "knowingly," that act leaves all manner of activities by ordinary citizens open to interpretation by authorities as terrorist offences, he said. Even impaired driving.
"An individual can be a terrorist group if he holds a political belief that political change is carried out through violent protests, such as has been seen at various G-8 conferences. He has a few drinks and drives home at the direction of himself, being the terrorist group (and an indictable offence), and thereby commits a terrorism offence."
He said a restaurant waitress could be deemed to be facilitating a terrorist group if she served a group of customers she knew to be involved in terrorism, even if she knew nothing specific about the group or its activities.
He entered into evidence similar concerns by Canadian legal scholar Maureen Webb, who wrote in a paper: "Today, draconian powers are being used against the Muslims among us. Tomorrow ... they could easily be turned against Quebec separatists, aboriginal right proponents, environmental activists, anti-globalization protesters, anti-abortion advocates, trade unionists, defence lawyers, critics of the government in power, and even critical insiders.
"And everywhere, draconian laws chill freedom of speech, freedom of religion, freedom of association, and therefore, democratic life."
The hearing continues.
EDS: It's the Anti-terrorism Act, not the Anti-TerrorismAct. That's the formal, legal title.