The head of an appeal panel has questioned a trial judge’s decision to strike down a key component of Canada’s anti-terrorism legislation on the grounds it could strengthen prejudice against Muslims and subject them to racial profiling.
“This is stunning to me, this kind of reasoning,” Justice David Doherty said Tuesday during an appeal by Momin Khawaja, the first person convicted under Parliament’s anti-terrorism law.
Khawaja was found guilty of building a detonator called the “Hi-fi Digimonster” for a terrorist cell in London, England.
He said he was under the impression his “bros” in London were involved only in insurgency in Afghanistan and said he had no knowledge of a plot to blow up civilian targets in the United Kingdom.
He was sentenced to ten years in prison. The Crown seeks a life sentence.
A central issue in the appeal is a decision made two years ago during Khawaja’s trial by Justice Douglas Rutherford, declaring a key portion of Canada’s anti-terrorism law unconstitutional, a provision known as the “motive clause.“
It defines terrorist activity as intimidating or harmful acts committed for “political, religious or ideological” reasons.
Rutherford found the provision violates freedom of expression and religion because it casts a shadow of suspicion on innocent Canadians who might belong to the same religion as terrorists or share their political views, yet don’t condone criminal activity.
Any investigation of terrorist activity is going to look at the motive of the people under investigation,“ said Doherty, heading a three-judge panel of the Ontario Court of Appeal. “What is the constitutional harm in police investigating whether you have a motive to kill somebody?”
Lawrence Greenspon, Khawaja’s lawyer, said the problem comes when police launch investigations into whether someone might be a terrorist simply because of their religious or political beliefs.
That’s an issue of police misusing their powers, Doherty suggested, and it makes no sense to strike down a law because investigators could abuse their authority.
If police jumped to the conclusion black gangs were behind a slew of Scarborough murders and began racially profiling black citizens, nobody would be calling for the murder provisions of the Criminal Code to be struck down – yet that’s the kind of reasoning behind Rutherford’s decision, Doherty said.
Federal prosecutor Nick Devlin argued that people don’t develop prejudices against members of particular religions because of Criminal Code provisions such as the motive clause, which doesn’t mention Muslims or any other group by name. “It is completely neutral,“ Devlin told the court. “This legislation would apply to someone who bombed Dr. (Henry) Morgentaler’s (abortion) clinic for some unknown reason It would apply to (Oklahoma City bomber) Timothy McVeigh. It would apply to Islamic extremists.“
“Doesn’t this really come down to a concern that ignorant people in this society will tar all Muslim people by the same brush because some Muslim people have engaged in terrorist activity and it has nothing to do with the legislation?” asked Justice Michael Moldaver. Canadians have to assume police will act in good faith, he suggested, noting that legitimate political protest is exempted from the legislation.
“That’s cold comfort for adult males of Muslim or Arabic background between the ages of 25 and 40 in this country” who are investigated in their offices or mosques because of their religious beliefs, Greenspon said. He argues Rutherford erred by severing the motive clause from the legislation and should have struck down the anti-terrorism law in its entirety, which would have resulted in Khawaja being freed.
The hearing continues.