Another Judge strikes down a portion of the AT Act

[niner domestic]

Another judge in Ottawa has struck down a portion of the Anti-terrorist Act in which defines Terrorism.  The section which defines what  terrorism is, has been ruled as being in violation of the Charter. 

http://www.canada.com/ottawacitizen/news/story.html?id=16bbfefa-c2d0-4c48-92c3-9f4a47f89d2c&k=92746

 

[Edward Campbell]

I just heard that; apparently the law offends against freedom of thought and association, etc.  I heard, I think, some reference to offending against religious belief (association?).

Is this sloppy drafing, by parliament, again?

 

[George Wallace]

From the Act (Bill C-36):

Definitions          

83.01 (1) The following definitions apply in this Part. 
.
.
.
.
``terrorist activity'' means
 
(a) an act or omission that is committed in or outside Canada and that, if committed in Canada, is one of the following offences:

      (i) the offences referred to in subsection 7(2) that implement the Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague on December 16, 1970,

      (ii) the offences referred to in subsection 7(2) that implement the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on September 23, 1971,

      (iii) the offences referred to in subsection 7(3) that implement the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, adopted by the General Assembly of the United Nations on December 14, 1973,

      (iv) the offences referred to in subsection 7(3.1) that implement the International Convention against the Taking of Hostages, adopted by the General Assembly of the United Nations on December 17, 1979,

      (v) the offences referred to in subsection 7(3.4) or (3.6) that implement the Convention on the Physical Protection of Nuclear Material, done at Vienna and New York on March 3, 1980,

      (vi) the offences referred to in subsection 7(2) that implement the Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on February 24, 1988,

      (vii) the offences referred to in subsection 7(2.1) that implement the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, done at Rome on March 10, 1988,

      (viii) the offences referred to in subsection 7(2.1) or (2.2) that implement the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, done at Rome on March 10, 1988,

      (ix) the offences referred to in subsection 7(3.72) that implement the International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on December 15, 1997, and

      (x) the offences referred to in subsection 7(3.73) that implement the International Convention for the Suppression of the Financing of Terrorism, adopted by the General Assembly of the United Nations on December 9, 1999, or

(b) an act or omission, in or outside Canada,

      (i) that is committed

           (A) in whole or in part for a political, religious or ideological purpose, objective or cause, and

           (B) in whole or in part with the intention of intimidating the public, or a segment of the public, with regard to its security, including its economic security, or compelling a person, a government or a domestic or an international organization to do or to refrain from doing any act, whether the public or the person, government or organization is inside or outside Canada, and

      (ii) that intentionally

           (A) causes death or serious bodily harm to a person by the use of violence,

           (B) endangers a person's life,

           (C) causes a serious risk to the health or safety of the public or any segment of the public,

           (D) causes substantial property damage, whether to public or private property, if causing such damage is likely to result in the conduct or harm referred to in any of clauses (A) to (C), or

          (E) causes serious interference with or serious disruption of an essential service, facility or system, whether public or private, other than as a result of advocacy, protest, dissent or stoppage of work that is not intended to result in the conduct or harm referred to in any of clauses (A) to (C),


and includes a conspiracy, attempt or threat to commit any such act or omission, or being an accessory after the fact or counselling in relation to any such act or omission, but, for greater certainty, does not include an act or omission that is committed during an armed conflict and that, at the time and in the place of its commission, is in accordance with customary international law or conventional international law applicable to the conflict, or the activities undertaken by military forces of a state in the exercise of their official duties, to the extent that those activities are governed by other rules of international law.




``terrorist group''
« groupe terroriste »
``terrorist group'' means

       (a) an entity that has as one of its purposes or activities facilitating or carrying out any terrorist activity, or

      (b) a listed entity,

and includes an association of such entities.


For greater certainty
           (1.1) For greater certainty, the expression of a political, religious or ideological thought, belief or opinion does not come within paragraph (b) of the definition ``terrorist activity'' in subsection (1) unless it constitutes an act or omission that satisfies the criteria of that paragraph.

 
Facilitation
           (2) For the purposes of this Part, facilitation shall be construed in accordance with subsection 83.19(2). 

 

[niner domestic]

Then I guess the Judge forget to read this part:

For greater certainty
(1.1) For greater certainty, the expression of a political, religious or ideological thought, belief or opinion does not come within paragraph (b) of the definition “terrorist activity” in subsection (1) unless it constitutes an act or omission that satisfies the criteria of that paragraph.

For less confusing referencing I'd use the Crim Code: http://laws.justice.gc.ca/en/C-46/280439.html

 

[niner domestic]

The judge has severed the offending part (much better than what the judge did last week by striking the section on search and seizure down) to allow the trial to continue.

"Rutherford "severed" a section in the law that defines ideological, religious or political motivation for criminal acts, but he ruled that the case can still proceed to trial."

http://ca.news.yahoo.com/s/24102006/3/canada-part-anti-terrorism-act-violates-charter-judge.html

 

[niner domestic]

At least you're on the ball Baker, are our politicians still bun tossing on the Hill? [political comment] If they paid as much detail to what went into a piece of legislation as they do with what is muttered or hand signalled in the House, our legislation would be impervious against any attack of a charter challenge. [end political comment]

triva info: there is a degree program offered by U of O for ... legislative drafting.  I never see any politician taking it. 

 

[Zell_Dietrich]

*pardon my little vent - I need to say this somewhere*

I am getting sick and tired of politicians writing laws that they know will be struck down, in whole or in part.  They want to write a law that makes people think they are doing something and sounds good in a 10 second soundbyte. Only to turn around and complain about advocate judges when their law gets torn to shreds because it doesn't meet constitutional snuff!

A while ago,  the Liberals made an anti-child-porn-law that was so tough,  so hard-a## that you knew this would be an effective tool for any law enforcement agency in Canada to go after these sickos.  The problem,  it was poorly written in that it was to vague.  It was struck down and because of their political games and as a result a guy who shouldn't have been let go,  has to be released.

Now with the Terrorism legalisation finally getting the gears as it works its way through the system we see it is getting ripped to shreds.  As it should be - the laws don't meet constitutional muster,  in most cases not even close.  I am only shocked it took this long for it to start happining and that more of it hasn't been ripped from the books and tossed into the streets. (Where little children dance on the foolish antics of their parents)

The Liberals aren't the only ones writing laws that will get fraged (by fraged I mean killed in a swift and efficient manner) by the courts.  The Tories are writing a three strikes you're out law - Canadian style.  After the third conviction the convicts would be under reverse onus to prove why they should be released.  This made my head spin,  I kinda of like the idea of a formalised 'path to dangerous offenders designation'  but I know how allergic the courts are to this.  I know it will get pounced on and challenged so fast, it will likely be rescinded before the ink dries.  Which to me means it was a wast of time and money. And just like how the Liberals with their child porn legislation,  their political; games will likely be costly.  Besides,  if all they have to do up there is write legislation that will get torn up,  shouldn't we be looking at sending people up there that ... well will do things worth while?

**end of rant over **

 

[cplcaldwell]

It's interesting the tenor here is that 'Parliament is being sloppy.'

Over on the Globe and Mail blog most of them are ranting about 'judges making law'.

Funny, guess most of them never heard about 'Common Law'. I guess this judge has ruled on statute based on Common Law and Constitution. Sounds perfectly acceptable to me. I guess it was found wanting. Sounds perfectly acceptable to me.

On another note, what's the big deal? After all isn't it a tradition of our form of government that the Courts and the Parliament have this sort of discussion all the time? Parliament makes a law, the Courts, enforcing the Queen's Peace, rule on those laws using the Constitution and the body of Common Law as precepts, appeals can be sought, Parliament can redraft, or Cabinet can invoke Royal Prerogative, or everyone can just walk away and let the dust settle in case of a disagreement.

Why do people rant on a perfectly well ordered process? Isn't this just a manifestation of our version of 'checks and balances'?

 

[niner domestic]

Cpl, I'm not sure I fully understand your comment regarding Common Law.  Common law is jurisprudence that is non-codified.  It is based on stare decisis and judicial rulings.  The Criminal Code is statute law (in other words it's codified).  Why would "most of them" have to know about common law? Can you clarify your argument?

When parliamentarians create statute law, it is incumbent upon them to ensure that the statute does not offend existing superior laws, in this case it's the Charter of Rights.  When statutes are hastily dawn and passed, especially when terminology remains vague, it runs the risk of offending the superior law (read further about the doctrine of paramountcy to understand this).  A well known tenet of legal principals is that laws that are too overreaching or vague must be voided.  So yes, sloppiness on the part of the departments  responsible for wordsmithing the law is to be remarked upon. 

The big deal is while a law has been read down, in or severed or in extreme cases struck down, it leaves gaping holes in our judicial system.  Now that a number of section contained within the AT Act have been either struck down or severed, how do you propose we as a country continue to address terrorism if we have no law by which to prosecute accused?

 

[Edward Campbell]

I just listened to the Dean of Osgoode Hall Law School state that the main effect of Judge Rutherford's ruling is to make like easier for the government/prosecution because he struck down one (of several) factors defining terrorism.  The crown/prosecution now needs prove n-1 elements of its case.  If I understood what I heard, the two elements he struck required the crown to demonstrate (prove?) that a terrorist acted for political and (or?) religious reasons; now the crown need only prove that he did a. b. and c. with the intent to intimidate the people and, through them, the government - doesn't matter why.

Now I see why Lawrence Greenspon (the defence in the eventual prosecution of Momin Khawaja) wants to appeal further up the chain.  He lost.

 

[cplcaldwell]

9D -Sorry for the delay; life intervenes sometimes...

Anyway what I meant was Common Law will, in many instances trump a statute that is written too specifically or whose articles trespass on principles that have already been established by precedent. In this instance of course, the Constitution/Charter weighs in. Nonetheless, Parliament was sloppy and wrote a law that contravened already established precedent.

The readers on the G&M blogs madden me; they should have known the role of the courts is to 'advise and consent' as well as rule on the evidence. In this case a new law is up against common law tradition that dictates religion is not a determining factor in guilt, a principle that is also enshrined in the Charter.

Perhaps I am imprecise in saying that the principle of guilt cannot be determined in this manner is common law, of course the Charter codifies it, but I would submit that it was and remains a common law principle. In this sense I would/did base my argument and thus citation on the principle where it existed first, in common law, not in the Charter.(fons et origo)

As to your last point how do we address terrorism, well we prosecute under the sections of the Act that are not severed. Remember, the law was not stricken, it had the offending section severed. To wit, " an act or omission, in or outside Canada, that is committed in whole or in part for a political, religious or ideological purpose, objective or cause". Certainly scary to think such an important statuate got written so sloppily though eh?

Indeed if it had of been stricken, in toto, then Parliament had better well stop worrying about the disposition of canine domestic animals and write a statute that is aligned to the other bodies of law. 

 

[rregtc-etf]

I think that the Liberal Government drafted the law to reflect that terrorism in Canada had to be tied to religious and international political terrorism.  They specifically left some things off the list like, labour dispute criminal acts such as  Canada Post truck bombings and Ontario Hydro power line sabotage, land claim violence or biker war bombings.  The list made it possible for labour unions,  natives and bikers to not get caught in the terrorism legislation net. However, by being "left wing nice guys" the government shot themselves in the butt.  In the long run the striking down of the religious or political motivated proof requirement is a good thing.  One less thing to prove to lock up or deport these terror scumbags.

 

[tamouh]

I just listened to the Dean of Osgoode Hall Law School state that the main effect of Judge Rutherford's ruling is to make like easier for the government/prosecution because he struck down one (of several) factors defining terrorism.  The crown/prosecution now needs prove n-1 elements of its case.  If I understood what I heard, the two elements he struck required the crown to demonstrate (prove?) that a terrorist acted for political and (or?) religious reasons; now the crown need only prove that he did a. b. and c. with the intent to intimidate the people and, through them, the government - doesn't matter why.

Now I see why Lawrence Greenspon (the defence in the eventual prosecution of Momin Khawaja) wants to appeal further up the chain.  He lost.

I was following the story on CBC and their conclusion was in that sense. The Defence pretty much made it easier for the Crown to do its job by asking to severe that phrase. So now the prosecution does not need to proof that the defendant had a religious, political...etc motive to commit the crime.