Ontario Judge: Anti-Terrorism Act Unconstitutional

October 24, 2006 8:34 PM

Part of anti-terroism act ruled unconstitutional in Canadaon the grounds that defining a motive as a crime contravenes the Charter of Rights and Freedoms. Two days ago, the same court struck down a related official secrets law after the RCMP used it to search the house of a reporter investigating the Maher Arar torture scandal. The act itself was the subject of a rare Senatorial rebuke in 2001 which blocked a number of other dangerous sections. Five years on, are we ready to take a more measured approach to combatting terrorism?
posted by Popular Ethics (13 comments total)

Yup. I said "matter of time" when the Act was passed.

Having grown far more cynical since then, I'll just say "thank goodness" now.
posted by dreamsign at 9:07 PM on October 24, 2006

I wonder if the Canadian Supreme Court will now use consistent reasoning in striking down all laws concerning "hate crimes", on the grounds that a "hate crime" should not be punished more severely than the exact same criminal act which was not motivated by "hate".

Five years on, are we ready to take a more measured approach to combatting terrorism? Who's this "we", Kimosabe?
posted by Steven C. Den Beste at 9:17 PM on October 24, 2006

Can we borrow that judge down here in the U.S. for a little while...?
posted by twsf at 9:34 PM on October 24, 2006

More seriously, SCDB. you raise an interesting point. But don't we punish murder differently based upon state of mind and motivation, i.e. "premeditation"?
posted by twsf at 9:36 PM on October 24, 2006

I love Canada.
posted by chunking express at 9:36 PM on October 24, 2006

Steven C. Den Beste: I wonder if the Canadian Supreme Court will now use consistent reasoning in striking down all laws concerning "hate crimes"

The article mentions hate crime legislation directly. It's not that motives can't play a part in sentencing, but (as I read it) that motive cannot establish the crime by itself. The disputed passage from the act was this:

defining "terrorist activity" in the Criminal Code as an action that takes place either within or outside of Canada that:
- is an offence under one of the UN anti-terrorism conventions and protocols; or
- is taken for political, religious or ideological purposes and intimidates the public concerning its security, or compels a government to do something, by intentionally killing, seriously harming or endangering a person, causing substantial property damage that is likely to seriously harm people or by seriously interfering with or disrupting an essential service, facility or system.

The issue here is defining a crime as taking an action for religious or ideological reasons. Interestingly, without that clause, the offense sounds like any other crime, which makes you wonder why the need for special government powers.

Five years on, are we ready to take a more measured approach to combatting terrorism? Who's this "we", Kimosabe?

That's open for discussion. For the first few years, it seemed like every country in the world was heading down the "security trumps freedom" path. But recently, to use one measure, lines were getting shorter at airport check-ins (before the stupid liquid explosive thing). I'd love to get some impression that people are getting less "legislatable" over the threat of terrorism.
posted by Popular Ethics at 10:14 PM on October 24, 2006

So, an act proclaiming that the maximum sentence of crimes can be doubled if they were "terrorist activity" (as defined above), would be legal? Although I wonder if overriding the maximum sentence is legal. It seems like it would be contestable, at least.

On the other hand, there are a bunch of things that the Tories are currently trying to push in the House that affect sentencing, right? Hmm.

I'm glad this happened, anyway, although I wonder if the Crown will appeal. I kind of hope they won't, it seems like the kind of thing we can just agree on and move on.

Hate crime, and premeditated murder as a specific offense, actually have never rubbed me the right way. It seems like they should be able to be covered by blanket laws that don't take into account the state of the mind of the perpetrator. I've never been able to personally decide whether it is a good idea to punish people more if they're targetting a group rather than an individual. (That's what "hate crime" legislation boils down to, right?)

Beating the shit out of someone, or bombing something, ought to be just as bad no matter the target, I think, but I support the ideal of socially discouraging the targetting of groups. Ultimately, though, it seems that if the law is only on the books to make people think harder about how they stereotype, it shouldn't be there. Instead of having some Extra Bonus Jailtime Law, the money that went into writing the law and prosecuting the criminals should have gone into education and awareness programs, instead.

But I haven't really come to a hard conclusion about any of it. On the face, though, I agree with SCDB.
posted by blacklite at 11:10 PM on October 24, 2006

Who's this "we", Kimosabe?

I suspect being Canadian and posting about Canadian Law he meant Canada bwana.
posted by srboisvert at 1:40 AM on October 25, 2006

As usual, Canada continues its quest for motiveless crime.
posted by blue_beetle at 7:00 AM on October 25, 2006

I never thought about it that way, but y'all have a point. All crimes have an unsavory motive behind them, except for the things that probably shouldn't be crimes.

Taking intent into consideration seems like something that a judge or jury is going to do, as long as sentences have some leeway in them, but not something that makes one criminal action different in substance from any other commission of the same criminal action.

Hooray for Canada!

Hooray for Firefox 2, too. "Y'all" is in it's spell check dictionary! Kickass!
posted by Mr. Gunn at 7:39 AM on October 25, 2006

Canada? Isn't that in Utah?
posted by bra1n at 12:24 PM on October 25, 2006

More seriously, SCDB. you raise an interesting point. But don't we punish murder differently based upon state of mind and motivation, i.e. "premeditation"?

I've always wondered about the logic behind this. First-degree or premeditated murder is considered a worse offense than a crime of passion for some reason. But isn't the person who flies violently off the handle and can't control his impulses a greater danger to society than the person who rationally considers and plans his crime? It's a judgement call I guess, but to me it always seemed like backward reasoning.

As far as hate crimes go, I think they are a terrible idea as well. And I say that as a Jew, even while most Jews seem to think such laws are necessary to protect us. The greatest protection a group can be granted is full legal equality, which hate laws more or less destroy. I think "hate crimes" should be recorded and noted as different from regular crimes, but only to monitor statistics and racial attitudes as a way to keep informed on the state of race relations. As far as sentencing goes, a crime is a crime, and the motivation behind it should never make a sentence harsher or more lenient. Plus, determining somebody's motivations is incredibly difficult in the first place, too many gray areas and slippery slopes. The legal system has enough trouble establishing the facts w.r.t. the actions that occurred during a crime, never mind the motivations.
posted by SBMike at 2:53 PM on October 25, 2006

Good on our legal system. It's often the most sensible part of our system.
posted by five fresh fish at 6:50 PM on October 25, 2006