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Part of Canada Anti-Terrorism Law Tossed

BETH DUFF-BROWN Associated Press | October 25 2006

The first person charged under Canada's anti-terrorism act won a partial victory Tuesday when a judge struck down a key portion of the law, ruling that the clause dealing with the definition of the law violates the country's bill of rights.

Terror suspect Mohammed Momin Khawaja, a 27-year-old software developer, is accused of participating in and giving assistance to an alleged terror ring based in Britain. He faces seven charges under Canada's Anti-Terrorism Act, which was adopted in the months following the Sept. 11 terrorist attacks in the United States.

Khawaja, who has been in custody since his arrest in March 2004, had argued that the charges against him violated his constitutional rights.

Khawaja's lawyer, Lawrence Greenspon, said in a telephone interview from Ottawa that he intends to call on the Supreme Court of Canada to drop the charges against his client.

"Once you strike down the definition, which is at the heart of the legislation, as far as I'm concerned, the charges should be quashed," Greenspon said.

Prosecutor David McKercher would not comment on whether an appeal is likely, but suggested any appeal likely would not take place until after Khawaja's trial, which is due to start in January.

Justice Douglas Rutherford of the Ontario Superior Court of Justice "severed" a clause in the law which deals with ideological, religious or political motivation for illegal acts. But he upheld the rest of the law and said Khawaja's case can still go to trial as planned.

In his 32-page decision, Rutherford focused on the provision of the Anti-Terrorism Act that makes proof of terrorism dependent on showing a religious, political or ideological motive for the criminal activity.

He wrote that the motivation definition constituted an infringement of fundamental freedoms, "including those of religion, thought, belief, opinion, expression and association."

Such infringements, he said, "cannot be justified in a free and democratic society."

Mark Holland, a member of Parliament and vice chair of the House of Commons committee on national security, said the ruling would force the government to review the law and the definition of terrorism.

"It's a very nuanced thing," he told the CBC. "I think we're going to have to go back to that definition ... and try to come up with a definition that is more acceptable to the court."

Holland noted there had been great debate when the law was adopted about whether it was correct to deem someone a suspected terrorist based on religious or ideological motivation.

"At the end of the day, what we're really trying to get at it, is who's trying to do us harm and how do we get at them," he said. "Motivation is a very difficult thing to describe."

Tuesday's ruling was the second major blow to Canada's anti-terrorism legislation.

Last week, an Ontario Superior Court struck down three other sections of the law in a ruling that threw out warrants used to search the home of a reporter covering U.S. efforts to secretly send a Canadian terror suspect to Syria for interrogation.

The judgment quashed three sections of the so-called leakage provisions of the law that dealt with the unauthorized communication of intelligence by officials who are bound to secrecy.

British prosecutors had tied Khawaja to an alleged Islamic terrorist gang that plotted attacks against Britain's electricity supply network, pubs, nightclubs and trains. They said he carried out a "great deal of preparation" for the gang, whose alleged attacks were foiled in March.

Canadian prosecutors said Khawaja was helping to develop a cell phone detonator and was tied to eight men of Pakistani descent who were arrested in Britain.

Prosecutors say the terrorist activities took place in London and Ottawa between November 2003 and March 2004. Khawaja had made trips to London during that time, but his brother said it was only to find a wife, according to the Canadian Broadcast Corp.

Khawaja had been working on contract as a computer software operator for the Foreign Affairs Department, but authorities said he had no access to classified documents.


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