The Ottawa Citizen
Published: Thursday, October 26, 2006

Justice Douglas Rutherford may well have a fine legal mind, but his curious disquisition this week suggests he is no expert on political or religious extremism.

The Ontario Superior Court judge made his odd remarks in a decision concerning Momin Khawaja of Ottawa, the first Canadian charged under Canada's Anti-Terrorism Act. In his ruling, Justice Rutherford struck down part of the act, ruling it in violation of the Charter of Rights. It was the part that says terrorism is motivated by political or religious ideology.

On the page opposite this one, Professor Wesley Wark does a good job exposing the judge's poor understanding of terrorism. It's unnecessary to duplicate Mr. Wark's observations here. But there is one point worth expanding on, and that is Justice Rutherford's jaw-dropping suggestion that the motives of people who blow things up are irrelevant because, in the end, such people are irrational.

This is naive in the extreme, though in fairness to the judge we understand where the sentiment comes from. Mr. Rutherford is a western-educated jurist in a liberal democracy. It is hard for us in the West to get our collective head around the idea of men strapping bombs to their waists and blowing up children along with themselves. So disorienting was the spectacle of men flying airplanes into office towers that, in those early days after 9/11, many people dismissed the hijackers as lunatics.

That was our secular, modern, western bias talking -- the bias of people who value self-preservation. More, the western impulse to dismiss the 9/11 hijackers as crazy was wishful thinking. If they were crazy, then the attack was a random aberration. If they weren't crazy -- if they were clear-eyed soldiers serving a cause larger than themselves -- then we would be facing more attacks. All of which is to say, we sympathize with Justice Rutherford's desire to believe that there's no point looking, as he puts it, for "rational principles" behind terrorist attacks.

It's tempting to give thanks that Justice Rutherford is in charge only of a court, not a security agency. Yet the judge seems to hope that his decision will influence the way security officers do their work. If a terrorist's motives are irrelevant, the logic goes, then counterterrorist agents have no business paying special attention to the "political, religious and ideological" beliefs of suspects.

This is a bizarre proposition. If Ottawa doctors who perform abortions suddenly start getting shot, could we really forbid police from asking if the shooter has ties to the local pro-life movement? If someone blows up a university laboratory to protest against animal experiments, is it unreasonable for investigators to drop in on animal-rights activists and ask, "You guys know anything about this?" If people are hijacking airplanes explicitly in the name of militant Islam, is it wrong for counterterrorist officers to pay attention to people who subscribe to that form of Islam?

The judge notes that a terrorist's motives mean little to the victims. It's hard to argue with that. But those of us still alive have a strong interest in knowing, if only to protect ourselves.
© The Ottawa Citizen 2006

The Canadian Anti-Terrorism Act, drafted in the immediate aftermath of the 9/11 attacks, was proudly proclaimed by the government to be "Charter proof." It was always a dodgy claim.

Then-Justice Minister Anne McLellan's assertion that Canada's first-ever legislation to criminalize terrorism was compatible with the Charter of Rights and Freedoms now lies in shreds.

Provisions of the act dealing with official secrets, The Security of Information Act, were quashed last week in a ruling that exonerated Juliet O'Neill, an Ottawa Citizen reporter who was subjected to search and seizure of her property and intimidation, in the course of an RCMP investigation into leaks surrounding the case of Maher Arar. That the courts would fail to uphold the Security of Information Act at its first test was far from surprising. The Security of Information Act was unworkable, overreaching, and inexcusably vague on what constitutes an official secret. Parts of it were also unreconstructed, dating back to pre-Second World War days.

More startling and far-reaching in its implications is the recent ruling of Justice Douglas Rutherford of the Ontario Superior Court. Justice Rutherford found that a key part of the act's definition of terrorism violates Charter rights. The constitutional challenge was mounted by lawyers defending Momin Khawaja, an Ottawa man accused of participating in a terrorist bomb plot in the United Kingdom. The Khawaja case will go to trial in January, and will be the first occasion in which a Canadian citizen has been charged under the provisions of the Anti-Terrorism Act. The act itself, and by implication the capacity of the Canadian justice system to deal with terrorism offences, is now at issue.

At the heart of Justice Rutherford's ruling is an argument that defining terrorism as an act motivated by a political, religious or ideological cause will chill civil liberties, promote fear and suspicion of targeted groups, and, as he put it, "will result in racial or ethnic profiling by government authorities at many levels." This is a weighty argument and, it seems to me, a striking example of judicial activism that sets the court at odds with Parliament on an issue of national security policy. Many will applaud the sentiments expressed by Justice Rutherford, and for good reason. The last thing we want from anti-terrorism legislation is a sanction to intimidate freedom of speech and to engage in racial profiling.

But what is the proof of this inevitable consequence? Justice Rutherford offers none. From time to time, even the courts need some well-intentioned second-guessing.

Justice Rutherford has weighed into a complex debate on the very meaning of terrorism, for which, as he acknowledges, there is no universal agreement and a host of different remedies in national legislation and international law. He refused to accept the argument made by the Crown prosecutor, David McKercher, that the motivational provisions of the definition of terrorism were meant to limit the scope of possible criminal prosecutions, rather than infringe on civil liberties. Not only is Justice Rutherford sure about the chilling and prejudicial effect of defining terrorism as motivated by religious, political or ideological causes, he is sure that it simply doesn't matter what motivates terrorist acts.

In laying out his argument, Justice Rutherford takes an egregious swipe at the ability of the average citizen to understand anything at all about terrorism. After listing some (but not all) of the key terrorist assaults from the Air India bombing of 1985 down to the recent commuter train attacks in India, Justice Rutherford asserts:

"The average person would be hard-pressed, I dare say, to recount much about the motives of the perpetrators of some if not all of these notorious crimes."

Take that, average citizen.

Justice Rutherford then mires himself deeper with this astounding argument:

"[T]errorist acts cannot be appreciated by the imputation of rational principles to the perpetrators anyway ... And are the acts any less terrorizing, intimidating or insidious for our failure to fathom and spotlight the inspiration of the perpetrators."

Let us understand two things clearly. One is that to define terrorism as irrational, as Justice Rutherford wishes, is nonsense of the worst order. The other is that it does profoundly matter that we appreciate terrorism as an unique form of crime and one that can be understood only through an appreciation of its causes and intentions. An act of terrorism carried out by al-Qaeda or an associated cell is more terrorizing precisely because we understand that it represents an ideological agenda totally at odds with civilizational values we hold dear.

In truth, Justice Rutherford's ruling will probably make it easier -- not more difficult -- to prosecute terrorist offences. Crown prosecutors will be able to dispense with the requirement to prove religious, political or ideological motives. There may even be some secret sighs of relief in the corridors of the Justice Department. The Anti-Terrorism act will survive, if bloodied. But in his ruling, Justice Rutherford has struck a blow to common sense, ignored a vast literature on the history and causes of terrorism, and is seemingly blind or indifferent to the importance of public understanding of what constitutes terrorism and how anti-terrorism activities can be legitimized in a democratic society.

As an eminent authority on the law, Justice Rutherford may well be right to find reason to doubt the constitutionality of the definition of terrorism. He has no business finding that reason in specious arguments about terrorist irrationality and public ignorance.

Wesley Wark is a professor at the Munk Centre for International Studies, University of Toronto, specializing in security issues.
© The Ottawa Citizen 2006