Justice Douglas Rutherford of Ontario Superior Court ruled that a section of the Anti-terrorism Act that defines "terrorism" violates the Charter of Rights and Freedoms.Last week, a section of the Security of Information Act was thrown out, and now a highly questionable piece of the anti-terrorism law has been struck down. Canada continues to move in the right direction.
The ruling does not mean that Mohammed Momin Khawaja, the first person charged under the act, will be freed.
Khawaja has been in custody since he was arrested by police on March 29, 2004 in connection with seven criminal charges related to allegations he took part in and helped an extremist organization in Britain.
Khawaja, 27, a software developer who was living in the Ottawa area, was expected to face a trial in January.
Rutherford decided to sever a section in the law that defines ideological, religious or political motivations for criminal acts. The rest of the law remains in place.
"Motive, used as an essential element for a crime, is foreign to criminal law, humanitarian law, and the law regarding crimes against humanity," Rutherford said in his judgment.
"While the hate motive may be an aggravating factor at sentencing, in the traditional criminal law, motive — the reasons 'why' someone commits a criminal act — neither establishes nor excuses a crime."
10.25.2006
motive
In a more important, and more sensible ruling, an Ontario judge has struck down part of the Anti-terrorism Act.
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5 comments:
While the hate motive may be an aggravating factor at sentencing, in the traditional criminal law, motive — the reasons 'why' someone commits a criminal act — neither establishes nor excuses a crime.
What about things like manslaughter vs. first-degree murder vs. second-degree murder? According to Wikipedia, first-degree murder is defined (in part) as the intentional, premeditated killing of another person, while second-degree is non-premeditated, and manslaughter is unintentional.
Surely the difference between intentional and unintentional is a difference in motive?
This is something that's bothered me with arguments against hate crime laws -- the argument that one's motives are irrelevant to the law, therefore bigotry as a motive should not factor into laws. Motive at least seems to apply in the distinction between manslaughter and murder.
Intent plays a part in almost all violent crimes...
Assault vs. Negligence causing bodily Harm
Murder vs. Manslaugher/Negligence causing death
Dangerous Driving vs. Careless Driving vs. Reckless Driving
But motive and intent are two separate things.
The distinction between manslaughter and murder is intent. Likewise for the crimes Scott mentions.
Prosecutors may look for motive to build a case, but that's not part of the law or sentencing.
Hate crime statutes deal with motive, which is part of what makes them bad laws, in my opinion.
Cool thing about the charter is that it's rather immutable... if the Supreme Court strikes down or alters a law that's the way it is.
The only way the government can overrule that is with the dreaded notwithstanding clause which is viewed as almost evil.
Funny thing is I thought the States were even stricter (no notwithstanding) until recently. Now that I understand that it is the President's call as to how laws are to be interpreted (though signing statements and interpretation), I'm not sure exactly how the checks-and-balances are supposed to work in that system.
Anyone care to give me a primer?
Cool thing about the charter is that it's rather immutable... if the Supreme Court strikes down or alters a law that's the way it is.
I love this about Canada.
Court says, Let's hold this law up to the Charter. Does it conflict? Yes? Sorry, no law, goodbye.
The Charter is so clear and unambiguous. I understand why ambiguity was built into the Constitution, but damn, it makes for some bad laws sometimes.
The only way the government can overrule that is with the dreaded notwithstanding clause which is viewed as almost evil.
And which has never been used.
Some of the hysteria when Harper was elected was to act as if he was going to use the notwithstanding clause every-other day. Even at that time I could see it was ridiculous.
Anyone care to give me a primer?
I will. Tomorrow.
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