Last week, Mr. Justice Rutherford of the Ontario Superior Court of Justice, as a result of a constitutional application by an accused terrorist, severed clause 83.01(1)(b)(i)(A) from the Criminal Code.
What does that mean, you ask? Before last Wednesday, there were two ways to prove that an act or failure to act was a "terrorist activity" -- the first was to show that it was one of a number of offences under international law. The second involved proving that it was "in whole or in part, for a political, religious or ideological purpose, objective or cause." That wasn't enough, of course. Lots of perfectly lawful things -- arguably including Pith & Substance -- are in whole or in part for political, religious or ideological purposes. A terrorist activity has to kill somebody, or endanger their life, or cause serious risk to public health or safety or -- at bare minimum -- cause serious property damage or disrupt an essential service in a way that might do one of those things. But, before Wednesday, if you did one of those bad things just for kicks, or for love or money, it wasn't terrorism. Now it is.
The first thing I noticed in reading Justice Rutherford's decision was how lackadaisical the process of constitutional litigation has become in this country. No expert witnesses were called on the critical subject of the policy reasons for distinguishing religious and political violence form other forms of violence. Instead, the judge was just given large amounts of undigested reading material -- without objection from either side. None of the assertions in the academic literature (which is largely unsympathetic to national security concerns in this country) were subject to cross-examination. We wouldn't run a significant personal injury case this way, but the government appears willing to let a major part of its anti-terrorism policy be shot down on the basis of garbage evidence. The judge rightly complained about this. Heads ought to roll at DOJ.
Traditionally, the Anglo-Canadian criminal law has ignored motive in deciding whether a particular crime has been made out, although it is often important in sentencing. Personally, I am unable to see much of constitutional significance in this distinction. The law has never thought that motive was irrelevant to the seriousness of criminal activity, and I can't see why the state should be prevented from defining certain crimes in terms of motive.
On the other hand, I can't dismiss the idea that inquiry into the motives of people committing what are admitted to be criminal acts creates some risks to freedom of expression and religion. This is a problem libertarians have pointed out -- with little effect -- in relation to hate crimes. Assault is already illegal, but if it is a bigger deal because it is motivated by discriminatory beliefs, then it is, of course, relevant to ask people about their beliefs during trial. This may well be unfair to people with nasty -- but legal -- opinions.
On the other hand, it is -- I think correctly -- argued that racial violence has the unique potential to dissolve civil society in a multiethnic state. If it isn't ruthlessly crushed, and subject to specific sanction, Toronto or Vancouver could look like Sarajevo or Beirut.
I suspect the same thing is true of terrorism. It has an effect on social order that random violence does not. As Solzhenistyn remarked, without an ideology, Shakespeare's villains all stop at about a dozen corpses. Human nature doesn't need religion or politics to generate violence -- greed, lust for power or jealousy will do -- but without religion or politics, it is just retail violence.
Surely, an expert could have told Mr. Justice Rutherford as much. But he couldn't see it on his own.