Carefully, gradually, the courts are nibbling away at Canada's anti-terror laws. They did it last week when an Ontario Superior Court justice ruled that secrecy provisions of these laws contradict freedom of the press. They did it again yesterday when another Ontario judge declared the very definition of terrorist activity is unconstitutional. The rulings represent a sharp rebuke to those parliamentarians who rushed through the terror laws in the wake of the 9/11 attacks on New York and Washington. They also call into question the current obsession with terrorism as a unique, world-defining evil. In yesterday's decision — related to the terror charges brought against Ottawa computer software developer Momin Khawaja — Superior Court Justice Douglas Rutherford concluded that the central definition of what constitutes "a terrorist activity" contravenes constitutional provisions that guarantee freedom of religion, expression and association.Under the 2001 law, a terrorist activity is defined as an act of violent intimidation that is motivated by religion, politics or ideology. Yet, as Rutherford noted, the government has never been able to satisfactorily explain why mass murder carried out in the name of religion or ideology is somehow worse than mass murder carried out for reasons of profit or personal pathology.

At the time the law was passed, the then-Liberal government's only defence for this motive provision was that, without it, terrorist crimes would be no different from ordinary crimes.

Which, as Rutherford said, is precisely the point.

"The average person would be hard-pressed, I daresay, to recount much about the motives of some if not all of these notorious crimes (such as the 9/11 attacks)," he wrote. "Just what political, religious or ideological objectives or causes the perpetrators felt they were supporting with their actions is largely lost on the populations affected. And for good reason. It doesn't really matter."

What's more, he wrote, the decision to focus on religious or ideological motive will inevitably lead to a chilling effect on the right of Canadians to think and believe what they wish.

Those who are not terrorists, he writes, will inevitably be tarred because they happen to have the same religion or beliefs as those who are.

Right now, anti-terror laws are focused on Muslims. But Rutherford quotes approvingly from an analyst who argues that the law is sufficiently broad that it could be easily used against people with all kinds of beliefs — from environmentalists to anti-abortion advocates.

Ironically, the judge's decision could end up pleasing both fans and critics of tough anti-terror laws.

Muslim groups have argued that the law as written amounts to racial profiling. "Religious motive ... contributes to an insidious creep of profiling against Muslims and Arabs in Canada," wrote the Canadian Muslim Lawyers Association, in a 2005 brief to a Senate committee charged with reviewing the anti-terror laws.

"Given the contemporary zeitgeist of an existential `Islamist' threat, which is fuelled by rhetoric from governments and self-styled think-tanks that thrive on the terrorism industry's culture of fear, it is easy to see how religious motive may send a signal to security agencies and law enforcement that Muslims and Arabs are the targets."

From the other side, Conservative Justice Minister Vic Toews has said he wouldn't be averse to eliminating motive from the definition of terrorism since that might make it easier to convict suspects.

Toews may be underestimating the political importance of this particular provision. As Rutherford points out, the definition of terrorist activity is an "essential element" of this act, one upon which much else hinges.

If the definition of terrorism itself is struck down, there is not much point to having special laws above and beyond those aspects of the criminal code that already ban murder, bombing and mayhem.

But if terrorism loses its privileged place, the political rationale of the war on terror begins to slip away. Terrorism is no longer a unique world-defining struggle. It becomes instead just another mundane horrible crime — like burning down an apartment building to get the insurance, or shooting up a schoolyard to get back at the teacher.

Which wouldn't be a bad thing. Part of the problem of the war against terror is that it has got us all spooked. We forget that we are far more likely to be murdered by a close relative than an Al Qaeda devotee. Indeed, our chances of being killed in a car crash exceed either of these scenarios by a hefty margin.

In effect, yesterday's court decision reminds us of this. It says a crime is a crime is a crime. That is its central — and welcome — message.

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