Counter-terrorism investigations by Canada's top spy agency could be jeopardized by yet another snag in post-9/11 national security legislation. An important section of the Canadian Security Intelligence Service Act that defines "threats to Canada" and mandates CSIS to investigate them contains the same clause recently declared unconstitutional in the Anti-Terrorism Act. If that part of the spy act were challenged and found to be unconstitutional, "arguably any investigation that's conducted in that fashion is potentially impugned," and could prevent the use of vital CSIS evidence at a criminal trial, says David Paciocco, a constitutional law expert at the University of Ottawa. The complication adds to the "perfect storm" of controversy gathering around the security legislation, say several experts. When the Anti-Terrorism Act and related amendments to the Criminal Code and 19 other federal statues were rushed into service in December 2001, "it was evident that it was going to have to stand the test of fire and that test of fire is now being applied with a high temperature," says Mr. Paciocco.In October, the Superior Court of Ontario struck down as unconstitutional a key part of the act's definition of "terrorist activities" that required authorities to prove terrorism offences are motivated "in whole or in part for a political, religious or ideological objective or cause."

Justice Douglas Rutherford ruled that violated the Charter of Rights and Freedoms by encouraging racial profiling and intruding on freedom of association and freedom of expression.

The CSIS Act, likewise, defines national security threats as activities "for the purpose of achieving a political, religious or ideological objective." The terms religious and ideological were added in late 2001 to bring the act into line with the Anti-Terrorism Act.

Though there is an important distinction between the manner in which the political-religious-ideological definition is employed in each act, "the government has to be legitimately concerned about this because the last thing it wants to see happen is to see a stay of proceedings on Charter grounds," in any terrorism case, says Wesley Wark, a national security expert at the University of Toronto.

CSIS has declined comment.

Wade Deisman, director of the National Security Working Group at the University of Ottawa, says the arrests in June of 17 Toronto-area men accused of plotting terrorist acts in southern Ontario and Ottawa could be at risk as a result of the latest CSIS Act complication.

The RCMP made the arrests, but much of the case was based on a CSIS investigation. "That will have been the fruit from the poisonous tree, if the tree is deemed to be poisonous," says Mr. Deisman. "If any of the 17 (suspects') lawyers decided to go that (constitutional challenge) route, I think they would have a really good shot." Lawyers for the suspects could not be reached for comment.

Canada's only other post-9/11 terrorism prosecution, that of accused Ottawa terrorist Momin Khawaja, has already been temporarily derailed by a constitutional standoff and may end up before the Supreme Court.

t was Mr. Khawaja's Charter challenge of the Anti-Terrorism Act that led to Judge Rutherford's landmark ruling. The judge, however, rejected the demand to drop seven terrorism charges against Mr. Khawaja related to an alleged plot to bomb public sites in Britain in 2004. Mr. Khawaja denies the charges. His lawyer, Lawrence Greenspon, announced last week that he will soon seek leave to appeal to the Supreme Court of Canada to have the charges quashed. A victory would also seriously hobble the act.

What's more, if the Supreme Court agrees to hear the appeal it could have a significant bearing on the CSIS Act.

If the court, for example, was to agree with Judge Rutherford that the motive definition in the Anti-Terrorism Act violates the Charter, then the CSIS Act definition could also be open to a constitutional challenge, says Mr. Paciocco. (The CSIS Act issue becomes moot if the court doesn't agree to hear the Khawaja appeal, or if it overrules Judge Rutherford and finds the motive section is constitutional.)

Mr. Wark, however, believes the important distinction between the political, religious and ideological definitions in each act reduces the likelihood of the CSIS Act section being successfully challenged. "The definition of terrorism in the Anti-Terrorism Act is for the purpose of legitimizing investigations leading to arrests and prosecution, and to provide for specific criminal sanctions," he says. "A high court judge would have to decide, quite separately from Rutherford, that the CSIS mandate to collect intelligence on threats was unconstitutional. Maybe we live in such a strange universe, but somehow I doubt it."

Kent Roach, a law scholar at the University of Toronto and another leading expert on security legislation, agrees. He has long been concerned about the political and religious motive requirement of Anti-Terrorism Act. It "really forces the judge to admit and consider evidence about the politics and religion of the accused regardless of its prejudicial effect on the criminal trial."

But "CSIS is not a law-enforcement agency and their job is to give advance warning and advance intelligence ... about a broad range of security threats. So, although it is possible that someone could challenge this part of the CSIS Act ... I don't think the case for a successful challenge is nearly as strong as the case for challenging political and religious motives in the Criminal Code provisions."

© The Ottawa Citizen 2006