Mohammed Momin Khawaja

Rutherford, in a 32-page written decision, zeroed in on the provision that makes proof of terrorism dependent on showing a religious, political or ideological motive for the criminal activity.

He wrote that this definition is “an essential element that is not only novel in Canadian law, but the impact of which constitutes an infringement of certain fundamental freedoms ... including those of religion, thought, belief, opinion, expression and association.”

Such an infringement, said Rutherford, “cannot be justified in a free and democratic society.”

Khawaja's lawyer, Lawrence Greenspon, said the ruling strikes to the core of the law.

"The motive clause is at the heart of the anti-terror law; that clause has been struck down," he said.

Last week, an Ontario court struck down sections of Canada’s secrecy law in throwing out RCMP warrants used to search Ottawa Citizen reporter Juliet O’Neill’s home.

Maher Arar

Mark Holland, an Ontario Liberal MP and a member of the House of Commons standing committee on public safety and national security, said the section of the act struck down wasn't the most important part.

The committee is already reviewing the Anti-Terrorism Act, Holland said, and will have to revisit the section struck down.

"We will have to go back to that definition and refocus it. We need a definition that is more acceptable to the courts," he said.

"Motivation is a very difficult thing for us because it is difficult for us to understand why someone would want to do us harm."

[Khawaja] has been tied to an alleged Islamic terrorist gang that plotted attacks against Britain's electricity supply network, pubs, nightclubs and trains, according to British prosecutor David Waters. He said Khawaja was an accomplice who carried out a "great deal of preparation" for the gang, whose alleged attacks were foiled in March.

Juliet O'Neill

University of Ottawa law professor David Paciocco, who helped represent Ms. O'Neill and the Citizen in court, said in an interview that the ruling is a victory of global scope.

“The long and short of it is that this decision has potential relevance not only to historical research, but for countries internationally who deal with control of information by their governments,” Prof. Paciocco said.

“Even if the judge had not found that there was an abuse of process, this would be an indictment of the excessive reach of the security mentality that followed 9/11. It should chasten any police force from looking at journalists as the subject of an investigation.”

In her ruling, Judge Ratushny said that so-called anti-leakage provisions in the Security of Information Act are extremely vague, too broad and wide open to flagrant misuse. She said that they “endanger the life, liberty and security of the person” in direct violation of Section 7 of the Charter of Rights.

“In their present state, the impugned sections give the state the ability to arbitrarily protect whatever information it chooses to classify as ‘secret official' or ‘official' or unauthorized for disclosure - and to punish by way of a criminal offence those ‘speakers,' ‘receivers' and ‘listeners' who come within that protected sphere.

“This is legislation that fails to define in any way the scope of what it protects and then, using the most extreme form of government control, criminalizes the conduct of those who communicate and receive government information that falls within its unlimited scope including the conduct of government officials and members of the public and of the press.”

Greenspon argued that pre-existing Criminal Code provisions could have covered all Khawaja’s alleged activities.

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