TORONTO - Convicted terrorist Momin Khawaja could have been acquitted if motive hadn't been excluded from his trial, his lawyer told the Ontario Court of Appeal on Tuesday.
During the first day of a three-day hearing, defence lawyer Lawrence Greenspon said it was a surprise to both the defence and the Crown that the motive clause was severed from Khawaja's trial.
Federal politicians said motive was at the heart of Canada's Anti-terrorism Act when it was rushed through Parliament in 2001 after the 9-11 attacks in the United States, Greenspon noted.
"We could have secured acquittal if we could have attacked motive," he told the three-judge panel.
A terrorist act is defined as one being committed for a political, religious or ideological purpose, objective or cause, and that motive distinguishes it from other crimes.
Ontario Superior Court Justice Douglas Rutherford ruled prior to Khawaja's 2008 trial that the motive clause violated freedom of religion, expression and association under the charter.
That meant the Crown didn't need that element to prove its case, Greenspon said Tuesday, and the defence didn't need to call evidence about the Ottawa software developer's intentions.
If the Crown had to prove beyond a reasonable doubt that Khawaja's motive was political, religious or ideological, the defence would have argued its case differently, he said.
The Crown agreed that Rutherford erred in ruling the motive clause violated the charter. While Crown lawyer Nicholas Devlin told the court the motive clause is crucial, he added Khawaja had motive.
The Crown is asking the court to give Khawaja, 31, a life sentence plus another 33 years to be served consecutively.
The defence wants the court to overturn Khawaja's convictions, order a new trial or reduce his sentence to time served.
Appeal Court Justice David Doherty, in an exchange with Greenspon, said it was never disputed that what Khawaja did was for political, religious or ideological purpose, so motive was agreed on.
"No. Motive was not agreed," Greenspon shot back.
Justice Michael Moldaver said motive is investigated in all cases, including homicide. Justice Eleanor Cronk added she found it hard to understand if the motive issue had a meaningful impact on the defence.
Khawaja, the first person charged under the act, was arrested in 2004. The Ottawa-born man was sentenced to 10-1/2 years in prison beyond almost five years in pretrial custody after being convicted in 2008 of five counts of financing and facilitating terrorism.
He was convicted for training at a remote camp in Pakistan and providing cash to a group of British extremists, and offering them lodging and other assistance.
He was also found guilty of two Criminal Code offences related to building a remote-control device to set off explosions.
The trial judge found Khawaja was a "willing and eager participant" in the British group's jihadist schemes. But the Crown failed to prove Khawaja knew the detonator, called the HiFi Digimonster, was to be used to detonate a 600-kilogram fertilizer bomb in downtown London.