OTTAWA – More than four years after the arrest of Ottawa software designer Momin Khawaja, federal prosecutors are poised to lay out the evidence they’ve gathered to back their contention that he played a key role in an international plot by Islamic extremists to bomb targets in Britain.
Khawaja, who goes on trial Monday in Ontario Superior Court, faces seven counts of terrorist-related offences that could put him in prison for life if he’s convicted.
The prosecution is being billed as a test for the RCMP, the Canadian Security Intelligence Service and Crown attorneys charged with the implementation of federal anti-terror legislation.
“The question is whether Canada can mount a complex anti-terrorism case,” says Wesley Wark, a University of Ottawa expert in security issues.
“Not only whether it can mount a successful case, but also whether it can be a fair trial – because that’s also something Canadians are going to be concerned about.”
Defence lawyer Lawrence Greenspon has spent a good part of the time since Khawaja’s arrest in March 2004 on pre-trial constitutional challenges of the Anti-Terrorism Act. The legislation was rushed through Parliament in late 2001, in the wake of the al-Qaida attacks that destroyed the World Trade Centre in New York and damaged the Pentagon in Washington.
“We passed a law in record time in response to 9-11, and Momin was the first person charged in Canada under that law,” says Greenspon. “Just about everything we’ve done to this point has been for the first time.”
The defence scored a partial victory in 2006 when Justice Douglas Rutherford – who will preside at the trial without a jury – struck down a portion of the federal law that defined terrorism as an offence motivated by political, religious or other ideological considerations.
Rutherford ruled that violated freedom of thought under the Charter of Rights, but he simply severed the offending provisions from the rest of the law and let the case proceed.
Ironically, the decision could actually simplify things for Crown attorney David McKercher, who now won’t have the legal burden of proving ideological motivation to make his case.
“I think the ruling came as a surprise (to the government) but I don’t think it was an unwelcome surprise,” said Wark. “It gives them a much greater flexibility.”
Khawaja, a devout 29-year-old Muslim, was born in Canada of Pakistani immigrant parents and once worked at the Foreign Affairs Department on contract as a computer expert.
The charges against him allege that he collaborated with a group of British Muslims, also of Pakistani descent, in a thwarted plan to bomb a London night club, a shopping centre near the city and parts of the British electrical and natural gas grids.
Five of the plotters were convicted by a London court last year and sentenced to life in prison while two others were acquitted. Khawaja, though named as a co-conspirator, was not tried with the others.
Instead he was charged in Canada with a range of offences, including helping to develop bomb detonators, possession of explosives, helping to finance terrorist activity, receiving terrorist training and facilitating terrorism.
Three of the seven specific counts carry maximum penalties of life in prison, while the others carry terms of up to 10 or 14 years.
A key question in the case could be how much of the voluminous files compiled by CSIS and the RCMP can be used against him the trial that’s expected to take four months.
A significant part of the material held by Canadian authorities is believed to have originated with British security and police officers, and there were lengthy pre-trial arguments in Federal Court about how much could be made public.
Greenspon managed to gain access to thousands of pages of Crown evidence to help mount his defence, but other material was withheld on national security grounds.
Neither side will rule out the chance that the dispute could be renewed, though perhaps in somewhat different legal form, before the proceedings are finished.
“It’s impossible to say it couldn’t happen again at trial,” said McKercher. “It’s happened at trials before.”
