BY COLIN CAMPBELL • Since 2004, Momin Khawaja has passed his days in an Ottawa prison, accused of being Canada’s first terrorist under the Anti-terrorism Act passed shortly
after 9/ll. Thanks to a British court, which this week handed life sentences to five men for plotting a bomb attack in London, we now know what he’s accused of. Khawaja, 28, is said to have helped the young al-Qaeda types in Britain construct a detonating device for their bomb. So compelling seems the evidence against him that even before his trial in Canada has begun, observers are talking not about the possible outcome of his case, but what happens after he’s found guilty. This one, experts note, seems destined for the Supreme Court.
Khawaja’s trial is important not only because of the gravity of the accusations, but because it will be a crucial first test of Canada’s controversial anti-terrorism law. Among the issues likely to be debated one day at the high court is the act’s definition of a terrorist, which requires proof a terrorist act was motivated by religious or ideological beliefs. Last year, a federal court struck down this requirement, but even though it found something wrong with the definition it said Khawaja’s case could proceed. It’s an “unprecedented decision” that opens the door to appeals, says David Paciocco, a law professor at the University of Ottawa. “I’d be dumbfounded if this does not end up as an issue that the Supreme Court of Canada has to resolve.” Also at issue are controversial national security provisions in the act that allow the government to withhold some evidence from defence lawyers—a highly uncommon situation in Western law.
If the anti-terrorism law has indeed somehow violated the Charter of Rights, the Supreme Court will also have to consider how to fix it. That might involve telling Parliament to go back and rewrite it. In the end, all the legal jostling might also serve to spare Khawaja the fate of his partners in Britain. M
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