Supreme Court won’t hear challenge of secrecy in anti terror provisions

Posted by admin on Apr 2nd, 2008

The Canadian Press

OTTAWA — The Supreme Court of Canada, for the second time in a year, has turned down an effort by accused terrorist Momin Khawaja to derail his prosecution on constitutional grounds.  In a ruling released without comment Thursday, the court refused to hear Khawaja’s challenge to federal legislation designed to safeguard secret intelligence.  At issue was a portion of the Canada Evidence Act, under which the government can refuse to disclose sensitive information to an accused person on national security grounds.

The law provides for review of the disputed material by a judge, but only at a close-door hearing the defendant can’t attend.

Khawaja’s lawyer, Lawrence Greenspon, had argued that the secrecy provisions violated guarantees of fundamental justice and fair trial under the Charter of Rights.

Khawaja was the first person charged under the federal Anti-Terrorist Act, which was rushed through Parliament in late 2001 following the 9/11 attacks in the United States.

The Crown contends the Ottawa software designer — who once worked at the Foreign Affairs Department — as part of an al-Qaida-inspired cell that plotted bombings in Britain in 2004.

Six other men were convicted last year in London, but Khawaja was not charged in the U.K. although he was named there in connection with the plot that was thwarted by British authorities.

He has spent the last four years in custody awaiting trial on the Canadian charges, but proceedings have been delayed by arguments on a variety of legal points.

The trial is currently scheduled to begin May 20, but there could be further delays. A hearing is expected Friday before Justice Douglas Rutherford of Ontario Superior Court, where lawyers for both sides will assess the situation.

Greenspon said that, in addition, there is yet another proceeding under way in Federal Court, dealing with a new government request to withhold more documents.

Greenspon acknowledged that the Crown has already handed over thousands of pages of material for use in Khawaja’s trial. But he’s seeking “a few hundred” more pages in the continuing dispute.

“Sometimes a single document can make the difference between a person’s liberty and a wrongful conviction,” he said. “I have to turn over every stone.”

In a 2006 decision, Rutherford struck down part of the Anti-Terrorist Act that defined terrorism as a crime motivated by ideological, political or religious considerations.

The judge ruled that violated the Charter’s guarantee of freedom of thought. But he simply severed the offending provisions from the rest of the law and said the trial could proceed.

Khawaja’s lawyer tried to appeal to the Supreme Court, claiming the charges should have been quashed. But the high court refused to hear the appeal in 2007, effectively blocking that line of legal attack.

The definition of terrorism was hotly debated — and widely criticized by civil liberties and Muslim groups — when the law was enacted.

The Liberal government of the day argued that requiring a political, ideological or religious component for a terrorist offence could actually be viewed as a safeguard for the accused, since it put an additional burden on the Crown to prove those legal points to obtain a conviction.

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