Prosecute: The Challenges of Terrorism Prosecutions

AuthorCraig Forcese; Kent Roach
Prosecute: The Challenges of
Terrorism Prosecutions
Mohammed Momin Khawaja was born in Ottawa in . By , the
twenty-ve-year-old man was a computer contractor at the Department of
Foreign Aairs. He was a lso obsessed with Osama bin Laden and al-Qaida.
The Conspiracy
He entered into correspondence with “the bros” — like-minded others in the
United States and the United Kingdom. He joined some of these individuals
in Pakistan, where he part icipated in a “small-arms train ing camp.” He oered
his support, including money and technical equipment, to assist “the bros”
in their violent designs. In an email to one, K hawaja wrote: “Imagine if there
were  Sept ’s, wouldn’t that accurately bring America down, never to
rise aga in? Yes, I understand that innocent human beings died, but there
is absolutely no other way of achieving the same objective with the same
e ec t.” He also designed a remote arming device for a bomb that he called
the “hidigimonster,” oering to smuggle it to the United Kingdom and to
school his confederates in its use.
Canadian authorities learned of Khawaja from their UK counterpart s.
A UK investigation — Operation Crevice — tracked Khawaja meeting with
British associates in London to discuss his remote bomb-triggering device,
to be used on British or foreign targets. Canad ian police arrested Khawaja in
Ottawa on  March . e day after, British authorities arrested several
confederates in London and charged them with c onspiracy to commit sev-
eral terrorism oences. Khawaja was named by UK prosecutors as an unin-
dicted co-conspirator in a plot to use  kilogra ms of explosive ammonium
nitrate-rich fertilizer against a public target in the United Kingdom. e
trial of the seven British accused involved a massive amount of evidence. It
took fourteen months, including twenty-seven days of jury deliberations. By
 April , however, ve men had been convicted and sentenced to life
impris onment.
The Dispute over Secrecy
Khawaja’s prosecution in Canada took much longer. It was delayed by
lengthy disputes between the defence a nd Crown over disclosure of secret in-
formation. at process required two rounds of collateral proceedings in the
Federal Court under section  of the Canada E vidence Act, a consequence of
Canada’s two-court model of adjudicating disclosure of secret information.
Many of the secrecy issues revolved around whether materia l from CSIS and
foreign agencies in this transnational investigation had to be disclosed to the
accused. e Federal Cour t ordered that most of it could be kept secret. is
meant that the information would not be used by the prosecutor, but also
that it would not assist the accused in either undermining the Crown’s case
or building his own.
Deciding all this took time and substantial judicial energ y. is secrecy
dispute resulted in at least six reported decisions from the Federal Courts.
ese decisions included two appeals to the Federal Court of Appeal. In
one, the appeal court decided the judge at rst instance, Justice Mosley, had
put too much secret information into a summary he had prepared for use
by Khawaja in the crimina l trial. Justice Mosley almost certainly made this
error because he knew that the criminal trial judge in t he provincial superior
court (who was not privy to all this pre-trial litigation) would eventually
have to decide whether a fair criminal t rial was stil l possible, even though
the Federal Court had ordered so much information to be kept secret. is
process also resulted in a fa iled eort to appeal to the Supreme Court. All of
this occurred before the trial even started.
The Constitutional Challenge
Khawaja was the rst person charged under terrorism oences enacted af ter
/, and he challenged their constitutionality in pre-tria l proceedings before
the criminal trial judge. He won that challenge only in part when the trial
judge struck out parts of the denition on constitutional ground s, in a man-
Chapter Nine: Prosecute
ner that actually made proving t he case easier for the Crown. e defence
unsuccessfully attempted an immediate appeal to the Supreme Court.
The Trial
e criminal tria l began in June , more than four yea rs after Khawaja’s
arrest and more than a year after the UK convictions. e Ottawa trial —
before a judge and no jury — took twenty-seven sitting days and ended in
September . (e trial of the co-conspirators in the United Kingdom
was longer: it took  sitting days.) In October , the trial judge con-
cluded that Khawaja did not specically intend to facilitate the UK fertiliz er
bomb plot per se, but did possess a more diuse intent to cause death and
endanger life. He was convicted of ve terrorism oences, and sentenced to
a total of ten-and-a-half years. K hawaja had been denied bail and had been
in custody since his  ar rest, but the trial judge refuse d to credit his near-
ly ve years of pre-trial custody at the then general rate of : because that
would have produc ed a very short sentenc e, one that would neither denounce
or deter terrorism.
The Appeal
Khawaja appealed the conviction, and the Crown appea led the sentence. e
Ontario Court of Appeal upheld the conviction (and the constitutionality of
the terrorism law) and greatly lengthened Khawaja’s sentence to life imprison-
ment. e defendant fur ther appealed the matter to the Supreme Court of
Canada. at Cour t issued its decision on  December , unanimously
upholding the constitutionality of Canada’s  anti-terrorism law and con-
rming the life sentence.
All told, almost nine yea rs passed from the arrest to the nal appea l decision.
Trial and Tribulation
e Khawaja case was Canada’s rst terrorism trial under the  ATA. It
is perhaps not surprising it was so protracted, but it was not unusually or
exceptionally protracted for a Canadi an terrorism trial. And it had the virtue
of actually taking place — terrorism trials are rare on the Canadia n legal
landscape. is in frequency is not just because we live in a generally pe aceful
society; Canada struggles with terrorism prosecutions for other reasons to be
explained in this chapter.
In previous chapters, we discussed a ra nge of anti-terror tools such as watch-
ing through surveillance, interdicting through passport denial and no-y

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