Supreme Court reviews first anti-terrorism act case

The Supreme Court of Canada is reviewing the cases of Momin Khawaja, the first Canadian charged under anti-terrorism law, and two other convicted supporters of a banned terrorist group, followingoral presentations on June 11. Lawyers argue the "motive clause" defining terrorist acts is unconstitutional.

Momin Khawaja arrested in 2004, now serving life sentence

Momin Khawaja's appeal is before the Supreme Court of Canada on June 11. Khawaja, left, is transported from an Ottawa courthouse following a day of hearings, July 22, 2008. (Chris Wattie/Reuters)

In 2004, Mohammad Momin Khawaja became the first Canadian charged under Canada's anti-terrorism act. He was convicted four years later and is now serving a life sentence.

The Supreme Court of Canada is now reviewing the case.

Khawaja was born in the Ottawa area in 1979, the second son of Azra and Mahboob Khawaja, who immigrated to Canada in 1975. While Momin was a child, his family also lived in Libya, Pakistan and Saudi Arabia before returning to Canada in 1991.

In pre-sentencing statements to the court in 2009, both parents said theirs was "a traditional Muslim family."

After graduating from Sir Wilfrid Laurier Secondary School in 1998, Khawaja attended Algonquin College, graduating in computer programming in 2001.

A 'normal kid' in Ottawa

Azra Khawaja, left, and Mahboob Khawaja, parents of Momin Khawaja, leave the Ottawa courthouse during a break in hearings June 23, 2008. (Chris Wattie/Reuters)

Three years later, family friend Fazal Khan would tell The Ottawa Citizen that at the time, "He was just like any other normal kid," adding, "There was nothing special about him."

"I was once a normal kid," doing the things kids do, Khawaja himself wrote in a 2003 email.

Then he realized, "All those fun activities were a waste of time and did not benefit Islam in any way."

In that September 2003 email, he said the Palestinian intifada and the 2001 war in Afghanistan had a huge influence on him. In 2002, he went to Pakistan to spend time at what he described as a mujahedeen training camp.

That email was submitted as evidence during his trial.

In a December 2003 email, Khawaja had written that the person he loved most in the world was Osama bin Laden.

Khawaja returns to Pakistan for training

A year after graduating from college Khawaja was working for Spectra FX, a company doing contract work at the Department of Foreign Affairs in Ottawa, which is where Khawaja was working when arrested.

In 2003 Khawaja twice travelled to Pakistan. Both trips included time at training camps.

By then, Khawaja had made connections with men who would be arrested in the U.K. and the U.S. and charged in relation to the same plot as Khawaja. Omar Khyam was the group's leader. They had acquired 600 kg of fertilizer, which police claimed they planned to use to carry out terrorist bombings in London.

The hifidigimonster, a remote control device built by Khawaja, was introduced as evidence at the Ottawa Courthouse on July 14, 2008. (Sean Kilpatrick/Canadian Press)

After he returned to Ottawa following his last trip to Pakistan, Khawaja worked on building a wireless transmitter for triggering a bomb detonator, named the hifidigimonster, for the group in the U.K.

In February 2004, Khawaja flew to the U.K. to meet with Khyam and the group and show them pictures of his hifidigimonster.

\However, MI-5 had the group under surveillance by then — photos and recordings of Khawaja's conversations were used as evidence during his trial.

MI-5 alerted the RCMP about Khawaja.

The next month, in Madrid, ten near-simultaneous explosions on commuter trains killed 191 people.

Police, listening in on wiretaps, learned that Khawaja planned to leave for the U.K. on April 6. The RCMP decided to act.

Khawaja and the London plotters arrested

On March 29, 2004 they arrested Khawaja and searched the Khawaja family residence. In his older brother Qasim's bedroom they found the hifidigimonster. According to the judge who found Momin Khawaja guilty, Qasim's bedroom "seemed to be the site" where the device "was being developed and modified."

Momin Khawaja leaves the Ottawa courthouse May 3, 2004 under RCMP protection. Khawaja was convicted of five charges under Canada's anti-terror laws. (Tom Hanson/Canadian Press)

Family members were detained but later released.

Hours after Khawaja's arrest, as part of what they called Operation Crevice, police in the U.K. arrested Khyam and other men.

The U.K. suspects were tried first, in a trial lasting 13 months where the jury spent 27 days deliberating — the longest ever for a U.K. crime case. In the end, five of the defendents, Omar Khyam, Anthony Garcia, Jawad Akbar, Waheed Mahmood, and Salahuddin Amin, were found guilty and sentenced to life in prison.

American citizen Mohammed Junaid Babar was also arrested, eventually pleading guilty in a United States court on multiple terrorism charges related to his involvement with the U.K. group.

Khawaja's own trial took place in 2008 and Babar was the Crown's 'star' witness.

Khawaja was convicted on five counts but not for the London bomb plot.

In Justice Douglas Rutherford's judgment, "The evidence does not lead inescapably, or beyond a reasonable doubt, to the conclusion that Momin Khawaja was privy to the fertilizer bomb plot or its existence."

Rutherford sentenced Khawaja to serve a further 10.5 years in jail.

On Dec. 17, 2010 the Ontario Court of Appeal increased Khawaja's sentence to life imprisonment, arguing that terrorism "must be dealt with in the severest of terms."

The Supreme Court's other anti-terrorism cases

Suresh Sriskandarajah and Piratheepan Nadarajah were both arrested in 2006 on U.S. accusations of assisting the Tamil Tigers, a group in Sri Lanka that is on the U.S. State Department's list of terrorist groups. They were released on bail Jan. 6, 2011 to appeal their extradition order to the Supreme Court of Canada, which will hear the case on June 11.

Sriskandarajah, former president of the Tamil Students Association at the University of Waterloo, is alleged to have laundered money and conspired to procure and smuggle equipment for the Tigers.

U.S. prosecutors charged Nadarajah with attempting to buy missiles and AK-47 assault rifles on the Tigers' behalf.

As with the Khawaja case, the key issue is whether the Criminal Code definition of terrorist activity is unconstitutionally overbroad and violates the Charter of Rights.

On Jan. 16, 2012, another inmate attacked Khawaja in the super-maximum-security prison in Ste-Anne-des-Plaines, Que. over an apparent ideological feud, according to Khawaja's father.

That inmate, Zakaria Amara, the ringleader of the so-called Toronto 18, is also serving a life sentence on terrorism charges. He threw boiling water onto Khawaja, resulting in burns to 60 per cent of his body.

Supreme Court to review the Khawaja case

The Supreme Court's review of the Khawaja case, along with two other anti-terrorism act cases [see sidebar], will examine the constitutionality of the definition of "terrorist activity" in the criminal code.

The key issue centres on what's called the motive clause, which states that terrorist activity is that committed, "in whole or in part for a political, religious or ideological purpose, objective or cause."

In the Khawaja case, they will also consider whether a sub-clause exempting terrorist activity "committed during an armed conflict" applies in his case. Both were issues in the original trial and the former was central in the Ontario Court of Appeal ruling.

Khawaja is also asking the court to review the principles of sentencing for terrorism crimes.

In a statement filed with the Supreme Court, Khawaja's lawyer, Lawrence Greenspon, argues that the motive clause, because it's overbroad and vague, "can promote a chilling effect" and that "the scope of what actions could constitute a crime of terrorism is exceptionally broad."

Khawaja's lawyer, Lawrence Greenspon, arrives at an Ottawa courthouse Aug. 19, 2008 during Khawaja's trial that ended in his conviction on terrorism charges. Greenspon will be before the Supreme Court on June 11. ((Tom Hanson/Canadian Press))

"If they agree that the definition is unconstitutional, as it violates fundamental freedoms, they might consider ordering a new trial," Greenspon told CBC News before the hearing.

He also wants the court to overule Rutherford's original finding that Khawaja cannot use the armed conflict exemption.

Khawaja claims he was only aware of the militaristic activities that the Khyam group planned to carry out in Afghanistan against western military forces and that would not be terrorist activity under the Criminal Code.

Even if the Supreme Court should only reduce Khawaja's sentence back to what Rutherford originally imposed, that "would be a good result," Greenspon said.

Because Khawaja has already served seven years, "it may mean there's no need for a new trial."