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A courtroom sketch of Sayfildin Tahir Sharif, an Alberta man facing terror charges in the U.S. (Amanda McRoberts/Amanda McRoberts/The Canadian Press)
A courtroom sketch of Sayfildin Tahir Sharif, an Alberta man facing terror charges in the U.S. (Amanda McRoberts/Amanda McRoberts/The Canadian Press)

Defence contests search of Alberta man facing U.S. terror charges Add to ...

A court must determine whether a Canadian terrorism suspect's Charter rights were violated by search warrants before evidence is sent to American prosecutors, a judge said Thursday.

Lawyers for accused terrorist conspirator Sayfildin Tahir Sharif argued against a Crown motion to send evidence gathered by the RCMP to the United States, where charges against Mr. Sharif have been laid.

Both sides disagree on what the government's action was: The Crown says it was “gathering” evidence, in keeping with the federal Extradition Act; the defence says it was a “search and seizure,” thus invoking the powerful Charter in the case.

“Make no mistake about it: When the law-enforcement officials go into your home and seize all of your personal items, including computers, your own writings, and books and other things, bank cards – that's a search. That's a seizure,” defence lawyer Bob Aloneissi said outside an Edmonton courtroom after Thursday morning's hearings.

The Crown's characterization is part of a “shell game” to “circumvent the supreme law of the country, the Charter,” he added.

“What the Crown is doing is cutting and pasting and using different provisions of different acts in order to circumvent any kind of judicial review of what it has done here, in terms of a search and seizure,” Mr. Aloneissi said.

The Crown had sought a ruling from Justice J.J. Gill on whether the evidence could be sent. Instead, both sides will return to court Monday to submit a recommendation on how they can argue whether the Charter was violated in the search.

“I'd like to structure some sort of inquiry,” Mr. Gill said. “I don't think I'm in a situation where I can deal with the issues clearly.”

Federal Crown prosecutor Stacey Dej told court the searches came as part of an ongoing, parallel Canadian criminal investigation (though it has yielded no charges).

The fact that the U.S. subsequently laid charges and sought evidence doesn't make the material inadmissible, because charges related to terrorism are “trans-national in nature,” she said. She suggested admissibility of evidence could be argued during an extradition hearing.

“I'd submit what we have here, sir, is perfectly legitimate and judicially authorized searches and seizures,” Ms. Dej told court.

Before they can argue that, Mr. Sharif's legal team says, they need more information about the charges their client is facing. Waiting until an extradition hearing would be too late, Mr. Sharif’s lawyers said.

“We're in the dark right now. … All that we're asking is there would be a judicial official looking at this to determine if it was legal or not,” Mr. Aloneissi said outside court.

Mr. Sharif, also known as Faruk Khalil Muhammad Isa, was arrested Jan. 19 in Edmonton after a year-long investigation.

He's accused of counselling members of a terrorist network that carried out a suicide bombing that killed five U.S. soldiers in the Iraqi city of Mosul. He is charged with conspiring to murder U.S. nationals and providing material support for terrorists.

American court documents allege, based on RCMP wire taps, that Mr. Sharif said he was “one million per cent” behind plots to kill “those dog Americans.”

The U.S. is seeking to extradite Mr. Sharif. His lawyer said Thursday that such a process could take years.

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