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Momin Khawaja was the first Canadian convicted under Ottawa's anti-terror laws. (Tom Hanson/The Canadian Press/Tom Hanson/The Canadian Press)
Momin Khawaja was the first Canadian convicted under Ottawa's anti-terror laws. (Tom Hanson/The Canadian Press/Tom Hanson/The Canadian Press)

Supreme Court to hear appeal of convicted terrorist Momin Khawaja Add to ...

Canada's controversial anti-terror law is now on trial in the country's highest court, the lawyer for a convicted terrorist said Thursday.

Characterizing the law as a "knee-jerk reaction" by the Canadian government to the Sept. 11, 2001, terrorist attacks, Ottawa defence lawyer Lawrence Greenspon believes the legislation is unconstitutional.

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The Supreme Court of Canada agreed Thursday to hear his pitch as it entertains the appeal of Momin Khawaja, the first person ever charged under the law.

The top court will re-examine a case that centres on the legal definition of what constitutes "terrorist activity." Khawaja, an Ottawa software developer, was convicted of five terrorism charges and sentenced in 2008 to 10 1/2 years in prison.

Ontario's highest court later increased his sentence to life with no parole eligibility for 10 years in what was a firm rejection of Greenspon's contention that the motive factor built into the Criminal Code definition of "terrorist activity" is unconstitutional.

In a related ruling Thursday, the top court also granted the application for leave to appeal of two other men wanted in the United States on terrorism charges relating to the banned Tamil Tigers organization.

Like Khawaja, Suresh Sriskandarajah and Piratheepan Nadarajah are also arguing that because the definition required the terrorist conduct to be performed for political, religious or ideological reasons, it infringes the charter right to express religious beliefs and political opinions.

As is its custom, the Supreme Court gave no reasons why it has agreed to hear the cases. But the high court will be charting new legal territory on the charter implications of Canada's anti-terror law, which was enacted within months of the 9/11 attacks on New York and Washington, D.C.

"The law is on trial ... it was a law that was promulgated by the Canadian government in record time as almost a knee-jerk reaction to a terrible tragedy in the United States," Mr. Greenspon said.

The constitutional argument he plans to bring before the Supreme Court is anything but an esoteric legal point, said the defence lawyer.

"If we say to the authorities, 'Look there's this law that has this motive clause in it, and as a result it gives to the police an opportunity - indeed a right - to go and investigate people on the basis of their political or religious or ideological beliefs,' that to me is a slippery slope," Mr. Greenspon said.

"That to me is what's at the heart of the challenge to the motive clause."

Mr. Greenspon said he wants Mr. Khawaja's conviction quashed, and failing that, his sentence to be reduced to what was imposed by the trial judge.

At Mr. Khawaja's trial, Justice Douglas Rutherford ruled that the so-called motive provision was unconstitutional, but still ordered the trial to proceed.

"Motive, used as an essential element for a crime, is foreign to criminal law, humanitarian law, and the law regarding crimes against humanity," Judge Rutherford ruled in October, 2006.

"While the hate motive may be an aggravating factor at sentencing, in the traditional criminal law, motive - the reasons 'why' someone commits a criminal act - neither establishes nor excuses a crime."

Judge Rutherford ruled that an "inevitable impact" of making motivation part of terror investigations would be to focus police suspicions on particular groups - "exactly that sort of phenomenon that has given rise to concerns for racial or ethnic profiling and prejudice in the aftermath of notorious terrorist actions."

"To proceed by extracting that portion of the definition of terrorism - which the government has said is essential - is an issue we want to be able to argue in the Supreme Court of Canada," Mr. Greenspon said.

Last December, the Court of Appeal for Ontario overturned Judge Rutherford's constitutional ruling and increased Mr. Khawaja's sentence.

It said an "unmistakable message" must be sent that terrorism offences would be severely punished. The justices on the appeal court also concluded that Mr. Khawaja's commitment to jihad runs deep, and that there was no evidence he could be rehabilitated.

"Absent convincing evidence that he no longer subscribed to violent jihad at the time of sentencing ... the trial judge ought to have found that the appellant continues to pose a serious threat to society and is likely to do so for the indefinite future," the appeal court ruled.

Mr. Khawaja was born in Ottawa and worked as a software developer before he was arrested in 2004. He was convicted for training at a remote camp in Pakistan, providing cash to a group of British extremists, and offering them lodging and other assistance.

He was also convicted of two Criminal Code offences related to building a remote-control device to set off explosions. But the prosecution failed to prove Mr. Khawaja knew the detonator was to be used to detonate a 600-kilogram fertilizer bomb in downtown London.

Mr. Greenspon said he expects the Supreme Court to hear arguments in the case either in the fall or early winter of next year.

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