The federal Crown has abruptly halted a preliminary hearing against 14 Toronto-area terrorism suspects in favour of going directly to trial, a move that defence lawyers say is a clear attempt to prop up a faltering case and prevent them from fully cross-examining a key government witness.
"It's a breach of good faith to the public, to the court, and to the defence counsel," said Dennis Edney, who represents one of the lead suspects in the case, Fahim Ahmad. "And it's significant that they would prefer a direct indictment while in the cross-examination of one of the pillars on which this case rests, [Crown witness]Mubin Shaikh."
The Crown announced a halt to the preliminary hearing yesterday morning in a move called a direct indictment. The indictment also changes the charges against some of the suspects. The decision was approved by the acting director of the Public Prosecution Service of Canada, Brian Saunders.
"Mr. Saunders determined that it was required in the public interest to prefer indictments, ending the preliminary inquiry and proceeding directly to trial at this time. The decision is in accordance with the policy guiding the Public Prosecution Service of Canada," said a press release issued by the department, which gave no specific reason for the decision.
The highly unusual move came as defence lawyers were cross-examining Mr. Shaikh, a key informant in the case. None of Mr. Shaikh's testimony - or any of the evidence from the preliminary hearing - can be reported because of a sweeping publication ban. However, Raymond Motee, another defence lawyer, said Mr. Shaikh's time on the stand so far did not turn out exactly as the Crown had hoped.
"I think that they realized that the preliminary hearing wasn't going as well for them as they might have suspected, and I don't think the testimony of Mubin Shaikh went as they expected," Mr. Motee said.
Mr. Shaikh began testifying in the preliminary hearing early this month. Things got off to a rocky start when it became apparent that the informant was to appear in a pre-taped BBC special the day he was to begin testifying. Defence lawyers asked a judge to consider a contempt of court charge against Mr. Shaikh, claiming he repeatedly discussed evidence in media interviews.
When the preliminary hearing was halted, Mr. Shaikh was being cross-examined by Michael Moon, who represents Steven Chand. In previous media interviews, Mr. Shaikh has said he believes Mr. Chand is innocent.
Mr. Shaikh testified in a preliminary hearing for four youths charged in the terrorism case. His testimony there is also under a publication ban. The charges against three of the four youth suspects have since been stayed.
Defence lawyers were not given advance warning of - or a specific reason for - the Crown's decision to halt the preliminary hearing. Lawyers arrived at the Brampton courthouse yesterday to find their courtroom locked. Eventually, Clyde Bond, the lead prosecutor on the case, called Mr. Motee over and told him to get his client, who is currently on bail, to court so he could be rearrested.
The indictment itself, which is signed by Mr. Bond and dated Sept. 19, changes the charges against some of the suspects. Jahmaal James, for example, is now accused of receiving training in Pakistan to participate or contribute to the activity of a terrorist group. Mr. Chand faces a new charge of counselling to commit fraud over $5,000 for the benefit of a terrorist group. The Crown also dropped a charge against two other suspects, Yasin Mohamed and Ali Dirie.
Lawyers will meet again to discuss preliminary matters next week, at which point it will become clearer just when the actual trial will take place.