OTTAWA — The judge in Momin Khawaja's terrorism trial has ruled that evidence from a star witness the defence considers hearsay will remain part of the court record — at least for now.
Justice Douglas Rutherford said Thursday it is too early to fully determine the validity of certain statements by Crown witness Mohammed Babar and other material gathered through electronic surveillance.
Justice Rutherford said the evidence presented at the Ontario Superior Court trial is “in play” until he has had a chance to evaluate all arguments before him.
The trial, seen as a key test of Canada's Anti-Terrorism Act, is adjourned until Aug. 19.
Crown prosecutor David McKercher and Bill Boutzouvis, assistant lead prosecutor, right, arrive at the Ottawa courthouse for the Momin Khawaja trial Thursday. (THE CANADIAN PRESS/Tom Hanson)
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Mr. Khawaja, arrested four years ago in Ottawa, faces seven charges of financing and facilitating terrorism, including the key accusation he built a remote-control device to trigger explosions planned by Islamic extremists in Britain.
Five of his alleged co-conspirators were convicted in London and sentenced last year to life in prison. Their targets were said to include a nightclub, shopping centre and electrical and gas facilities, but the plot was derailed by British authorities.
Earlier this week a British court rejected an appeal by the five men.
Last month at Mr. Khawaja's trial, Mr. Babar testified that he drove the Ottawa software designer part way to a terrorist training camp in northern Pakistan with a man he knew by the code name Ausman — since identified as Omar Khyam.
Mr. Khyam was among those convicted in the British bomb plot.
During his testimony, Mr. Babar mentioned an array of terrorist plots, including a failed plan to kill the Pakistani president, but did not link Mr. Khawaja directly to those activities.
Lawrence Greenspon, Mr. Khawaja's lawyer, took exception to evidence from Mr. Babar as hearsay and argued that some of the electronic intercepts in London were recorded when Mr. Khawaja was not even in Britain.
Justice Rutherford rejected Mr. Greenspon's proposal that there be a hearing on the admissibility issues.
“I'm disappointed by that decision,” Mr. Greenspon said after proceedings Thursday. “He obviously felt that wasn't necessary, and so now the evidence that has been heard to this point on the (electronic) probes and Mr. Babar will have to be considered.”
Mr. Greenspon said he will ask the judge to throw the case out in a motion expected when the trial resumes next month. He contends the Crown has not presented sufficient evidence to prove the seven counts.
“There isn't enough evidence on certain of the elements in the seven,” Mr. Greenspon said, adding that in some instances “there simply is no evidence at all.”
After hearing arguments on the motion next month, Justice Rutherford could allow the counts to stand, quash some or toss out all seven.
The Crown wrapped up its case this week following testimony from Zeba Khan, Mr. Khawaja's former fiancée whom he visited in Pakistan.
Mr. Greenspon has not revealed whether he will call witnesses, nor if Mr. Khawaja will testify, when defence arguments begin.
He has so far characterized his client as a man angry enough to dream of fighting alongside fellow Muslims in Afghanistan but not one out to bomb civilian targets in London.
Mr. Greenspon hinted Thursday he will zero in on the electronic intercepts of conversations among Mr. Khawaja's alleged co-conspirators in Britain. The recordings include exchanges that took place when he saw them in London as well as discussions when Mr. Khawaja was absent, Mr. Greenspon noted.
“There's one kind of conversation when Momin's there, there's a very different kind of conversation after he's gone.”
