CANADA: KHAWAJA TERROR TRIAL OPENS

UNCLAS OTTAWA 000850 SENSITIVE SIPDIS E.O. 12958: N/A TAGS: PTER PGOV CA SUBJECT: CANADA: KHAWAJA TERROR TRIAL OPENS ¶1. (SBU) Summary: The Canadian government's ability to win its first major anti-terrorism case will soon be tested in Ontario Superior Court in the landmark trial of Momin Khawaja, which began on June 23 in Ottawa. Khawaja is the first Canadian citizen to be charged under the 2001 Anti-terrorism Act. Although key provisions of the Act and related national security legislation have largely stood up to over four years of pre-trial constitutional challenges, many security experts believe that a major trial is required to determine whether the Act will serve as a workable tool in Canada's fight against terrorism. End summary. ¶2. (U) Twenty-nine year old Canadian-born software developer Momin Khawaja was arrested in Ottawa in March 2004 and charged as a co-conspirator in a thwarted home-grown plot by British-born terrorists of Pakistani origin in 2003 and 2004 to detonate a 600 kilogram ammonium nitrate fertilizer bomb against a target in the U.K. Khawaja's alleged role was to develop and build a radio-frequency detonator. He was the only person arrested in Canada in connection with the plot and has spent more than four years in pre-trial custody. Meanwhile, five of his alleged British co-conspirators were convicted of terrorism by British courts in April 2007 and are serving life sentences. Two more were acquitted. A significant portion of the prosecution evidence to be used against Khawaja is thought to have been supplied by British security agencies and police, and media reports claim U.S. agencies also contributed intelligence to the case. ¶3. (U) Khawaja is charged with seven counts under the Anti-terrorism provisions of the Criminal Code of Canada, including helping to develop bomb detonators, possessing explosives, helping to finance terrorist activity, receiving terrorist training and facilitating terrorism. Three of the seven counts carry maximum penalties of life in prison, while four carry maximum prison terms of 10 or 14 years. On June 23, Khawaja pleaded not guilty to all charges against him, and his non-jury trial is expected to run through October 2008, or longer. ¶4. (U) The case has already helped to define the balance between civil rights and national security in Canada, and the courts' approach to secrecy. In October 2006 Khawaja successfully challenged the constitutionality of the "motive" clause of the Anti-terrorism Act defining a terrorist act as one committed for "a political, religious or ideological purpose, objective or cause" when an Ontario Superior Court judge struck it down agreeing that it violated the Charter of Rights and Freedoms (Canada's Bill of Rights analogue). Despite Khawaja's partial victory, a provincial judge ruled that the case against him could proceed. The Supreme Court of Canada meanwhile has twice refused to hear appeals by Khawaja to throw out his case on the grounds that the government's ability to withhold sensitive information on national security grounds impedes his right to a fair trial. ¶5. (U) The Khawaja trial will proceed simultaneously with Canada's other ongoing terrorism trial of a member of the so-called "Toronto 11," a group of suspects accused of planning a terror attack against Canadian targets. Although the Khawaja prosecution is not Canada's first terrorism case to go to trial -- the Toronto 11 case got Qfirst terrorism case to go to trial -- the Toronto 11 case got underway earlier this year -- it is by far the most important. Unlike the Toronto 11 defendants, Khawaja is allegedly linked to a global terror plot whose members had ties to al-Qaeda, and he is alleged to have undergone terrorist training in camps in Pakistan, making his case of international interest. ¶6. (SBU) Comment: The conviction of Khawaja's alleged conspirators in Britain, and the four-year delay in bringing him to trial in Canada, has raised the stakes for the Royal Canadian Mounted Police, the Canadian Security and Intelligence Service, and Crown prosecutors in securing Canada's first terrorist conviction, prompting questions about whether CANADA is capable of mounting a timely and successful prosecution. The trial has already, and will continue to, challenge the ability of government officials and the judiciary to find the right balance between protecting citizens' civil rights and securing CANADA from terrorist threats. Further, expert observers (such as Canadian international security analyst Wesley Wark) have noted that Canadian security agencies are heavily dependent on foreign intelligence, and that friendly intelligence services are watching the case with interest to see whether CANADA follows through on prior assurances to protect the confidentiality of sensitive material when introducing foreign intelligence products in open court. WILKINS