Lawyer applies for leave to appeal

The lawyer for the first person ever charged under Canada’s anti-terror laws is asking the Supreme Court of Canada to hear an appeal on the constitutionality of the legal definition of “terrorist activity.”

OTTAWA — The lawyer for the first person ever charged under Canada’s anti-terror laws is asking the Supreme Court of Canada to hear an appeal on the constitutionality of the legal definition of “terrorist activity.”

Lawrence Greenspon, whose client Momin Khawaja was convicted of five terrorism charges, filed an application for leave to appeal on Tuesday.

Khawaja, an Ottawa software developer, was sentenced in 2008 to 10 1/2 years in jail. Two years later, Ontario’s highest court increased his sentence to life in prison with no chance of parole for 10 years.

In its Dec. 2010 decision, the Court of Appeal for Ontario rejected Greenspon’s argument that the definition of “terrorist activity” in the Criminal Code is unconstitutional.

Khawaja’s defence had argued that because the definition required the terrorist conduct be performed for a political, religious or ideological reason, it infringed the charter right to express religious and political opinions.

“You may remember at the time the government introduced the anti-terrorism legislation, what they said was that the motive clause is what makes this terrorism legislation,” Greenspon said. “With the trial judge we were successful. He struck down the motive clause but said the trial could go ahead anyway without it.

“The Court of Appeal said no, it shouldn’t have been struck down, so we would like to have the Supreme Court of Canada to consider whether that motive clause is constitutional or not.”

Greenspon is also asking the Supreme Court to hear an appeal on the Ontario court’s decision to increase Khawaja’s sentence and the ways in which the Crown proved that what Khawaja did was terrorism.

The Ottawa lawyer says he spoke with his client on the phone on Tuesday, before filing the Supreme Court application.

“He was extremely disappointed to say the least, when he got the result of the court of appeal decision . . . and certainly we’re hopeful that we can turn that around in the Supreme Court.”

The Ottawa-born man, who was arrested in 2004, was convicted for training at a remote camp in Pakistan and providing cash to a group of British extremists, and offering them lodging and other assistance.

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

One of the al-Qaida operatives involved in the 2005 London suicide bombings who later turned police informer and testified in Khawaja’s trial, was released Monday in New York.

Mohammed Junaid Babar, 35, confessed in 2004 to setting up the camp in Pakistan where four al-Qaida militants trained before detonating backpack bombs in the London subway, killing themselves and 52 victims.

Court documents show that on Dec. 10, 2010 he was sentenced to time served and 10 years of probation as a reward for his co-operation. In all, he spent only four years and six months behind bars.

Greenspon has been following that case closely.

“I read the sentencing transcript at the time Babar was sentenced and there’s a few references to him having been co-operating with the authorities prior to his arrest,” Greenspon said.

“… if he was an agent during the time that he was dealing with Khawaja and others, that would certainly be of interest.”

Babar’s release has prompted a fierce reaction in Britain, where the victims’ families and survivors of the suicide attacks are outraged.

But Greenspon says the release was to be expected.

“Given the impact of his testimony in a number of cases, the sentence doesn’t surprise me,” he said.

“There’s serious bonuses and discounts when somebody comes forward and makes the case for the British, for the American, for the Canadian authorities against guys charged with terrorism.”