Federal lawyers say Canada's ability to obtain foreign intelligence will be dangerously compromised if sensitive information is released in the terrorism trial of Ottawa's Momin Khawaja. The government has asked the Federal Court of Canada to keep secret some of the evidence it intends to present against Mr. Khawaja at his criminal trial. Among the material it wants protected are documents that have been mistakenly handed to Mr. Khawaja's defence team. In a legal brief recently filed with the Federal Court, Deputy Attorney General John Sims says that full disclosure in the Khawaja case could harm anti-terrorism efforts in this country. Terrorism is an international enterprise, he says, that demands a co-operative response by nations that must be able to trust each other with intelligence. "Canada is generally a net importer of sensitive information," Mr. Sims writes. "While other states may still be willing to share information with Canada, their calculation of risk and benefit might well be different in many cases if they considered as potentially unreliable Canada's ability to guarantee the protection of information that was given to it in confidence." "This would, in turn, impair Canada's ability to combat terrorism." Mr. Khawaja, an Ottawa software developer, was arrested on March 29, 2004 at the Department of Foreign Affairs, where he was doing contract work.Releasing that material publicly, Mr. Sims warns, would violate information-sharing agreements with foreign intelligence services; it would disclose the investigative methods of national security agents; and it could identify agents or their sources.

"State secrets are as deserving of protection as solicitor-client communications or the identify of informers," Mr. Sims argues in his legal brief.

The RCMP, he says, is concerned that other police and intelligence agencies will refuse to share sensitive information in the future if the Khawaja case shows that Canada cannot respect "the third party rule," an understanding that requires the RCMP to gain consent from a foreign agency before sharing its information.

The government is also asking the Federal Court to protect information that is already in the possession of Mr. Khawaja's defence lawyer, Lawrence Greenspon. Mr. Sims described it as an "inadvertent disclosure."

"Physical loss of custody does not automatically end the privilege. The court can restrain further use of the material."

Mr. Greenspon, who has not yet filed a legal brief in response to the government's request for secrecy provisions, could not be reached for comment yesterday. He has, however, served notice that he will be raising a constitutional issue when the application is heard in Federal Court.

Section 38 establishes a three-step process that the Federal Court must follow in deciding whether to keep evidence under wraps in a criminal case.

First, the defence must show that the material is relevant to its case; then, the federal government must establish that its disclosure would harm national security or international relations. Finally, the court must weigh the public interest in disclosure against the public interest in protecting sensitive intelligence.

At that stage, Mr. Sims contends, the onus is on Mr. Khawaja to demonstrate that the information at issue is critical to proving his innocence or is central to his defence.

The Federal Court is now one of three legal fronts in the Khawaja case.

The Supreme Court of Canada has yet to decide if it will hear an appeal from Mr. Greenspon, who wants the charges against his client quashed on constitutional grounds.

Mr. Greenspon has argued that the case should not proceed since a judge has already struck down as unconstitutional a section of the Anti-terrorism Act that defined terrorism offences as acts motivated by religious, political or ideological beliefs.

Ontario Superior Court judge Douglas Rutherford, who is expected to preside over Mr. Khawaja's criminal trial, said the offending section would result in racial or ethnic profiling by Canadian authorities.

Judge Rutherford ruled that Mr. Khawaja's trial could still proceed despite his finding.

Mr. Greenspon has said it would be an "incredible waste of time" to try Mr. Khawaja under a Criminal Code clause that has already been deemed unconstitutional.

Federal lawyers, however, have urged the Supreme Court to let the Khawaja case go to trial since the Criminal Code offers alternative definitions of terrorist activity.

© The Ottawa Citizen 2007