OTTAWA - A judge dealt a setback to accused terrorist Momin Khawaja on Monday by refusing to toss out the charges against him.
Justice Douglas Rutherford said the Crown has presented enough evidence against the Ottawa software developer for the high-profile trial to continue.
Khawaja, arrested four years ago, faces seven charges of financing and facilitating terrorism.
It includes the key allegation he built a remote-control device, dubbed the Hi-Fi Digimonster, to trigger explosions planned by Islamic extremists in Britain. He also stands accused of participating in terrorist training and meetings, and making a house owned by his family in Pakistan available for terrorist use.
Khawaja, who has pleaded not guilty to all charges, is being tried in Ontario Superior Court without a jury.
Defence lawyer Lawrence Greenspon asked the judge to throw the case out in a motion argued last month, saying the Crown has not made a strong enough argument to support the charges.
Rutherford said Monday there is sufficient evidence on the record for a properly instructed jury to find Khawaja guilty "on any or all of the counts" -- the appropriate legal test of Greenspon's motion even though the judge alone is hearing the case.
Indeed, a jury might reasonably conclude Khawaja "was a knowing participant" in a plot to explode devices in the United Kingdom, Rutherford said.
Five alleged co-conspirators were convicted last year in Britain of plotting to bomb targets that included a nightclub, shopping centre and gas and electrical facilities.
The prosecution's star witness, Mohammed Babar, a former al-Qaida operative turned police informant, testified that Khawaja attended a training camp in Pakistan in 2003. He also claimed Khawaja acted as a courier to deliver money and supplies and discussed various potential operations.
Evidence gathered by the British security agency MI-5 indicated Khawaja visited people involved in the British plot and discussed remote-control technology with them.
The RCMP says it later found the Digimonster in a raid on the Khawaja family home in suburban Ottawa and enough components to suggest Khawaja may have been planning to build more devices.
There has also been testimony that Khawaja used an Ottawa-area woman, Zenab Armandpisheh, as a go-between to funnel money to co-conspirators in Britain.
In email exchanges with Zeba Khan, his former fiancee, Khawaja boasted of his devotion to jihadi activities and indicated his support for the 9/11 attacks in the United States.
Khan said she considered it just talk and couldn't believe Khawaja was actually involved in terrorist activity.
Greenspon has suggested, during his previous cross-examination of Crown witnesses, that Khawaja attended the training camp in Pakistan because he was toying with the idea of going to fight western forces in Afghanistan -- not to bomb civilian targets in Britain.
Rutherford said Monday that to characterize Khawaja's actions as preparation simply for battlefield jihad "is to view the evidence too narrowly."
"It obviously included the making and testing of explosives."
Greenspon has also suggested the Digimonster was intended for use in Afghanistan, if anywhere. He has challenged the technical analysis done by the RCMP and noted that many of the components they seized were found in the bedroom of Momin's brother Qasim, who does not face charges.
Outside the courtroom, Greenspon put a brave face on Rutherford's decision, saying the evidentiary threshold necessary for the trial to continue was rather low. He argued there's a "significantly higher standard" of proof for his client to be found guilty of the charges.
Greenspon's effort to get the charges thrown out, technically known as a motion of non-suit, is a common defence tactic. It essentially calls on the judge to conclude there isn't enough evidence to continue and to acquit the accused.
The defence was to decide Monday whether to call witnesses and make additional arguments when proceedings resume Tuesday.
Greenspon has refused to say whether he would call Khawaja to testify -- a move that would open him to cross-examination by the prosecution.
He indicated Khawaja was fully aware of the importance of Monday's ruling. "I can't imagine he's anything but disappointed."
