OTTAWA - Misguided young man or calculating professional terrorist?
The fate of Momin Khawaja depends, to a large extent, on which of those contrasting portraits Justice Douglas Rutherford chooses to accept when he passes sentence on the 29-year-old Ottawa software developer this week.
Khawaja, arrested nearly five years ago by the RCMP as part of a joint investigation with British police and security forces, now stands convicted on seven criminal counts, five of them specifically relating to terrorist activity.
When he appears before Rutherford in Ontario Superior Court on Thursday, he will be the first person sentenced under the federal Anti-Terrorism Act, rushed into law by Parliament in the wake of the 9-11 attacks in 2001.
It promises to be a "dramatic and historic" occasion, says Wesley Wark, a University of Toronto expert on counter-terrorism.
"Rutherford has to define for Canadians the judiciary's view of the nature of terrorism offences, and the relevant sentencing regime that goes with them."
He'll have to do it on the basis of limited legal precedents, and in the face of drastically divergent ideas about the punishment Khawaja deserves.
Defence lawyer Lawrence Greenspon has pointed to the nearly five years Khawaja has already spent in custody and urged the judge to apply the standard "two-for-one" guideline that credits offenders with double time for the period served before conviction.
By Greenspon's calculation, the combined sentence for his client on all charges shouldn't be more than seven and a half years -- so he's already more than served his time and he should walk.
Crown attorney David McKercher contends Khawaja should get the maximum life sentence on two of the seven charges -- and a total of between 44 and 58 years on the other five. The net result would be to put him away for at least another 10 years before he's eligible for parole.
"There's always some daylight between what the defence wants and what the Crown wants," said Wark. "But the daylight here is huge."
The gap is based on differing assessments of Khawaja's character and of the role he played in a terrorist plot hatched by five collaborators in Britain.
At trial, Greenspon painted his client as a peripheral figure who didn't realize the remote-control detonator he built for his co-conspirators was intended for use in bombing targets in and around London.
Khawaja's personal goal, according to the defence scenario, was to become a front-line Islamic soldier in the war against western forces in Afghanistan, and he thought the detonator -- dubbed the Hi-Fi Digimonster -- would be used there.
That presents Rutherford with an interesting question in passing sentence, says David Paciocco, a criminal law specialist at the University of Ottawa.
"The judge is going to have to evaluate whether that merits different treatment. Is it less serious to assist insurgents against what might be Canadian troops in Afghanistan, compared to blowing up civilians in downtown London?"
Rutherford, who heard the case without a jury, concluded there wasn't enough evidence to show Khawaja knew the specific targets under consideration by his British colleagues.
As a result, he acquitted Khawaja of two terrorism charges tied to the London plot. But he found him guilty of two lesser Criminal Code offences for unlawfully building and possessing the Digimonster.
In addition, he handed down guilty verdicts on five counts of facilitating and financing terrorism. The precise charges included funnelling money and supplies to the plotters, taking training at a terrorist camp in Pakistan, and making a safe house available for terrorist use.
The judge also took note of email traffic in which Khawaja offered to build more detonators, preached "economic jihad" against the West, defended the 9-11 attacks in the United States and supported suicide bombings in Israel.
Greenspon saw the comments as the words of an "angry young Muslim" who didn't necessarily intend to do all the things he talked about.
His plans for the Afghan battlefield weren't "true terrorism," said Greenspon, who described Khawaja as a serious young man with a "decent upbringing" by Pakistani-born parents who moved to Canada in 1967.
Crown attorney McKercher drew a different conclusion, labelling Khawaja as a "quartermaster of terrorism" and a committed jihadi.
"He's chosen a murderous way of life," McKercher told a pre-sentencing hearing. "There is no indication of remorse whatsoever."
The extent of Khawaja's ideological commitment to jihad is a key point because it bears on important principles that form part of the sentencing process.
They include whether or not the offender is amenable to rehabilitation and whether he will be a continuing threat to public safety in future.
Paciocco noted, as well, that Parliament's intent in passing the Anti-Terrorism Act was clearly to express society's revulsion at terrorist acts and impose tough penalties for them.
Nevertheless, he said, the courts still have to tailor the generalities of the law to the facts of the case at hand.
"To put it in simple terms, we sentence both the offender and the offence (and) we have to try and achieve a compromise. ... A judge can't impose an unremitting sentence just to send a message about the evils of terrorism."
The five British Muslims with whom Khawaja collaborated all got life sentences from the U.K. courts with no parole for at least 17 years, despite the fact their plot was thwarted before they could set off any explosions.
Previous cases of politically motivated violence in Canada have yielded a variety of results.
Paul Rose and Francis Simard, the FLQ members convicted of murdering Quebec cabinet minister Pierre Laporte in 1970, got life sentences but were paroled after 11 years. Others involved in the affair got lesser prison time.
The so-called Squamish Five, who bombed a B.C. hydro station and Litton Industries in Toronto in the 1980s, got sentences ranging from six years to life. All have long since been freed.
Inderjit Singh Reyat, the only man convicted in the 1985 Air India bombing that took 329 lives, served over 20 years on a series of manslaughter convictions before being freed last year. He is awaiting trial on perjury charges arising from another case.
None of the previous prosecutions provided an exact parallel to the Khawaja case. And all came before Canadian law was changed to target terrorism as a specific offence.
"Khawaja is part of a post 9-11 world of globalized, transnational terrorism," says Wark. "It's a different political world, and it's a different threat environment."
