'Group of 17' trial to test Canada's new terror act

The terrorism trials of the 17 people arrested in Ontario this month promise to be the longest, largest and most complicated criminal cases in Canadian history, says David Paciocco, a criminal law and constitutional expert.

''It's going to be massive,''he said a legal spectacle unlike Canada's criminal justice system has ever seen.

''These trials are going to be very different from the kind of trials we're accustomed to seeing.''

Paciocco, who has worked as a Crown prosecutor and criminal defence lawyer and teaches law at the University of Ottawa, says it should take at least two years before the high-profile mega-case is actually presented in court.

When it is, the trials will unfold under an extraordinary new rulebook the Criminal Code amendments of the federal Anti-Terrorism Act, passed in 2001 in which long-accepted principles balancing the rights of the accused and the reach of prosecutors are discarded in the name of fighting terrorism.

What will these trials look like, what obstacles stand in the way of a speedy prosecution, and how might the process forever change the way criminal justice is carried out in Canada?

Mountain of evidence: The logistical challenge alone is likely to tax Ontario's court system to the limit, not to mention the pressure that the sheer size of the case will place on defence lawyers.

''If there's been (police or spy-agency)surveillance for months and months, you're going to have hundreds of thousands of pages of material,''says Paciocco. ''Prosecutors are going to have to disclose evidence to the defence via computers, rather than on paper, or you're going to have trucks going up to lawyers' offices delivering loads of documents.''

There have been large cases in Canada beforewhere evidence was handled digitally rather than on paper. There have also been cases, including the Air India case, where the government helped pay the costs of the defence in the interests of a fair trial.

In this case, defence lawyers may ask the courts for money from the government, or for computer services, to process the vast quantity of evidence.

EPre-trial court challenges: Of the 17 accused, five are young offenders. Paciocco says because of the seriousness of the terrorism charges, prosecutors will likely want to have the five youths tried in adult court along with the other 12. That will mean pre-trial hearings and motions that could delay the prosecution for months.

The entire case is also likely to be delayed by other legal hearings, including constitutional challenges against the anti-terrorism law itself, and challenges to the way the Crown gathered its evidence, much of it through secret surveillance and wiretapping.

The Anti-Terrorism Act is largely untested in Canada, and noone has ever been tried under it. However, some of the law's disputed territory will have been adjudicated prior to the ''group-of-17" trials, thanks to a separate case concerning Ottawa resident Momin Khawaja.

Khawaja is the first Canadian citizen charged under the act, arrested in 2004 and accused of participating in a British terrorist conspiracy.


Khawaja's trial is scheduled for January, while his constitutional challenge to the act is scheduled for September.

The outcome of the Khawaja hearings are certain to influence the ''group-of-17" trials. But because the case of the 17 is so much larger, and because the 17 are the first charged under the Anti-Terrorism Act with plotting an act on Canadian soil, many legal questions may remain unresolved before the larger case comes to trial.

EAccess to evidence: The 17 aren't likely to enjoy many of the traditional rights granted to people accused of non-terror crimes.

One of the biggest differences between this and typical criminal cases will revolve around access to the evidence police and prosecutors collected during the investigation.

A fundamental principle of criminal justice is that the Crown must show accused people and their lawyers all the evidence to be used against them. But the Anti-Terrorism Act allows the government wide powers to withhold certain evidence in the interests of national security, including information provided by foreign governments or police, or information that could compromise separate investigations into other terrorist suspects.

''The attorney general of Canada, who is prosecuting the case, can oppose the disclosure of evidence on the basis that its disclosure would be injurious to international relations, national defence or national security,''says Kent Roach, a law professor and constitutional scholar at the University of Toronto.

Not even the trial judge has the power to order disclosure of certain evidence. The prosecution can argue the point at a separate closed hearing in Federal Court. If the federal judge, after hearing the arguments, orders disclosure, the attorney general can, as a last resort, issue a certificate banning disclosure of the sensitive evidence.

''It's going to be a nightmare for defence counsel trying to get access to information,''says Paciocco.

EPutting ideas on trial: While most criminal cases involve acts already committed, the Anti-Terrorism Act allows for the prosecution of future crimes.

The 17 suspects in this case are accused of conspiring to carry out a future terror plot. To win their case, prosecutors must prove that the accused intended to carry out their plan a difficult legal burden if not for the fact that prosecutors can introduce evidence of religious or political motives to prove intent.

Should Canadians be convicted of crimes based on their religious beliefs or political motives? Anti-terror advocates say yes, while some criminal justice experts consider trying people for their ideas and motives however violent those ideas reprehensible.

There is also the risk, says Roach, that in the current political climate following 9-11, allowing evidence about an accused's religious beliefs in this case all 17 are Muslim could jeopardize a fair trial by prejudicing a jury.

However the Anti-Terrorism Act changes the rules of the criminal courts, Paciocco applauds the government for choosing to prosecute terrorists through them with their long traditions of protecting and balancing the rights of accused rather than through a separate system of quasi-judicial tribunals.

''It's to the credit of the Canadian government that we've decided to give citizens accused of terrorism the benefits of our courts,''he says.

''The question we won't know until this and other cases come to trial, is how well will the new rules actually work?''