OTTAWA -- Momin Khawaja has lost another legal bid to derail the terrorism charges he faces.
A Federal Court of Appeal panel has unanimously dismissed his appeal of an earlier Federal Court ruling that found his right to a fair trial was not jeopardized by a secretive court process to vet sensitive government information about the case.
"The challenged provision, when examined in context, strikes a balance between the need for protection of sensitive national security information and the rights of the individual," appeal court Chief Justice John Richard wrote in the decision.
Mr. Khawaja, 28, is accused of conspiring with a British al-Qaeda cell in a thwarted plot to bomb public targets in London in 2004.
His Ottawa trial, postponed several times now as his defence lawyer launched various constitutional challenges, is expected to begin next year.
Mr. Khawaja denies the charges and is deciding whether to seek leave to appeal the decision to the Supreme Court of Canada, his lawyer, Lawrence Greenspon, said.
A leave to appeal to the high court could, once again, push back the trial's start.
The Supreme Court rejected another leave to appeal from Mr. Khawaja in April.
It sought to have the charges quashed on constitutional grounds. But legal observers say the court is reluctant to involve itself in cases before a criminal court.
Soon after, Greenspon argued before the Federal Court, and then the appeal court, to strike down part of Section 38 of the Canada Evidence Act.
The law allows government officials to appear at in-camera, ex-parte hearings before a Federal Court judge to make arguments to keep secret certain information related to security cases on the grounds its release would harm national security and relations with foreign governments.
The procedure was used in the Mr. Khawaja case, with Justice department lawyers arguing disclosure would harm national security and relations with foreign governments. It is believed some, if not the majority, of the critical prosecution evidence against Mr. Khawaja was gathered by Britain's MI5 security service and London's Metropolitan Police counter-terrorism section.
Mr. Khawaja's lawyers were not entitled to attend the hearings and challenge the government's assertions.
As a result, they argued the hearings were fundamentally unfair and violated their client's charter right to a fair trial, to not be unfairly deprived of liberty, and to make a full answer to, and defence against the charges, for which he faces life in prison if convicted.
But the Federal Court, and now the appeals court, upheld the Section 38 procedure.
The Federal Court, however, ordered the Justice department to disclose to Mr. Khawaja 73 case documents it had sought to keep secret, as well as summaries of information contained in more than 400 others. The government appealed that ruling and lost.
