An Ottawa judge suggests it may be an "impossibility" to conduct terrorism trials in general criminal courts after the federal government gave notice yesterday it will, once again, attempt to invoke an extraordinary national security law to keep secret some of its information from the trial of accused terrorist Momin Khawaja.

The likely new delay in Canada's first post-9/11 terrorism trial, already a year late in starting, has two leading legal scholars calling for Canada to adopt a streamlined British approach to terrorism prosecutions involving sensitive national security information.

As the first criminal prosecution under the 2001 Anti-terrorism Act, the Khawaja case has, as anticipated, been the subject of a storm of constitutional challenges over the new and untested law, appeals and cross-appeals. Few people, however, expected the pre-trial legal skirmishing to last this long, almost four years after the Orléans software developer's March 2004 arrest. The delays in getting the landmark case to trial put Canada well behind Britain, the U.S. and Australia in mounting a terrorism prosecution.

By comparison, six British men accused of conspiring with Mr. Khawaja in a thwarted plot to bomb bars, trains, a mall and energy targets around London in 2004, were tried, convicted and imprisoned by a British jury last spring. And that followed the longest terrorism trial in British history, the longest criminal jury deliberation, plus months of pre-trial arguments over national security issues.

Ontario Superior Court Justice Douglas Rutherford, the magistrate to preside over any eventual Khawaja trial, allowed his frustration to spill out in an Ottawa courtroom yesterday.

"It almost spells (the) impossibility of doing a trial like this," he said, in an apparent display of judicial discontent with the current two-tier Canadian system.

Only designated Federal Court judges now have jurisdiction over whether potentially sensitive national security information can be withheld from accused individuals and their defence lawyers. Provincial criminal court judges, meanwhile, are responsible for overseeing the trials.

Yesterday, Justice Department lawyer Linda Wall informed Judge Rutherford of the government's intention to ask the Federal Court for an order under Section 38 of the Canada Evidence Act to withhold some government information related to the case from Mr. Khawaja and his lawyers on grounds it could harm national security and international relations. She did not elaborate. (Information withheld under Section 38 also cannot be used by trial prosecutors.)

There is no telling when the Federal Court will agree to hear the new Section 38 application and how long that will take. Before yesterday, Judge Rutherford hoped the anticipated three-month trial might begin May 20.

But when the government sought a previous Section 38 order in the case last year, winning a partial victory, the Federal Court hearings, deliberations and subsequent appeals took almost a year.

Mr. Khawaja, who denies the charges and has chosen trial by judge alone, is now awaiting word on whether the Supreme Court of Canada will grant the 28-year-old leave to appeal a Federal Court of Appeal ruling related to last year's Section 38 case.

"You can't force him on to trial when he has serious constitutional issues to be tried, but I think this demonstrates the unworkability of the Section 38 regime that requires the involvement of a court other than the trial judge," said David Paciocco, a University of Ottawa law professor.

Instead, trial judges should be given jurisdiction to deal with disclosure issues related to national security, as is done in Britain. "If you can trust citizens to appoint them to the bench, you should be able to trust them to deal with issues of national concern," he said.

Craig Forceses, a University of Ottawa expert on national security law, agrees with harmonizing the two roles under a single trial judge.

Federal Court judges would have more time to devote to other cases. And in instances where a trial judge orders some information withheld from the defence on national security grounds, the judge could have the standing authority to later reverse the decision if it becomes apparent that the excluded information is vitally important to the defence, he said.

The government's new bid for a Section 38 order also brings back into play a fundamental legal issue for the Federal Court to again consider: What happens when accused terrorists and other individuals are brought before open criminal courts on offences related to national security? Are they entitled to know all the incriminating evidence prosecutors have against them, even if that compromises confidential sources, relations with foreign governments and state secrets?

Or do certain cases of government secrecy outweigh Canada's open-court principle and an accused person's right to a fair trial, including the ability to challenge all the evidence against them?

Mr. Khawaja, who has been held in an Ottawa jail cell since his arrest in Ottawa by the RCMP, has waived his right to a speedy trial so his legal team can pursue constitutional and other legal challenges.