Jan 28, 2009 05:42 PM
Lawyers for a youth found guilty of terrorism-related offences planned to argue Thursday that a government agent who infiltrated a home-grown terrorist group crossed the line and instead became an instigator who broke the law.
What is even more egregious about the role played by paid RCMP informant Mubin Shaikh was that he entrapped a vulnerable teen, the lawyers say.
"There was an intolerable degree of governmental participation in the criminal enterprise," lawyers Mitchell Chernovsky and Faisal Mirza argue in documents filed with Ontario Superior Court.
"The state and its investigative bodies have a heightened level of responsibility when dealing with young persons and ensuring that youth justice principals are respected."
The youth, who cannot be identified because he was 17 at the time of his offences, was the first of the so-called Toronto 18 to stand trial over a plot aimed at wreaking havoc on Canadian targets and beheading the prime minister.
He was found guilty in September of taking part in, and helping, a terrorist group.
Justice John Sproat agreed to hold off registering a formal conviction pending the outcome of the abuse motion, which seeks a stay of the proceedings against the offender.
"This motion raises an issue of national importance," the lawyers argue in their factum.
"Anti-terrorism investigations that rely on hired civilian agents necessitate a consideration of what conduct by the state agent will amount to an abuse of process."
The youth was convicted largely on Shaikh's evidence – the judge said he was a credible witness – even though the informant was adamant the group's leaders carefully kept the teen in the dark about their ugly plans.
Shaikh has previously defended his role against suggestions he was an instigator.
"Stopping something from happening or even protecting the honour of the Muslims, protecting the honour, the integrity of our country . . . I would do it again a thousand times," Shaikh said outside court the day the youth was found guilty.
The charismatic Shaikh, a prominent member of the Muslim community, had extensive knowledge of the Qur'an.
Court has previously heard he was familiar with terrorist rhetoric, had been an army cadet, and held a firearms permit, all of which he used to gain the confidence of the group's leaders.
At trial, the defence portrayed the teen as naive – a recent convert to Islam who was estranged from his Hindu family and in search of a mentor.
Shaikh quickly slipped into that role, the factum suggests.
"Mr. Shaikh contributed to implanting in the mind of an innocent person the disposition to commit the alleged offence and induce its commission in order that the state may prosecute."
One key piece of evidence was the teen's enthusiastic attendance at what police called a terrorist training camp about two hours north of Toronto in December 2005.
The lawyers argue the camp would not have taken place without Shaikh's involvement.
"He was instrumental in the preparation for the camp, including selecting and paying for camping equipment, securing a winter tent and providing transportation for the trip."
Once there, he helped set up an obstacle course, ran the recruits through their paces, provided religious leadership, and provided training in the use of a firearm.
"In short, he played a pivotal co-leadership role at the camp," the factum states.
"An ordinary member of the public, looking at the situation in which (the youth) found himself, subject to the leadership of Shaikh and his instruction about religion and the use of firearms, might reasonably conclude that this young man was exploited."
The lawyers say in the factum that Shaikh lied to his police handlers when he said there were no weapons involved at the camp.
In fact, court heard, he showed attendees how to fire a handgun.
"In training the young recruits in the use of a 9-mm semi-automatic firearm, the agent engaged in illegal acts," the factum states.
Shaikh was never charged with trafficking in a firearm, the factum notes.