'Toronto 18' youth to argue abuse of process claim
BRAMPTON, Ont. - A youth found guilty of terrorism-related offences should not be freed based on the work of a government agent, regardless of whether the paid informant broke laws while infiltrating a home-grown terrorist group, the Crown will argue Friday.
Lawyers for the youth, who was 17 at the time of his offences, argue that RCMP informant Mubin Shaikh was largely responsible for setting up a terrorist training camp in December 2005 and crossed the line in his work, committing an "abuse of process."
They also claim Shaikh used his position of authority and took advantage of the youth's naivete to encourage his participation in the terror training.
The youth was the first of the so-called Toronto 18 to stand trial over the terror plot to strike several Ontario targets and was found guilty in September of taking part in, and helping, a terrorist group.
Ten other suspects have yet to stand trial and no date has been set.
Justice John Sproat agreed to hold off registering a formal conviction for the youth pending the outcome of the abuse of process motion, which seeks a stay of the proceedings against the offender.
The Crown plans to argue the grave and urgent nature of the terror plot prompted Shaikh's undercover investigation, which led to an "awkward dilemma" that forced him to choose between potentially breaking the law or losing credibility with the terror suspects.
According to a Crown factum filed with the court, Shaikh was told not to break the law in the days before he went to the camp.
The Crown contends that he never committed any terrorism offences and even if any other laws were technically broken, they were relatively minor compared to the crimes being investigated.
"Even if this court finds that he committed criminal offences in the currency of this investigation ... the actions involved, even cumulatively, neither compromise trial fairness nor amount to such conduct that offends the community's sense of fair play," the factum states.
The defence, in its factum, says Shaikh helped secure shelter and transportation for the training camp, ran the recruits through an obstacle course, provided firearms training and also withheld from authorities that a handgun was at the camp until sometime later.
Shaikh has previously defended his role in the investigation and denied 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 Crown's factum also said there is no "meaningful precedent" that suggests the youth had his rights infringed on under the Youth Criminal Justice Act and that Shaikh should have somehow treated him differently.
"(Authorities could not) have acted differently to (the youth) and other youths without compromising the successful interruption of a crime that cried out for intervention," the Crown factum states.
Rather than taking advantage of the youth, the Crown suggests Shaikh actually went out of his way in an attempt to counsel him out of the situation.
"If anything, on his own initiative, Mr. Shaikh acted with special consideration for those younger people drawn into (the group leader's) orbit," the Crown stated.
The Crown will also argue the judge should reject any arguments based on entrapment by Shaikh since some of the youth's illegal activities were committed long after the training camp was held.
Shaikh is expected to appear in court Friday as the motion is argued.