In upholding the pardon revocation, Judge Keith Boswell said the Parole Board of Canada had not been unfair to Raed Jaser, who has yet to stand trial in relation to the alleged terror plot.
For one thing, Boswell wrote in reasons released Tuesday, Jaser may never have to stand trial and, if he does, the trial judge can decide whether to allow his criminal record to be used against him.
"The applicant has not yet suffered any prejudice in defending the charges against him and may never suffer any," Boswell said.
Jaser, 36, of Toronto, who is in custody, was convicted of fraud in 1997 for passing bad cheques and in 2001 for uttering threats. The Parole Board of Canada issued a pardon — now known as a records suspension — in 2009.
However, the board moved quickly to revoke the pardon after Jaser was charged along with Chiheb Esseghaier, of Montreal, in April 2013 in what the RCMP alleged was an al-Qaida-guided plan to derail a Via or Amtrak passenger train between Toronto and New York City.
Based solely on the RCMP allegations, the board decided Jaser was no longer of "good conduct."
Boswell said he saw no problem with the board's approach, saying the charges speak for themselves, regardless of whether the allegations turn out to be true or not.
Jaser had said that expecting him to argue his case before the board amounted to requiring him to forgo his right to remain silent ahead of his criminal trial — expected to start this year.
"The mere fact that he chose to maintain his silence in order to avoid jeopardizing his defence to the outstanding criminal charges does not make the process unfair," Boswell said.
Jaser's lawyer, John Norris, had also suggested political interference given that two Harper government cabinet ministers made comments about his client's record on the same day the board recommended revoking his pardon.
Boswell called the timing of the comments an "interesting coincidence" that did not support allegations of unfairness or impartiality.
"The record is devoid of any evidence of any political interference with the board in making the decision when it did," the judge said.
Norris had also asked Boswell to strike down part of the Criminal Records Act or, at the very least, clarify sections to make clear the board could not use outstanding criminal charges to justify scrapping a pardon.
Boswell declined, saying board is entitled to revoke a pardon on evidence it considers satisfactory, and Jaser's arguments amount to a challenge to the decision, not the law itself.
Norris, who did not immediately respond to a request for comment on Tuesday, had called the pardon revocation an abuse of process that violated the principles of fundamental justice. He said there was no reason the parole board moved on the issue when it did.
The Crown had argued the board is an independent agency and the pardon revocation was a routine administrative proceeding.
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