Why are terrorists getting off easy?

When he wasn’t busy with his day job—fixing computers at the Department of Foreign Affairs—Momin Khawaja was toiling away in his Ottawa basement, building a remote-controlled detonator for aspiring terrorists in the United Kingdom. (He dubbed his deadly creation the “Hi-fi Digimonster.”) Convicted of multiple charges in 2008, Khawaja was staring at a potentially monumental sentence: two life terms, plus an additional 44 years behind bars. The judge gave him 15 years instead. He will be eligible for parole in 2014.

Saad Khalid could be a free man much sooner. A core member of the so-called “Toronto 18,” he confessed to his role in a conspiracy to detonate three simultaneous truck bombs in Ontario, a crime that also carried a maximum life sentence. He got 14 years—minus seven for time already served while awaiting trial. If Khalid behaves himself, parole is a possibility in 2012.

Saad Gaya was even more fortunate. The McMaster University honours student pleaded guilty to the same crime as Khalid (they were arrested together while unloading a truck full of ammonium nitrate) and threw himself at the mercy of the court. His sentence? Twelve years. Gaya can apply for parole next year.

It’s been nearly a decade since Parliament scrambled to introduce Canada’s post-9/11 Anti-Terrorism Act, and a dozen convictions later—not to mention three thwarted bomb plots—the law has proven its worth. But while prosecutors are thrilled with all the guilty verdicts, the sentences are a different story. Four times now, the Crown has appealed the punishment meted out to a convicted terrorist—including the “manifestly inadequate” terms given to Khawaja, Khalid and Gaya. “Anyone convicted of participation in a serious attempt to perpetrate a major terrorist bombing should be under penal supervision for life,” prosecutors wrote in one recent court filing. “The magnitude of the damage they stand to do, both to human lives and our way of life, demand nothing less.”

Yet the only two Canadian terrorists who did receive life sentences—Zakaria Amara, the Toronto 18 ringleader, and Said Namouh, a wannabe suicide bomber who spread al-Qaeda propaganda from his Quebec computer—have filed their own appeals. Amara calls his life term “unduly harsh and excessive,” while Namouh’s lawyer compared the punishment (ironically enough) to “killing a fly with an atomic bomb.”

The competing petitions will force the country’s higher courts to answer some tricky questions about what distinguishes one terrorist from another. Zakaria Amara, who dreamed of mass murder in the name of Islam, now insists he is a changed man. Does he deserve to spend more time in jail than Momin Khawaja, an obvious radical who has expressed not a shred of remorse? Prosecutors are not demanding a life sentence for Khalid or Gaya, but the Crown does want both men to spend a few more years in prison. But what is the real difference between a 14-year term and an 18-year term?

“It’s all about appearances,” says Khalid’s lawyer, Russell Silverstein. “Certainly terrorism is a serious offence, but just because someone has been convicted of a terrorist offence doesn’t mean you can discard all the old case law that dictates how a person is sentenced. Mr. Khalid had never been in trouble before, he is extraordinarily remorseful, and he is already dissuaded from ever doing anything like this again. All those things have to be weighed in the balance.”

Decisions are expected by the end of the year. “It’s very significant what the outcomes of these appeals are going to be,” says professor Wesley Wark, a security expert at the University of Toronto. “At the end of the day, this set of cases is going to be the precedent upon which future terrorists are going to be looked at.”