In a courtroom in an unlikely location above a Starbucks on Queen West, detainee Mohammad Mahjoub sits in the front row flanked by a stack of legal binders and an interpreter. Stone-faced, he seems accustomed to the melodrama, occasionally shaking his head ever so slightly in disbelief or squeezing his eyes shut.
Twelve years, after all, is a very long time to be detained and have your life constricted without charge.
That’s why his lawyers, in a case that has gone on so long you may have forgotten it, are trying to end his security certificate ordeal. The never-ending case has been back in the courts since late November, the feds arguing for continued detention and his legal team presenting a motion that could see the case dropped forever.
Mahjoub is one of several Muslim men caught up in Canada’s security certificate craze of the early 2000s. Civil libertarians have had huge concerns with the process, which was ruled unconstitutional in 2007, then revamped in a way that saw few improvements for the men already caught in the net.
Of several arrested in those fraught years around 9/11, Mahjoub, Mohamed Harkat and Mahmoud Jaballah still have restraints on their liberty without ever having been charged.
The feds believe that Mahjoub – an Egyptian who has lived in Toronto since the mid-1990s – is an extremist and a threat to national security, but have disclosed few details about why they think so. After being jailed for six years, he was released in 2007 and placed under house arrest there are still many restrictions on his movements.
The current hearings began after Mahjoub’s latest security certificate was issued in 2008, and have dragged on ever since.
One suspects that the company Mahjoub used to keep doesn’t play well in government circles. He stayed with the notorious Khadr family after his arrival in Canada and worked for Osama bin Laden’s farm operation in Sudan in the early 1990s.
But his lawyers believe the process he has endured has been fundamentally antithetical to Canada’s notion of fairness and justice. Federal operatives have made so many seeming missteps in his case, says lawyer Johanne Doyon, that there is an argument for throwing it out with an abuse of process motion.
The idea is to convince Federal Court Justice Edmond Blanchard that it insults the institution of the courts to base a judgment on so many errors. “It’s an exceptional remedy in the clearest cases only, when the breaches are so serious that they infringe not only the rights of the person, but also the integrity of the judicial system,” says Doyon.
So what are the breaches she speaks of? For one thing, former public safety minister Stockwell Day stunned observers in September by testifying that some of the intelligence used in Mahjoub’s case may have been acquired through torture by foreign agencies.
That admission prompted an immediate protest by the Canadian Civil Liberties Association, which argued that relying on this kind of info to incarcerate “cannot be reconciled with the principles of fundamental justice.” Says the CCLA’s Sukanya Pillay, “We have expressed our view that intelligence tainted by torture cannot be used to deprive anyone of their liberty.”
Mahjoub’s legal team also point to the fact that much of the evidence against their client remains secret, and that Justice Department employees made off with boxes of Mahjoub’s legal documents from a courtroom in 2011, including his lawyers’ courtroom strategy. As a result, the judge ordered 11 government lawyers off the case, though the case itself was allowed to proceed.
Mahjoub’s team also raise the issue that CSIS earlier admitted to wiretapping numerous conversations between him and his lawyers and “mistakenly” sending them to the Canadian Border Services Agency as part of the case against him, in violation of solicitor-client privilege.
During hearings on November 27, federal lawyers spent much of the afternoon explaining their wiretaps on Mahjoub’s home phone. They argued that while their mistakes were unfortunate, the court should decide the case on its merits instead of declaring an abuse of process.
“All of the parties knew that the land line was being intercepted,” says government lawyer Peter Southey. “CSIS should have done better. These were errors of inadvertence and have been corrected.”
While it’s not clear when Blanchard will rule on Mahjoub’s abuse of process motion or on whether his certificate is reasonable, Doyon is hopeful the ordeal won’t last too much longer.
“I’m very optimistic,” she says. If justice is done, we’ll get a stay.”
CORRECTION (12/6/2012, 11:48 am): The article originally indicated Mahjoub was arrested after Sept. 11, 2001. He was actually arrested in 2000.
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