Mahjoub Hearing, Tuesday, April 24, 2012

First of all, the public court hearings on the Stay of Proceedings  for Mahjoub ended today, so there is no court tomorrow – Wed. April 25. There are some further procedures but they are between the two lawyers and Justice Blanchard.

Again today there was a good turnout of traditional supporters of Mr. Mahjoub including some from Toronto Action for Social Change and No One Is Illegal. I thought it was somewhere in the high teens with different people coming and going all day . Some even came all the way from Durham, Kitchener-Waterloo and London. Adding to the court presence were journalists from CBCTV, City TV, French CBC and others including a private blogger who were there for the 1 pm media event outside the courtroom with some remaining for the afternoon session.

Arguing for Ministers Counsel was Don McIntosh and for public Counsel, Paul Slansky. Because there seem to be many fine points of law argued from cases cited and it is difficult to hear some speakers in the courtroom including Justice Blanchard I am not going to go into great detail. Mr. McIntosh spoke first and argued that there should be no Stay of Proceedings based on speculation about the commingled documents, which Mr. Slansky later  said was a misinterpretation of ‘speculation’ in the case law. Mr. McIntosh also argued that there is not overwhelming evidence of ‘the abuse of process’ that affects Mr. Mahjoub. Mr. McIntosh took Mr. Slansky’s arguments of yesterday for a Stay of Proceedings and attempted to refute each argument. He concluded that there is insufficient prejudice to Mr. Mahjoub to warrant a Stay. He cited some cases that represented greater crimes for which evidence was collected unlawfully and yet there was no Stay granted. He repeated the SIR’s (Security Intelligence Review) allegations against Mr. Mahjoub (all of which have been debunked as unprovable by past witnesses and for which there is obviously not enough evidence to stand up in a regular court of law) as requiring the continuation of the ‘Reasonableness of the Security Certificates hearings’ which began in 2008.

Mr. Slansky’s  response was that ‘Prejudice is the only factual issue here with no evidentiary burden on Mr. Mahjoub but on the Department of Justice’. He continued that the remedy for Mr. Mahjoub must address the prejudice. We don’t know the extent of the prejudice because the Justice Department apparently failed to even have a ‘sign-in’ sheet to a secured room so that they could know who had seen the documents. And someone photocopied documents and then failed to admit that until later when such copyying was forbidden by Prothontary Aalto.

Justice Blanchard questioned the adequacy of the summaries prepared by P. Aalto’s delegates and apparently wants to see the assessment of prejudice chart that Mr. Slansky referred to yesterday and perhaps wants to see the boxes of documents for himself. This is not clear to me.

There was some discussion over a letter by Mr. McIntosh that Mr. Slansky said Mr. McIntosh had reversed himself on. Both sides were asked to make a written submission to the court by next Tuesday with some kind of responses on Wednesday but this is not for the public. So the Stay hearing is not actually finished as of today and we don’t know when there will be a decision.

At 1 pm a media event (the media people mentioned earlier) took place outside 180 Queen St. with Mr. Slansky and Mr. Mahjoub speaking and answering questions of the media. I will not attempt to quote Mr. Mahjoub but one thing Mr. Slansky said was that a failure of the court to grant a Stay of Proceedings would be a ‘travesty of justice’. 

Mahjoub Hearing, Monday, April 23, 2012

Stay of Proceedings asked for

I thought court went well today with somewhere between 11 and 17 supporters - many No One Is Illegal young people and some of the long time supporters of Mr. Mahjoub plus some new ones. A group of about 10 of us had lunch together at one of the Indian restaurants across the street. Thanks to all who came today.

Also there was a huge (10 or more) RCMP presence in the building downstairs and upstairs in the court area. In fact they had the large glass door to the Starbucks coffee shop closed off this morning. It was either the CP article in the Star or the presence of NOII. Congratulations all around for having such an effect.

Paul Slansky presented the case for Mr. Mahjoub all day primarily regarding the ‘commingling of documents’ that occurred last July – by staff of the Justice Department. Mr. Slansky pointed out that the Reasonableness hearing has been delayed for seven months while Prothonotary (principal clerk of a court) Aalto and his team of ‘delegates’ have tried to separate the documents, which in itself is an abuse of process that should bring about a Stay of Proceedings. Mr. Slansky presented a number of case law precedents for crimes much greater than a deportation case (Mahjoub’s), all of which resulted in Stay of Proceedings. One point is that even though a few of the Justice principals in this affair, including the lawyers on the case, have sworn affidavits that they ‘hardly looked at’ the multiple boxes of defence documents, there is still no way of knowing who may have examined them since the documents were allowed to sit in an unlockable room for perhaps 1.5 months, with no sign-up sheet or guarding for who may have entered the room where some documents were seen scattered about on a table.

Other arguments made were: based on ‘privilege’ and ‘prejudice’ – that because Mr. Mahjoub’s ‘privileged materials’ which were to be used by his lawyers have been examined and even photocopied against directions from Prothonotary Aalto, Mr. Mahjoub’s case has been (fatally) ‘prejudiced’. Examination and separation of the boxes of commingled documents has resulted in a rating code from 1 to 5, with a low number indicating no compromise and a 4 or 5 indicating severe compromise with even one document in the category 5 being sufficient for a Stay, in Mr. Slansky’s view. Anywhere from 1/7 to ½ of the documents  in each box belong to Mr. Mahjoub’s team. In fact Mr. Slansky concluded that enough of Mr. Mahjoub’s documents have been seen to ‘produce a full picture of litigation plans and violations of solicitor-client privilege’. Mr. Slansky pointed out that the trial judge – justice Blanchard – is tied to the process that he initiated – choosing Mr. Aalto to find ‘delegates’ who would then separate documents and make summaries for  Judge Blanchard. Otherwise why have this process at all if the court has no confidence in its own process. Justice Balanchard seemed to be complaining about the process which included summaries and redacted summaries for some eyes. Another argument by Mr. Slansky is that the burden of proof is not borne by Public Counsel (Mr. Mahjoub’s lawyers) – they do not have to prove that the documents were seized and examined - but by the ‘Respondents’ (Justice Ministers lawyers) who must prove that Mr. Mahjoub’s case has not been prejudiced. Mr. Slansky pointed out repeatedly that the Respondents have not done anything to assure that Mr. Mahjoub has not been prejudiced. Mr. Slansky concluded this argument by saying that ‘the extent of Prejudice is high’.

Another argument used was that ‘a Stay of Proceedings would keep Justice in good repute’, meaning that a continuation of proceedings would be seen by the community as a disrepect for the law, and this is as powerful an argument for a Stay as is the injustice to Mr. Mahjoub. He argued that ‘truth seeking’ is undermined by having one side be much stronger than the other - a very unlevel playing field. Mr. Mahjoub’s case is seriously weakened by having its plans etc. exposed to the opposition. Again there is the danger that an unfair administration of justice will put justice into disrepute by the continuation of hearings.

Mr. Slansky said that continuation of this case under these circumstances would be a ‘travesty of justice’. He said that the respondents would seek an alternative remedy in their presentation tomorrow (Tuesday) which seemed to consist in removing current Justice lawyers from the case (they were not present in court today) which is completey incomplete and unsatisfactory to public Counsel.

At different points throughout the day, Justice Blanchard tried to ‘water down’ Mr. Slansky’s arguments by saying that public Counsel had not brought forward any significant documents and that he was more concerned with the ‘adverse effects’ of a particular document on the case rather than the documents taken as a whole. As indicated earlier he wasn’t pleased with having to accept ‘summaries’ of documents’, but Mr. Slansky reminded the Justice that this was the process he (Justice) had put in motion and that he was bound to it. Whether he will in fact be bound to it is an open question.

I don't know how the judge can resist Mr. Slansky’s arguments that there can be no fair trial for Mr. Mahjoub if the proceedings are not stayed and that Justice will be put into disrepute if the proceedings continue.

We applauded Mr. Slansky at the end of the day immediately after the judge walked through his door. 

Court resumes Tuesday morning at 9:30 am at 180 Queen St. W., 6^th floor. Please come and 'pack the court'