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., 6th floor. Please come and 'pack the court'
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