At his detention review Monday in Toronto, Mohamed Zeki Mahjoub, 51, will argue he should be released unconditionally because his solicitor-client privilege has been breached and constitutional rights violated.
The legal files, taken in July by Department of Justice staff from his counsel’s room in a Toronto court, include the Mahjoub legal team’s strategy and notes for his defence.
“The (government) seized, commingled and reviewed the applicant’s documents from his counsel’s breakout room,” Mahjoub’s lawyers claim in his submissions obtained by the Star.
“The presumed prejudice in law undermined the fairness of the process and put him at a disadvantage for the preparation of his detention review and defence.”
In 1992, Mahjoub worked for an agricultural company owned by Osama bin Laden in Sudan and later fled to Canada, where he was accepted as a refugee.
He was arrested in Toronto in 2000 on a national security certificate, which allows Ottawa to detain a non-citizen indefinitely without charge or trial pending deportation.
In 2007, the Supreme Court struck down the national security certificate provision of Canada’s immigration law as unconstitutional, ruling that holding a secret hearing was unfair to the six men held for security threats.
Subsequently, Mahjoub was released from jail and put under strict house arrest conditions. A new certificate was issued in 2008 against Mahjoub, who, in 2009, asked to return to custody because his family could not deal with the authorities’ constant surveillance.
Mahjoub’s story made headlines again in late 2009 when he was released after a lengthy hunger strike. He now lives by himself, separated from his wife and two teenaged sons.
His fight for a repeal of the security certificate was proceeding in court, but on summer break justice department officials notified his lawyers they had taken the files.
The justice department has maintained it did not go through the defence’s materials and the proceeding was not tampered with.
In October, Justice Edmond Blanchard, who oversees Mahjoub’s ongoing case, rejected a motion by his lawyers to terminate the proceeding and ordered both parties to sort out the commingled documents before he would hear on the damage caused.
Mahjoub’s appeal against Blanchard’s decision was quashed by the Federal Court of Appeal.
In their submissions, Mahjoub’s lawyers say the updated threat assessment by the Canadian Security Intelligence Service (CSIS) in November failed to make the case that their client is a danger to national security and will engage in terrorist activities.
If the request for an unconditional release is rejected, Mahjoub’s lawyers will ask the court to remove his electronic monitoring bracelet, surveillance on his residence, restrictions against unsupervised daily outings and ban from Internet access.
“The existing conditions are inappropriate, have resulted in irreparable psychological harm to (Mahjoub) and are in violation of the Charter,” says Mahjoub in his submission.