Suspected terrorist's lawyers argue for his rights in court

Attempting to slap an Egyptian man accused of having terrorism links with a third national security certificate amounts to double jeopardy, say his lawyers, who are in Federal Court in Toronto.

Attempting to slap an Egyptian man accused by the government of having terrorism links with a third national security certificate amounts to double jeopardy, his lawyers argued Monday in Federal Court in Toronto.

In any event, they said, continuing to proceed against Mahmoud Jaballah is an abuse of process that the courts must stop now as a matter of fairness to him and his family. 

The government first detained Jaballah, 47, a decade ago under a national security certificate on the grounds that he was a member of the Egyptian al-Jihad, committed to the violent overthrow of the Egyptian government, and should be deported.

The government stands by those allegations, which are based on secret evidence.

"They are serious allegations, yes, but there must also be fundamental fairness in these proceedings," lawyer John Norris told Judge Eleanor Dawson.

'Special advocates' appointed

Norris noted that a judge quashed the first certificate in 1999 as unreasonable.

However, the government argued successfully in 2001 for a second certificate on the grounds that it had new secret evidence it did not have at the time of the initial hearing.

In 2007, the Supreme Court of Canada ruled the process was unfair because of the secrecy and quashed the certificates but gave the government a year to rewrite the rules.

As a result of that ruling, Ottawa appointed "special advocates" — lawyers with top-level security clearance able to review the government's secret evidence, and Norris was assigned to the Jaballah case.

In 2008, the government issued the third certificate against Jaballah, who lives in Toronto.

Norris told court the secret file shows the government had no compelling new evidence against Jaballah it didn't have in 1999.

Going after him again despite losing in court that year violates the doctrine of "res judicata"— which prevents relitigating matters that have already been decided.

Jaballah, a father of six, spent about six years in jail, many in solitary confinement.

He was released in the spring of 2007 under rigid house-arrest conditions.

Jaballah hopes process stopped

Because Ottawa has concluded that he faces a strong prospect of torture if returned to Egypt, it has been unable to deport him.

"I hope the judges are going to stop the process," Jaballah said outside court.

"The special advocate hasn't found any new evidence."

Jaballah's public lawyer, Barbara Jackman, told Dawson that the proceedings are "typical of military dictatorships."

Whatever evidence exists is now 10 or 15 years old, she said, adding there's never been any evidence to support a criminal prosecution.

Jaballah's wife and children, some of whom are Canadian citizens, have all suffered under the onerous bail conditions.