September 15, 2014 by admin
These legal appeals are very costly and Mr. Mahjoub needs your financial support to pursue them!
Here is an overview of the appeals that he is undertaking and below that details on how to make a donation.
Appeal of the 31 May 2012 decision of Federal Court Justice Blanchard refusing the stay following the seizure of boxes.
Appeal of the refusal to stay the proceedings for violation of fair trial (including solicitor-client violation). Justice Blanchard admitted that Mr. Mahjoub’s rights to a fair trial and to be free of unreasonable search and seizure were violated but refused to stay proceedings. The Supreme Court of Canada recently ruled in Canada v. Harkat, 2014 SCC 37 (paras 41, 54, 59, 60, 77, 106, 110) that a stay of proceedings, a quashing or withdrawal of the certificate must be ordered in presence of an unfair process.
Appeal of the judgment that the certificate is “reasonable” is also made by Mahjoub on the same basis of the violation of the right to a fair trial already recognized by Justice Blanchard in the abuse of process judgement. The ruling of the reasonableness decision cannot stand after the the ruling in Harkat in SCC (rendered after Justice Blanchard’s ruling) that a determination of the certificate should not be made if it is in violation of the right to a fair trial which is the case for Mr Mahjoub because of the systemic violation of his fundamental right to communicate with his solicitor in confidentiality and the violation by CSIS of other basic civil rights.
Appeal of the order dismissing the constitutional challenge of IRPA and the CSIS Act. When he decided on the questions in his judgment and when he certified the question in Re Mahjoub in accordance with Canada v. Bedford, 2013 SCC 72, paras 42-44, Justice Blanchard recognized that the questions raised by Mr. Mahjoub were not the same as those raised by Mr. Harkat. With respect to the consitutional challenge of the law, the Harkat case did not raise the following questions that are raised in Mr. Mahjoub’s case:
· The violation by Division 9 of IRPA of the fundamental right to be represented by counsel of choice, in a solicitor-client relationship, in the ex parte proceeding (sections 7 and 10b) of the Charter);
· The violation of fairness by the standard of “reasonable grounds to believe” (or RGB) and the standard of reasonableness (sections 33, 77 and 87.2 of IRPA);
· The lack of prior judicial authorization or criteria under section 77 of IRPA to control or limit access or use by the ministers of division 9 of IRPA and debate in open court, with the parties, while such provisions violate several basic rights and mandate detention, ex parte closed proceeding, implicate violation of the right to counsel of choice, violation of public hearings, etc.;
· The unconstitutionality of sections 4, 6, 7 (3) of the Act to amend IRPA by prolonging and perpetuating the violation of section 7 of the Charter as ruled in Charkaoui 1;
IRPA and the CSIS ACT
· The violation of the right of disclosure of the affidavits and the warrants in a section 8 challenge by IRPA and the CSIS Act;
· The cumulative unconstitutional effect of the IRPA scheme combined with sections 2, 12, 17 and 21 of the CSIS Act, including the policies, related to
· The unconstitutional interceptions of private conversations in violation of section 8 of the Charter;
· The unconstitutional, massive solicitor-client monitoring in violation of sections 7 and 8 of the Charter;
· The violation of section 7 of the Charter due to the lack of proper mechanism to exclude information obtained from torture in the investigation and the use of information that could be derived from torture and use and reliance on unsourced information;
· The violation of section 7 of the Charter due to the lack of proper mechanism to enter into arrangements, collect information with foreign agencies violating human rights;
· The lack of constraints and unconstitutional threshold for the interception of private communication and intrusion in private life in sections 2, 12, 21 of the CSIS Act in violation of section 8 of the Charter;
· The violation of the right to a public hearing before a judicial independent and impartial body, specially, given the Federal Court designated judge’s role in the issuance of warrants allowing the interception of solicitor-client communications.
Appeal of the order dismissing Mahjoub’s challenge of the the legality of warrants issued under the CSIS Act, their validity, the admissibility of evidence obtained under such warrants and the level of disclosure needed to challenge such warrants. These were not questions at issue in Harkat and were not argued before the Supreme Court in that case. Contrary to Mahjoub, Harkat did not challenge warrants issued under section 21 of the CSIS Act under sections 7, 8 and 24(1) of the Charter and the SCC therefore did not turn to that issue at all in Harkat.
Appeal of the judgment that the certificate is “reasonable”. The grounds for appeal against the reasonableness decision are:
· The Court’s decision and process adopted the use, reliance and admissibility of unsourced information/evidence, for which no method of collection could be ascertained. This is wrong in law and contrary to sections 7 and 8 of the Charter, the Appellant’s right to a fair trial and his right to full answer and defence.
Hearsay and process.
· The Court erred in law and acted unfairly by not determining admissibility as a preliminary issue or holding a voir dire in that regard at the first occasion in accordance with the criteria of reliability and necessity decided in R. v. Khelawon, 2006 SCC 57 that Justice Blanchard decided were applicable to any evidence in support of the security certificate (constitutional decision at para 137-140);
· The Court erred in law by not presuming that the Ministers’ hearsay evidence (SIR and all indexes) was inadmissible and by not requiring that the Ministers establish reliability and necessity and disclose to the Appellant such evidence of reliability and necessity in a preliminary closed session and public session, before admitting the hearsay evidence.
· The Court erred in law by accepting the hearsay evidence filed against Mr. Mahjoub as proof of its content and by not deciding to set aside or to give no weight to the hearsay evidence.
Member of Organisation
· The Court erred in fact and in law in concluding that the Appellant was a member of an organization and danger to Canada pursuant to paragraph 34 of IRPA.
· The Court erred in law in the standard applicable for the assessment of the evidence and for inferences of the facts alleged in the SIR.
· The Court erred in law in requiring the Appellant to disprove the existence of facts on a balance of probabilities where the facts mentioned at section 33 are established by the Ministers on a standard of RGB.
· The Court erred in law in its determination of the standard of proof for establishing facts regarding third parties as to their involvement in terrorism.
Destruction of Evidence and Exclusion
· The Court erred in law by its use and reliance on summaries of information, the accuracy and veracity of which cannot be verified because the original records have been destroyed, and by not excluding them under section 24 of the Charter?
· The Court erred in law by not excluding all information or evidence derived from the previous unconstitutional security certificate process.
IRB’s Conclusion and Alleged Facts
· The Court erred in law relative to the IRB ruling which found that the Appellant is a Convention refugee and that no allegation of misrepresentation was alleged in the SIR or in evidence;
· The Court erred in law by its failure to rule on all relevant facts.
Fairness and Right to Full Answer and Defence
· The court violated the Appellant’s right to a fair hearing and to make full answer and defence notably by:
a) Denying the Appellant’s motions for adjournments in the absence of complete disclosure;
b) By forcing the Appellant to proceed with cross-examinations and to present his/her evidence on the certificate and on his/her motions before receiving complete disclosure in accordance with Charkaoui II and section 7 and 8 of the Charter;
c) By denying to rule on the named person’s request to exclude evidence under section 24 of the Charter (in motions duly filed) before hearing evidence on the merits and before deciding on the merits;
d) By denying to rule and dispose of the motions for a stay of proceedings raising the systematic violation of solicitor communications by the opposite party prior to hearing the evidence on the merits;
e) By refusing to disclose to the person all the relevant information and documents he/she is entitled to receive to challenge the violation of his/her section 7 and section 8 Charter rights;
f) By ruling on the Appellant’s argument that the question of inadmissibility is res judicata despite having not allowed the person to plead this question;
g) By allowing the Ministers to split their case by presenting evidence in camera after the close of the Appellant’s evidence in open Court;
h) By considering and ruling on facts or pieces of evidence not alleged and referred to in the SIR, not filed or summarized in open Court;
Notice of appeal against Justice Noël’s most recent order (July 18, 2014) dismissing Mr. Mahjoub’s motion for release, repealing of conditions and variation of conditions
Please donate by cheque. Cheques should be made out to “The Justice for Mahjoub Network” and don’t forget to write “legal costs” in the subject line. Mail to: Justice for Mahjoub Network c/o No One Is Illegal-Toronto, 260 Queen Street West, PO Box 60006, Toronto, ON M5V 1Z8.
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