TORONTO - Slapping an Egyptian man the government accuses of terrorism links with a third national security certificate amounted to double jeopardy, his lawyers argued Monday.
In any event, they said, continuing to proceed against Mahmoud Jaballah 10 years after he was first detained is an abuse of process that the courts must stop now as a matter of fairness to him and his family.
The government first arrested Jaballah, 47, in 1999 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, and which Jaballah denies.
"They are serious allegations, yes, but there must also be fundamental fairness in these proceedings," lawyer John Norris told Federal Court Judge Eleanor Dawson.
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 evidence-including an Interpol alert on Jaballah issued by the Egyptian government-it did not have at the time of the initial hearing.
In 2007, the Supreme Court of Canada ruled the security certificate process was unfair because of the secrecy, and gave the government a year to rewrite the rules.
In 2008, the government issued the third certificate against Jaballah, who lives in Toronto.
To comply with the high court ruling, Ottawa also 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.
Norris told court the secret file shows the government had no compelling new evidence against Jaballah in 2001 that it didn't have in 1999.
Going after him again despite losing in court initially violated the doctrine of "res judicata" - which bars relitigating matters that have already been decided, Norris said.
In response, Crown lawyer Don MacIntosh told Dawson that Jaballah should have raised the issue when the judge upheld the reasonableness of the national security certificate in 2001.
"Only now, years later, is it being said (the judge) erred," MacIntosh said.
Under the new post-2007 rules, MacIntosh said, Jaballah would have every opportunity to demonstrate his innocence of the allegations in a fair process.
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.
Because Ottawa has concluded 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 the proceedings are "typical of military dictatorships."
Whatever evidence the government has is now 10 or 15 years old, she said, adding there's never been any evidence to support a criminal prosecution against him.
Jackman also told the court that before the Supreme Court ruling and the appointment of special advocates, Jaballah was in a "disadvantaged" position of having to defend himself without knowing the government's case or being able to challenge the secret evidence.
Jaballah's wife and children, some of whom are Canadian citizens, have all suffered under the onerous bail conditions, she said.
Dawson will first hold a closed-door session before deciding whether to allow a full hearing on the reasonableness of the 2008 certificate.