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Canadian prosecutors change tack as terror trial threatens to collapse

Our Own Correspondent

The preliminary hearings into the terrorism-related charges against 14 Muslim youths that should have determined whether they should be tried took a bizarre turn on September 24 when the prosecution abruptly halted proceedings. Crown attorneys wanted instead to go directly to trial. Defence lawyers were appalled at such “abuse of process” and described prosecution tactics as a “disgrace”.

“This is a stain on the administration of justice–to deprive those accused persons of their constitutional rights to a fair trial, which they can’t [get] without a preliminary hearing,” said defence lawyer Paul Slansky outside the Brampton Courthouse, where the hearings have been held since June 4. Out of the original 18, four—three of them youths—have had charges stayed (dropped) after preliminary hearings into the cases against them. When the prosecution’s star witness, Mubin Shaikh (pictured), was challenged by defence lawyers to explain his contradictory statements, the prosecution panicked. Their much-publicized case was falling apart, and if the preliminary hearings continued another seven or eight detainees would be released. With twelve of the 18 detainees walking out free after preliminary hearings, this would have caused huge embarrassment to the government after the hysterical allegations made against them a year ago. The stayed charges would also have weakened the case against the remaining detainees.

The government was not prepared to allow that. On September 24, the prosecution made the stunning announcement in court (in the middle of Shaikh’s testimony) that it was filing a direct indictment. Shaikh is the police informant who, despite a court ban on publication of trial proceedings, makes regular appearances on television to speak about his role in how he helped to trap the youths. He has appeared on the Canadian television network CBC as well as on the BBC. His statements, giving lurid details about what the accused allegedly planned to do, have appeared in most newspapers in Canada and the US without the court taking the slightest notice. Shaikh is a strange character; he is a son of Indian immigrants, and he and his father were involved in an assault case some years ago against his aunt. In August, Shaikh was charged with assaulting two 12-year-old girls. There are also allegations that he is a drug-addict, but for the prosecution anyone, even a drug-addict, will do provided he is willing to act as an informant.

Dennis Edney, representing Fahim Ahmad, one of the accused, has said that the public should be outraged that the informants have not had their evidence properly challenged in court. “It’s an absolute disgrace,” he said after the crown’s announcement. Preliminary hearings are routinely held to determine if there is enough evidence to proceed to trial; the prosecution has subverted this process. A second police informant, a chemical engineer, who is in a witness protection programme and who has reportedly been paid $4 million for his role as a mole and police informant, was scheduled to testify next. All this has now ground to a halt. “Here is an opportunity for the two informants to describe the role of the various accused – some of whom [the informants] have declared innocent – and they have been denied [the chance] to tell their story,” said Edney. As a result, at least seven or eight of the accused who would probably have been released at the end of the preliminary hearings will now be forced to stand trial, the defence lawyer said, calling it an “absolute abuse of [judicial] process.”

Brian Saunders, acting director of public prosecutions and deputy attorney general of Canada, signed the indictments on September 19. The Public Prosecution Service of Canada would not comment directly on the indictment, but it outlined in general terms why a direct indictment might be required, such as an unreasonable delay in bringing the case to trial, or if witnesses and their families were in jeopardy. The defence did not complain about any delays despite these youths having been imprisoned for more than 16 months already and facing numerous difficulties while incarcerated. Apart from separation from their families, they have suffered abuse at the hands of guards at the detention facilities. As the nightmare of at least half the accused was coming to an end, the prosecution changed tactics.

What the Public Prosecution Service did not say, but which was evident, was that the cases were all unravelling. All the wild allegations (the fourteen were planning to blow up Canada’s parliament building, to behead the prime minister – if his head could be found, as one commentator quipped – and to take over major media outlets in Canada) are turning out to be officials’ imaginations running wild. But when the preferred suspects are Muslims, any allegation, however bizarre, can be splashed in bold headlines by the Islamophobic media. Since the original charges against all 14 adults were stayed on September 24 and new charges made, with some counts being dropped and new ones added, the detainees are now required to apply for bail anew. Some of the accused out on bail have been re-arrested because sureties had not been lined up to offer bail as a result of the sudden dramatic announcement by the prosecution.

The preliminary hearings, which started on June 4 and continued throughout the summer, had become a “waste of taxpayers’ money,” said defence lawyer Michael Moon. He said it must have cost the government millions of dollars. “I don’t believe there was ever an intention by the Crown attorney to permit a preliminary inquiry to complete,” he said. “The last thing they want is for more people to walk [free] because it would show what a sham this is,” he said, referring to three youths who were also charged in the massive police sweep but have since had charges against them stayed. David Mercury, another defence lawyer, said that he was shocked, especially because both sides had reached an agreement in which the defence made a number of concessions in order to get the chance to question key witnesses at the preliminary hearing. The accused are now scheduled to appear in court on October 4.

The case hit international headlines in June 2006, amid wild allegations about a cell of “homegrown terrorists” in Canada, when the youths were arrested. During arrests carried out in the evening, the police and Royal Canadian Mounted Police (RCMP) raided homes throughout Toronto and its suburbs, and assaulted a number of people, including relatives of the accused. The elderly mother of one was nearly choked to death when a police officer placed his boot on her neck as she prostrated in sajda for maghribprayers. Others were assaulted, slammed to the ground and handcuffed outside their homes while shocked residents watched in disbelief. Canadian prime minister Stephen Harper, a rightwing ideologue, went further when he reiterated the “they hate our freedoms” mantra, imitating his ideological soulmate George Bush in Washington. What freedoms was Harper talking about, one wonders.

The government’s changing tactics and allegations reflect a clear lack of confidence in its case and whether the charges can withstand scrutiny. But what the latest development means is that the accused will spend another two or three years in jail before the trial is over, not to mention the additional legal costs to their families. There appears to be a deliberate attempt to subvert the judicial process in Canada, but in the post-911 atmosphere of racism and xenophobia Muslims, even those born in Canada, are obviously disposable. The message seems to be that they are guilty because they are Muslims; no further evidence is deemed necessary. This was also evident from the media coverage of the government’s changing tactics. When these Muslims were arrested on June 2, 2006, there were screaming headlines in all the newspapers, and television programmes gave endless hours of coverage to instant terrorism “experts” to pontificate about the threat of “homegrown” terrorists. Muslims were declared the “enemy within” and told that they would have to submit to increased scrutiny because their co-religionists were accused of such egregious crimes. That no one had even been charged yet was considered irrelevant.

This time round, the story merited brief mention in radio broadcasts, presented in a way that the average person, not much informed anyway, would not know what was happening. Newspapers covered the news for a grand total of one day. Hardly any newspaper bothered to publish letters either about the subversion of justice or about the government’s case unraveling.

Sensationalist allegations, however, baseless or implausable, make for much more exciting news than the fact that the accused may not be guilty at all. In the post-911 environment, targeting Muslims has become so common that, no matter what harm is done to them, the media will always find some excuse to justify it.

Article from

Crescent International Vol. 36, No. 8

Ramadan 19, 14282007-10-01

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