We Talked to Canadian Journalist Mohamed Fahmy’s Lawyer About His Lawsuit Against Al Jazeera

This article originally appeared on VICE Canada.

On May 5, Canadian journalist Mohamed Fahmy filed a lawsuit in BC Supreme Court against the Al Jazeera Media Network, his former employer, seeking $100 million in damages after he was jailed for 412 days, including a month in solitary in the "terrorist wing" of Egypt's Tora Supermax "Scorpion" prison. As the Cairo bureau chief for Al Jazeera English, Fahmy claims he and his team were unknowingly running afoul of Egyptian law by possessing unlicensed broadcasting equipment and failing to get proper press accreditation. Al Jazeera was also repackaging English material produced by the bureau and broadcasting it in Arabic under the network's "Egypt Live" banner, in defiance of an Egyptian government ban. Al Jazeera was also allegedly using content produced by paid members of the Muslim Brotherhood.

Fahmy claims he took the $12,000-per-month gig with Al Jazeera not knowing that his predecessor had fled Egypt back to Qatar after a raid on the network's Cairo offices just days before his job interview in September 2013.

After successfully appealing his conviction and winning a retrial on "terrorism" charges, Fahmy remains in Cairo awaiting closing arguments, which are set to begin on June 1. His Vancouver-based legal team, Gary Caroline and Joanna Gislason, returned from Cairo last week, and Gislason spoke to VICE by phone about the uncharted legal waters of Fahmy's lawsuit, his current situation, and his plans for the future back in Canada.

VICE: So you've just returned from Egypt. How long were you there for and what can you tell us about Fahmy's current situation?
Joanna Gislason: We were there for a little bit longer than a week. On the first day we were there, actually just by coincidence really, we were there on one of the days that his trial was being held, so we got to attend one day of the trial. His situation now is relatively nerve-racking because, as you know, after the Court of Cassation found that there wasn't sufficient evidence to uphold the charges, they sent it back for retrial. The prosecution is expected to conclude their case very soon, on Monday, on June 1.

After being there for a week, what kind of impression were you left with given the recent history of that country?
You know what? I'm not sort of speculating or sharing impressions at this time. One of the things that is the case in Egypt is that it's not legally available to people to criticize the judicial system. So as long as we're traveling there and our client is there, we don't have a lot to say about the judicial system.

The lawsuit filed against Al Jazeera deals with torts allegedly committed in Egypt and Qatar, so why file in BC?
Why file in Canada versus in Qatar?

Or anywhere, for that matter.
A very practical answer to that, assuming all goes well with the trial right now, is that Mohamed will be continuing with his life in Canada. The other answer is that a lot of what's happened in this case has sort of elevated into a geopolitical battle between Qatar and Egypt. And if you've been reading about it, you know that at least the impression in Egypt is that the Al Jazeera network and how it reports the news in Egypt is essentially as a mouthpiece for Qatar. And so that political conflict has sort of taken a lot of the attention. And the case of an individual man, an individual employee, dealing with an employer that put him at risk has sort of been lost in the shuffle there. So for a lot of this, Mohamed has felt like sort of a pawn who was in the wrong place at the wrong time. To bring his case against his employer free of all that baggage, the place that makes the most sense for him is where he is returning home to, which is Canada.

Are you concerned that the BC Supreme Court will say that these were torts allegedly committed in a foreign country by a foreign corporation against a former resident? Is there any concern that they'll just throw it out based on jurisdiction alone?
The court will always consider its own jurisdiction in a case like this, so the court will make that determination. It's certainly a question. The court also will take jurisdiction in a case where it involves a Canadian citizen who is coming to the court saying this is the forum where he can access justice.

Your firm specializes in union, labor, and pension matters. How did you prepare for this case given its rather unique circumstances?
I don't know that there's any firm that specializes in the uniqueness of this. The case, even though it's received a lot of attention internationally in terms of freedom of the press and human rights issues, for Mohamed Fahmy, it is an issue about being let down and put at risk by his employer, so that is the area of law that we specialize in, employment law.

The network has stated that Fahmy should seek damages from his jailers rather than his former employer. Is there any plan to go after those who imprisoned him?
It's a bit of a red herring because, whether you like the laws or not, the laws that were in place in Egypt at the time that Al Jazeera was making the choices it was making about whether or not it would have the appropriate licenses or how it was conducting its affairs as a journalistic network, the issue here was choice, and Mohamed Fahmy was not given a choice. He wasn't given an opportunity to make a choice on behalf of himself or on behalf of his team to avoid the risk that he was put in by Al Jazeera. We can criticize, or not, the laws that were on the books that everyone knew what they were, and if Mohamed Fahmy had wanted to take a principled stand against those laws as apparently Al Jazeera did, then he should have been given that opportunity to make that choice for himself. What happened here is that, presumably, Al Jazeera made that choice, but no one from Doha is sitting in a jail in Egypt. The people that took the fall for that were the employees on the ground that weren't aware of the transgressions.

Closing arguments in his retrial begin soon. Obviously an acquittal would be ideal, but what happens if he's convicted again?
It remains to be seen what happens if he's convicted again. You understand the situation I'm in, right?

A conviction after so much publicity around the case would be quite a blow.
What we can say is that the Court of Cassation, which is the essentially the appellate court there, did find that there was insufficient evidence even for the arrest warrants, so what we did not see in the retrial was the introduction by the prosecution of any new evidence. So we know that, at least as it was reported in Egyptian newspapers and I think picked up by a few Canadian newspapers, President Sisi did at one point express that if the convictions were upheld, that he would consider a pardon for these journalists. So of course that would be the ideal if the court comes to the same conclusion again.

Back to the lawsuit. Different reports have quantified the damages being sought as high as $120 million. There was a column in the New York Post where it quantified them at $83 million. The document itself, the only number I can find is $60 million in punitive damages and the others aren't quantified. How much are you actually seeking and how did you arrive at such a number?
The damage amount was announced at a press conference in Egypt for an international audience which I think explains some of the confusion. The $60 million that you see in the lawsuit is an amount that is sort of appropriate to quantify in a Canadian lawsuit for punitive damages. The $100 million is an amount that is expressed in US dollars and aims to do a series of things. One of them is, of course, try to quantify the unquantifiable, which is the harm that Mohamed Fahmy has suffered in terms of his time in prison, his fear during that period leading up to whether or not he'd face the death sentence. So there's that piece of aggravated damages, future loss of income, all of that. There's also consideration of who the defendant is in this case, and if we understand lawsuits to be about seeing justice being done, it's necessary to seek a damage award that actually has some impact on the defendant. And because we're dealing essentially with the Qatari Royal Family that essentially owns Al Jazeera, I think $100 million reflects a few hours of oil revenue for Qatar. The final piece and answer to your question is of course what Mohamed Fahmy would do were he successful in convincing a court that this damage award was appropriate, and that is, in large part, reinvest a lot of this money in terms of other journalists that are wrongly convicted through his foundation.

Obviously, enforcing that against Al Jazeera in the event of success would present its own challenges.
There's challenges everywhere in the case of Mohamed Fahmy, no doubt.

You're getting assistance from Dr. Mohamed Hamouda in Cairo. How did you connect with him and what can you say about the role he's played so far?
We met Dr. Hamouda when we were there. He's a well respected criminal lawyer in Egypt. He actually hasn't been involved to date in terms of the criminal case, but did decide in the last few months that he wanted to be involved in supporting Mohamed. He spoke very passionately at the press conference in Cairo. He was actually approached by Mohamed Fahmy's fiancé to represent him when he first faced the charges, and Dr. Hamouda told the press conference that he didn't feel comfortable doing that at that time because he, like much of the public, had seen Mohamed Fahmy as being part of the mouthpiece of Doha. Though since that time, he's come to understand the truth of what happened, and that Mohamed Fahmy was sort of a victim of that, and wanted to "set the record straight." Those are his words.

So what's next? Do you have any more travel plans to go see Mr. Fahmy again in the near future or are you staying in Vancouver?
We'll probably be going again in the next few months. Right now we're very focused and very concerned about what's going to happen with the criminal trial in Egypt. So a lot of our energies now are focused on that and hoping that Canada makes all the necessary diplomatic efforts to help him return home.

Which it hasn't been very forthcoming in the recent past, correct?
It took a while to get his passport.

Mr. Caroline has said in the past that it was the Canadian government that was impeding that effort.
As we enter this new stage, all we can do is open that conversation again and hope for the best.

There have been parallels drawn between Mr. Fahmy and Omar Khadr, rightly or wrongly, but the Canadian government hasn't exactly been easy on Canadian citizens who have been imprisoned by foreign powers under questionable circumstances. Obviously Mr. Khadr's and Mr. Fahmy's circumstances are quite different, but there are parallels. What do you think about that?
I think it's always challenging when you're dealing with two sovereign nations with different values and at this point all we can do is return in good faith and ask Harper's government to do what it can to bring this Canadian home.

Is there any timeline involved when he gets home or are you just patiently awaiting the Al Jazeera Media Network's response in BC Supreme Court?
We're just awaiting the response and then the next legal step will occur after that. Like I said, right now our focus is on Cairo and what's going to happen there.