Law Times

Law Times • June 7, 2010 NEWS Aga Khan insists: 'I am the plaintiff' Hereditary imam shoots back at Toronto lawyer's defence BY MICHAEL McKIERNAN Law Times T he Aga Khan has stepped up his fight to stop a Toronto lawyer from distributing his religious teachings with a sworn state- ment that he is in fact behind the copyright action. In his reply to lawyer Alnaz Jiwa's statement of defence, the hereditary imam refers to a notarized statement sent by e-mail to Jiwa and his co- accused, Nagib Tajdin, a Cana- dian based in Nairobi. The statement was signed before a notary public on May 12 in Boston. "I am the plaintiff," the af- firmation reads. "I have per- sonally reviewed and approved the contents of the statement of claim filed with the court in this case." The reply to Jiwa's statement of defence also hammers home the same message. "As the sole author of the literary works reproduced in the infringing materials, the Aga Khan is the only plain- tiff in the present action. All statements made in the state- ment of claim are those of Hamalengwa sues BY MICHAEL McKIERNAN Law Times Toronto lawyer who once represented Richard Wills has launched a lawsuit accus- ing provincial officials of engaging in racial profiling through their role in the de- cision to assess his accounts in the famous case. In a wide-ranging statement of claim, Munyonzwe Hama- lengwa also names Toronto Police Chief Bill Blair, Ontario Provincial Police Chief Julian Fantino, the Toronto police services board, two Crown at- torneys, and the government of Canada as defendants and invites "all African-Canadians and other 'colourful' minori- ties" to join him in a class action against them. None of the allegations have been proven in court. "The only way to litigate and seek remedies to uproot the acknowledged scourge of racial profiling is a fron- tal attack like the one con- tained in this statement of claim," Hamalengwa said in the claim. "There is no oth- er effective way. Individual litigation is futile." He claims Attorney Gen- eral Chris Bentley personally profiled him "by authorizing an assessment of his accounts in the Richard Wills case while failing to recommend the as- sessment of the accounts of two white lawyers." The two are Howard Borenstein, who acted as amicus curiae in the case, and Cindy Wasser, who represented Wills for three months before Hamalengwa. In 2005, Justice Bryan Shaughnessy made a rare Fish- er order authorizing Wills, a former Toronto police officer eventually convicted of mur- der, to hire a lawyer paid for by the public purse at rates higher than standard legal aid to ensure he got a fair trial. Wasser was appointed gov't over Wills affair A Munyonzwe Hamalengwa is inviting 'all African- Canadians' and other minori- ties to join him in a racial- profiling class action. at a rate of $200 per hour but lasted just three months before Wills fired her. Hama- lengwa took over in January 2006 before he, too, was fired on the first day of the trial in May 2007. In December 2009, the Ontario Court of Appeal ruled the Crown was entitled to assess the accounts of Ha- malengwa and those of his successor, Raj Napal, after Ontario Ombudsman André Marin called on the province to look into the $1.2 mil- lion the pair billed between them. Legal Aid Ontario had already vetted the accounts. Hamalengwa reportedly billed for more than $850,000, of which nearly $700,000 was paid. In the statement of claim, he demands another $100,000 that he says was promised to him. Bentley and his minis- try "engaged in racial pro- filing by withholding and refusing to pay the plain- tiff the bill of $100,000 after promising that he will be paid for the work that he had billed," says the claim, which goes on to al- lege those actions amounted to conduct "they would not have engaged in were it to involve white lawyers." LT D&D_LT_June7_10.indd 1 www.lawtimesnews.com 6/2/10 10:19:25 AM the plaintiff," it reads. Brian Gray, the senior part- ner at Ogilvy Renault LLP who is acting for the Aga Khan in the copyright action, says the statement marks an attempt to convince the defendants that the Ismaili Muslim hereditary imam is behind the action af- ter both men expressed doubts in their statements of defence. Jiwa declined to comment when reached by Law Times. "We would like to settle the matter, obviously," Gray says. "They have not offered to settle the matter based on the affir- mation we sent to them." The replies were filed just days before the Aga Khan visited To- ronto for the launch of the new Ismaili Centre in Toronto. Prime Minister Stephen Harper also made him an honourary Cana- dian citizen, the fifth person ever to receive such recognition, for his humanitarian work. Ismailis, including the two defendants, belong to a branch of Islam that accepts the Aga Khan, who traces his lineage all the way back to a cousin of the Prophet Muhammad, as its spiritual leader. Gray had the opportunity to meet his client in the flesh dur- ing the Toronto visit. "I spoke to him and shook his hand," he says. "I had spo- ken to him on the telephone before but I have actually met him in person now. He told me again he authorized the lawsuit and he told me very clearly that he didn't consent to what they were doing." But the defendants didn't re- ceive that same honour, accord- ing to the Aga Khan's reply to Tajdin's defence. In it, he reject- ed the idea of a personal meet- ing as a precondition to the de- fendants ceasing their activities. "The plaintiff has had two letters rejected which could have settled the matter between himself and the defendants and therefore the plaintiff does not believe that there is any reason to meet," it reads. The statement of claim, lodged in April this year, accused Jiwa and Tajdin of infringing the Aga Khan's copyright and moral rights by compiling and selling a book of collected Farmans, a type of religious message delivered by the Ismaili leader to his followers. In their defences, Tajdin and Jiwa claimed the Aga Khan had given them permission to con- tinue their work at a ceremony in 1992 in Montreal after pre- senting him with a copy of the book. But the Aga Khan de- nies that in his reply to Tajdin. None of the allegations have been proven in court. "On August 15, 1992, the plaintiff had sight of the books in question but had no knowl- edge of the contents . . . and therefore could not have con- sented to any prior or future publication," the Aga Khan said in his reply. "This is be- cause the plaintiff did not ac- tually retain the books, which were carried away either by the defendants or their agents after the meeting." Jiwa argued in his defence that by encouraging his follow- ers to abide by and listen to his teachings, the Aga Khan had "impliedly given his consent" to allow Ismailis access to the Farmans, a claim the religious leader denies. "The plaintiff denies that there is a tradition of distribut- ing or publishing copies of Far- mans and states that all Ismailis have access to Farmans" at Ja- matkhanas, the meeting places of Ismailis, he said in his reply. Jiwa also defended his ac- tions by saying none of the books were for profit and that he had personally vetted every recipient to ensure they were Ismaili. He also claimed to have never received warning to cease distributing the books. However, those claims held no water with the Aga Khan, who said Jiwa's "intentions or moti- vations" had no legal relevance and repeated his desire that he halt his activities. Tajdin went even further in his statement of defence, alleging that letters he had received from the Aga Khan were forgeries and noting he had sent them to two "reputed and well-known foren- sic experts." He claimed both had found evidence of forgery and called for a "full inquiry" into the matter, accusing senior Ismailis of leading a "slander campaign" against him. "If anything, the defen- dant's allegations of forgery may be considered slander and defamation against the plaintiff and his aides," the Aga Khan shot back in his reply. LT PAGE 3

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