Mahjoub special hearing – on the ‘Solicitor-Client Privilege Motion’

Friday, December 17, 2010

Mahjoub special hearing – on the ‘Solicitor-Client Privilege Motion’, that was the result of a CSIS witness telling the court that CSIS has been listening to phone conversations between Mohamed Mahjoub and his lawyers since 2001.

Elizabeth Block and Brydon Gombay attended the hearing and below are their reports:

Elizabeth Block wrote:

I was in court today. Brydon Gombay came too, and probably understood more than I did, which wouldn't be hard.

The required documents arrived at the government lawyer's on Tuesday night, and Mahjoub's lawyer didn't get them until last night or this morning. She hasn't read them, let alone analyzed them.

The judge had some questions: What does this motion seek (by any of production of documents) that wasn't covered in his judgement re: Jaballah? Some of this material may have to be dealt with in camera, with the special advocates.

Judge Blanchard had ordered Mr.Tyndale – Ministers’ Counsel - to produce materials - logs of solicitor-client calls. (I understand that CSIS and CBSA were ordered by the court quite a while ago NOT to eavesdrop on solicitor-client phone calls, but they have gone on doing it anyway.) This material has to be kept away from the trial judge, so he is not contaminated by it (whatever that means).

Brydon Gombay wrote:

I have little to add, except to say that everyone recessed for over an hour during the morning, and returned appearing good humoured, as though they had settled things in camera to everyone's (relative) satisfaction. It is interesting to observe how legal minds are expected to compartmentalise their knowledge in this way - but I was left with the impression that anything which may have been important took place outside the courtroom. My understanding was that Mr. Kapur, one of the special advocates, spoke of a document or documents which he had just glimpsed briefly after they came in to his Ottawa office, and which they would not all be able to discuss until next Tuesday - but I might well have got that wrong. It doesn't make much difference, anyway; the fact remains that he had knowledge he was not free to discuss until next week, but which he felt would cast new light on the issue under discussion. He remarked that he was not free to speak openly about any of this.

The Ministers’ Counsel (Mr. Pearce) agreed to produce the remaining CBSA intercepts as soon as possible. The special advocates will review all this and discuss with Judge Blanchard whether there is further need for another appointment with today's sitting judge – Judge Alto. He will make himself available for January 13 in case he is needed again. Madame Duhamel, Public Counsel, (Mr. Mahjoub’s lawyer) emphasised the fact that they want access to all the intercepts, from 2007 until now. Witnesses will be called on January 11 and 12, when the special advocates should also be present. Almost more time was spent by all parties cloistered outside the courtroom rather than in it.

This matter will be continued on Thursday, January 13th, if possible, i.e. if the required documents have been produced before then.