Mahjoub Hearing – Monday, January 10, 2011

Hi all:

Five of us attended the first of the ‘Reasonableness of the Security Certificate’ hearings of the New Year for Mohamed Mahjoub this afternoon at Federal Court, 180 Queen St. W. These hearings take up where they left off prior to the Christmas Recess.

The hearing commenced just after 1 pm and ended at 4:45 pm. The business of the afternoon was to hear witness Mr. Paul Vrbanac, Director General of CSIS Toronto Region as he was first of all examined by one of the Ministers’ Counsel and then cross-examined by Yavar Hameed, Public Counsel. Most of today’s testimony had to do with the ‘Abuse of Process’ Motion that has been brought by Public Counsel because of the earlier admission that CSIS and possibly CBSA have ‘intercepted’ and recorded telephone conversations between Mr. Mahjoub and his lawyers, a violation of ‘solicitor-client’ privilege.

The first event was an expression of dismay to Judge Blanchard by Public Counsel regarding some documents that had not been disclosed to them in time for today’s hearing and Judge Blanchard disgreeing with Public counsel about the matter. Then about one hour, fifteen minutes was taken up by Ministers’ Counsel establishing what CSIS does when it encounters a suspect that they think might be a threat to Canada. I believe they were referring to the CSIS Policy documents from 1997 to 2010 that Public Counsel had asked for previously. Mr. Vrbanac referred to different levels of perceived threat and the particular actions taken – from interviews of a suspect, known as a ‘target’, to secret surveillance including phone and other message interceptions at the higher levels of perceived threat. He used the term ‘strictly necessary’ to say that they don’t violate privacy rights of any individual unless they think the information gleaned is relevant to a threat. All such interceptions of information must be granted by a Federal court issuing a warrant for the surveillance action. He seemed to say that CSIS was bound by checks and balances to not violate anyone’s privacy rights.

Mr. Hameed then spent two hours cross-examining Mr. Vrbanac, trying to find out if CSIS had made policy changes over the years and referring to something in 1994 – which brought about a series of objections from Ministers’ Counsel that were upheld by Judge Blanchard. The questions were very detailed and the witness did not know a lot of answers about the evolution of the Policy documents. Questions were asked about policies governing the recording and translating of solicitor-client conversations and at what point does CSIS personnel not keep records of such conversations. It seems from Mr. Vrbanac’s testimony that even in the case of solicitor-client conversations, if there is a perceived threat, that takes priority. The question is – who perceives the threat and what are the criteria for a threat. At one point Mr. Vrbanac was asked by Mr. Hameed, ‘are there cases where solicitor-client privilege does not apply’? and the response was – ‘it is up to the Federal Court and the Regional Director General (of CSIS)’. Also ‘the (perception) of the threshold of threat is up to the Regional Director and a case by case analysis’.

There were other questions about who is resposible to destroy records? - technical staff; are there any failures to destroy records? - yes; has the witness seen evidence on Mr. Mahjoub? – no. ‘Who determines legal threat thresholds, translator or Regional Director? (I’m not sure of the answer). ‘Report summaries are put into target database, not the original recording of intercepts. ‘Are translation summaries retained while originals destroyed?’ Witness didn’t know.

This represents only some of the questions asked regarding what happens to secret intercepts of conversations and many of the witness answers were that he didn’t know.

Adjournment was at 4:45 pm. The hearing with the same witness will commence at 9:30 pm on Tuesday, January 11.

A second witness will be heard in the afternoon – Haney El Fouli, Mohamed’s adult step-son. We’re not sure about his testimony but it may include his observations about mail and phone interceptions at his home while Mr. Mahjoub lived with him and the rest of the family from 2007 to 2009. I think this will be interesting.

Please do come for an hour or two to Federal Court, 180 Queen St. W. (Osgoode Station) , 6^th floor, Room D.

If anyone attending can supply a report of tomorrow’s hearing please forward it to me.

Murray