Mahjoub Hearing – Thursday, March 31, 2011; Next Hearing Monday, April 11, 2011

Hi all:

Solicitor Client Privilege – Abusive Process Motion. There were four of us at this hearing on a Motion by Mohammad Mahjoub to have all telephone recordings of Mr. Mahjoub made by CSIS since 1996 be disclosed, or the derivatives (meaning written reports made from the recordings) be disclosed to the court. The hearing which lasted from 9:30 am to about 1 pm consisted of arguments for disclosure, by public Counsel Yavar Hameed and Paul Slansky and against disclosure by Ministers’ Counsel Mr. Tyndale, of some of these records or derivatives, and not others, some of which Ministers’ Counsel said have been destroyed by CSIS. The reason for Mr. Mahjoub’s request is the admission by CSIS witnesses on more than one occasion that solicitor-client privilege had been violated by CSIS recording those calls, even after there was a court order in 2008 for CSIS to stop recording solicitor-client calls. This was described by Public Counsel as an ‘abuse of process’. Judge Noel presided in today’s hearing. Some case law was brought up including ‘Charkaoui 2’ and the ‘Stinchcomb case’ as well as Section 8 wiretap application and Section 21 – CSIS Acts regarding warrants.

There was discussion of the "derivative materials" – written reports from recordings which were not ordered to be disclosed which left Mahjoub in a Catch-22 situation, since he would not have a record of the missing calls. The action of CBSA and CSIS was by implication not in good faith, since they knew perfectly well they were not supposed to be listening in in the first place, and they were acting in contempt of a court order. Even Ministers’ Counsel Tyndale who seemed a bit embarrassed by the position he was being expected to defend, said something about the world being imperfect and in response to a question from Judge Noel replied that “I may later have to apologize”. Mr. Tyndale argued that it was not necessary for the government to comply with Mr. Mahjoub’s request for all the records for no specific reason; that Mr. Mahjoub is required to “point to some argument he wants to advance”. He also said that his clients had disclosed “to the best of their knowledge” to which P. C. Paul Slansky replied later, was not good enough and that the government needed to ‘respond with evidence’. “This was not a mere error but was done deliberately – even after the (court) order to stop”. The government should have stopped all this recording, and didn't. P. C. Slansky pointed out in his final reply that even if the solicitor-client recordings were not used, they could still provide a ‘prejudicial effect’ – that the “subconscious knowledge by a witness of conversations may have helped them as witnesses in court”. Mahjoub himself has gone through all the materials, and seen what is missing. In the face of Tyndale's suggesting that it would be too much bother to produce a lot of irrelevant recordings or accounts of them, and should just be asking for specific records, Judge Noel himself asked how Mahjoub could point to a specific phone call he needed a record of when he could not know what would advance his case.

There was agreement that solicitor/client conversations should be sacrosanct in law, and this sanctity had been breached. Something about Section 7 rights being "malleable," and that case law there was hard to interpret. The abuse of process motion is for the future, and evidence for that is still emerging. Mr. Tyndale had another issue which was to be raised immediately in camera, and shared with public counsel and the special advocates. Obligations to disclose change as the process changes, but it seems the "derivative materials” still exist. CSIS and CBSA have disclosed relevant materials "to the best of their knowledge," but it was pointed out that they may not even have disclosed all Mr. Tyndale needed to know. It is up to the judge to assess what is relevant or not, said Tyndale - to which Judge Noel replied, "How can we assess what we don't know?"

Combined report by Brydon Gombay and Murray Lumley – based on what we each thought we heard in court and not from the beginning at 9:30 am.

Court will sit for the resumption of the ‘Reasonableness of the Security Certificate’ hearings which were interrupted by other matters described in previous blogs. This will begin on Monday, April 11, 2011; 9:30 am at Federal Court, 180 Queen St. W., 6^th floor.

Again, it will be good to have a number of interested observers in the courtroom beginning on Monday.