Mahjoub Hearing, Monday, October 3, 2011
The background to today's hearing is that around July 20, 2011, Department of Justice staff picked up all of Mr. Mahjoub's legal team's materials, including confidential and strategically sensitive materials, described as such in M.’s lawyer Yavar Hameed’s affidavit, which were left in a 'breakout' room in the Federal Court. They had been requested by emails from the Federal Court – which are part of the evidence - to clean up the courtroom and inexplicably both of the ‘breakout’ rooms. They moved materials from one room to the other and then moved all the material (about 12 boxes) together to the Department of Justice offices on King Street without apparently realizing that they had both Public Counsel’s - Mahjoub’s lawyers - materials collected together with Ministers Counsels’ – Government lawyers – materials. They then went through it and began to sort it with their own materials, mixing all the materials together (legal term is ‘commingling’). Even after it was discovered that the material was mixed up, they continued to have access to the material for another 8 days. They actually had the papers from July 20 to September 1. Only once Mahjoub's lawyers realized the extent to which they had gone through their materials and informed the Dept. of Justice that they thought it was a very serious breach, did they lock the door to the room where the materials were kept. Actually Madame Doyon, one of M.’s lawyers, when she went to Dept. of Justice to see for herself, discovered that the papers, some of which were spread out on a table and desk were in a room which was unable to be locked, and supposedly had been available to anyone at Dept. of Justice for 1.5 months. Mahjoub's lawyers consider it a very serious breach of right to confidential communication with lawyers and that there is really no way to unsort all the material without each party reading each others' notes. This is a very important legal point, the consequences of which are the ‘removal from record’ – legaleze for removal of all of the present lawyers from this case – on both sides.
There were four observers at court for the morning and myself for the afternoon. Court went to 5 pm. Arguments and replies went back and forth all day, with Public Counsel (PC) being well handled by Paul Slansky (Counsel Mr. Yavar Hameed was not there – he has provided evidence – affidavit - regarding the significance of the seized documents to future PC plans) and Ministers’ Counsel by Mr. Donald MacIntosh. (maybe the David Tyndale team was relieved for being so close to what happened. One member Rhonda Marquis, provided an affidavit regarding her connection to the commingled materials)
The basics of Mr. Slansky’s argument was that Mr. Mahjoub’s Charter rights – Section 7. “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice,” and Section 8. “Everyone has the right to be secure against unreasonable search or seizure.” - have been violated by this event and that there is no way to set them right except to stay any further proceedings against Mr. Mahjoub.
Mr. Slansky maintained that Mr. Mahjoub’s right to solicitor-client privilege has been violated and he has not been provided with ‘fundamental justice’ in this matter. The only remedy for Mr. Mahjoub is a Stay of Proceedings.
Mr. Slansky also described the collection and commingling of documents by the Dept. of Justice as a ‘search and seizure’ but stopped short of saying that it was done in ‘bad faith’. Rather he put the events down to negligence and carelessness on the part of several Dept. of Justice employees. For example, why in the several emails provided in evidence did someone not notice that there were two breakout rooms being cleaned out and that one of these rooms must surely belong to the PC lawyers?
Mr. Slansky also argued from several examples of case law, including Supreme Court cases, that the onus is on the violater to ‘rebut the claims’ of the plaintiff. If they are not able to do that the case law decisions have allowed a Stay of Proceedings. One remedy proposed is to have both sets of lawyers look at the documents and separate them by recognition of handwriting etc. (according to affidavits some typed documents are annotated, underlined and have ‘sticky note’ comments attached). However this method has grave consequences to both parties due to the adversarial nature of the Law. Both sides, having seen the other side’s future arguments would have to ‘be removed from the record’, meaning that Mr. Mahjoub would lose his lawyers and have to find other counsel, violating his Section 7 rights. The same would happen to the government side which Mr. McIntosh said was a violation of government rights. Mr. Slansky’s reply was obvious but brilliant nevertheless – the government does not have Charter Rights – Charter Rights are there to protect the individual from government! Mr. Slansky also made an important point that this current violation of Mr. Mahjoub’s solicitor-client privilege is within the context of a series of violations such as the admitted CSIS/CBSA intercepts of solicitor-client phone conversations that go back several years and for which the penalty to these agencies was – ‘just stop doing it’. Mr.Slansky also pointed out that Mr. Mahjoub has been in litigation since 2008 (Judge Blanchard also mentioned this in earlier hearings this year while he was rebuking both sets of lawyers for delays in bringing witnesses forward etc.) Mr. Slansky continued that abuse by ‘Delay’ is now a major factor (in violating Mr. Mahjoub’s Section 7 rights - right to life, liberty and security of the person.)
Mr. MacIntosh’s arguments were based on avoiding having to deal with a rebuttal by saying that maybe the materials taken from PC are mostly innocuous, not significant and perhaps not of much quantity and that a Stay of Proceedings decision is punitive to the violator and should only be reserved as a last resort. He said that the evidence in this case does not meet the standard for a ‘Stay’ according to case law he cited. He and another lawyer, Mr. Todd, proposed that a neutral court officer could be appointed to examine the documents and with the help of a handwriting expert could come to a conclusion regarding the number of and significance or innocuousness of any documents. In reply to this Mr. Slansky pointed out that it is not the ‘quantum of documents’ that is the issue but the ‘violation of privilege’ of Mr. Mahjoub. In any case he doubted that a court appointed officer would have the ability to interpret the significance or lines of thinking in any notes or annotations found. He also said that he did not trust any handwriting expert would be able to work in isolation to identify handwriting of different sizes that may occur in annotations and sticky notes. Any conclusions seen to be incorrect would certainly be challenged by the plaintiff.
Mr. MacIntosh also used the ‘terrorist card’, pointing out that the court has a responsibility to Canada when dealing with a potential terrorist – even though Mr. Mahjoub has never been charged with any crime.
Judge Blanchard asked two questions of Mr. MacIntosh that were revealing of the problems for MC. 1. He said that despite Mr. MacIntosh’s assurances that affidavits of most, but not all, Justice Dept. employees said that they only looked at titles etc. of documents but didn’t read them, there is still “a vacuum (of knowledge) as to who had access to the unlocked room over 8 days.” 2. “There is no evidence presented regarding who these same people may have spoken to about the documents” (in the unlocked room).
Madame Doyon also posed the question of whether any seized documents may have been removed from the original documents now locked up at Dept. of Justice.
Next step: On Wednesday, October 5, Judge Blanchard said he would be meeting in-camera in Ottawa with the two Special Advocate lawyers (who are always sitting in court) to deal with the ‘secret evidence’ which is not allowed to be heard in public court.
Judge Blanchard did not say anything about when he will make a decision regarding the Motion for a Stay of Proceedings or what will be done about the commingled documents.
