Mahjoub Hearing, Tuesday, December 13, 2011

Today at Federal Court, 180 Queen St. W., Toronto, the witness was Canadian Border Services Agency (CBSA) agent ‘Alison’ who works out of the Toronto office and is directly in contact with Mr. Mahjoub (M.)whenever he seeks permissions related to his conditions. Three of us – the two film-makers and myself were there for parts of the day. There was also a mid-day two hour conference meeting with Judge Aalto regarding how progress is being made in separating the Ministers Counsel (MC) and Public Counsel (PC) documents that were ‘commingled’ last summer. One of the film-makers accompanied Mr. Mahjoub to the ‘conference’ with Judge Aalto.

The topics covered with the CBSA agent-Alison had to do with some CBSA allegations that Mr. Mahjoub has vilolated his bail conditions in about three different incidents. Public Counsel Paul Slansky also brought up some examples of CBSA not adhering to its conditions out of neglect of its duty or just incompetence.

The main issue for CBSA was the purchase by M. of a used laptop computer at a Goodwill store. He has asked for a computer to begin keeping his large number of court files on, instead of on the piles of paper they now exist on. M. is not allowed to connect with the internet so any computer would have to have its modem removed. M. bought the computer without knowing if it worked and then asked CBSA to take it to see if it worked and if the modem could be removed. Instead, CBSA has charged M. with violating his bail conditions by not getting permission first before purchasing. Public Counsel Paul Slansky tried to point out the M. had complied by informing CBSA right away about the computer and saying that he did not know how to use it nor had any access to an internet company (Since CBSA monitors M.’s phone and mail they would know immediately if he tried to make a contact). CBSA’s alleged non-compliances had to do with some mail being delivered directly to M. rather than being funneled through CBSA first which is supposed to happen. M. immediately informed his lawyers of this breach. The MC lawyer said that CBSA’s breach was just an innocent oversight while M.’s breach was a violation of his conditions. Mr. Slansky tried to show the hypocrisy of this approach by MC by calling it a ‘double standard’. There were other instances of what appears to be either lack of response or very delayed response by CBSA to M.’s request for them to come and inspect a package that had been delivered to him by his apartment superintendent – a carbon monoxide monitor. There was lengthy examination of the witness over these matters that I won’t go into further detail on.

Tomorrow, Wednesday, December 14, two witnesses are to appear, Doctor Payne, a psychiatrist who will testify about his recent examination (in June) of Mr. Mahjoub. The second witness is Murray Lumley who will testify about his observations of Mr. Mahjoub as he has acted as a supervisor on various outings with Mr. Mahjoub.

Please come out to hear these witnesses and support Mr. Mahjoub at Federal Court, 180 Queen St. W., 6^th floor (near Osgoode subway station), Wednesday, December 14, 9:30 am.

*Additionally there are plans for a rally and news conference outside 180 Queen Street on Thursday, Dec. 15 at 8:30 am. Public attention to Mr. Mahjoub’s case can only speed up the day when he will be set free!

Mahjoub Hearing, Wednesday, December 7, 2011

Today’s hearing was characterized by many objections from the Ministers’ Counsel (MC) which led to delays for ‘in camera’ hearings. There were five Mahjoub supporters there for most of the day. Because so much time is being used up by objections and delays, court was extended until 6 pm and will resume tomorrow morning at 9:30 am but should be over by noon.

The same witness is being cross-examined; a CSIS agent known as witness #4 who was the author of the latest CSIS ‘threat assessment’ of Mohamed Mahjoub. He has decided in his report that the present restrictive and invasive conditions placed on Mr. Mahjoub, should continue unchanged despite the passage of time and no record of violations by Mr. Mahjoub.

Paul Slansky, Public Counsel (PC) continued as the lawyer leading the charge for Mr. Mahjoub. He was continually frustrated by Ministers’ Counsel (MC) objections on the basis of national security even to a document that was already public. It has been an uphill battle for Mr. Slansky to try to get the witness to actually answer his questions directly without just talking around the issue and without answering. Then MC objects and says that PC has had his answer just because the witness has said something.

Mr. Slansky is trying his best to show that witness #4 has prepared his threat assessment using information, some 15 years old from a Security Intelligence Report (SIR) and from ‘unsourced’ documents treated as if they were the ‘unvarnished’ truth. Mr. Slansky got the witness to say that he respects the work of his CSIS colleagues to the point that he needn’t do his own checking or research. There also seems to be much reliance on old information about Egyptian organizations like the ‘Vanguards of Conquest’, ‘Al Jihad’ and ‘Al Quaeda’ regarding who belonged and when and when some of these organizations ceased to exist and whether Mr. Mahjoub had any connection to them. Yet the ‘Threat Report’ relies unwaveringly on this old and incomplete information and implies that even though old networks may have been disrupted long ago, that Mr. Mahjoub, if given his freedom would somehow restart these even though he has shown no signs of attempting to do so. The impression left by testimony of witness #4 is that Mr. Mahjoub can never be freed because his ‘threat status’ can never be seen to be diminishing with time. Therefore Mr. Mahjoub will always be seen as a threat in an absolute sense by CSIS and must always remain under restrictive and invasive conditions.

Mr. Slansky was able to expose two organization culture characteristics that would colour witness #4's assessment of Mr. Mahjoub. One was that witness #4 says he believes that any Muslim man who went to Afghanistan to fight the Soviet invasion in the ‘80’s in a ‘legitimate defensive role’ was a Mujahideen who must return from that experience as a pro-jihadist, anti-infidel, anti-western terrorist. At the same time, American government institutions and individuals who supported the Mujahideen were not affected in this way. Mr. Slansky used an analogy of some Canadians going to Israel to defend it against some enemies. Witness #4 admitted that these returning veterans would not be looked upon as terrorists upon their return unless they acted in a violent way. Mr. Slansky, without casting aspertions upon the witness, said the only conclusion to be drawn is that there is a racial attitude at work – meaning that the witness believes that all returning Mujahideen are terrorists, but not returning veterans of other wars. This affects his threat assessment of Mr. Mahjoub because if Mr. Mahjoub went to Afghanistan as he is accused of doing in the ‘90’s then he must be a terrorist.

The other organizational culture of CSIS seems to be implicit respect and trust in whatever other agents seem to have found out and believe, written in the SIR and often not independently checked. Mr. Slansky even suggested to the witness that with this kind of respect and trust in colleagues work, one person’s research and report may be repeated over and over by other agents.

Another topic had to do with confusion about a possible Egyptian colleague of Mr. Mahjoub who happens to be in an Egyptian prison right now and whose name is Sagr. Mr. Mahjoub has been described as having an alias that was Shakar. When witness #4 was asked by Mr. Slansky whether there was any possibilty that CSIS intelligence had mixed Sagr up with Mr. Mahjoub, the witness answered yes there was a possibility but “I trust my colleagues” not to have done this.

Court tomorrow will begin at 9:30 am and will likley be over by noon. Located at Federal Courthouse, 180 Queen St. W., 6^th floor (near Osgoode subway station)

Court then resumes next week, Tuesday, December 13, 9:30 am, same location, with a witness from Canadian Border Services Agency (CBSA)

Mahjoub Hearing, Tuesday, December 6, 2011

Three Mahjoub supporters attended today’s hearing at Federal Court, 180 Queen St. West. Two were Amar and Noah, film-makers who are making a film about the families affected by the Security Certificate regime in Canada. See http://secrettrial5.com/

The CSIS witness known as Witness #4 was still being examined by lawyer Paul Slansky in an Ottawa courtroom with video transmission to the Toronto courtroom and with the witness concealed from view. Mr. Slansky tried his best to get the witness to admit that CSIS has routinely used evidence obtained by torture in countries like Egypt to place restrictive and invasive conditions on Mr. Mahjoub for more than eleven years. Witness #4 is the author of the latest ‘threat assessment’ of Mr. Mahjoub, written this fall and using data that goes back fifteen years. From this, CSIS recommendations are that present restrictive conditions placed on Mr. Mahjoub should not be relieved because he would still constitute a threat to Canada if he were set completely free. Mr. Slansky presented a couple of documents to the witness; one was written by former CSIS head Jim Judd in which Mr. Judd said it was very difficult to determine whether any evidence that came from foreign countries was or was not obtained by torture. The other document was a 2009 letter from then Public Safety Minister Toews to CSIS head Fadden in which Toews instructs CSIS to stop using evidence that has been obtained from torture. Then the games began with Ministers Counsel raising objections and witness #4 behaving like ‘snakes in oil’. With Mr. Slansky trying to get witness #4 to admit that the Toews letter implied that CSIS had been using ‘torture evidence’ up to then and had used at least some ‘pieces’ of this ‘torture evidence’ in their threat assessment of Mr. Mahjoub, witness #4 kept saying that CSIS always had taken ‘torture evidence’ with a grain of salt, even prior to the directive to stop using it. Mr. Slansky was doing his best in a court that seems to be unfriendly to questioning government actions via CSIS that have used doubtful, ‘torture obtained’, low threshold evidence such as ‘suspicion’ and ‘reason to believe’ – to remove the rights to a private life of an individual for more than eleven years.

The examination of witness #4 continues tomorrow – Wednesday, December 7. Please come to court to support Mr. Mahjoub at 180 Queen St. W., 6^th floor (near Osgoode subway station)

Mahjoub Hearing, Monday, December 5, 2011

Two Mahjoub supporters attended today’s Detention Review hearing at Federal Court in Toronto along with four media representatives – from the Toronto Star, the National Post, Canadian Press and CBC French network. The actual hearing was held in Ottawa and seen and heard on television in the Toronto courtroom. The video and sound are clear so there is no trouble following the proceedings. Judge Blanchard presided.

I arrived awhile after court had begun to hear a CSIS witness identified only as #4 and hidden from view being gently treated by the Ministers’ Counsel. This witness said he was the author of the ‘threat assessment’ report about Mr. Mahjoub. He was saying that he approved of the present terms and conditions of release under which Mr. Mahjoub is being held and surveilled under house arrest - as mitigators of of M. as a threat to Canada. He warned that “out of the watchful eye of the state, M. might re-engage in threatening activities, either directly or indirectly – to counsel others in their involvement as threats to Canada.” He even said that M. had ‘street-cred” and was “attractive” to those who migh wish to do Canada harm. He accused M. of still being a possible danger even in the rapidly changing, tumultuous environment of the Egyptian Arab Spring. He said that M. needed to be held because he “might possibly” be a threat.

About 20 minutes later Public Counsel Paul Slansky began his cross-examination of the CSIS witness which lasted until 5:15 pm with about a 2 hour lunch break. Mr. Slansky attacked the CSIS witness and CSIS itself with a ferocity that I had not previously witnessed. My understanding of the line of reasoning was that Mr. Slansky was trying to establish that CSIS has no legal standards for applying Section 21 and some other sections of the CSIS Act to any individual. Therefore the arrest and detention of anyone they deem a threat to Canada is arbitrary and not according to any law.

Mr. Slansky described that witness #4 used terms in his report such as M. “possibly may” – pose a threat. PC tried to get the witness to admit to what CSIS uses as its criteria - “suspicion” or “reasonable grounds to believe” and other fine points – to identify a person as a threat. PC accused CSIS of only being interested in the effectiveness of the conditions on M. and no interest in what has happened to the human rights of M. who has been subjected, as PC described - to the greatest intrusion into the privacy of an individual in Canadian history. Witness #4 was asked if he had seen any additional “potential” for M. to commit a crime over the past year. The witness said he hadn’t. PC also asked if CSIS engaged in any quality control which led to a discussion of what that may mean for CSIS. The witness admitted that violation of an individual’s human rights is not the concern of CSIS since they know that human rights reduction “comes with the territory” of identifying someone as a threat to the state. PC described with some derision from MC the potential of a hydrogen atom to become an atomic bomb. Did that mean that all hydrogen atoms and therefore all water molecules should be placed under “conditions?”

Witness #4 mentioned M.’s associations with others after he came to Canada. PC wondered if M. was under suspicion for attending Mosque and speaking to acquaintances about “those Blue-Jays”.

PC cast doubt on testimony of foreign sources who made accusations against M. as having been obtained by torture and that “there is no guarantee of corroboration”; accusers may just be using the same source whose reliability is in question. There were many objections from Ministers’ Counsel regarding the approach taken by Public Counsel.

The hearing resumes tomorrow – Tuesday December 6, 2011 at 9:30 am.

More supporters are needed to be seen at Federal Court, 180 Queen St. W., 6^th floor (near Osgoode station on the University line)

Some media coverage of today’s hearing:

http://www.ctv.ca/CTVNews/Canada/20111205/mohamed-zeki-mahjoub-security-certificate-court-challenge-111205/

http://www.thestar.com/news/canada/article/1097232--terrorism-suspect-remains-a-threat-csis-agent-testifies

End Canada's cruel and unusual punishment of Mohamed Mahjoub - more than eleven years under a security certificate

Call for court support! Please attend, even if it is for just a couple of hours. The court takes note of public interest.

Mon. Dec. 5th to Wed. Dec. 7th, plus Wed. Dec. 14 to Fri. Dec. 16th and Mon. Dec. 19 & Tues. Dec. 20th

Every day from 9:30 to noon and 2 til 4:30 (approximate times*)

Federal Court, 180 Queen Street, 6th floor, Toronto (near Osgoode Station on University subway line)

**Court schedule is subject to last minute change, plus there is a lunch break, so check in before heading to court.

Updates will be posted at https://twitter.com/#!/peepcomm

Mohamed Mahjoub will be in court to argue that ALL the conditions that are imposed on him should be lifted immediately. He currently lives under a form of house arrest that allows the state to micro-manage and invade every aspect of his life.

His lawyers will be arguing that the court can no longer maintain conditions because CSIS itself no longer claims to have reasonable grounds to believe Mr. Mahjoub to be a threat. His lawyers will also argue that his treatment amounts to unusual punishment in the sense of the charter. They're also pointing out that the conditions imposed on him are irrational and disproportionate, and that they are a form of cruel and unusual punishment.

Recent media articles relating to his case:

http://www.winnipegfreepress.com/canada/breakingnews/spy-agency-branding-of-egyptian-as-security-risk-to-canada-not-reasonable-134923888.html

http://www.montrealgazette.com/news/CSIS+head+urged+government+fight+information+obtained+through+torture/5805186/story.html

Background

www.peoplescommission.org/en/mahjoub

justiceformahjoub@gmail.com

Appeal for Mohamed Harkat

Hello:

I am sharing this message from Sophie Harkat with you because of the urgency for Mohamed Harkat who is in the same situation as Mohamed Mahjoub - held on a security certificate for many years and awaiting deportation to torture or worse at any time. Sophie expresses the need for both financial help and for the signing of the 'Harkat statement' online. There is an English and a French 'paper' petition in the right margin of www.harkatstatement.com that can be downloaded. Just be sure to copy the 'prayer' to the top of each petition sheet. Petition regulations require that the signer see the petition on the page they are signing. You can actually take 25 or more signatures (with addresses) to your own MP and ask them to present the petition to Parliament. I just did that for the three Muslim Canadians who were tortured in Syria. Thanks for your help. Murray

Dear Friend,

December 10th, 2011 will mark the 9th anniversary of Moe's arrest under a Security Certificate which allows for detention without charge, without access to the evidence under the presumed rationale of "national security." Moe spent 43 months in jail and was finally released in June of 2006, but upon release he was forced to bear the burden of the toughest bail conditions in Canadian history Today, he still wears a GPS device on his ankle at all times and has numerous restrictions on his movements. Because of the unjust decision to uphold Moe's security certificate in December 2010, he now faces deportation to Algeria where he's at great risk of imprisonment, torture or death.

After nine long years of fighting for justice, it gets harder and harder to fundraise and gather support every year. Many think the case is over and done with. That is so far from the truth ! We are heading back to the Federal Court of Appeal on February 21st, 2012 and hopefully, with your support, back to the Supreme Court of Canada.

I'm writing to you because we need your financial support, but I know there are many good causes out there that also need your help ! If you have already donated, THANK YOU for your generosity and solidarity.

Please support our work. Help with our campaign expenses, support our legal and political research, consider making a small donation to support travel and other related expenses. Our work is not done yet. Donations are always needed.

Please send your cheque/money order or donation to:
The Justice for Mohamed Harkat Committee
14 Perkins Street
Ottawa, ON, K1R 7G5

Also, since my last email asking you to forward our petition far and wide, only 400 new supporters have endorsed our statement. That is NOT enough considering the amount of individuals that oppose Secret Trials in Canada. I hope we can reach at least 5000 signatures by Moe's 9th anniversary. With your help, I know we can do it. Public pressure is essential to our fight.

Please ask everyone you know to visit www.harkatstatement.com and sign our Statement Against Security Certificates.

Pass on this email to all of your online contacts - email, Facebook, Twitter, etc.
If you have a blog or a web site please consider writing about our campaign and spreading the word.
Ask your family, friends, co-workers, local, group, committee, others to endorse.

Don't stop it here, please forward to others !

Thank you for your continued support and time.

May justice prevail !

Sincerely,
Sophie Harkat
Wife of Mohamed Harkat

Mahjoub ‘Conference’ – Wednesday, October 12, 2011, Federal Court, 180 Queen Street, 7th floor

I got there just before they adjourned at 11:10 am. However I did speak with Mohamed, his lawyer Paul Slansky and another lawyer who attended as an observer. The 'Conference' was under the direction of Judge Aalto and the Justice Dept. had their 'Separation of documents Team' there, consisting of former lawyer on the case Rhonda Marquis (who has been bumped up to an administrative position with 'Justice' and will no longer be on this case in any event but who is familiar with the case) and the other person - a lawyer who I have seen three times now - she was present in court last Monday during the full day hearing under Judge Blanchard. She sat in the gallery with the rest of us. She was also one of the 'Justice' people at last Wednesday's 'Conference'. I didn't get her name.

Paul Slansky, Mohamed, and Mohamed's interpreter were there yesterday and Mme. Doyon was present by video.

I don't know for sure but I don't think 'Public Counsel' has yet chosen their 'Team'. Judge Aalto expressed his happiness with the speed of things - I know that he had discussed previously being able to get funding for the procedures to follow. P.C. expressed some doubt at last week's 'Conference' about getting Legal Aid to pay for the procedures.

After the 'Conference' while speaking with Mohamed, Paul and the other lawyer, Paul explained to me that there is still an order by Judge Blanchard that court appointed officers to the 'Separation Team' can no longer be 'on the record' with M.'s case and perhaps any other security/immigration case. I think there is still some disagreement on how far this would go - I think I heard that expressed during the few minutes I was at the 'Conference'. They also talked about the 'Chinese Wall' - that was mentioned by the lawyers in court last Monday - meaning that any lawyer appointed to a team like this cannot discuss their findings or opinions with anyone at their law firm, which is very difficult to confirm happens.

The next 'Conference' is by phone, next Wednesday, Oct. 19 and won't be public.

Mahjoub 'Conference' Hearing, Wednesday, October 5, 2011

I was at the 'Conference' at court today only for a short time and much of it was during their recess's. I was the only observer there. I had another afternoon meeting so didn't stay past noon.

As indicated they met in a conference room on the 7th floor, presided over by Judge Aalto. A Mr. Todd and another female lawyer were on one side of the table, representing the government and Paul Slansky, Mme. Doyon, Mohamed and his interpreter sat on the other. They were basically trying to work out a plan for separating the commingled doucuments that would be to both teams' satisfactions. The judge is still going to allow Public Counsel to still argue 'Prejudice' issue, but mostly they are going to work on this plan. They spoke about how it is going to be paid for, since Paul said there were some issues with legal aid continuing to pay them. Paul also wondered about how much training would be reqired of the 'separation teams'. Judge Aalto said he had some authority in the money matter and he didn't want this task to go on any back burner. Judge Aalto asked both sides to think of and bring forward names of people who they thought could do the task of separating and to share those names with the other side. Judge Aalto said he didn't feel it was necessary to get a handwriting expert. Judge Aalto said if the two sides could not achieve clarity on their choices for their 'separation teams' then he would make the decision. Mr. Todd immediately proposed Rhonda Marquis who was on the government legal team in this case but who has been promoted to a deputy director of the Immigration division of the Dept. of Justice, Toronto region. She is no longer on the team but is very familiar with the case. Paul and Mme. Doyon didn't propose anyone yet. Judge Aalto wanted to get started in 24 hours, but Paul and Mme. Doyon said they had some other commitments and Monday is a holiday so they set the next meeting for Wednesday, Oct. 12 at 9:30 and if possible to have their 'separation teams' there, I beleive. They didn't name the meeting place but I assume it would be the same. Judge Aalto also proposed for the sake of expediting things quicker - to have all the documents moved to the Federal Court building from where they are. Paul and Mme. Doyon had concerns about who would have access during the move. Paul said he trusted court officers but he said, "I don't trust some CSIS officers as far as I could throw them". Judge Aalto agreed with this concern and said the only people touching the documents would be responsible to the court. He also said he would have everything videotaped in clear pictures. He showed a still photo of the documents in their present location and said it wasn't good quality.

At that point Paul asked for a recess for he, Mme. Doyon and Mohamed to discuss these matters. At that point I left. They were going to continue the meeting to hash out the parameters of how to separate these mixed documents.

Next meeting – Wednesday, October 12, 2011, 9:30 am, 180 Queen Street West (near Osgoode station), Floor 7, a Conference room (just ask the guard on the floor)

Mohamed Mahjoub asks for Stay of Proceedings due to gross violations of his Solicitor- Client Privilege

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.

Special Mahjoub hearing, Monday, October 3, 2011

Mohamed Mahjoub Court Hearing

Dear friends:

I only saw this announcement late Sunday evening. I am hoping that some may still be able to come to the Federal Courthouse in Toronto at the address and time given below:

Federal Court, 180 Queen Street, 6th floor (Toronto)

Monday, October 3rd at 9:30am

Mr. Mahjoub was arrested in June 2000 under an immigration security certificate. He has remained in jail and under house arrest, without charge or trial and under threat of deportation, ever since. Mr. Mahjoub was accepted as a refugee in Canada in 1996 after it was recognized that he had been subjected to torture in Egypt.

At the hearing tomorrow, Mr. Mahjoub's legal team will ask the Court to suspend proceedings against Mr. Mahjoub. In July 2011, Department of Justice staff took privileged and confidential documents belonging to Mr. Mahjoub's legal team, which were in a break out room at the Federal Court in Toronto. The "mistake" was not noticed until one month later, after staff had gone through the material and mingled it with their own. This has violated Mr. Mahjoub's right to communicate in privacy with his lawyers. Coming on top of CSIS and CBSA's systematic violation of solicitor-client privilege for years (through listening, recording and analysing Mr. Mahjoub's conversations with his lawyers, according to a CSIS operational policy), it has caused irreparable harm that can only be set right by stopping this process and freeing Mr. Mahjoub from this interminable nightmare.

Please come out to show your support for Mr. Mahjoub and your complete rejection of racist security certificates.

Background:

http://rabble.ca/news/2011/06/mohammad-mahjoub-life-security-certificate-detainee

www.peoplescommission.org/en/mahjoub

Mahjoub Hearing report, Thursday, July 14/'11 - Ex-CSIS chief feared ‘alienating’ allies on security-certificate cases

Hi all:

I have been away from court for three weeks - busy with family trips etc., but here is a link to Colin Freeze's article in the Globe and Mail regarding Wednesday's (July 13) high level witness, former CSIS head Jim Judd. Colin said that the hearing with Mr. Judd as witness was continuing today (Thursday). Maybe there is a Toronto Star report too but I haven't located it.

Not having been at the hearing I cannot comment on Colin's report but it does have something to say about Canada's intelligence sharing deals with shady countries who torture. I think holding a man incommunicado on no charges for eleven years is also torture.

Have a look at the comments - many are quite critical of Canada and CSIS. I wrote one too - see if you can figure out which one.

Murray

http://tinyurl.com/6fmj6zj (You may need to copy this link into your browser)

Mahjoub Hearing, Tuesday, June 21, 2011

Hello:

Mary Foster wrote on Monday June 20: ‘was anyone able to go today? how did it go? Very important witnesses from CSIS and CBSA will be on the stand to testify about their complicity in re-isssuing a security certificate that is mostly (entirely?) based on information derived from torture.’

I was unable to go Monday and don’t know if anyone else went, but I did attend today - Tuesday for a few hours. Mary is correct. There are some supposedly high ranking witnesses being heard this week and next week. Yesterday – Monday, the witness was the present Director of CSIS, Richard Fadden. All that I heard about him was that he was ‘all over the place’ perhaps meaning evasive, but I wasn’t there to hear him. If any of you were, I would appreciate a brief report.

I actually attended two court hearings today; the first was at Old City Hall Court for the sentencing hearing of Jaggi Singh of Montreal who was charged with encouraging people to take down the fence at last June’s G20 event. The judge read his various options and mentioned about 200 or so letters that people had written to the court in support of Jaggi. The courtroom was packed. The crown was asking for a six month sentence, but perhaps due to public interest, Jaggi was placed on probation for one year with conditions, but was given ‘time served’ and no further jail time. His supporters were very pleased and Jaggi spoke at an impromptu press conference outside the court house. He spoke not only about himself but about the rights of communities to decide what their streets will be like – not governments and not the courts.

This kind of interest may be a lesson to those of us trying to support Mr. Mahjoub.

At about 11:30 am I walked over to Federal Court and stayed until 3 pm (with a one hour lunch break). One other supporter came for about ¾ hour. I saw and heard Public Counsel Paul Slansky cross-examine Mr. Flanagan, a retired manager for CSIS. The questioning had to do with an agreement in 2006 between CSIS and CBSA to have a CSIS Collector Agent (CA), I think, work in what was referred to as a ‘bubble’ because this agent had the task of intercepting (listening in) phone messages of Mr. Mahjoub and Mr. Jaballah, both of Toronto. These messages were supposed to be copied to a CD and passed on to CBSA. The problem that is being probed by the cross-examination is – what did they do with calls that were between Mr. Mahjoub and his lawyers. A CSIS agent in a previous hearing admitted that CSIS did indeed record solicitor-client conversations. Public Counsel asked questions of witness Mr. Flanagan who was apparently responsible for CSIS policy in this matter. However Mr. Flanagan was not very cooperative, launching into long vague, contradictory answers that finally caused Mr. Slansky to lose his patience and ask the witness to just answer the questions with a short answer or a yes or no. At least a couple of questions were objected to on the basis of answers being ‘secret evidence’ and therefore of national security importance. One of these questions simply asked for a point of policy that should be public. At one point Public Counsel pointed out to the witness that he had contradicted an earlier answer and asked for and had the court reporter read back the previous question and answer which was indeed a contradiction. Some of the vagueness was the witness’s inability to say conclusively if the CA was indeed operating in a bubble (strictly as an agent for CBSA and not for CSIS). One word that the witness decided had more than one meaning was ‘relevancy’. Relevancy at first was supposed to mean – any intercepts that would indicate a threat to Canadian security – these would have to be reported to CSIS. However, the witness then added the meaning – ‘intelligence value’, meaning that an intercept, even one between a client and his lawyer – would have relevancy if it had intelligence value. At the point just before Judge Blanchard called the lunch break, the witness was so confused that he said he could no longer answer Public Counsel’s questions. The hearing did of course continue in the afternoon.

What I think is being revealed by the very strong probing of Mr. Slansky is that CSIS policies on intercepting solicitor-client conversations are and have been woefully wanting. We are hoping that the judge sees this as well.

I will be away for most of the next three weeks – accompanying my brother to a family wedding in B.C. and then some other responsibilities and family events. Mr. Mahjoub thought these hearings will end by mid-July.

Court will go on tomorrow – Wednesday, June 22, 9:30 am but not Thursday or Friday so if anyone can attend tomorrow – Wednesday that would be good.

For the week of June 27, hearings are scheduled for Monday June 27 through Thursday June 30, with hearings beginning at 9:30 am.

Please attend even if for a short time. It looks so much better if interest is shown – as it was in the Jaggi Singh case.

Hearings are at Federal Court, 180 Queen St. W., 6^th floor, near Osgoode station on the University line.

Mahjoub Hearing Schedule – Week of June 20, 2011

The Mahjoub court schedule for next week is Monday June 20, Tuesday June 21, Wednesday June 22, all at 9:30 am at Federal Court at 180 Queen St. W., near the Osgoode station on University line. Various witnesses from CBSA and CSIS are scheduled to testify about how the security certificates got signed.

Please attend if you have some time.

Murray

Mahjoub Hearing, Thursday, June 9, 2011

I arrived at court at about 11:30 am. Having tried to go to the Hassan Diab bail hearing nearby at Osgoode Hall, but they apparently began at 10 am and were finished by 10:30 am. I haven’t heard how it went.

A bit of update from last week: I missed Tuesday through Friday last week while in Ottawa. A Mr. Bush from Citizenship and Immigration Canada (CIC) was the main witness along with Mr. Vrbanic, Manager of CSIS Toronto office. Public Counsel Paul Slansky carried the case last week and today and has been probing matters related to Solicitor-Client wiretap interceptions and circumstances surrounding the signing of Security Certificates by CIC Minister Diane Finley and former Public Safety Minister Stockwell Day which have had questions raised by recent disclosures as I mentioned in the May 30 report.

I was the only supporter there today. P.C. Paul Slansky was finishing up his examination of witness Mr. Vrbanic, Manager of the CSIS Toronto office. Paul asked probing questions about whether CSIS had policies around Solicitor-Client phone conversation interceptions and exactly what constituted this type of interception – for instance did they listen to husband-wife conversations and were any of these messages being relayed by Mr. Mahjoub’s wife to M.; or would language interpretation by stepson Haney be included? Mr. Vrbanic replied that family members did sign consent forms. Ministers Counsel Mr. Tyndale objected to several of these questions as being too hypothetical.

P.C. moved on to questions about the circumstances surrounding the signing of the Security Certificate around the dates Feb 21-22 (perhaps 2008 at the end of the deadline when new Security Certificate legislation had to be brought in). P.C. asked the witness whether he had anything to do with the signing of the certificates. Mr. Vrbanic said he didn’t. P.C. also asked about the ‘time gap’ between the expiry of the old certificate legislation and the signing of the new ones – for the four remaining detainees (Mr. Vrbanic admitted that there was fear that the four detainees might bring a motion to be released since there was no valid certificate to hold them) and whether this time gap was the inspiration for the signing in haste (Mr. Day signed his copy in Vancouver) perhaps without due consideration being given to evidence. P.C. also raised the issue of Mr. Mahjoub being a ‘convention refugee’ when he came to Canada and part of his testimony to the Refugee Review board was a fear of torture by Egyptian authorities. P.C. asked if this testimony was taken into account by the government. He went on to point out that Mr. Mahjoub was sentenced in absentia in Egypt in 1999 to ‘x’ years in prison. P.C. asked if the fact that Egypt routinely uses torture was taken into consideration regarding information used to create the security certificate. Judge Blanchard and Mr. Tyndale pointed out that matters of torture were covered a year ago during the ‘Torture Motion’ hearings, but P.C. replied that there is relevance to torture information if the Security Certificate signing is at least partly based on testimony obtained by torture. For example, did CSIS advise the Ministers about testimony obtained by torture? P. C. pointed out that Amnesty International has said that the evidence used in Egypt against Mr. Mahjoub was obtained by torture. P.C. said he would leave details about this matter to later witnesses who should have more intimate information regarding the basis for the signing of the Security Certificates. After lunch break, M.C. had no questions for the witness and the witness was excused.

Scheduling was then done for next week’s hearings. Some upcoming scheduled witnesses are fairly high level bureacrats or retired bureaucrats who had some connection to the Security Certificates, Mr. Flanagan, Elizabeth Snow and later Ms. Johnston, Mr. Judd, former head of CSIS, Mr. Foley and present head of CSIS Mr. Fadden. An interesting exchange was about Mr. Foley who is in China. Mr. Tyndale said he may have to be flown here at the expense of Mr. Mahjoub – meaning Legal Aid! Judge Blanchard said that teleconferencing is quite feasible but was discouraged by Mr. Tyndale because of the extreme time difference.

The hearings resume Monday, June 13 at 9:30 am and continue on Tuesday, Wednesday and Friday (not Thursday).

There is no hearing tomorrow – Friday, June 10.

Please come next week to Federal Court, 180 Queen St. W., 6^th floor, near Osgoode Station on University line.

Mahjoub Hearings - Week of June 6, 2011

Hi all:

I just returned home from Ottawa, Sunday evening and spoke to Mohammed on the phone at which time he informed me that the Federal Court hearings do not resume until Thursday, June 9 at 9:30 am (no hearings Monday, Tuesday or Wednesday), so I hope this reaches supporters in time for their week’s plans. Sorry I do not have anything to report about the week since Monday but may have some information later in the week since I will be with Mohammed tomorrow – Monday.

On Thursday June 9^th please come to Federal Court, 180 Queen St. West, 6^th floor, 9:30 am, near Osgoode station on the University subway line.

Mahjoub Hearing – Monday, May 30, 2011

Hi all:

Court resumed today at 9:30 am. There were three observers for part of the morning; I stayed all day until court adjourned about 4:30 pm. The purpose of today’s hearing was to review thirty witness (or witness category) suggestions brought forward by public Counsel Yavar Hameed with the help of Joanne Doyon (I may not have the spelling correct). These witnesses, if approved by the court would be asked to testify regarding the topics of alleged ‘violations of solicitor-client privilege’ by CSIS/CBSA listening to phone conversations, ‘abuse of process’ and failure by various government officials and elected Ministers to do their ‘due diligence’. Public Counsel has called for these witnesses to be heard due to information revealed in the latest disclosures (I don’t know the extent of them). Some potential witnesses are CSIS/CBSA employees who have been heard before plus some new ones. Others are high level actors such as present and former Ministers of CIC and Public Safety such as Stockwell Day and Diane Finley as well as the present director of CSIS, Mr. McFadden and a former director, Jim Judd and high ranking bureaucrats in these ministries plus some RCMP members.

The pattern of response by Ministers’ Counsel Mr. Tyndale carried on through the day. He criticized the need for these witnesses, accusing P.C. of describing in their documents, the same terminology for each, which he called ‘boilerplate’. He also accused P.C. of engaging in a ‘fishing expedition’, of calling witnesses without stating what evidence was being looked for. Judge Blanchard also frequently asked P.C. exactly what evidence they were looking for. He also challenged M.C. for saying that information in an email was not relevant to P.C.’s case. M.C. pointed out that some of the high level witnesses would not likely attend if called, one reason, for a present minister, is parliamentary privilege while other high placed individuals would ‘not have time to attend’. M.C. accused P.C. of using a strategy of trying to make life so difficult for high level witnesses that the government would just give up on this case.

Perhaps the most interesting exchanges took place over what appears to have been revealed in the disclosures – that Ministers signed security certificates based on their seeing briefing notes shortly before they signed, while boxes of evidence delivered to them, that would have required their much longer attention, apparently were not looked at. Judge Blanchard kept challenging P.C. as to whether they were questioning the due diligence of government people at the highest level, which is not what the ‘reasonableness hearings’ are supposed to be about. He reminded P.C. that the hearing which will resume shortly is supposed to be about the reasonableness of the security certificate after it is signed – not about how it got signed, but it seems like P.C. wants to raise the first question as well as the latter. It remains to be seen whether Judge Blanchard will allow this.

The next hearing will resume on Wednesday, June 1 at 9:30 am at the same location – 180 Queen St. W., 6^th floor (near Osgoode station on the University line)

The hearings will go on through Friday, June 4 and recommence on Monday, June 6.

Judge Blanchard indicated a rough schedule – begin at 9:30 am, lunch break about 12:30 pm and a morning and an afternoon break with court adjourning by 4:30 pm each day.

Please attend, even for an hour or two if you are able.

I will be away in Ottawa all the rest of this week so there will be no further reports from me until next week.

Call for court solidarity: Mohammad Mahjoub SECURITY CERTIFICATE STRUGGLE NOT OVER!

Monday, May 30th at 9:30am

Federal Court of Canada

180 Queen St. West, 6th floor, Toronto

(near Osgoode Station on University subway line)

Please come to court to show support and solidarity with Mohammad Mahjoub,

detained without charge or trial in Canada, under threat of deportation to

more torture, for almost ELEVEN YEARS!

-> Recent update on Mahjoub, in his own voice:

www.radio4all.net/index.php/program/50193

Over the past almost ELEVEN years, Mohammad Mahjoub and his family have had

their lives virtually controlled by the arbitrary security certificate

process. This has included years of solitary confinement and the most

intrusive forms of surveillance and control, on the basis of secret evidence

and vague allegations. All under threat of deportation to further torture.

Security certificates - which are based on profiling - stand as a symbol of

racist border policies. Under the new conservative majority, a strong public

outcry will be necessary to bring justice in these cases.

These eleven years have included endless, frustrating court hearings. The

least we can do to support Mr. Mahjoub in his struggle for justice and

freedom is accompany him in those hearings: please set aside an hour or two

to be with him in court.

This hearing will continue important arguments relating to CSIS conduct in

these cases, including what information it fed the Ministers who are

responsible for these cases and on what basis.

Hearings in the past month have been dealing with another aspect of CSIS

conduct. CSIS and its government partners were found to have ILLEGALLY

breached solicitor-client privilege in Mahjoub's and other security

certificate cases. Despite a court order demanding that they cease breaking

the law in this way, CSIS continued to listen in to conversations between

Mr. Mahjoub and his legal counsel.

PLEASE NOTE: Court hearings are unfortunately subject to change without

advance notice. If we hear in advance, we'll try to get the word out!

Judge Blanchard has released his judgement on the 'Detention Review' of Mr. Mahjoub but that decision is being reviewed by the Ministers so there is no change to M.'s life yet. The 'D. R.' could result in some easing of visiting restrictions on visitors to M. and more free time for M. but not much else.

The topic for May 30 would be exchanges between the two sets of lawyers regarding which witnesses would be called for upcoming 'Reasonableness of the Security Certificate' hearings in June.

“Secret Trials - Who are we protecting? What are we afraid of?”

Script for a Tableau (playlet) - performed by five people plus narrator at Toronto Good Friday Stations of the Cross for Social Justice - before an audience of 300 people. (Some photos posted on Murray Lumley's Facebook page)

Narrator:

You are attending a court scene where a detainee – in Orange Jumpsuit - an Arab refugee or immigrant, who might be from Egypt, Algeria or Syria and is a resident of Canada, has been arrested by Canadian Security and Intelligence Services or CSIS and is being held under the supervision of Canadian Border Services Agency or CBSA. He is not charged with any crime, but is held on the possiblity that he might be a danger to Canadian national security – meaning he is believed to be a terrorist or have had terrorist connections in the country he came from or has visited - until such time as he can be deported back to where he came from. There have been five such Detainees, since the mid-nineties, all Muslim men.

Because he is charged with no crime in Canada by which he could be legally incarcerated, he is being held using an Immigration instrument called a Security Certificate. CSIS has presented its case in a brief document to the government of Canada, and two Ministers – the Minister of Immigration and the Minister of Public Safety have signed the Security Certificate, which allows CBSA to keep the Detainee in secure custody until such time as he can be deported. The allegations that CSIS has against the Detainee are of a lower quality than would stand up in a normal court of law – meaning testimony of a secret witness or informer, hearsay, news articles and circumstancial evidence - for example the detainee was found to possess a map of Ottawa with some buildings or routes marked. This evidence is kept secret on the basis of National Security and only certain official people are allowed to see it - as you will see in our brief scene.

In the early 2000’s the Detainee and the others were kept in a Provincial jail – Metro West here in Toronto, which is designed for inmates convicted of crimes committed in Ontario and on sentences of two years less a day. Since the Detainees had committed no crime they could not be mixed with the prison population and were therefore kept in Solitary Confinement, often in cells that were cold and for which the jailers would do nothing to correct. This and other indignities caused the detainees to go on several hunger strikes which forced the courts at the instigation of the lawyers appointed to represent the Detainees, to order better conditions. Eventually the Canadian government built a $multi-million ‘Kingston Immigration Holding Centre’ – KIHC - located as a separate entity with its own guards at Millhaven Correctional Institution at Bath, Ontario.

The Detainees who have moved back and forth from complete incarceration to house arrest, where all of them are now, have never been deported because Canada has signed onto an international agreement to not send an immigrant or refugee back to their home country if there is a reaonable possibility that they will be tortured or killed. Federal Court Judges have upheld this decision and so the Detainees have been kept in either complete custody or house arrest with severely restrictive conditions on movement and communication with others. Court hearings seem unending. Under Canadian Immigration law the Detainees have the right to at least two kinds of hearings – 1. Reasonableness of the Security Certificate Hearings one of which is presently in its third year and 2. Detention Review every six months – which means that some of the strict conditions on travel and communication can be lifted if the Detainee has been of good, reliable behaviour. 3. Other kinds of hearings such as one where CSIS has been accused and admitted to listening in on Lawyer-Client telephone conversations.

In 2007 the Supreme Court of Canada struck down the Security Certificate legislation at the same time as one of the Detainees from Montreal had his Security Certificate quashed and became a free man. The Court gave the government one year to rewrite the legislation to make it more fair. The legislation of 2008 is almost the same but with the addition of the appointment of ‘special advocate lawyers’ who are allowed to see the ‘Secret Evidence’ but cannot communicate this to the Detainee or his lawyer. Their role is to represent the detainees interests in the secret trials. They are allowed to meet and talk with the detainee and his lawyer only before they see the secret documents, and not again after that.

There are two kind of hearings – public ones where a public summary of the allegations is provided to the detainee and his lawyers, and secret ones where only certain people get to see the ‘Secret Evidence’ but neither the Detainee nor his lawyer.

Let me introduce you to the characters:

1. person holding secret evidence box takes his/her place near ‘Secret Evidence Box’

2. the Detainee (who is at side of stage looking sad and confused)

3. the Judge has access to all of the information both secret and public and it is his or her responsibility to determine, through the course of the reasonableness hearing, to determine whether or not the detainee poses a danger to Canadian national security.

(walks across the front to the secret evidence box and looks inside while Narrator is reading and stays by the box)

4. the Government lawyer(s), who represent the interests of both the CBSA and CSIS also have access to all of the information available and are able to argue their case against the detainee in both open and secret trials. (walks across the front to the secret evidence box and looks inside while Narrator is reading and stays by the box)

5. the Special Advocate, the only person representing the interests of the detainee in the secret trials, may see all of the secret information and question the accuracy and sources of information and argue on behalf of the detainee. (walks across the front to the secret evidence box and looks inside while Narrator is reading, after looking in the box mimes asking questions of the government lawyer before the judge)

(two characters – Government lawyer, Special Advocate - depart the stage)

6. the Detainee’s lawyer and the Detainee receive a publicly authorized summary of the allegations which is the main document they are fighting against in the public hearings. They may never know the full case that the government lawyers have prepared and must present evidence and argue their case to the best of their efforts. The ‘Reasonableness Hearing’ is not about guilt or innocence of the detainee, but rather whether or not it is reasonable to detain - in jail or under strict house arrest – indefinitely, based on allegations that cannot be proven and without enough evidence to press charges under Canada's existing anti-terrorism laws.

(detainee and his lawyer walk across to the secret evidence box and are not allowed to look in the box but are given or take the redacted document - lawyer shows it to the audience revealing blacked out lines; they look at each other and sadly walk off stage)

Today, two detainees, Adil Charkaoui and Hassan Almrei are free men. Federal court judges found the security certificates against them to be unreasonable. Mohammed Harkat has had his certificate upheld earlier this year and remains under house arrest as an appeal is underway. Mahmoud Jaballah and Mohammed Mahjoub are currently in the midst of their reasonableness hearings and are awaiting a final decision.

Mahjoub Hearing – 'Disclosure' - Monday, April 11, 2011

Hi all:

Well, this was supposed to be the resumption of the ‘Reasonableness of the Security Certificate Hearing’ but it wasn’t. Four friends of Mohammad Mahjoub attended, some arriving for the 9:30 am start, but what was observed was that Public Counsel (M.’s lawyers) had sent a letter written Thursday, April 7 to the court asking for further disclosure of a wider range of documents than had been previously requested, including transcripts of RCMP interviews of M. going back to 2001 when he was held at Metro West, Toronto, as well as not limited to CSIS but including Citizenship and Immigration Canada (CIC), and CBSA recordings and transcripts both pre and post 2008. P. C. also asked for an adjournment of the Reasonableness Hearings until this lack of disclosure was set right. The court went ‘in camera’ from about 9:30 am until 10:45 am.

Court resumed public session at 10:45 am with Judge Blanchard hearing brief back and forth arguments from Public Counsel Yavar Hameed and Ministers’ Counsel Mr. Tyndale as to the need for the disclosure of the documents asked for by P.C. Mr. Tyndale argued that there has been no evidence for the need for further disclosure while Mr. Hameed argued that “before the closing of Mr. Mahjoub’s case there is a need to see all the evidence that has been presented against Mr. Mahjoub”. In the best zinger of the morning, Mr. Tyndale said - “on non-issues, the evidence may be inadmissible and we may as well all go home.” The four of us interpreted that to mean that in that possibility, the case against Mr. Mahjoub would be over and we had to restrain ourselves from cheering.

Judge Blanchard with the support of M.C. Mr. Tyndale lectured P.C. Mr. Hameed about why P.C. had not asked for these disclosures previously even as recently as the one day hearing presided over by Judge Noel. Mr. Hameed’s reply was that he had done so “in a general way”, if not specifically. There was further technical legal discussion regarding “grounds and warrants” and the “timing of this request”.

Judge Blanchard set some parameters and dates for production of materials and resumption of the Reasonableness Hearing, with Tuesday May 24 being the date set for resumption.

Judge Blanchard said he wanted no further delays to this hearing which he said, “is now in its third year.”

This hearing was adjourned around 12 pm with the next date tentatively set for Tuesday, May 24.

I found out after the hearing that the problem with the lack of disclosure was that these wide disclosures had not been asked for by M.’s previous lawyers. I don’t have the legal background to know why that was the case or whether it is a good or bad thing for M.’s case.

Next Hearing – tentatively Tuesday, May 24, 2011, Federal Court, 180 Queen St., W., Toronto

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.