A Federal Court judge issued an order late Thursday to Canada's spy agency to cease intercepting telephone conversations between terrorism suspects and their defence lawyers, and delete any conversations its agents inadvertently record.
Carolyn Layden-Stevenson's order came after documents she released in a Toronto court earlier in the day revealed that the Canadian Security Intelligence Service had been monitoring the calls to ensure the suspects don't breach stringent bail conditions.
"The CSIS analyst … listens to all intercepted communications, including solicitor-client communications if any," Layden-Stevenson wrote.
Lawyers defending terrorism suspects expressed outrage at the spy service's actions.
"I was flabbergasted when I was informed," said Matt Webber, an Ottawa lawyer for Mohamed Harkat, a suspected Algerian terrorist released from custody in May 2006.
"My client's consent never for a moment contemplated the invasion of solicitor-client privilege."
Layden-Stevenson's summary pertains to phone tapping that occurred in the case of Mohammad Mahjoub, an Egyptian detained as a threat to public safety because of his alleged ties to al-Qaeda.
Mahjoub, who spent more than six years in custody without charge or trial, was released in April 2007 on strict bail conditions that included monitoring by security agents.
Lawyers decry 'outrageous' privilege violation
To secure his release and so authorities could ensure his communications did not pose a threat to national security, he agreed to having his phone calls tapped.
However, lawyers who act for the men under a national security certificate called it "shocking" their confidential communications with their clients would be monitored.
"From my perspective, as I'm sure from every lawyer's perspective, it was implicit that they would not be listening to solicitor-client calls," Webber said.
The lawyers recently became aware about what they called an "outrageous" violation of lawyer-client privilege and demanded answers.
During a secret hearing in Ottawa on Wednesday, a senior agent with the spy service revealed the tapping was being done on behalf of the Canada Border Services Agency.
Layden-Stevenson's two-page summary was of the agent's testimony.
"The witness testified that CSIS was acting at the request of CBSA as their agent to monitor the communications over the telephone lines of Mr. Mahjoub and (his wife)."
The agencies found no threats or other issues in what they heard, she said.
In all, five foreigners have been detained as risks to public safety under a controversial national security certificate.
Four have been released on stringent bail conditions, while one remains in detention.
Layden-Stevenson also said if the men's bail terms are changed to specifically refer to the interception of solicitor-client communications, the spy and border agencies could end the monitoring, or delete the interception as soon as they realized what they were listening to.
Webber said he was in contact with the Department of Justice to try to ensure the situation was fixed.
"The fact that the eavesdropping even occurred is a serious enough situation that it needs to be immediately rectified," he said.
Photo from 2006 of Mohamed Harkat (centre)with his lawyer Matt Webber
Click to view image: '8ca324757d30-mohamed_harkat.jpg'
Tags: Terrorism, CSIS, Canada, Spy, Detainee, Lawyer, Wiretap, Federal, Judgement
Location: Toronto, Ontario, Canada (load item map)
Marked as: approved
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