Toronto Star. December 18, 2008. Michelle Shephard

Canada’s spy service has been listening to telephone conversations between terrorism suspects and their lawyers for the past 18 months as part of a strict monitoring program developed by the government. The revelation today enraged defense lawyers who argue that intercepting these calls breaches the fundamental right of solicitor-client privilege. “I feel as though my house was broken into,” said Toronto lawyer Barb Jackman. “It’s incredibly invasive.”

The issue arose in the case of Egyptian refugee Mohamed Zeki Mahjoub, who is accused of conspiring with Al Qaeda and has fought the government’s attempts to deport him for the past eight years.

Mahjoub’s case is one of five under the controversial immigration law known as “national security certificates.”

In April 2007, Mahjoub was released on stringent bail conditions after seven years in custody. Mahjoub’s lawyers recently became concerned that their calls were also being monitored and pressed for answers.

On Wednesday, a senior agent with the Canadian Security Intelligence Service testified in a secret Ottawa hearing that the agency was monitoring calls on behalf of the Canadian Border Services Agency.

Justice Carolyn Layden-Stevenson released a two-page public summary of the testimony this morning in a Toronto courtroom. It noted that calls to lawyers are monitored, “to the extent of being satisfied that the communication does not involve a potential breach of the terms of release or a threat to national security.”

“It is a privilege of the highest order and protected at the highest levels,” said Jackman’s co-counsel, Toronto lawyer Marlys Edwardh, regarding communication between lawyers and their clients. “It is a principle of fundamental justice itself.”

Edwardh said she cannot continue with the case until lawyers’ calls are no longer monitored and plans to ask Justice Layden-Stevenson for an order this afternoon.

Late Thursday, Layden-Stevenson issued an order to the spy agency to cease intercepting such calls and to delete any they inadvertently record.