By Andrew Duffy, The Ottawa Citizen November 16, 2010

Federal security agents recorded 171 phone calls between suspected terrorist Mahmoud Jaballah and his lawyers after they agreed to halt the practice in December 2008. That revelation is contained in a recent order issued by Federal Court Judge Kevin Aalto, who condemns the repeated breaches of solicitor-client privilege. “Solicitor-client privilege is virtually sacrosanct in the Canadian judicial system,” Aalto said in ordering two federal agencies to turn over a raft of documents to Jaballah’s defence team. The Canadian Security Intelligence Service and the Canada Border Services Agency must provide Jaballah with documents related to their policies on intercepting solicitor-client communications.

They must also turn over any documents that reveal how the privileged information was used in the security certificate case.

Jaballah intends to argue that the agencies’ conduct amounts to an abuse of process.

Aalto noted there is no evidence yet to suggest the government relied on the privileged conversations to build its case.

But it is possible, he said, that federal authorities used information from them to advise government lawyers about how best to defeat Jaballah’s defence strategy.

More details about the intercepted phone calls are expected to emerge when Jaballah’s abuse of process motion is heard.

Federal Court has already been told that national security agents recorded 1,503 calls between Jaballah and his defence team during the past three years.

Federal lawyers have admitted that CSIS agents regularly listened to Jaballah’s solicitor-client calls, then sent them to CBSA for “processing” between September 2007 and December 2008.

CBSA officials were told not to listen to any of those conversations.

A CSIS witness who testified in-camera said analysts were initially told in April 2007 — when Jaballah was first released from custody — to listen to all of his conversations, then to destroy the tapes of solicitor-client calls if they did not involve a threat to national security or a bail violation.

In September 2007, that policy changed, according to the CSIS witness, and instead of destroying the tapes, the spy agency sent them to the CBSA.

It wasn’t until December 2008 that Jaballah’s lawyers discovered their conversations with the terror suspect were being listened to by security agents.

The revelation followed a similar disclosure in the case of Ottawa terror suspect Mohamed Harkat.

In response, federal officials provided Jaballah and his lawyers with written assurances that all future solicitor-client phone calls would not be monitored.

A Federal Court judge later codified the change, ordering security agents to stop listening to a call as soon as it became clear that it involved one of Jaballah’s lawyers. The recording was then to be destroyed.

The existence of 171 solicitor-client recordings made from Jaballah’s phone line between December 2008 and May 2010 has yet to be explained.

Aalto said he was surprised to learn of their existence. “It is reasonable to infer on the record before the court in this motion that interception of Mr. Jaballah’s solicitor-client communications took place after December 2008, contrary to the Ministers’ written assurances and the amended release order,” he concluded.

Aalto rejected the submission of federal lawyers, who argued that Jaballah’s initial release order sanctioned the interception of all phone conversations.

The Egyptian-born Jaballah was arrested in 2001 on the strength of a national security certificate, which alleged he was a senior member of Al Jihad, a group linked to al-Qaeda.

Jaballah, a father of six, denies any connection to Al Jihad. He lives with his family in Toronto under strict release conditions while his case winds its way through Federal Court.

The federal government wants to deport him to Egypt as a threat to national security.
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