A lawyer whose confidential client conversations were secretly taped by Canada’s spy service tells Law Times she’s now trying to find out how it could impact the case.
Toronto lawyer Barbara Jackman says she was “shocked” to hear the summary by Federal Court Justice Carolyn Layden-Stevenson of in-camera evidence offered by a Canadian Security Intelligence Service officer in the case of Mohamed Zeki Mahjoub, who is accused of terrorism-related activity. The case is being handled under national security certificate protocols.
“I do a lot of national security cases, and so there’s always the suspicion that maybe the security service will listen in on your conversations,” Jackman tells Law Times. “But you never really believe that it will happen, because for me, and I’m sure for many other lawyers, there’s a belief that the system works and that they would respect solicitor-client privilege given its importance in our system of justice.
“But then to actually find out they’re doing it, I just felt invaded. I mean, it’s 19 months of conversations, and I’ve got three clients under those intercepts.”
Jackman suggests the number of intercepted conversations could be great, as she talks to at least one of her clients each day. Mahjoub consented to wiretapping under his terms of release.
Layden-Stevenson’s summary describes an arrangement between CSIS and the Canada Border Services Agency. It stated that CSIS was retained by CBSA to monitor Mahjoub’s phone conversations.
“In accordance with terms of release, the CSIS analyst, as agent for CBSA, listens to all intercepted communications, including solicitor-client communications if any, 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,” wrote Layden-Stevenson.
News of the intercepted solicitor-client conversations was disturbing on a personal level, suggests Jackman, because as an immigration lawyer she knows many people who may have listened to the conversations.
“You wonder, ‘What did they think of that conversation?’” says Jackman. “It’s very, very shocking.”
Jackman says most of her communications with those clients are over the telephone. She now identifies herself as the client’s lawyer at the start of each conversation, says Jackman.
Jackman says she now must step back and consider what it all means for Mahjoub, and if her other clients are affected.
“It’s sort of like racking up problems, because we’re waiting to see how much information the security services destroyed in these cases that they didn’t keep but should have,” she says. “That may create big problems in terms of the fairness of the process.”