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This document includes memoranda to the minister of national defence and then the ministerial directive on international information sharing by the Communications Security Establishment (CSE) in circumstances where there is a risk of maltreatment or torture. It also includes internal policy documents on the implementation of this ministerial directive.
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information-sharing
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PDF Text
Text
Report of the Events
Relating to Maher Arar
Analysis and Recommendations
Commission
of Inquiry into
the Actions
of Canadian
Officials
in Relation
to Maher Arar
�The Report of the Commission of Inquiry into the Actions of Canadian Officials in
Relation to Maher Arar as originally submitted to the Governor in Council included
some material which in this published version has been omitted in the interests of
national security, national defence or international relations (indicated by [***] in the
text). The decision to omit this material is made by the Government of Canada, and
does not represent the views of the Commission of Inquiry.
©
Her Majesty the Queen in Right of Canada,
represented by the Minister of Public Works
and Government Services, 2006
Cat. No: CP32-88/1-2006E
ISBN 0-660-19648-4
Available through your local bookseller or through
Publishing and Depository Services
Public Works and Government Services Canada
Ottawa, Ontario
K1A 0S5
Telephone: (613) 941-5995
Orders only: 1 800 635-7943
Fax: (613) 954-5779 or 1 800 565-7757
Internet: http://publications.gc.ca
Printed by Gilmore Print Group
Ce document est également publié en français sous le titre
Rapport sur les événements concernant Maher Arar
www.ararcommission.ca
�REPORT OF THE EVENTS RELATING TO MAHER ARAR
Analysis and Recommendations
Contents
I
AN OVERVIEW OF MY FINDINGS
9
1.
Background
9
2.
Organization and Content of Report
10
3.
Scope of My Mandate and the Issue of Causation
11
4.
Summary of Main Conclusions
4.1 Information Sharing Prior to Mr. Arar’s Detention
4.2 Detention in New York and Removal to Syria
4.3 Imprisonment and Mistreatment in Syria
4.4 After Mr. Arar’s Return to Canada
13
13
14
14
16
5.
Summary Analysis
5.1 Pre-detention
5.1.1 Formation of Project A-O Canada
5.1.2 Early Investigative Steps
5.1.3 Border Lookouts
5.1.4 Canada Customs Secondary Examinations
5.1.5 Information Sharing with American Agencies
5.1.5.1 RCMP Policies
5.1.5.2 Original Arrangement
5.1.5.3 Inaccurate Information
5.1.6 Role of RCMP Headquarters
5.2 Detention in New York and Removal to Syria
5.2.1 Canadian Investigators
5.2.2 Consular Officials
5.2.3 Interagency Communication
5.3 Imprisonment and Mistreatment in Syria
5.3.1 Initial Period
5.3.2 Torture
16
16
16
18
19
21
22
22
23
24
26
27
27
30
31
32
32
33
�2
ANALYSIS AND RECOMMENDATONS
5.3.3
Continuing Investigations
5.3.3.1 Bout de Papier
5.3.3.2 CSIS Trip
5.3.3.3 RCMP Investigation
5.3.4 Efforts to Obtain Release
5.3.4.1 Mr. Edelson’s Letter
5.3.4.2 The Ambassador and the Minister
5.3.4.3 Mixed Signals
5.3.4.3.1 Questions for Mr. Almalki
5.3.4.3.2 Alleged CSIS Statement
5.3.4.4 Visit by Members of Parliament
5.3.4.5 “One Voice” Letter
5.3.4.6 Prime Minister’s Letter
5.3.5 Consular Services
5.3.5.1 Consular Visits
5.3.5.2 Consular Reports
5.3.5.3 Legal Assistance
5.3.5.4 Mr. Arar’s Release
5.4 Post-return
5.4.1 Mr. Arar’s Statement
5.4.2 Leaks
5.4.3 Incomplete Briefing
34
34
35
35
36
36
37
38
38
39
40
41
42
43
43
43
44
45
45
45
46
48
II
MAHER ARAR AND THE RIGHT TO BE FREE FROM TORTURE 51
1.
Overview
51
2.
Prohibition on Torture
51
3.
Maher Arar
3.1 Maher Arar’s Experiences
3.2 Effects of Torture
3.3 Mr. Arar’s Reputation
3.4 A Misperception Grows
53
54
57
59
60
III
EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
65
1.
Overview
65
2.
Formation of Project A-O Canada
2.1 Transfer of Investigations from CSIS to RCMP
2.2 Project A-O Canada
2.3 Training
2.4 Project A-O Canada Investigation
2.5 Reporting Structure
2.6 Problems with the Project A-O Canada Investigation
65
65
69
71
72
76
77
�CONTENTS
3.
Early Investigative Steps
78
4.
Border Lookouts
4.1 Canadian Lookouts
4.1.1 Mr. Arar
4.1.2 Dr. Mazigh
4.2 U.S. Lookouts
80
80
81
84
85
5.
Canada Customs Secondary Examinations
5.1 Examinations
5.2 Policy Issues Arising from Secondary Examinations
5.2.1 Examination and Photocopying of Documents
5.2.1.1 Mr. Arar
5.2.1.2 Dr. Mazigh
5.2.2 Examination of Mr. Arar’s Computer and PDA
5.2.3 Provision of Information to RCMP
5.2.4 Uploading of Profiles of Dr. Mazigh and Children into IMS
87
87
89
90
90
92
94
96
98
6.
January 22, 2002 Searches and Interviews
6.1 Searches
6.2 Attempt to Interview Mr. Arar
99
99
99
7.
Information Sharing with U.S. Agencies
7.1 Overview
7.2 Importance of Information Sharing
7.3 Need for Caution
7.3.1 Content of Shared Information
7.3.2 Control of Information
7.3.3 Centralization of Decision Making
7.3.4 Post-9/11
7.4 Original Arrangement
7.5 Project A-O Canada’s Approach
7.6 Investigation of Mr. Arar
7.6.1 U.S. Border Lookout Request
7.6.2 February FBI Visit
7.6.3 Supertext Database on Three CDs
7.6.3.1 Background
7.6.3.2 Products of January 22, 2002 Searches
7.6.3.3 The Three CDs
7.6.3.4 Authority to Transfer CDs
7.6.3.5 May 31 Presentation
7.6.3.6 Mr. Arar’s Departure for Tunisia
7.6.3.7 [***]
101
101
102
103
103
105
106
107
108
111
112
115
118
119
119
120
122
124
125
127
127
3
�4
ANALYSIS AND RECOMMENDATONS
8.
Project A-O Canada’s Relationship to Headquarters
8.1 Centralization of National Security Investigations
8.2 Project A-O Canada
8.3 Reporting to Headquarters
8.4 Failures in Communication
8.5 Tensions
8.6 Conclusion
127
127
128
129
130
131
132
IV
DETENTION IN NEW YORK AND REMOVAL TO SYRIA
139
1.
Overview
139
2.
Role of RCMP
140
2.1 Decision to Detain Mr. Arar
140
2.2 Questions Sent by Fax on September 26, 2002
141
2.2.1 Submission of Questions
141
2.2.2 Inaccurate Information
143
2.2.3 Caveats
145
2.3 October 4, 2002 Fax
147
2.4 Telephone Conversations Between CID Officer and FBI Official 151
2.5 October 7 and 8 Communications with U.S. Authorities
153
2.6 American Removal Order
155
2.7 RCMP Involvement in Removal Order
156
3.
CSIS’ Response to Detention of Mr. Arar
162
4.
DFAIT’s Role
4.1 Background
4.2 Possibility of Removal to Syria
4.3 Legal Representation
4.4 Diplomatic Options
4.5 Vienna Convention
164
164
165
167
169
172
5.
Lack of Interagency Communications
173
V
IMPRISONMENT AND MISTREATMENT IN SYRIA
179
1.
Overview
179
2.
Background Information on Syria’s Human Rights Reputation
179
3.
Initial Period
3.1 Efforts to Locate Mr. Arar
3.2 First Consular Visit
3.3 Date of Arrival in Syria
3.4 Torture
3.5 Assessments by Officials
182
182
184
186
187
190
�CONTENTS
3.6 Implications of Failure to Develop Clear Statement
192
4.
Canadian Investigations
4.1 Bout de Papier
4.2 CSIS Trip
4.2.1 CSIS Investigation into Mr. Arar
4.3 Continuing RCMP Investigation
194
194
197
197
200
5.
Efforts to Obtain Mr. Arar’s Release
5.1 Mr. Edelson’s Letter
5.2 Minister’s Involvement
5.2.1 Meetings with Secretary Powell
5.2.2 Minister Graham’s Telephone Call to Syrian Foreign
Minister
5.3 Mixed Signals
5.3.1 Questions for Mr. Almalki
5.3.1.1 Relevance
5.3.1.2 Background Events
5.3.1.3 Delivery of Questions
5.3.1.4 Conclusions
5.3.2 Alleged CSIS Statement
5.4 Visit by Members of Parliament
5.5 “One Voice” Letter
5.5.1 May 5 Memorandum
5.5.2 June 5 Memorandum
5.5.3 June 17 Proposal
5.5.4 RCMP’s Role
5.5.5 CSIS’ Role
5.5.6 Summary
5.6 Prime Minister’s Letter
201
201
203
203
204
206
206
206
208
210
212
214
219
221
221
223
223
224
226
227
228
Consular Services
6.1 Consular Visits Prior to August 2003
6.2 Distribution of Consular Reports
6.3 August 14 Consular Visit
6.3.1 Background
6.3.2 Visit
6.3.3 Minister’s Statement
6.4 Arranging Legal Assistance
6.4.1 Prior to August 14, 2003
6.4.2 After August 14, 2003
6.4.3 Issues
6.5 Call for Fair and Open Trial
6.6 Maher Arar’s Release
229
229
232
235
235
237
240
241
241
241
243
245
247
6.
5
�6
ANALYSIS AND RECOMMENDATONS
VI
RETURN TO CANADA
251
1.
Overview
251
2.
Trip Home
251
3.
Mr. Arar’s Press Conference
252
4.
Mr. Martel’s Recollections
253
5.
Leaks
5.1 Introduction
5.2 Nature and Context of Leaks
5.3 Sources
5.4 Effects on Mr. Arar
5.5 Final Comment
255
255
257
261
262
263
6.
Incomplete Briefing
263
7.
RCMP Review of Project A-O Canada Investigation
265
VII
ABDULLAH ALMALKI AND AHMAD EL MAATI
267
1.
Introduction
267
2.
Background
267
3.
Mr. Arar’s Removal to Syria
270
4.
Co-operation Between Canadian Investigators and the SMI
271
5.
Efforts to Obtain Mr. Arar’s Release
273
6.
Leaks
274
7.
Pattern of Investigative Practices
274
8.
Muayyed Nureddin
276
9.
Recommendations
276
VIII
FACTUAL INQUIRY PROCESS
279
1.
Introduction
279
2.
Mandate
280
3.
Factual Inquiry Process
3.1 Principles
3.2 NSC Mandate
3.3 Rules of Procedure and Practice
3.4 Standing and Funding
282
282
283
284
285
�CONTENTS
3.5
3.6
3.7
3.8
3.9
3.10
3.11
3.12
3.13
3.14
3.15
3.16
3.17
3.18
The Issue of Causation
Section 13 Notices
Collection of Documents
Commission Counsel
Amici Curiae
Hearings
CSIS Summary
Revised Process
Transition to Public Hearings
3.13.1 Mr. Arar’s Testimony
3.13.2 Fact-Finder
3.13.3 RCMP Evidence
Public Hearings
Certificates of Production
Closing Submissions
Reports
Concluding Observations
287
289
290
291
293
294
295
295
296
296
297
297
298
299
300
300
301
4.
Process Ahead
304
5.
Appearances of Counsel
305
6.
Acknowledgments
307
IX
RECOMMENDATIONS
311
I.
The RCMP’s National Security Activities
312
II.
Information-Sharing Practices of Other Agencies
343
III. Breach of Caveats
344
IV. Investigative Interaction with Countries with Questionable
Human Rights Records
344
V.
349
Canadians Detained in Other Countries
VI. Profiling
355
VII. Use of Border Lookouts
358
VIII. Maher Arar
361
Summary List of Recommendations Arising from Factual Inquiry
364
7
��I
An Overview of My Findings
1.
BACKGROUND
Maher Arar is a Canadian citizen. He is married and has two children. He has a
Bachelor of Engineering in Computers from McGill University and a Master’s
degree in Telecommunications from the University of Quebec’s Institut national
de la recherche scientifique.
On September 26, 2002, while passing through John F. Kennedy
International Airport in New York, Mr. Arar was arrested and subsequently
detained by American officials for 12 days. He was then removed against his will
to Syria, the country of his birth, where he was imprisoned for nearly a year.
While in Syria, Mr. Arar was interrogated, tortured and held in degrading and
inhumane conditions. He returned to Canada after his release on October 5,
2003. Not surprisingly, the effects of this ordeal on Mr. Arar have been devastating and he and his family continue to suffer to this day.
Mr. Arar has never been charged with any offence in Canada, the United
States or Syria. Indeed, although RCMP officers conducting a terrorism-related
investigation were interested in interviewing Mr. Arar, they did not consider
him a suspect or a target of that investigation. They wished to interview him as
a witness because of his associations with certain other individuals. I have heard
evidence concerning all of the information collected about Mr. Arar in Canadian
investigations, and there is nothing to indicate that Mr. Arar committed an
offence or that his activities constitute a threat to the security of Canada.
There was a great deal of media coverage of Mr. Arar’s case in the later
stages of his imprisonment in Syria and even more after his return to Canada.
Concerns were raised about the role Canadian officials might have played in
relation to his detention in the United States, his removal to Syria and his
�10
ANALYSIS AND RECOMMENDATONS
imprisonment and treatment in that country. In response to mounting public
pressure, the Government of Canada called this public inquiry and I was
appointed Commissioner.
The Inquiry mandate is divided into two parts. The first, referred to as the
Factual Inquiry, requires me to investigate and report on the actions of Canadian
officials in relation to Mr. Arar. The second, the Policy Review, directs me to
make recommendations concerning an independent, arm’s-length review mechanism for the RCMP’s activities with respect to national security. Given the different nature of the two parts, I established a separate process for each. This
report pertains only to the Factual Inquiry.
The Factual Inquiry process was thorough and comprehensive, and I am
satisfied that I have been able to examine all the Canadian information relevant
to the mandate. Over 70 government officials were called as witnesses, and the
government produced approximately 21,500 documents, of which some 6,500
were entered as exhibits. The process was complex because of the need to keep
some of the relevant information confidential, to protect national security and
international relations interests. I received some of the evidence in closed, or in
camera, hearings and am unable to refer to some of the evidence heard in those
hearings in the public version of this report. However, I am pleased to say that
I am able to make public all of my conclusions and recommendations, including those based on in camera evidence.
2.
ORGANIZATION AND CONTENT OF REPORT
The Factual Inquiry Report is presented in two parts. The first part, which you
are now reading, contains my analysis of the different aspects of the evidence
and all of my conclusions (chapters I through VII), a description of the Inquiry
process (Chapter VIII) and my recommendations arising from the evidence I
heard during the Inquiry (Chapter IX).
I have written the analysis in such a way as to avoid disclosing information
that is subject to national security confidentiality. For that reason, I sometimes
leave out detail. For example, I occasionally refer to times generally, rather than
specifically, and I do not always identify individuals or agencies. I am nonetheless satisfied that the lack of detail does not mislead the reader about what
occurred. Moreover, I have been careful to ensure that my conclusions are based
on an assessment of all of the evidence, regardless of whether or not it may be
publicly disclosed.
The second part of my Report presents the detailed factual background,
based on the evidence I received during the hearings. There are two versions
�AN OVERVIEW OF MY FINDINGS
of the factual background. One, which may not be disclosed publicly, is a summary of all of the evidence, including that which is subject to national security
confidentiality. The other is a public version, from which I have removed those
parts of the evidence that, in my opinion, may not be disclosed publicly for reasons of national security confidentiality.
A good deal of evidence in the Inquiry was heard in camera. As it turns out,
I have included a significant amount of in camera evidence in the public version. However, because of the amount of evidence not heard in public and not
readily available to the public, I considered it important to prepare a more extensive summary of the evidence than might have been the case in a public inquiry
in which all of the hearings were open to the public and all transcripts of evidence are readily available.
This Report is based primarily on the evidence of Canadian officials. The
governments of the United States, Jordan and Syria declined my invitation to
give evidence or otherwise participate in the hearings. Despite their failure to
participate, I have for the most part been able to determine what actually happened and reach the conclusions required by the mandate. In a few instances,
however, I have been hampered by the lack of evidence of officials of these
other countries. I point these instances out in the Report.
In addition, I have not heard the evidence of Mr. Arar. For reasons of fairness, it was not deemed appropriate for Mr. Arar to testify before the release of
the Report, the idea being that the Report would provide the maximum amount
of disclosure of information to him about what had occurred. I have indicated
to him that, if he wishes, he may apply to me to testify in the future. Should he
do so, I will consider his request at that time. I do occasionally point out in the
Report that Mr. Arar’s evidence might shed additional light on a particular event
or conclusion. In the main, however, I do not think that I was limited in any significant way by not hearing Mr. Arar’s evidence.
3.
SCOPE OF MY MANDATE AND THE ISSUE OF CAUSATION
An Order in Council sets out the mandate for the Inquiry. The parts relevant to
the Factual Inquiry read as follows:
(a) to investigate and report on the actions of Canadian officials in relation
to Maher Arar, including with regard to
(i) the detention of Mr. Arar in the United States,
(ii) the deportation of Mr. Arar to Syria via Jordan,
(iii) the imprisonment and treatment of Mr. Arar in Syria,
11
�12
ANALYSIS AND RECOMMENDATONS
(iv) the return of Mr. Arar to Canada, and
(v) any other circumstance directly related to Mr. Arar that the
Commissioner considers relevant to fulfilling this mandate . . . .1
There are two purposes to this part of the mandate: to investigate and report
fully on the matters described in the mandate; and to make recommendations
with respect to matters that are disclosed in the evidence. In order to fulfill these
purposes, it is necessary that I make findings of fact and, in some circumstances,
assess those facts and make evaluations about what happened and why.
Government counsel and counsel for certain RCMP officers have argued
that I should not make any negative or critical findings with respect to their
clients unless I am able to find as a fact that the actions of their clients “caused
or contributed to” what happened to Mr. Arar. They have contended that,
because the American and Syrian authorities declined to testify at the Inquiry,
there is no evidence about what caused American officials to detain and remove
Mr. Arar to Syria or what caused the Syrian authorities to imprison and torture
him. They have submitted that, absent findings that link actions of their clients
to Mr. Arar’s fate as described in the mandate, I am not permitted to make findings of misconduct — negative or critical comments — in relation to their clients.
I do not accept this argument. It invokes an overly technical and legalistic
approach to the Inquiry and is based on an unduly narrow interpretation of the
mandate. The mandate, by its terms, is not limited to examining actions that can
be established to have caused Mr. Arar’s fate; rather, it directs me to consider
actions of Canadian officials “in relation to Mr. Arar.” The use of the phrase “in
relation to” suggests a broader investigation and report than one focused solely
on the “causes” of what happened to Mr. Arar.
Moreover, the mandate is not limited to examining the events set out in
subparagraphs i) to iv). The list is preceded by the word “including” and, in
subparagraph v), the mandate directs that I also examine “any other circumstance directly related to Mr. Arar that [I consider] relevant to fulfilling the
mandate.”
I agree with those who argue that a public inquiry should not be turned into
a fault-finding exercise. Indeed, in preparing this report, I have avoided making
unnecessary negative or critical comments about individuals or agencies. That
said, I have found it necessary in some instances to make comments that may
be viewed as negative or critical in order to fully report on what occurred. In
addition, I thought it necessary, in several places in the Report, to point to the
shortcomings, as I viewed them, in what Canadian officials did or did not do in
�AN OVERVIEW OF MY FINDINGS
relation to Mr. Arar, for purposes of making the recommendations contained in
Chapter IX. I discuss this issue of causation further in Chapter VIII.
4.
SUMMARY OF MAIN CONCLUSIONS
The following are my main conclusions, presented under four headings that
reflect the different stages examined: information sharing prior to Mr. Arar’s
detention, Mr. Arar’s detention in New York and removal to Syria, his imprisonment and mistreatment in Syria, and the period after his return to Canada.
4.1
INFORMATION SHARING PRIOR TO MR. ARAR’S DETENTION
•
•
•
•
•
The RCMP provided American authorities with information, including the
entire database from the aforementioned terrorism investigation, in ways
that did not comply with RCMP policies requiring screening for relevance,
reliability and personal information. Some of the information related to
Mr. Arar.
The RCMP provided American authorities with information about Mr. Arar
that was inaccurate, portrayed him in an unfairly negative fashion and overstated his importance in the RCMP investigation.
The RCMP provided American authorities with information about Mr. Arar
without attaching written caveats,2 as required by RCMP policy, thereby
increasing the risk that the information would be used for purposes of
which the RCMP would not approve, such as sending Mr. Arar to Syria.
The RCMP requested that American authorities place lookouts for Mr. Arar
and his wife, Monia Mazigh, in U.S. Customs’ Treasury Enforcement
Communications System (TECS). In the request, to which no caveats were
attached, the RCMP described Mr. Arar and Dr, Mazigh as “Islamic Extremist
individuals suspected of being linked to the Al Qaeda terrorist movement.”3
The RCMP had no basis for this description, which had the potential to create serious consequences for Mr. Arar in light of American attitudes and
practices at the time.
Project A-O Canada was the front-line investigative unit in the RCMP that
conducted the investigation in which Mr. Arar was a person of interest, and
it was that unit that provided information about Mr. Arar to American agencies. The RCMP, as an institution, gave Project A-O Canada unclear and, in
some instances, misleading direction concerning the manner in which
13
�14
ANALYSIS AND RECOMMENDATONS
•
information should be shared, and failed to properly oversee the Project’s
investigation, including its information-sharing practices.
CSIS did not share any information about Mr. Arar with the American
authorities prior to his detention in New York and removal to Syria.
4.2
DETENTION IN NEW YORK AND REMOVAL TO SYRIA
•
•
•
•
•
There is no evidence that Canadian officials participated or acquiesced in
the American authorities’ decisions to detain Mr. Arar and remove him to
Syria.
It is very likely that, in making the decisions to detain and remove Mr. Arar,
American authorities relied on information about Mr. Arar provided by the
RCMP.
While Mr. Arar was being detained in New York on September 26, 2002,
the RCMP provided the U.S. Federal Bureau of Investigation (FBI) with
information about him, some of which portrayed him in an inaccurate and
unfair way.
Without the evidence of the American authorities, I am unable to conclude
what role, if any, the TECS lookout requested by the RCMP played in the
American decisions to detain Mr. Arar and remove him to Syria.
During Mr. Arar’s detention in New York, consular officials with the
Canadian Department of Foreign Affairs and International Trade (DFAIT)4
took reasonable steps to provide Mr. Arar with consular services, including
addressing the possibility that he might be sent to Syria.
4.3
IMPRISONMENT AND MISTREATMENT IN SYRIA
•
•
Mr. Arar arrived in Syria on October 9, 2002 and was held incommunicado
until October 22, 2002. In the intervening period, he was interrogated and
tortured.
I am unable to conclude whether or not Canadian officials could have
obtained Mr. Arar’s release from Syrian imprisonment at an earlier point in
time. However, there is cause for serious concern in regard to a number of
�AN OVERVIEW OF MY FINDINGS
actions taken by Canadian officials during Mr. Arar’s imprisonment, including some that could have had an effect on the time taken to release
Mr. Arar:
–
On receiving a summary of a statement made by Mr. Arar while in
Syrian custody in early November 2002, DFAIT distributed it to the
RCMP and CSIS without informing them that the statement was likely
a product of torture. That statement became the basis for heightened
suspicion in some minds about Mr. Arar’s involvement in terrorism.
That was unfair to him.
–
In November 2002, CSIS received information about Mr. Arar from the
Syrian Military Intelligence (SMI) and did not do an adequate reliability assessment as to whether the information was likely the product of
torture. Indeed, its assessment was that it probably was not.
–
In January 2003, the RCMP, acting through the Canadian Ambassador,
sent the SMI questions for Abdullah Almalki, the subject of the relevant
investigation and also in Syrian custody. This action very likely sent a
signal to Syrian authorities that the RCMP approved of the imprisonment and interrogation of Mr. Almalki and created a risk that the SMI
would conclude that Mr. Arar, a person who had some association
with Mr. Almalki, was considered a serious terrorist threat by the
RCMP.
–
In March and April 2003, DFAIT failed to take steps to address the
statement by Syrian officials that CSIS did not want Mr. Arar returned
to Canada.
–
In May and June 2003, the RCMP and CSIS were not supportive of a
DFAIT initiative to send the Syrians a letter conveying that Canada
spoke with one voice in seeking Mr. Arar’s release.
–
From time to time, DFAIT distributed reports of consular visits with
Mr. Arar to the RCMP and CSIS. Ostensibly, this was done to seek
assistance for Mr. Arar. However, DFAIT failed to make that purpose
clear or to ensure that the reports were used only for that purpose.
–
On several occasions, there was a lack of communication among the
Canadian agencies involved in Mr. Arar’s case. There was also a lack
of a single, coherent approach to efforts to obtain his release.
–
DFAIT consular officials took reasonable steps to obtain consular
access to Mr. Arar throughout his imprisonment in Syria.
15
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ANALYSIS AND RECOMMENDATONS
4.4
AFTER MR. ARAR’S RETURN TO CANADA
•
•
•
Following Mr. Arar’s return, reports were prepared within government that
had the effect of downplaying the mistreatment or torture to which Mr. Arar
had been subjected.
Both before and after Mr. Arar’s return to Canada, Canadian officials leaked
confidential and sometimes inaccurate information about the case to the
media for the purpose of damaging Mr. Arar’s reputation or protecting their
self-interests or government interests.
When briefing the Privy Council Office and senior government officials
about the investigation regarding Mr. Arar, the RCMP omitted certain key
facts that could have reflected adversely on the Force.
5.
SUMMARY ANALYSIS
In the sections that follow, I provide an overview of the analysis on which I have
based my conclusions concerning the actions of Canadian officials in relation to
Mr. Arar, again broken down by stage.
5.1
PRE-DETENTION
5.1.1
Formation of Project A-O Canada
Project A-O Canada was the investigative unit of the RCMP that conducted the
investigation that in time involved Maher Arar. Created in the aftermath of the
September 11, 2001 terrorist attacks on the United States, the Project was
directed to carry out an investigation, centred in Ottawa, into the activities of
Abdullah Almalki, a person suspected of being associated with al-Qaeda. The
Project was also charged with investigating any leads about the threat of a second wave of attacks after the events of 9/11. In the months that followed, the
scope of the Project’s investigation expanded to include new information that it
received about other individuals and activities.
During the Inquiry, two issues arose with respect to the formation of
Project A-O Canada. First, there was some suggestion that, in the wake of 9/11,
the RCMP had been thrust back into the national security field and that, as a law
enforcement agency, it inappropriately had become involved in investigations
�AN OVERVIEW OF MY FINDINGS
within the mandate of CSIS, Canada’s civilian security intelligence agency. I will
comment on this suggestion only as it relates to Project A-O Canada.
In late September and early October 2001, CSIS transferred to the RCMP
prime responsibility for a number of investigations, which subsequently led to
the creation of Project A-O Canada. I have no reason to believe that the transfer of this investigation was inappropriate. CSIS witnesses testified that investigations were selected for transfer when they were found suitable for continued
investigation by a law enforcement agency. By that, they meant that there had
to be a sufficient nexus to criminal activity to engage the RCMP’s mandate to
either prevent, or prosecute the commission of, criminal offences. That said, I
did not review all of the information about the previous CSIS investigations.
To do so would have been an enormous task and well beyond my mandate.
However, there was nothing in the evidence that I did hear about the Project
A-O Canada investigation that raised a concern in my mind that the investigation that eventually involved Mr. Arar should not have been transferred to the
RCMP.
I hasten to point out that one should not read into my comments a conclusion that Abdullah Almalki, the subject of that investigation, has committed
any offence or is a threat to Canada’s national security. On the contrary,
Mr. Almalki, who has been the subject of investigation for a considerable period
of time, has never been charged with any offence and is presumed to be innocent of any criminal activity.
The second issue with respect to the formation of Project A-O Canada had
to do with the training and experience of its members. The officers assigned to
Project A-O Canada were, in the view of their superiors, among the best investigators available. Many of them had extensive experience with large and complicated investigations involving financial transactions. Others had a wide array
of skills of value to the investigative team. The major shortcoming was that, with
few exceptions, the officers assigned to Project A-O Canada, including the
Project managers, lacked experience and training in conducting national security investigations and in addressing human rights and cultural sensitivity issues
that might arise in such investigations.
While I accept that, given the circumstances immediately after 9/11, the
RCMP had no choice but to form the Project team as it did, it was incumbent
upon the RCMP to ensure that the Project received clear direction and proper
oversight with respect to the unique aspects of a national security investigation
that fell outside the previous experience of the great majority of the officers. In
this regard, the RCMP failed completely, particularly in the critically important
area of information sharing with American agencies.
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ANALYSIS AND RECOMMENDATONS
The officers of Project A-O Canada were given little guidance. They were
largely left on their own. Even more troubling, the directions the RCMP did provide about how information should be shared with the American agencies were
unclear and misleading. As events developed, the Project provided those agencies with information about Mr. Arar that was inaccurate and unfairly prejudicial to him. The information was provided in contravention of RCMP policy
requiring that information be screened for relevance, reliability and personal
information before being shared and that written caveats be attached to control
the use to which the information is put.
5.1.2
Early Investigative Steps
Mr. Arar first came to the attention of Project A-O Canada as a result of a meeting he had with Abdullah Almalki at Mango’s Café in Ottawa on October 12,
2001. I am satisfied that, based on the information available to them, the Project
members had reasonable grounds to conduct surveillance of this meeting.
This was a routine and proper investigative step and was not the result of racial
profiling.
I am also satisfied that, as a result of the meeting at Mango’s Café, the
Project properly considered Mr. Arar to be a person of interest in its investigation. While the meeting might have been innocent, there were aspects of it that
reasonably raised the investigators’ antennae. Messrs. Almalki and Arar were
seen walking together in the rain and conversing for 20 minutes. Given that
Mr. Almalki was a target of the investigation, it was reasonable for the Project
to investigate Mr. Arar, about whom it had no information at the time.
The investigators conducted background searches on Mr. Arar using public source information. The process included obtaining copies of Mr. Arar’s
rental application and tenancy agreement from his landlord’s management company. The emergency contact given on Mr. Arar’s rental application was
Mr. Almalki.
Mr. Arar’s counsel questioned whether obtaining the rental documents had
been proper, given that there had been no search warrant or even the basis for
obtaining one. I conclude that there was nothing improper in Project A-O
Canada obtaining these documents without a warrant. The officers asked for
the documents and the property manager, who had a proprietary interest in
them, produced them. There was no compulsion, and the property manager did
not suggest that Mr. Arar had a privacy interest in any information in the
documents.
�AN OVERVIEW OF MY FINDINGS
5.1.3
Border Lookouts
Towards the end of October 2001, Canada Customs5 placed border lookouts for
Mr. Arar and his wife, Dr. Mazigh, at the request of Project A-O Canada. The
lookouts were intended to ensure that Mr. Arar and Dr. Mazigh would undergo
both primary and secondary examinations when entering Canada. Any person
entering Canada may be subjected to a secondary examination; however, when
there is a lookout, the front-line Customs officers must refer the person for a secondary examination.
I am satisfied that Project A-O Canada had sufficient reason at the time to
request a lookout for Mr. Arar. In any investigation, it is important to determine
the role, if any, of persons associated with the subject of the investigation, in this
case Mr. Almalki. By then, Mr. Arar was properly a person of interest to the
investigators, who were aware that he had met with Mr. Almalki at Mango’s
Café and that he had listed him as an emergency contact on his rental application, indicating they might have close ties.
There is a reduced expectation of privacy at the border when any person
is entering Canada, and secondary examinations are frequently conducted where
search warrants cannot be obtained. In the circumstances, requesting a lookout
for Mr. Arar was an appropriate investigative step.
Once a lookout request is received, it falls to Canada Customs to decide
whether there are “reasonable grounds” for issuing the lookout. For the same
reasons I conclude it was reasonable for Project A-O Canada to request a lookout for Mr. Arar, I am satisfied that Canada Customs had reasonable grounds for
issuing it.
That said, the lookout for Mr. Arar was designated a “terrorism” lookout.
According to a Canada Customs bulletin, that designation is used when someone is suspected of being a member, associate or sympathizer of a known terrorist organization. Mr. Arar did not meet these criteria. He was not suspected
of being a member of a terrorist organization and should not have been labelled
in this fashion in the lookout. To do so was unfair to Mr. Arar, who was merely
a person of interest. It is essential that precise and accurate language be used
when describing an individual’s role in a terrorism-related investigation, particularly in these times of heightened concern about public safety and national
security. Labels have a way of sticking to individuals, reputations are easily damaged and when labels are inaccurate, serious unfairness to individuals can result.
In regard to Dr. Mazigh, I conclude that there was no basis for the RCMP
to request a lookout for her and no basis for Canada Customs to place the
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ANALYSIS AND RECOMMENDATONS
lookout. The important distinction between Mr. Arar and Dr. Mazigh is the factual connection with Mr. Almalki. Mr. Arar was a person of interest because of
his association with Mr. Almalki, but the RCMP had no information suggesting
a link between Dr. Mazigh and Mr. Almalki. While it may make sense to include
the spouse of a suspect in a lookout because that person might be involved in
the suspect’s activities, that rationale does not extend to the spouse of someone
who is merely a person of interest and not suspected of any wrongdoing, such
as Mr. Arar.
Further, the lookout for Dr. Mazigh, as for Mr. Arar, was a “terrorism” lookout. Labelling Dr. Mazigh in this fashion was inaccurate. It was wrong and very
unfair to her.
At the same time Project A-O Canada requested Canada Customs lookouts
for Mr. Arar and Dr. Mazigh, it also requested U.S. border lookouts for them.
U.S. Customs has a computer system called the Treasury Enforcement
Communications System (TECS), which provides lookout information on suspect
individuals, businesses, vehicles, aircraft and vessels.
U.S. authorities declined the invitation to testify at the Inquiry. According
to my understanding of the system, organizations around the world may submit
requests to have individuals placed on a TECS lookout, and RCMP officers routinely make such requests. However, I have little information about how
American agencies would have used the Project A-O Canada request and what
the consequences might have been for Mr. Arar and Dr. Mazigh in the post-9/11
environment in the United States.
There was no RCMP policy or directive laying down the criteria for submitting foreign lookout requests. It appears, however, that making such requests
was considered a normal investigative step at the time. In Chapter IX, I recommend that the RCMP develop guidelines for submitting lookouts to foreign countries, giving specific consideration to the use to be made of the lookouts and the
potential impact of the lookouts on the civil liberties of the individuals affected.
It is important that the RCMP have policies that set out the circumstances under
which such potentially important steps as requesting a foreign border lookout
should be taken.
In regard to the U.S. lookout for Dr. Mazigh, it is clear that the RCMP should
not have requested such a lookout, for the same reason that it should not have
requested a Canadian lookout.
One aspect of the Canadian and American lookout requests that is highly
alarming is the most unfair way in which Project A-O Canada described Mr. Arar
and Dr. Mazigh. The requests indicated they were part of a “group of Islamic
Extremist individuals suspected of being linked to the Al Qaeda terrorist
�AN OVERVIEW OF MY FINDINGS
movement,”6 a description that was inaccurate, without any basis, and potentially
extremely inflammatory in the United States in the fall of 2001. I discuss the
language used in this letter in more detail below, in my comments on
Project A-O Canada’s information-sharing practices.
5.1.4
Canada Customs Secondary Examinations
Canada Customs carried out three secondary examinations that warrant comment: two of Mr. Arar, on November 29 and December 20, 2001, and one of
Dr. Mazigh, on November 14, 2002.
During Mr. Arar’s secondary examinations, officials photocopied documents found in his possession. With the exception of some teaching materials,
those documents related to Mr. Arar’s travel and personal identification. I am satisfied that, in copying these documents, Canada Customs officials acted in accordance with the Customs Enforcement Manual and relevant Enforcement Bulletin
as they existed then. There was nothing of a particularly private nature about the
travel and personal information obtained from the documents. The one possible exception to this conclusion involves the teaching materials, on which I cannot comment without hearing from Mr. Arar. I also conclude that, under the
Customs Act, Customs officials had the authority to provide the RCMP with the
information copied from Mr. Arar’s documents.
During the December 20, 2002 secondary examination, apart from copying
documents found in Mr. Arar’s possession, Customs officials seized Mr. Arar’s
computer and personal digital assistant (PDA) for non-payment of duties and
then copied information from those devices that was accessible without the use
of a password. Based on the description of what occurred set out in a report by
the Customs official who conducted the secondary examination, I find that
Canada Customs had authority to seize the articles for non-payment of duties.7
I am also satisfied that the Customs officials who copied information from
Mr. Arar’s computer and PDA believed, reasonably in the circumstances, that
they were authorized to do so. However, I do not have sufficient information
to determine whether in fact they had the authority under the Customs Act to
conduct those examinations or whether such examinations breached Mr. Arar’s
privacy rights under the Canadian Charter of Rights and Freedoms. I would
need the evidence of Mr. Arar as a starting point.
As I have indicated, Dr. Mazigh should not have been the subject of the
lookout that triggered her secondary examination on November 14, 2002. The
examination therefore should not have taken place. Moreover, Canada Customs
uploaded the profiles of Dr. Mazigh and her children, who were travelling with
21
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ANALYSIS AND RECOMMENDATONS
her, into the Intelligence Management System (IMS), an automated facility for
reporting and compiling intelligence information on targets known or suspected
to be potential border risks. While the uploaded information was basic information obtained from the travel itinerary and identification documents of
Dr. Mazigh and her children, it should not have been uploaded into the IMS, as
Dr. Mazigh and her children were not known or suspected to be potential border risks.
5.1.5
Information Sharing With American Agencies
I want to start the discussion about information sharing by making it clear that
nothing in this report should be taken to indicate that Canadian agencies should
not share information with American agencies. On the contrary, I strongly
endorse the importance of information sharing. Sharing information across borders is essential for protecting Canada’s national security interests, in that it
allows more complete and accurate assessments of threats to our security. The
importance of information sharing has increased in the post-9/11 era, when it is
clear that the threats that need to be addressed are globally-based and not confined within national borders. However, information must be shared in a principled and responsible manner. There is good reason for the RCMP’s written
policies governing information sharing. Those policies make sense and it is
important that they be followed.
The most significant problems arising from the Project A-O Canada investigation pertained to information sharing with the United States. Unfortunately,
the RCMP gave Project A-O Canada unclear and even misleading directions on
how to share information with the American agencies primarily responsible for
terrorist activities in the U.S. and then failed to adequately oversee the Project’s
practices in that regard. As a result, Project A-O Canada did not comply with
RCMP policies with regard to screening information and attaching caveats to
information provided to other agencies.
5.1.5.1
RCMP Policies
As indicated above, the RCMP has policies requiring that information to be
shared with other agencies be screened for relevance, reliability and personal
information and that caveats be attached.
The RCMP has a legitimate concern, indeed a responsibility, to ensure that
information it provides to other agencies is accurate and appropriate for sharing in the particular circumstances; hence the need for screening.
�AN OVERVIEW OF MY FINDINGS
It is also important that the RCMP control, to the extent it is able, the use
to which information provided to other agencies may be put. Written caveats are
used by the RCMP and other agencies that share information to try to prevent
recipient agencies from further disseminating information or using it for purposes of which they do not approve. While such caveats do not guarantee protection against unacceptable use, common sense tells us that they should
significantly reduce the risk.
The fact that Project A-O Canada did not attach written caveats to the information about Mr. Arar provided to American agencies increased the risk that
those agencies would use the information for purposes unacceptable to the
RCMP, such as removing him to Syria.
5.1.5.2
Original Arrangement
Immediately after the events of 9/11, the RCMP, CSIS, and the American agencies primarily responsible for terrorist activities in the U.S. met to discuss the
threat of another terrorist attack and the need for increased co-operation and
coordination among the agencies, including the sharing of information in “real
time,” that is, in a prompt manner. In making its information-sharing arrangement, the RCMP did not intend to deviate from existing policies requiring that
information be screened before being shared and that caveats be attached to any
documents provided to other agencies.
The senior officer with the Criminal Intelligence Directorate (CID) at RCMP
Headquarters discussed the arrangement with senior officers in the various divisions, including those at “A” Division in Ottawa. They in turn discussed it with
Project A-O Canada managers. Instructions connected with the informationsharing arrangement were passed down the RCMP chain of command by word
of mouth. Those involved now have varying recollections about what was
intended and what instructions were given.
In the end, the Project managers had a very different understanding of the
arrangement than what was intended by the senior CID officers. According to
their testimony, they understood that “caveats were down” — in other words,
notwithstanding RCMP policy, there was no need to attach written caveats to
documents being shared with the other partner agencies. However, in their
minds, there was an implicit understanding that the information would be used
for intelligence purposes only. Further, the Project managers understood that
all information obtained by the Project could be transferred to the “partners to
the agreement,” that is, CSIS and the American partner agencies, without
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ANALYSIS AND RECOMMENDATONS
screening the information for relevance, reliability or personal information, pursuant to RCMP policy.
Project A-O Canada also understood that it could share information received
from one party to the arrangement with the other parties without the consent
of the originator, even if caveats had been attached by the originator. This was
another departure from RCMP policy not intended by senior CID officers.
Moreover, CSIS, which was a party to the original arrangement, did not believe
there had been such an arrangement or agreement.
As a result of these understandings, Project A-O Canada provided a large
amount of information to the American agencies in a manner that contravened
RCMP policies and was very different from what had been intended by senior
CID officers. These highly alarming practices began shortly after the start of the
Project’s investigation in October 2001 and continued until the summer of 2002,
when officers with CID took steps to bring the Project’s information-sharing
practices into line with RCMP policy.
The most serious incident in this regard in the period leading up to
Mr. Arar’s detention in New York occurred in April 2002, when Project
A-O Canada provided the American agencies with its entire investigative database, in the form of three compact discs (CDs), without screening the information beforehand or attaching written caveats.
These failures should never have occurred. It was incumbent upon the
RCMP and its senior officers to ensure that Project A-O Canada received clear
and accurate direction with regard to how information was to be shared and to
exercise sufficient oversight to rectify any unacceptable practices. Indeed, there
was an especially strong need for direction and oversight because of the lack of
training and experience in national security investigations of most of the
Project A-O Canada members, including the managers.
5.1.5.3
Inaccurate Information
Project A-O Canada supplied the American agencies with a good deal of inaccurate information about Mr. Arar, some of which was inflammatory and unfairly
prejudicial to him.
As mentioned above, in its request for U.S. border lookouts, Project A-O
Canada described Mr. Arar and his wife as Islamic extremists suspected of being
linked to the al-Qaeda movement. Everyone who testified accepts that this
description was wrong and should not have been given to the Americans. There
was no basis for such an assertion. The request was sent to U.S. Customs in late
October 2001, but it was also given directly to the American agencies five
�AN OVERVIEW OF MY FINDINGS
months later, in April 2002. The potential consequences of labelling someone an
Islamic extremist in post-9/11 America are enormous.
Prior to Mr. Arar’s detention in New York on September 26, 2002,
Project A-O Canada provided documents to the American agencies that variously described Mr. Arar as a suspect, a target, a principal subject of its investigation, a person with an “important” connection to Mr. Almalki, a person directly
linked to Mr. Almalki in a diagram titled “Bin Laden’s Associates: Al Qaeda
Organization in Ottawa,” and a business associate or a close associate of
Mr. Almalki.
These descriptions were either completely inaccurate or, at a minimum,
tended to overstate Mr. Arar’s importance in the Project A-O Canada investigation. I repeat that Project A-O Canada’s view was that Mr. Arar was never a suspect — he was merely a person of interest. While it might be that, in meetings,
the Project’s officers communicated this actual view of Mr. Arar’s status in the
investigation, there was no justification for the improper and unfair labels
attached to him in written documents. Written labels, particularly when no
caveats are attached, have a way of sticking to an individual and then spreading to others and becoming the accepted fact or wisdom. Threats of terrorism
understandably arouse fear and elicit emotional responses that, in some cases,
lead to overreaction. The need for accuracy and precision when sharing information in terrorist investigations cannot be overstated. This is especially so when
the information is contained in a document that, rightly or wrongly, carries an
air of authority. Statements made by police officers tend to be taken at face
value.
In addition to unfairly labelling Mr. Arar, Project A-O Canada provided U.S.
agencies with some factually inaccurate information about him. For example, it
passed on erroneous notes taken by RCMP officers during an interview with
Abdullah Almalki’s brother that indicated that the brother had said Mr. Arar had
a business relationship with Abdullah Almalki, when in fact the brother had
indicated that he wasn’t sure whether Mr. Arar had a business relationship with
his brother. Further, a report supplied to the Americans about the meeting at
Mango’s Café erroneously stated that Mr. Arar had travelled from Quebec to
meet Mr. Almalki, giving an unfounded sense of importance to the meeting.
In a presentation to American authorities in May 2002, Project A-O Canada
provided information that tended to link Mr. Arar to certain other individuals
who were suspects in the investigation. That information turned out to be inaccurate. At the same time, the Project informed the American authorities that
Mr. Arar had refused to be interviewed by it in January 2002. That was also
incorrect. Mr. Arar had actually agreed to be interviewed, but subject to
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ANALYSIS AND RECOMMENDATONS
conditions recommended by his counsel, which Project A-O Canada had found
unacceptable. The statement about the refusal to be interviewed had the potential to arouse suspicion, especially among law enforcement officers, that Mr. Arar
had something to hide.
While Project A-O Canada might have provided the American authorities
with a good deal of accurate information, there is no excuse for its sharing of
inaccurate or imprecise information. I do not accept the arguments made by
some that the inaccuracies were minor or hair-splitting. In my view, they were
not. During the Inquiry, investigators frequently emphasized the need to share
all relevant information, even seemingly insignificant details, with other agencies,
as one never knows what importance information may have in the overall picture being pieced together. A series of relatively minor details, when taken
together, can create a picture of someone who is heavily involved in illegal
activities. This rationale for sharing information highlights the importance of
accuracy and precision in the details being shared. If details are important, they
should be accurate.
I accept that the members of Project A-O Canada did not intend to provide
inaccurate information to American authorities. However, proper screening
would have prevented most, if not all, of the inaccuracies. In any event, this is
an instance where the Project members’ lack of training and experience in
national security investigations appears to have played a part.
5.1.6
Role of RCMP Headquarters
Project A-O Canada provided CID at RCMP Headquarters with a considerable
amount of information about its investigation on an ongoing basis. It routinely
supplied daily situation reports describing the investigative steps taken, and
Project officers met periodically with CID officers to inform them about the
investigation.
Nonetheless, there were a number of serious failures of communication
between the Project and CID, the most important being the misunderstanding
about how information should be shared with other agencies, discussed above.
Ultimately, it was the responsibility of the RCMP as an institution to ensure that
information was shared properly and in accordance with established policies. It
failed to discharge that responsibility.
There was another problem with communications between Project
A-O Canada and senior RCMP officers. During its investigation, the Project provided senior officers at “A” Division and CID at RCMP Headquarters with essentially the same information it gave the American agencies, which, as described
�AN OVERVIEW OF MY FINDINGS
above, was sometimes inaccurate in regard to Mr. Arar and tended to unfairly
overstate his importance in the Project investigation. Later, when Mr. Arar was
in Syrian custody, these inaccuracies might have played a role in the RCMP’s
institutional responses to requests for assistance in obtaining his release. I discuss this issue below.
More generally, I observe that, given that Project A-O Canada had few officers with experience or training in national security investigations, I would have
expected CID to exercise more, rather than less, oversight. That did not happen.
While CID, like other units of the RCMP, might have been burdened with an
increased workload in the aftermath of 9/11, it would not have been terribly
time-consuming to ensure that Project A-O Canada received clear instructions
with regard to information sharing and the need to comply with RCMP policies.
5.2
DETENTION IN NEW YORK AND REMOVAL TO SYRIA
5.2.1
Canadian Investigators
On September 26, 2002, Mr. Arar arrived at John F. Kennedy International
Airport in New York on a flight from Zurich, Switzerland. He had started his trip
in Tunisia and was connecting though New York on his way to Montreal. Upon
his arrival at the airport in New York, he was detained by American authorities.
Mr. Arar is a citizen of both Canada and Syria. On October 7, 2002, the
Regional Director of the U.S. Immigration and Naturalization Service (INS) issued
an order finding Mr. Arar to be a member of al-Qaeda and directing his removal
from the United States. On October 8, Mr. Arar, still in American custody, was
flown to Jordan. A short time later, he was driven to Syria, where he was imprisoned for almost a year.
The RCMP had several communications with members of the American
agencies about Mr. Arar shortly before and during the time he was detained in
New York. Three of those communications are noteworthy.
Prior to Mr. Arar’s arrival in New York on September 26, 2002, the FBI contacted Project A-O Canada to inform it of the American authorities’ intention to
question Mr. Arar and deny him entry into the United States, and to ask whether
the RCMP had any questions it wanted put to Mr. Arar while he was in New
York. The same day, the Project faxed the FBI a list of questions for Mr. Arar. I
conclude that Project A-O Canada did not act improperly in sending the questions. At the time, the Canadian officers believed Mr. Arar would be denied entry
to the United States and promptly sent back to Zurich. There was a legitimate
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ANALYSIS AND RECOMMENDATONS
investigative reason for sending the questions, as Mr. Arar was a person of interest in the Project’s investigation and might have information as a witness that
would further the investigation. Moreover, the Project members believed that the
American authorities would extend a person in Mr. Arar’s position similar protection to that provided by Canadian law.
However, in sending the questions, Project A-O Canada included information about Mr. Arar that was inaccurate and portrayed him in an unfair way. It
indicated that Mr. Arar had been in the vicinity of Washington, D.C. on
September 11, 2001, which was false. This information could have unfairly raised
a suspicion about Mr. Arar’s connections. Also, a concluding section of the fax
stated that Mr. Arar had declined to be interviewed in January 2002 and, soon
after, had suddenly left Canada for Tunisia. There are a number of problems with
this information. Mr. Arar did not decline an interview. He agreed to be interviewed, subject to certain conditions. He did not leave Canada soon after the
interview request. He left five months later. There is no evidence that he left
“suddenly.” Linking these inaccurate pieces of information together painted an
incorrect and potentially inflammatory picture of someone who had refused to
be interviewed, probably because he had had something to hide, and had
quickly pulled up roots and left Canada, where he had been living with his family, in order to avoid further investigation. The Project did not attach a caveat to
this information.
Earlier in this chapter, I discuss the importance of providing accurate and
precise information. The provision of this inaccurate information, particularly
without a caveat, at what turned out to be a critically important time in Mr. Arar’s
ordeal was unfortunate, to put it mildly, and totally unacceptable.
On October 3, 2002, [***] sought the assistance of the RCMP’s CID in a fax
containing seven specific questions about Mr. Arar and his activities and associations. The fax indicated two potential purposes for the information: Mr. Arar’s
removal from the United States pursuant to the INS process, and law enforcement proceedings. CID forwarded the fax to Project A-O Canada, which
responded the next day.
I am satisfied that it was appropriate for the RCMP to respond to the questions. Importantly, the response made it clear that the Project had yet to complete a detailed investigation of Mr. Arar and was unable to indicate links to
al-Qaeda. Moreover, the information in the response was accurate, the way it
was provided complied with RCMP screening policies, and a caveat was
attached. It is also worth noting that, at the time, the RCMP still did not know
that the United States was contemplating sending Mr. Arar to Syria.
�AN OVERVIEW OF MY FINDINGS
Unfortunately, the RCMP did not take the opportunity presented by this
exchange to point out that all previous disclosures of information made without written caveats were subject to the same caveat as the October 4 response.
Further, while the Project pointed out that it was unable to indicate links
between Mr. Arar and al-Qaeda, it did not go further and correct the inaccurate
information already provided to the American agencies about Mr. Arar, including the label of Islamic extremist.
Finally, I note that, in its response, the RCMP provided information received
from CSIS that was subject to caveats without obtaining the consent of CSIS to
do so. This was a breach of both the CSIS caveats and RCMP policy.
The RCMP’s third communication of note with American authorities during
Mr. Arar’s detention in New York actually involved two phone calls between
Corporal Rick Flewelling of CID and an FBI agent, the first on October 4 and
the second on October 5. During the second call, the FBI agent said that the
United States did not have enough information to charge Mr. Arar and was looking to remove him. He indicated that Mr. Arar had asked to be sent to Canada,
and Washington wanted to know whether the RCMP could charge him or refuse
him entry to Canada. The corporal responded that there was not enough evidence to charge Mr. Arar in Canada and that it was likely that he could not be
refused entry to Canada.
I accept Corporal Flewelling’s evidence that it did not occur to him that the
American authorities were considering Syria as an option. He believed that
Mr. Arar would either be returned to Zurich or be sent to Canada. I am satisfied
that the RCMP was not informed of the possibility of Syria as a destination until
at least October 7.
On October 7, 2002, the U.S. INS ordered that Mr. Arar be removed from
the United States because he had been found to be a member of al-Qaeda. Much
of the information relied upon to make the order was contained in an appendix that has not been disclosed publicly.
I reach the following conclusions in regard to the two American decisions
of interest to my mandate, that is, the decision to detain Mr. Arar in New York
and the decision to remove him to Syria:
•
Canadian officials did not participate or acquiesce in the American decisions to detain Mr. Arar and remove him to Syria. I have thoroughly
reviewed all of the evidence relating to events both before and during
Mr. Arar’s detention in New York, and there is no evidence that any
Canadian authorities — the RCMP, CSIS or others — were complicit in those
decisions.
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ANALYSIS AND RECOMMENDATONS
•
•
It is very likely that, in making the decisions to detain and remove Mr. Arar
to Syria, the U.S. authorities relied on information about Mr. Arar provided
by the RCMP. Although I cannot be certain without the evidence of the
American authorities, the evidence strongly supports this conclusion. Over
time, a good deal of information about Mr. Arar that would undoubtedly
have raised suspicions about him was supplied without caveats to the
American agencies by the RCMP. Indeed, although the appendix containing
the confidential information in the removal order has not been disclosed,
the publicly available portion of the order refers to information that originated in Canada. Moreover, on many occasions after the event, several
American officials, including then Secretary of State Colin Powell, said that
the American authorities had relied on information provided by Canada in
making the decision to send Mr. Arar to Syria. Tellingly, the Americans have
never provided the Canadian authorities with any information of their own
about Mr. Arar that would have supported the removal order. Given the
close co-operation between the RCMP and the American agencies, it seems
likely that, if they had such information, they would have supplied it to the
Canadians.
Finally, without the evidence of the American authorities, I am unable to
conclude what role, if any, the TECS lookout for Mr. Arar requested by the
RCMP in late October 2002 played in the American decisions to detain
Mr. Arar and remove him to Syria.
5.2.2
Consular Officials
DFAIT first became aware of the possibility that Mr. Arar was being detained in
New York on September 29 and was actually informed that he was being
detained on October 1.
I conclude that, during Mr. Arar’s detention in New York, DFAIT officials
took reasonable steps to provide Mr. Arar with consular services, including
addressing the possibility that he might be sent to Syria.
A number of signs alerted consular officials to the possibility that the United
States was considering sending Mr. Arar to Syria. On October 1, Mr. Arar’s
brother informed DFAIT that Mr. Arar had told him that he would be sent to
Syria. On the same day, a senior U.S. INS officer advised that the case was of
such seriousness that it should be taken to the highest level, and on October 3,
Mr. Arar told the Canadian consul that investigating officers had informed him
that they were going to send him to Syria.
�AN OVERVIEW OF MY FINDINGS
The DFAIT officials considered these warning signs, but based on their past
experience with individuals in “terrorism-related” cases and the information they
had received, they did not believe that there was an imminent risk that Mr. Arar
would be sent to Syria. Individuals in these types of cases had always been held
for months. Moreover, the officials had never known the Americans to remove
a Canadian citizen to a country other than Canada when the individual had
requested to be sent to Canada and was travelling with Canadian documents, as
was the case with Mr. Arar.
At no time did the American authorities give consular officials any indication of their intention to send Mr. Arar to Syria. They were not open and forthcoming about what was happening with respect to the detainee. Canadian
officials were caught completely off guard when they learned of Mr. Arar’s fate.
A point of note is that, five days before Mr. Arar’s removal, consular officials assisted Mr. Arar and his family in retaining counsel to represent his legal
interest in any American proceeding. It was reasonable for consular officials to
expect that the American lawyer who would represent Mr. Arar would take
appropriate steps to protect his interests and would notify them if there was
anything that they could do to assist with the case. The lawyer, who visited
Mr. Arar on October 5 and also spoke with INS officials, did not raise the possibility of removal to Syria with Canadian consular officials or suggest any further action by Canadian officials to assist Mr. Arar. That lawyer declined an
invitation to testify at the Inquiry. However, it appears that she, like the consular
officials, was unaware that the American authorities were intending to remove
Mr. Arar to Syria in the very sudden way that they did.
5.2.3
Interagency Communication
As discussed above, during the period of Mr. Arar’s detention in New York,
DFAIT and the RCMP were each dealing directly with American authorities in
regard to Mr. Arar’s situation without knowledge of what the other was doing
and without benefit of the information in the other’s possession.
The RCMP has no policy requiring it to communicate with DFAIT when it
learns that someone connected with one of its investigations has been detained
abroad. Canadians detained outside Canada are entitled to consular services on
request, and the RCMP’s general approach is based on the notion that detainees
will be able to contact a consular officer if they wish. In Mr. Arar’s case, it had
no reason to believe that any request made by Mr. Arar for consular assistance
in the United States would not be granted. There was consequently no reason
for the RCMP to contact DFAIT about Mr. Arar’s situation. Further, I am satisfied
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ANALYSIS AND RECOMMENDATONS
that there was no requirement for the RCMP to notify DFAIT that it was providing information about Mr. Arar to the U.S. authorities.
DFAIT, for its part, undertook a reasonable course of action in trying to
sort out what was actually occurring and in involving legal counsel to act for
Mr. Arar. I do not think that, in the circumstances, DFAIT should be faulted for
not having informed the RCMP about the threat of Syria as it was assessed at that
time.
Nevertheless, given the international environment in which they must operate when someone is detained in connection with a terrorism investigation,
Canadian agencies in any way involved in such cases should consult with one
another and develop a coherent and consistent approach to the situation for all
Canadian agencies. The reality of terrorism investigations calls for extraordinary
care by Canadian officials in relation to Canadians detained abroad for suspected
links to terrorism.8
5.3
IMPRISONMENT AND MISTREATMENT IN SYRIA
5.3.1
Initial Period
Mr. Arar arrived in Syria on October 9, 2002. He was held incommunicado by
the Syrian Military Intelligence (SMI) at its Palestine Branch until October 21,
when the Canadian ambassador, Franco Pillarella, was informed that Mr. Arar
was in Syria. Prior to that time, Canadian officials had made a number of
inquiries of Syrian officials about Mr. Arar’s whereabouts and had been told that
he was not in Syria. This was false.
In view of what followed, I conclude that Syrian officials would not say
that Mr. Arar was in Syria during the initial period of his imprisonment because
the SMI wanted to interrogate and torture him in order to obtain a statement.
Clearly, the SMI did not want any interference from Canadian officials while it
was conducting “the interrogation.”
The actions of the SMI with respect to Mr. Arar were entirely consistent
with Syria’s widespread reputation for abusing prisoners being held in connection with terrorism-related investigations. The U.S. State Department and
Amnesty International have publicly reported on Syria’s poor human rights
record in relation to prisoners. In particular, these reports state that Syrian intelligence agencies such as the SMI are known to hold prisoners incommunicado
at the beginning of their imprisonment for purposes of interrogation using
torture.
�AN OVERVIEW OF MY FINDINGS
I am satisfied that, during the period Mr. Arar was held incommunicado,
Canadian officials did everything they reasonably could to locate him. The fact
is that the Syrian officials lied to them and there was little more they could do.
On October 21, the Syrian deputy foreign minister contacted Ambassador
Pillarella and advised him that Mr. Arar was in fact in Syria, having just arrived
from Jordan earlier that day. The next day, General Hassan Khalil, the head of
the SMI, also told Ambassador Pillarella that Mr. Arar had just arrived in Syria,
and that he had already admitted having connections with terrorist organizations. The general agreed to allow Canadian consular officials to visit Mr. Arar
and the first visit was arranged for the following day, October 23.
Léo Martel, the Canadian consul in Damascus, visited Mr. Arar the next day
in an office at the Palestine Branch. He did not observe any physical signs of
torture on Mr. Arar and indicated in his report of the meeting that Mr. Arar had
appeared healthy, but added, “of course, it is difficult to assess.”
There were actually many indications that all was not well. The visit was
very controlled and Mr. Arar’s demeanour was submissive. Syrian officials were
present throughout and insisted that Mr. Arar speak in Arabic, with one of them
serving as interpreter. Mr. Arar sent eye signals communicating that he could not
speak freely. He was made to say that he was “happy to have come back to
Syria” and “my Syrian brothers have not exercised pressure on me,” statements
that were transparently artificial and contrived. He did manage to say that he had
spent only “a few hours” in Jordan, which meant that he had been in Syria for
about 12 days.
5.3.2
Torture
I am satisfied that the October 23 consular visit should have alerted Canadian
officials to the likelihood that Mr. Arar had been tortured when interrogated
while held incommunicado by the SMI. As I said earlier, what happened to
Mr. Arar fit squarely within the publicly reported Syrian practices of torturing
prisoners. The fact that Syrian officials misled the Canadians about when
Mr. Arar had arrived in Syria suggests they had something to hide. And if there
was any doubt, the controlled nature of the first consular visit and Mr. Arar’s
submissive demeanour and prompted statements during that visit were further
indications that he had been abused.
Some Canadian officials did operate under the “working assumption” that
Mr. Arar had been tortured. Others, including the Ambassador, were not prepared to go that far based on the information available. In my view, after the first
consular visit, all Canadian officials dealing with Mr. Arar in any way should
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ANALYSIS AND RECOMMENDATONS
have proceeded on the assumption that he had been tortured during the initial
stages of his imprisonment and, equally of importance, that the “statement” he
had made to the SMI had been the product of that torture.
5.3.3
Continuing Investigations
5.3.3.1
Bout de Papier
On November 3, 2002, the SMI provided Ambassador Pillarella with a bout de
papier, or informal written communication, setting out certain information that
the SMI had obtained from Mr. Arar, including the fact that he had taken
mujahedeen training in Afghanistan in 1993.
The Ambassador passed the bout de papier on to DFAIT Headquarters,
which distributed it to the RCMP and CSIS. By this point, DFAIT should have
been aware that Mr. Arar’s statements to the SMI were likely the product of
torture.
Given the circumstances, I do not think that it was improper or inappropriate for the Ambassador to receive the bout de papier from the SMI. By this
point, the SMI was permitting Canada access to Mr. Arar and it would have
seemed unlikely that he would be subjected to any physical abuse in the future.
Moreover, it was General Khalil who raised the subject of information obtained
from Mr. Arar and made the information available to the Ambassador.
Furthermore, there was potentially a benefit to Canadian officials’ knowing what
Syrian authorities considered to be “the case” against Mr. Arar. As stated by Gar
Pardy, Director General of Consular Affairs at DFAIT, they might have been better able to assist him armed with that information.
That said, when they received the information, DFAIT officials should have
conducted a proper assessment of its reliability. Had they done so, they would
have concluded that it was likely the product of torture and therefore of doubtful reliability. That assessment should then have accompanied the bout de papier
when DFAIT distributed it to the RCMP and CSIS. As it turned out, some RCMP
officers did not consider the likelihood of torture when assessing Mr. Arar’s possible involvement in terrorism-related activities. This was unfortunate and unfair
to Mr. Arar. In Chapter IX, I recommend that, when Canadian officials receive
information from a country with a questionable human rights record, such as
Syria, they conduct a reliability assessment and ensure that their conclusions
accompany the information if they disseminate it.
�AN OVERVIEW OF MY FINDINGS
5.3.3.2
CSIS Trip
On November 19, 2002, CSIS officials travelled to Syria for the purpose of meeting with the Syrian Military Intelligence (SMI). One of the purposes of the trip
was to obtain information on Mr. Arar’s case.
When they met with the SMI, the CSIS officials received some information
regarding Mr. Arar’s case, but did not provide the Syrians with any information
about him. They did not visit Mr. Arar, nor did they provide the Syrians with any
questions for him. However, I am not satisfied that CSIS did an adequate reliability assessment of the information received from the SMI, in particular with
respect to whether the information could be a product of torture. Indeed, its
assessment was that it was probably not the product of torture, which I find
was not the case. As a result, any reliance on this information by CSIS or others
was misguided or misplaced.
I am satisfied that it was appropriate for CSIS officials to meet with the SMI
in the circumstances that existed in November 2002. There was a legitimate
investigative reason for the trip, and DFAIT was consulted and approved of the
trip, even though it had reservations about the timing. The Minister of Foreign
Affairs was informed. The CSIS officials involved did nothing more than receive
information in regard to Mr. Arar’s case. They testified that they had been careful not to say anything that could negatively affect Mr. Arar’s circumstances or
his release.
That said, there are significant risks whenever Canadian investigators interact with a country with a questionable human rights record, particularly when
a Canadian is being detained in that country. Although decisions to interact must
be made on a case-by-case basis, they should be made in a way that is politically accountable, and interactions should be strictly controlled to guard against
Canadian complicity in human rights abuses or a perception that Canada condones such abuses. In Chapter IX, I recommend a process for making such
decisions.
5.3.3.3
RCMP Investigation
Project A-O Canada continued its investigation from October 2002 until after
Mr. Arar’s return to Canada and took steps to gather as much information about
Mr. Arar as it could. The investigation was comprehensive and thorough, and
involved co-operation with American agencies. In the end, this extensive investigation of Mr. Arar did not turn up any evidence that he had committed any
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ANALYSIS AND RECOMMENDATONS
criminal offence. Further, there is no evidence indicating that Mr. Arar constitutes a threat to the security of Canada.
5.3.4
Efforts to Obtain Release
5.3.4.1
Mr. Edelson’s Letter
On October 31, 2002, Michael Edelson, a lawyer who had previously acted for
Mr. Arar, wrote Project A-O Canada a letter requesting confirmation of information it was hoped could be used to try to obtain Mr. Arar’s release.
Mr. Edelson sought confirmation that 1) the RCMP had not requested that
Mr. Arar be deported to Syria; 2) Mr. Arar did not have a criminal record;
3) Mr. Arar was not wanted in Canada for any offence; and 4) Mr. Arar was not
a suspect with respect to a terrorism-related offence.
There was considerable discussion within the RCMP about how to respond.
On November 16, 2002, Inspector Michel Cabana, the officer in charge of Project
A-O Canada, sent a reply confirming only the first two points, adding that it
would be improper for the RCMP to comment on Mr. Arar’s position in relation
to the RCMP investigation and referring Mr. Edelson back to DFAIT. Not surprisingly, the response was of no use to those seeking Mr. Arar’s release and
return to Canada.
I have two observations to make about this issue. First, the response to
Mr. Edelson’s request reveals a lack of a coordinated and cohesive approach by
Canadian officials with respect to obtaining Mr. Arar’s release. The Director
General of Consular Affairs at DFAIT was supportive of Mr. Edelson’s efforts to
obtain a letter. However, the RCMP was of the view that the matter was entirely
DFAIT’s responsibility and that the RCMP had no role to play. In fact, the RCMP
officers were quite upset about even being asked to write a letter. DFAIT and
the RCMP had potentially different interests in relation to what should be done.
There were no policies or guidelines addressing the need to reconcile differing
positions regarding cases of Canadians detained abroad. A process is needed to
ensure that Canadian officials proceed in a coherent and co-operative way. In
Chapter IX, I recommend such a process.
My second observation about Mr. Edelson’s request is that at least one
RCMP officer was disinclined to indicate that Mr. Arar was not a suspect because
the bout de papier received from Syria stated that Mr. Arar had admitted attending a training camp in Afghanistan in 1993. However, in attaching significance
to this admission, the officer gave no weight to the fact that the so-called
�AN OVERVIEW OF MY FINDINGS
admission was likely the product of torture. When the bout de papier was distributed within the Canadian government, a cautionary note about the likelihood of torture should have been attached.
5.3.4.2
Ambassador and Minister
During the months that Mr. Arar was imprisoned in Syria, Ambassador Pillarella
met with General Khalil and other Syrian officials on many occasions. The
Ambassador testified that he had stated repeatedly that Canada’s position was
that Mr. Arar should be released and returned to Canada. According to the
Ambassador, there could not have been any doubt in the minds of the Syrians
that he, as Canada’s representative in Syria, had held that position. However, the
Ambassador also testified that dealing with Syrian officials could be difficult.
They were not always forthcoming and their practice in regard to prisoners
detained in terrorism-related cases was to do what suited their best interests as
they saw them.
Ambassador Pillarella testified that the fact that the SMI had permitted
Canadian consular access to Mr. Arar was unprecedented. He also described
the cordial relationship that he had developed with General Khalil, the head of
the SMI. In the end, however, despite the Ambassador’s efforts, the Syrian
authorities were not responsive to the many requests that Mr. Arar be released.
While no one can say for sure why Mr. Arar was finally released in early
October 2003, it does not appear that the Ambassador’s entreaties played a role.
I do not make this comment as a criticism, but rather to underline the
Ambassador’s point that making requests of the Syrian authorities was often an
exercise in futility.
Canada’s Foreign Affairs Minister Bill Graham also became involved in
attempting to secure Mr. Arar’s release. Beginning in November, plans were
made for him to speak directly to Syria’s Foreign Minister about Mr. Arar’s case.
However, a phone call scheduled for November 19, 2002 was delayed to allow
the Minister to be briefed on the results of the CSIS trip to Syria, planned for
about the same time. It made sense for him to have as much information as
possible about Syria’s view of Mr. Arar’s case before discussing the matter with
the Syrian minister. In December, the phone call was further delayed because
of scheduling problems. Minister Graham eventually spoke to his Syrian counterpart on January 16, 2003. By then, Syrian officials were alleging that CSIS had
said it did not want Mr. Arar returned to Canada. In his phone call, Minister
Graham spelled out clearly and forcefully that Canada wanted Mr. Arar returned.
I will come back to the alleged statement by CSIS below.
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ANALYSIS AND RECOMMENDATONS
I am satisfied that Minister Graham’s message to Syria’s Foreign Minister
was entirely appropriate and that his decision to become involved in the case
was the correct step. Although the Syrian authorities did not respond positively
to Minister Graham’s entreaty, it was important nonetheless that a senior government minister clearly and firmly state Canada’s position to the Syrians.
Minister Graham did that.
5.3.4.3
Mixed Signals
5.3.4.3.1
Questions for Mr. Almalki
On January 15, 2003, the Canadian consul, on the instructions of the
Ambassador, delivered a letter from the RCMP to General Khalil enclosing a
series of questions to be posed to Abdullah Almalki, who, like Mr. Arar, was
imprisoned at the Palestine Branch at the time. In the letter, the RCMP offered
to share with the SMI “large volumes of highly sensitive documents and information, seized during investigative efforts or obtained from confidential informants associated to terrorist cells operating in Canada.”9
Among the questions for Mr. Almalki were some about his relationships
with a number of individuals, most of whom the SMI would have considered to
be very heavily involved in terrorist activities. Mr. Arar, although only a person
of interest and not a terrorist suspect, was included with these individuals.
There was conflicting evidence about whether DFAIT had given its approval
to the RCMP to send the questions for Mr. Almalki.
In the latter part of 2002, the RCMP and DFAIT’s Foreign Intelligence
Division, referred to as “ISI,” had a number of discussions about sending questions for Mr. Almalki to Syria. ISI witnesses testified that they had believed that
a “credible risk” existed that the SMI would use torture in seeking answers to any
questions sent and had advised the RCMP against sending questions.
In contrast, RCMP witnesses testified that DFAIT had never advised against
sending questions; indeed, Ambassador Pillarella had obviously approved, as
he had arranged for delivery of the questions to the SMI.
Ambassador Pillarella stated that he had understood from the RCMP liaison
officer (LO) from whom he had received the questions that Ottawa had given
its approval. The LO could not recall the conversation. There is virtually no written record of what was discussed among the parties.
What emerges is a complete failure of communication among Canadian
officials with regard to whether or not the questions should have been sent. I
�AN OVERVIEW OF MY FINDINGS
am satisfied that DFAIT ISI properly assessed the situation. Sending questions
raised a “credible risk” that the SMI would torture Mr. Almalki to obtain answers.
In those circumstances, questions should not have been sent.
In any event, what is relevant for the Inquiry is that the questions were
delivered to the SMI on January 15, 2003, the day before Minister Graham telephoned Syria’s Foreign Minister to ask for Mr. Arar’s release. The problem is
that providing the questions to the SMI created a risk that the SMI would conclude that the RCMP considered Mr. Arar a serious terrorist threat (which it did
not) and that, despite Minister Graham’s entreaty, it would decide to hold
Mr. Arar until it had completed all of its investigations that might involve
Mr. Arar, including the one relating to Mr. Almalki. Ambassador Pillarella testified that, in the Syrian officials’ minds, the cases of Mr. Arar and Mr. Almalki had
been linked. I have no way of knowing whether the SMI in fact interpreted the
letter and questions in this fashion. The fact remains, however, that sending the
questions created a risk that they would be interpreted as a “mixed signal” from
Canada.
5.3.4.3.2
Alleged CSIS Statement
In early 2003, Syrian officials informed Ambassador Pillarella on three separate
occasions that the SMI had been told by CSIS that it did not want Mr. Arar
returned to Canada. If true, this would have undermined Canadian efforts to
obtain Mr. Arar’s release. They did not indicate exactly who at CSIS had made
the statement or under what circumstances it had been made. CSIS denied that
any of its personnel had made the statement.
Each time Ambassador Pillarella was told about the CSIS statement, he
assured the Syrian officials that Canada did want Mr. Arar back. In addition,
when Minister Graham spoke with Syria’s Foreign Minister by telephone on
January 16, Minister Graham specifically raised the matter of the suggestion that
Canada did not want Mr. Arar returned and emphasized that the Government
of Canada’s official and complete position was that Canada wanted him back
and that there was no impediment to his return.
It seems to me that, in the circumstances, the Minister’s telephone call was
a reasonable way to address the concern about the CSIS statement. The Minister
made Canada’s position very clear and one could reasonably expect that a minister-to-minister conversation would be sufficient to deal with the issue. There
was nothing in the responses of the Syrian foreign minister at the time or in the
responses of other Syrian officials on hearing of the phone call that signalled that
more needed to be done.
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ANALYSIS AND RECOMMENDATONS
The issue remained dormant for about two months, until March 2003, when
the Syrian ambassador to Canada, Ahmad Arnous, raised it again. He mentioned
it to the two Canadian members of Parliament who were planning to visit
Mr. Arar in Syria. The MPs reiterated the official Canadian position that Canada
wanted Mr. Arar returned and reported the matter to DFAIT.
DFAIT did nothing further to try to clarify the matter at that time. The fact
that the issue surfaced again two months after Minister Graham’s phone call is
troubling. Without the evidence of Syrian authorities, I cannot know what their
thinking might have been about the “CSIS statement.” However, it seems to me
that, when the issue was raised again in March, more should have been done
to address the matter.
It would have been helpful and sensible at that time for DFAIT to have
asked that CSIS clarify directly with the SMI that it was not opposed to Mr. Arar’s
return and that it agreed with the official Canadian position. CSIS should have
been asked to dispel any misperception on the part of the Syrians that Canada
was sending mixed messages. Unfortunately that did not happen.
5.3.4.4
Visit by Members of Parliament
In the period from late October 2002 to February 2003, the SMI permitted the
Canadian consul to meet with Mr. Arar on seven occasions.
Moreover, on April 22, 2003, two Canadian members of Parliament, Marlene
Catterall and Sarkis Assadourian, visited Mr. Arar while he was in custody in
Syria. They also delivered a letter from Minister Graham to the Syrian foreign
minister seeking Mr. Arar’s release. In that letter, Minister Graham indicated that
there was no impediment to Mr. Arar’s return to Canada. The MPs were
informed that Mr. Arar was soon to be sent to trial on charges of belonging to
al-Qaeda.
The MPs, together with Ambassador Pillarella, met with Mr. Arar for
approximately twenty minutes. The meeting was very controlled. The MPs were
confined to discussing Mr. Arar’s health and family. Mr. Arar was required to
answer in Arabic and his responses were then translated for the visitors. Mr. Arar
appeared somewhat disoriented and thin. During the meeting, Ms. Catterall
assured Mr. Arar that the Canadian government was doing everything it could
to have him returned to Canada.
Prior to the meeting with Mr. Arar, Ambassador Pillarella had met with the
MPs and told them that the Syrian authorities had serious concerns that Mr. Arar
might be involved with al-Qaeda and might have attended a training camp in
Afghanistan. Although the source of this latter information was probably the
�AN OVERVIEW OF MY FINDINGS
Syrian interrogation of Mr. Arar, the Ambassador did not caution the MPs that
the information was likely the result of torture.
In his report to Ottawa concerning that meeting, Ambassador Pillarella
noted that, had the MPs been more fully briefed in Ottawa, they would have
reconsidered going to Damascus. Ms. Catterall denied that the Ambassador had
been told this and indicated that she did not know where the Ambassador had
gained that impression. DFAIT distributed the report of the consular visit to the
RCMP and CSIS. I discuss the issue of the distribution of consular reports below.
5.3.4.5
“One Voice” Letter
During the months of May and June 2003, the concern that Syrian officials
believed or said that they believed that CSIS did not want Mr. Arar returned to
Canada lingered on. DFAIT made a number of proposals for a letter from Canada
to Syria seeking Mr. Arar’s release. The thrust of the proposals was to send a
message that Canada — including the RCMP and CSIS — spoke with one voice
in seeking Mr. Arar’s release and that there was no reason Mr. Arar could not
be returned to Canada. There were a number of meetings or discussions
between officials from DFAIT, the RCMP and CSIS to discuss the “one voice” letter. However, in my view, the RCMP and CSIS were not supportive of DFAIT’s
efforts.
The first proposal was for a letter to be signed by both the Minister of
Foreign Affairs and the Solicitor General, the minister responsible for the RCMP
and CSIS. Initially, DFAIT suggested that the letter state that there was “no evidence” that Mr. Arar was a member of al-Qaeda or was involved in terrorist
activity. In point of fact, the RCMP, the lead Canadian investigator, had no evidence to lead it to suspect that Mr. Arar had committed any offence. He was
merely a person of interest, whom the RCMP wished to interview as a witness
because of certain associations with others suspected of terrorism-related activity.
The RCMP and CSIS objected, understandably I think, to the unequivocal
nature of the proposed “no evidence” language, taking the position that there
was information that made Mr. Arar a person of interest to the Canadian investigators. However, the result of that objection was that CSIS advised the Solicitor
General “very strongly” against signing any letter. Moreover, when the proposal
evolved into the idea of a letter from the Minister of Foreign Affairs alone, the
RCMP, with CSIS approval, suggested language that was unhelpful and indeed
overstated Mr. Arar’s status. It indicated that “Mr. Arar was a subject of a
national security investigation,” when he was not. This language would have had
a prejudicial effect on DFAIT’s efforts to have Mr. Arar released.
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ANALYSIS AND RECOMMENDATONS
In the end, the Minister of Foreign Affairs did not send a letter and the
Prime Minister did. I will come back to the Prime Minister’s letter.
I conclude that the RCMP and CSIS should have supported DFAIT’s efforts
to obtain a “one voice” letter, because of a number of factors. First, it was clear,
or should have been clear, to everyone that Mr. Arar’s human rights had been
and likely continued to be seriously abused. Syria’s reputation for mistreating
prisoners was well known and the likelihood of Mr. Arar receiving a fair trial in
Syria was remote. By this time, it was also clear that the U.S. authorities had
relied on information from Canada in removing Mr. Arar to Syria using their
questionable practice of extraordinary rendition. In addition, the official
Canadian position was that Canada should seek Mr. Arar’s release. Next to the
Prime Minister, the Minister of Foreign Affairs was the most senior Canadian
official politically accountable for handling Mr. Arar’s case. Minister Graham
wanted Mr. Arar released. Moreover, it was likely that the support of CSIS and
possibly the RCMP would be very important to the Syrian government. It was
well known that the SMI, which was holding Mr. Arar, would be more influenced by the views of a security intelligence agency (CSIS) than those of a politician (Minister Graham). Finally, Mr. Arar, a Canadian husband and father, had
been separated from his young family for over half a year.
Had the RCMP and CSIS put their minds to the task and approached it with
a view to offering real support, they could have done so. In the end, proposing
a letter that inaccurately said that Mr. Arar was a subject of a national security
investigation was not helpful.
In Chapter IX, I recommend a protocol for addressing situations such as
Mr. Arar’s in the future. When Canadians are detained abroad in connection
with a terrorism-related matter, there should be a consultative and coherent
process for developing a Canadian course of action. Decisions should be made
in a politically accountable way and, once a course of action is adopted, all
agencies should be supportive.
5.3.4.6
Prime Minister’s Letter
When DFAIT’s initiatives to obtain a “one voice” letter that would be helpful in
obtaining Mr. Arar’s release stalled, DFAIT struck on the idea of obtaining a letter from the Prime Minister.
As a result, the Prime Minister sent a letter seeking Mr. Arar’s release to
Syria’s President through an envoy, Senator Pierre De Bané. The letter, delivered on July 22, 2003, stated that there was no Canadian impediment to
Mr. Arar’s return. It did not contain the “no evidence” language about which
�AN OVERVIEW OF MY FINDINGS
the RCMP and CSIS had expressed concern. In the end, the letter coming from
Canada’s Prime Minister likely went a long way towards sending the message
that all Canadian agencies, including the RCMP and CSIS, wanted Mr. Arar
returned. I note that the letter was sent about three and a half months after
DFAIT first attempted to obtain a “one voice” letter.
5.3.5
Consular Services
5.3.5.1
Consular Visits
In the period of approximately one year during which he was imprisoned in
Syria, Mr. Arar had nine consular visits. Mr. Martel, the Canadian consul, was
the only person permitted to visit him, except once, on April 22, 2003, when the
two Canadian members of Parliament, Marlene Catterall and Sarkis Assadourian,
and Ambassador Pillarella were allowed to see him.
I am satisfied that Mr. Martel and Ambassador Pillarella did everything reasonably possible to obtain access to Mr. Arar. Mr. Arar is a dual citizen of
Canada and Syria. The Syrian government, however, does not recognize any
other citizenship if a person was born in Syria, as is the case with Mr. Arar. It
consequently does not accept that a dual citizen is entitled to consular services
from another country. Given this position, the ability of Canadian officials to
obtain access to Mr. Arar depended entirely on the willingness of the SMI to
grant what it considered favourable treatment. Over time, the SMI became much
less responsive to requests to visit Mr. Arar. I believe Ambassador Pillarella and
Mr. Martel exercised good judgment in seeking as much access as possible without unduly provoking Syrian officials.
Dealing with a country such as Syria, which may act arbitrarily and unpredictably, can at times require difficult decisions about how hard to press
requests. While some might have adopted a more aggressive approach with
Syrian officials, I see no reason to question the judgments the Ambassador and
Mr. Martel made at the time.
5.3.5.2
Consular Reports
I am satisfied that, with the exception of the report on the August 14, 2003 visit,
the reports of the consular visits were satisfactory.
Admittedly, the reports did not describe the terrible conditions in which
Mr. Arar was being held. However, the controlled nature of the visits made it
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ANALYSIS AND RECOMMENDATONS
impossible for Mr. Martel to explore this issue with him. The one exception in
this respect occurred during the August 14 visit, when Mr. Arar told Mr. Martel
that he was being held in a cell that measured three by six by seven feet. This
was important information, yet Mr. Martel failed to include it in his report.
During that visit, Mr. Arar also told Mr. Martel that the press would know the
truth when he returned home, suggesting that he did not consider it wise to
provide details about his treatment while still in Syrian custody.
During the August 14 visit, Mr. Arar also said that he had not been beaten,
tortured or paralyzed. Mr. Martel was understandably sceptical of this last comment, yet his report made no reference to his scepticism. As I indicate below,
the report was distributed to other agencies and Mr. Arar’s statement about not
being tortured was accepted by some as fact.
After the August 14, 2003 consular visit, Minister Graham made a public
statement to the effect that Mr. Arar had had an independent consular visit —
which he had not — and had said he had not been tortured. While Mr. Arar had
made such a statement, its accuracy was highly doubtful. It appears that the
Minister had not been fully or properly briefed. His statement that Mr. Arar had
said he had not been tortured was particularly unfortunate, as that piece of misinformation became the accepted fact for many and worked most unfairly
against Mr. Arar.
DFAIT distributed a number of the consular reports on visits with Mr. Arar,
including the report of the August 14 visit, to the RCMP and/or CSIS. Consular
visits are intended to assist detainees, not to help collect information for investigative agencies. Reports of consular visits should accordingly be kept confidential except in certain specified situations. The purpose behind distributing the
reports about Mr. Arar to the RCMP was ostensibly to assist Mr. Arar by dissuading RCMP officers from travelling to Syria in connection with his case.
However, that purpose was never communicated to either the RCMP or CSIS,
and the reports were used as part of the investigative file. Moreover, the
Consular Affairs Bureau distributed the report of the August 14 visit, which stated
that Mr. Arar had said he had not been tortured, to others without attaching an
explanatory note indicating that this statement should be viewed with serious
scepticism. In the recommendations in Chapter IX, I address issues relating to
consular visits and the preparation and distribution of consular reports.
5.3.5.3
Legal Assistance
Prior to August 14, 2003, consular officials did not take any steps to obtain a
lawyer in Syria for Mr. Arar. In my view, this was understandable. Clearly, it
�AN OVERVIEW OF MY FINDINGS
would have been possible for consular officials to put Mr. Arar’s family in touch
with a lawyer, or to at least suggest they contact one. However, Mr. Martel considered that retaining a lawyer at that time would be pointless, as the SMI was
still investigating, there were no charges, and there were no legal proceedings
underway. As a matter of practice, Syria did not permit lawyers to have access
to detainees.
On August 14, the SMI indicated that Mr. Arar would be going to trial
shortly. A search for the best lawyer began. Consular officials were strongly of
the view that Mr. Arar and his family should retain a particular lawyer and conveyed that preference to the family. I am satisfied that their preference was motivated solely by Mr. Arar’s best interests. In any event, in relatively short order,
before any legal steps were necessary, the family retained counsel of its own
choice. Consular officials could have acted more quickly in providing that lawyer
with assistance; however, it is important to note that, throughout this period, the
Syrians did not inform anyone of the charges against Mr. Arar and the case
remained rather amorphous. I have no doubt that, if the case had crystallized,
consular officials would have been as supportive as they could of Mr. Arar and
his counsel.
5.3.5.4
Mr. Arar’s Release
On October 5, 2003, Mr. Arar was released to Mr. Martel. Mr. Arar had lived
through a nightmare. While the physical beatings had ended after the first few
weeks, the conditions of his imprisonment in the Palestine Branch had been
abysmal. He had been confined in a tiny cell with no natural light. He had slept
on the floor and endured disgusting sanitary conditions. Mr. Arar had suffered
enormously. He continues to experience the after-effects to this day.
Mr. Martel accompanied Mr. Arar back to Canada, where Mr. Arar was
reunited with his family at the Montréal–Dorval International Airport on
October 6, 2003.
5.4
POST-RETURN
5.4.1
Mr. Arar’s Statement
On the plane trip home to Canada, Mr. Arar related to Mr. Martel some of what
had happened to him in Syrian detention. Among other things, he told him that
he had had a “difficult time” during the first two weeks of detention and that he
45
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ANALYSIS AND RECOMMENDATONS
had been hit from time to time, but nothing really serious. He also described the
degrading conditions of imprisonment.
On October 7, 2003, at a meeting with DFAIT officials, Mr. Martel repeated
what Mr. Arar had told him on the trip home — that he had been “beaten”
occasionally during the first two weeks of detention.
On November 4, 2003, Mr. Arar spoke about his ordeal publicly for the first
time. In his public statement, he described how he had been beaten while being
interrogated by his Syrian jailers during the first two weeks of his detention. I
note that the description of the abuse Mr. Arar gave during his press conference
was essentially the same, albeit more detailed, as that he had given Mr. Martel
on the plane trip home.
In November 2003, Mr. Martel prepared a memorandum and other written
communications in which he stated that Mr. Arar had not told him during the
trip home that he had been beaten while in Syrian custody.
In his testimony, Mr. Martel acknowledged that these were incorrect. He
explained that he had prepared them from memory and had forgotten that
Mr. Arar had told him that he had been beaten.
The reason I raise these written communications is to point out the potential harm that can flow from recording information inaccurately. After Mr. Arar’s
return, some officials in the Canadian government did not believe Mr. Arar’s
public statements that he had been beaten or tortured. As it turns out, their conclusions were wrong. Mr. Arar had indeed been beaten and physically tortured
during the first two weeks of his imprisonment in Syria. Inaccurate memoranda
and other written communications such as those I refer to above can contribute
to and support false conclusions. The need for accurate and fair reporting is
obvious.
5.4.2
Leaks
When Mr. Arar returned to Canada, his torment did not end, as some government officials took it upon themselves to leak information to the media, much
of which was unfair to Mr. Arar and damaging to his reputation.
Over a period of time, Government of Canada officials intentionally released
selected classified information about Mr. Arar or his case to the media. The first
leak occurred in July 2003, even before Mr. Arar’s return to Canada, and the
leaks intensified in the period immediately following his return in October 2003.
There were at least eight media stories containing leaked information about
Mr. Arar and/or the investigation that involved him. Typically, the leaked
information was attributed to an unnamed government official, an official closely
�AN OVERVIEW OF MY FINDINGS
involved in the case, or some similar source. Some of the leaks sought to portray Mr. Arar as someone who had been involved in terrorist activities, mentioning, for example, that he had trained in Afghanistan. In one, he was
described as a “very bad guy;”10 in another, the source was reported to have said
that the guy was “not a virgin,”11 adding that there was more there than met the
eye.
Several of the leaks were inaccurate, unsupported by the information available from the investigations, and grossly unfair to Mr. Arar. At least one leak
sought to downplay the mistreatment and torture Mr. Arar had suffered in Syria.
The most notorious of the leaks occurred on November 8, 2003, when
information from classified documents was published in the Ottawa Citizen, in
a lengthy article by Juliet O’Neill that contained a large amount of previously
confidential information.
The O’Neill article reported that security officials had leaked allegations
against Mr. Arar in the weeks leading to his return to Canada “in defence of
their investigative work — against suggestions that the RCMP and the Canadian
Security Intelligence Service had either bungled Mr. Arar’s case or, worse, purposefully sent an innocent man to be tortured in Syria.”12 This rationale implies
that officials believe leaking confidential information is justified if it suits the
interests of investigators. According to this thinking, leakors get to be selective — picking and choosing what to leak to paint the picture that suits their
interests.
There have been several investigations into the sources of the Arar leaks.
To date, none of the sources have been identified. All witnesses at the Inquiry
who were asked about them denied any knowledge. The sources of the leaks
appear to be a complete mystery to everyone and the prospects of identifying
those responsible seem uncertain at best. The only remaining investigation is the
criminal investigation into the O’Neill leak, which is now two years old.
Leaking confidential information is a serious breach of trust. Obviously, it
is important that all available steps be taken to prevent it.
Quite predictably, the leaks had a devastating effect on Mr. Arar’s reputation and on him personally. The impact on an individual’s reputation of being
called a terrorist in the national media is severe. As I have stated elsewhere,
labels, even unfair and inaccurate ones, have a tendency to stick.
Professor Toope, the fact-finder I appointed to report on the circumstances
of Mr. Arar’s detention in Syria, has indicated that the leaks have had severe
psychological and emotional impacts on Mr. Arar. Moreover, Mr. Arar, an
educated, hard-working engineer, has had great difficulty finding employment.
It seems likely that the smear of his reputation by the leakors has taken its toll.
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ANALYSIS AND RECOMMENDATONS
5.4.3
Incomplete Briefing
When briefing the Privy Council Office and senior government officials about the
investigation relating to Mr. Arar, the RCMP omitted certain key facts that could
have reflected adversely on its investigation.
After Mr. Arar’s press conference on November 4, 2003, the RCMP was
asked to prepare a detailed timeline relating to the Arar investigation to assist
the government in deciding how to proceed, including in particular whether to
call a public inquiry.
On November 14, the RCMP produced a timeline that omitted several significant facts. It did not disclose that, throughout its investigation, the RCMP had
provided information to American agencies without attaching written caveats, as
required by RCMP policy. It also failed to reveal that, in April 2002, the RCMP
had taken the unprecedented step of supplying its entire Supertext database
containing the relevant investigation file to the U.S. agencies, and that it had
done so without screening the information for relevance or accuracy and without attaching caveats, as required by policy. The timeline also did not disclose
that the RCMP had contacted U.S. Customs to request border lookouts for
Mr. Arar and his wife and, in doing so, had described them as Islamic extremists suspected of having links to al-Qaeda. Moreover, the timeline omitted to
mention the two phone calls that Corporal Flewelling of RCMP CID had had
with an American agent on October 4 and 5, 2002, during the critically important time Mr. Arar was being detained in New York.
These omissions were serious and the effect of the timeline was to downplay the potential problems with the RCMP investigation. In the circumstances
that existed in November 2003, it was very important that the RCMP accurately
brief the government on what had occurred, to enable the government to make
an informed decision on how to proceed. Since the RCMP had in effect been
asked to report on itself, there was a heightened obligation for it to be complete
and forthcoming. I would expect that, in future, briefings such as that provided
through the timeline would be accurate and balanced.
�AN OVERVIEW OF MY FINDINGS
Notes
1
Order in Council P.C. 2004–48, Appendix 1(A).
2
“Caveats” are written restrictions on the use and further dissemination of shared information.
3
Exhibit C-30, Tab 44.
4
Changes were made to the structure and organization of Foreign Affairs and International Trade
over recent years. Prior to and during Mr. Arar’s ordeal, it was a single entity (DFAIT). In 2004,
two separate departments (Foreign Affairs and International Trade) were created. Recently,
the two departments were reintegrated. In this report, I refer to DFAIT or Foreign Affairs, as
appropriate.
5
I refer to “Canada Customs” frequently throughout this report. Prior to December 12, 2003,
Canadian customs operations came under the Customs branch of the Canada Customs and
Revenue Agency (CCRA). They have since come under the Canada Border Services Agency
(CBSA). This change in organizational structure is not significant for the purposes of my report.
6
Exhibit C-30, Tab 44.
7
This is one instance where I might arrive at a different conclusion if Mr. Arar were to testify.
8
See Chapter IX.
9
Exhibit C-359, Tab 10.
10
Exhibit P-80, pp. 1–2. Robert Fife, “Terror threats in Ottawa: Two kinds of fear: Report says
Syrian intelligence helped U.S. to foil al-Qaeda plot on target in Ottawa,” Ottawa Citizen (July 24,
2003), A1.
11
Ibid., pp. 7–8, Robert Fife, “U.S., Canada ‘100% sure’ Arar trained with al-Qaeda: Family
spokeswoman accuses intelligence officers of anonymous smear campaign,” Ottawa Citizen
(December 30, 2003), A1.
12
Ibid., pp. 5–6, Juliet O’Neill, “Canada’s dossier on Maher Arar: The existence of a group of
Ottawa men with alleged ties to al-Qaeda is at the root of why the government opposes an
inquiry into the case,” Ottawa Citizen (November 8, 2003), A1.
49
��II
Maher Arar and the Right to Be Free
From Torture
1.
OVERVIEW
Maher Arar lived through a nightmare that included being tortured at the hands
of the Syrian Military Intelligence. This chapter describes the nature of the right
to be free from torture, as well as Mr. Arar’s personal circumstances and his own
account of the horrendous experiences he endured.
2.
PROHIBITION ON TORTURE
In a recent address, the Secretary-General of the United Nations said, “Let us be
clear: torture can never be an instrument to fight terror, for torture is an instrument of terror.”1 That statement succinctly captures the special nature of the
right to be free from torture: it is absolute. Some human rights, such as the right
to privacy, may be lawfully suspended under certain conditions in the name of
public emergency. This is made explicit in international human rights treaties
such as the International Covenant on Civil and Political Rights and is implicit
in Canada’s constitutional standards. But the right to be free from torture is different, in a very important way.
The infliction of torture, for any purpose, is so fundamental a violation of
human dignity that it can never be legally justified. Article 5 of the Universal
Declaration of Human Rights provides that “no one shall be subjected to torture
or to cruel, inhuman or degrading treatment or punishment.”2 The same prohibition is found in the International Covenant on Civil and Political Rights3 and
all regional human rights instruments.4 Torture is specifically prohibited in times
of armed conflict by international humanitarian law, including the Geneva
Conventions of 19495 and their two Additional Protocols.6 Two international
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ANALYSIS AND RECOMMENDATONS
instruments deal specifically with torture: the Declaration on the Protection of
All Persons from Being Subjected to Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (United Nations Torture Declaration)7 and
the Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (Convention Against Torture).8 In adhering to these
treaties, Canada has manifested its commitment to uphold the right to be free
from torture.
Under the Convention Against Torture, a state party is bound to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.9 But the prohibition in the Convention
Against Torture extends beyond the act of torture itself. States party may contravene their treaty obligations when they consent to or acquiesce in torture
inflicted by another state. For example, article 3 prohibits a state party from
expelling, returning or extraditing a person to another state where there are substantial grounds for believing that the person would be in danger of being subjected to torture.10 In addition, as Professor Peter Burns, an expert on the
international prohibition against torture, testified at the Inquiry, a state may contravene the Convention Against Torture if it shares information with a regime
known to practice torture with the knowledge that the transfer of information
would be used for the purpose of torture.11
Article 2, paragraph (2) of the Convention Against Torture makes the
absolute nature of the prohibition against torture very clear: “No exceptional
circumstances whatsoever, whether a state of war or a threat of war, internal
political instability or any other public emergency, may be invoked as a justification of torture.”12 Indeed, the prohibition against torture in international law
is so fundamental that it has reached the level of a jus cogens norm — a preemptory norm, which overrides any contradictory customary international law,
treaty law, or state practice.13
Domestically, the Canadian Charter of Rights and Freedoms confirms the
absolute rejection of the use of torture. In a recent case, the Supreme Court of
Canada characterized torture as “so inherently repugnant that it could never be
an appropriate punishment, however egregious the offence.”14 Torture is also a
criminal offence in Canada. Subsection 269.1(1) of the Criminal Code of Canada
provides that “Every official, or every person acting at the instigation of or with
the consent or acquiescence of an official, who inflicts torture on any other person is guilty of an indictable offence and liable to imprisonment for a term not
exceeding fourteen years.”15 The Criminal Code in fact does more than criminalize specific acts of torture, in that its provisions relating to attempts,
�MAHER ARAR AND THE RIGHT TO BE FREE FROM TORTURE
conspiracies, counselling and parties apply to the offence of torture in the same
way they apply to other criminal offences.
Canada has adopted the definition of torture set out in article 1 of the
Convention Against Torture.16 “Torture” is any act or omission by which severe
pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining information or a statement, punishing, or
intimidating or coercing that person, or for any reason based on discrimination
of any kind, but does not include any act or omission inherent in lawful sanctions.17 It is no defence that the act or omission was ordered by a superior or
took place in exceptional circumstances such as a state of war, a threat to war,
internal political instability or any other public emergency.18 Further, under section 269.1, any evidence obtained as a result of the commission of an offence
is inadmissible in “any proceedings over which Parliament has jurisdiction.”19
3.
MAHER ARAR
Maher Arar is a Canadian citizen. He was born in Syria in 1970 and, as a
teenager, immigrated to Canada with his family, which settled in Montreal.
Mr. Arar is a highly educated person. Upon completing high school in 1989,
he attended Ahuntsic CÉGEP, in the sciences stream. After graduating in 1991,
he enrolled at McGill University, from which he obtained a Bachelor of
Engineering in Computers in 1995. He then went on to specialize, earning a
Master’s degree in Telecommunications from the University of Quebec’s Institut
national de la recherche scientifique.20
While at McGill, Mr. Arar met Monia Mazigh, and the two later married.
Ms. Mazigh completed a doctorate in Finance at McGill University in 2001. The
couple has two young children, a girl and a boy.21
In 1997, the family moved from Montreal to Ottawa, where Mr. Arar, a professional in the telecommunications engineering field,22 took a job with a high
tech firm. In 1999, Mr. Arar followed career opportunities to the United States,
taking a position with a Boston firm, The MathWorks, Inc. His job involved
extensive travel between Canada and the United States.23
Mr. Arar is a practicing Muslim. As discussed below, one of the devastating
effects of Mr. Arar’s experiences has been his sense of disconnect from the
Ottawa Muslim community since his return to Canada.
As regards Mr. Arar’s personal character, the fact-finder for the Commission,
Professor Stephen Toope,24 indicated that Mr. Arar is a hardworking person who
values his professionalism immensely, is strongly committed to his family, and
derives a large part of his sense of self from his ability to provide for it. Professor
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ANALYSIS AND RECOMMENDATONS
Toope remarked that “Mr. Arar strikes me as a person with what one might
describe as moral courage.”25
3.1
MAHER ARAR’S EXPERIENCES
The Inquiry was called because of what Mr. Arar lived through from
September 26, 2002, when he boarded an airplane in Switzerland, to October 6,
2003, when he arrived home in Canada. His story is harrowing.
Unless otherwise noted, the facts that follow are taken from Professor
Toope’s report.
On September 26, 2002, Mr. Arar, who had been in Tunisia with his family, was returning to Canada by plane via Switzerland and the United States. He
boarded an American Airlines flight in Zurich and, at about two o’clock in the
afternoon, arrived in New York, where he was pulled aside by American customs officials. Two hours later, he was fingerprinted and photographed, and
told this was regular procedure. His possessions were searched and his passport
photographed.26
Mr. Arar was then placed under arrest and strip-searched, an experience he
found “humiliating.” He was held, first at the John F. Kennedy International
Airport and later at the Metropolitan Detention Centre, for 12 days, during which
time he was interrogated by American officials. Initially, he was denied access
to a lawyer. His request to pray during the interrogation sessions was denied.
On October 8, 2002, Mr. Arar was awakened at three o’clock in the morning and told that he was to be removed to Syria. Mr. Arar told Professor Toope
that, at that point, he had begun to cry and say that he would be tortured if sent
to Syria. He said he had felt “destroyed.”
Mr. Arar was taken to New Jersey, put on a corporate jet, and flown to
Amman, Jordan, with brief stops in Washington, D.C., Portland, Maine, and
Rome, Italy. Throughout the journey, he was chained and shackled in the back
of the plane. The shackles were removed only at the end of the trip, when he
was given the opportunity to have a meal with his guards. He could not eat.
It was the middle of the night when he arrived in Amman and was transported to a detention centre. He had not slept since leaving New York. He suffered blows at the hands of his Jordanian guards and was blindfolded. He was
then taken into a room, where the blindfold was removed. He was asked routine questions and then blindfolded again before being led to a cell. The next
morning, he was told that he was going to Syria. Later that day, he was blindfolded and put into a car or van. By the time he arrived at his destination at
around five o’clock in the afternoon, Mr. Arar was exhausted, hungry, and
�MAHER ARAR AND THE RIGHT TO BE FREE FROM TORTURE
terrified. His blindfold was removed, and he saw portraits of Presidents Assad,
father and son. Mr. Arar later learned that he was in Syria, in the Far Falestin
detention centre, also called the Palestine Branch, which was run by the Syrian
Military Intelligence (SMI).
Later that day, Mr. Arar was interrogated for approximately four hours by
a man called “George,” subsequently identified as George Salloum, the head
interrogator at the Palestine Branch. Two other interrogators were present, taking notes. The questions mostly concerned his family.
Mr. Arar told Professor Toope that, at this point, he had decided to “say anything” necessary to avoid torture. Although no physical violence was used during this interrogation session, ominous threats were made. Whenever Mr. Arar
was slow to answer, George would threaten to use “the chair,” a reference
Mr. Arar did not understand.
By the next day, October 9, 2002, Mr. Arar was even more exhausted, as
he had not been able to sleep in the cell. He was called up for interrogation.
When George arrived, he immediately started hitting Mr. Arar. The chair on
which Mr. Arar had been sitting was taken away, so that he was now on the
floor.
George brought a black cable, which might have been a shredded electrical cable, about two feet long, into the room with him. Mr. Arar told Professor
Toope that, when he had seen the cable, he had started to cry. George told
Mr. Arar to open his right hand, then raised the cable high and brought it down
hard. Mr. Arar recalled the moment vividly; he told Professor Toope that he had
felt like a bad Syrian school boy. He stood up and started jumping, but he was
forced back down and the process was repeated with his left hand.
Mr. Arar was then made to stand near the door, and the questions began.
The theme throughout was “you are a liar.” He was given breaks, during which
he was put into a different room, where he could hear other people screaming.
Sometimes, he was blindfolded and left to stand in the hallway for an hour or
more. The screaming continued. Each time Mr. Arar was brought back into the
interrogation room, he was beaten about the upper body and asked more questions. On the second day in the Palestine Branch, the interrogation lasted
approximately 10 hours.
Day three, October 11, 2002, was the most “intensive” for Mr. Arar. He was
questioned for 16 to 18 hours, and was subjected to great physical and psychological abuse. The questions were in part about Abdullah Almalki. Mr. Arar
was beaten with the black cable on numerous occasions throughout the day,
and was threatened with electric shock, “the chair” and “the tire.”27 The pattern
was three or four lashes with the cable, then questions, followed by more
55
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ANALYSIS AND RECOMMENDATONS
beating. After a while, he became so weak that he was disoriented. He remembers being asked if he had trained in Afghanistan. By this time, he was so afraid
and in so much pain that he replied, “If you want me to say so.” He was asked
which border he had crossed and whether he had seen Mr. Almalki in
Afghanistan. Mr. Arar told Professor Toope that he had urinated on himself twice
during this questioning, and had had to wear the same clothes for the next two
and a half months. He had been “humiliated.”
Mr. Arar was questioned about his relationships with various people, his
family, his bank accounts, and his salary. His interrogators could not understand
what he did for a living. They did not believe his description of providing services in the computer sector or the amount he said he was paid in salary, which
they thought impossibly high. Mr. Arar was beaten for these “lies.”
After the beatings on the third day, the interrogation became less intense
physically. There was much less use of the cables, and more punching and hitting. On October 16 or 17, even those beatings diminished. However, the threats
intensified, and the psychological pressure remained extreme. For example,
Mr. Arar was put in “the tire,” though not beaten. Warnings about “the chair”
were also used to scare him. At the end of each interrogation session, an interrogator would say “tomorrow will be tough” or “tomorrow will be worse for
you.” Mr. Arar found it almost impossible to sleep for more than two or three
hours a night.
Mr. Arar’s conditions of detention were atrocious. He was kept in a basement cell that was seven feet high, six feet long, and three feet wide. The cell
contained only two thin blankets, a “humidity isolator,” and two bottles — one
for water and one for urine. The only source of light in the cell was a small
opening in the middle of the ceiling, measuring roughly one foot by two feet.
According to Mr. Arar, cats would sometimes urinate through the opening. There
were also rats in the building; Mr. Arar stuffed shoes under the door to his cell
to prevent them from entering. The cell was damp and very cold in the winter
and stifling in the summer. Mr. Arar was known to guards only by his cell
number: Two.
Over time, as the beatings diminished in intensity, the most disturbing
aspect of Mr. Arar’s detention came to be the daily horror of living in the tiny,
dark and damp cell all alone and with no reading material (except the Koran
later on). While at first the cell was a refuge from the infliction of physical pain,
later it became a torture in its own right. Mr. Arar described for Professor Toope
nights alone in his cell, when he had been unable to sleep on the cold concrete
floor and had had to turn over every 15 minutes or so. He had thought of his
�MAHER ARAR AND THE RIGHT TO BE FREE FROM TORTURE
family constantly, worrying about their finances and safety, and had been “bombarded by memories.”
Mr. Arar remained in this cell for 10 months and 10 days, during which he
saw almost no sunlight other than when he was transferred for consular visits.
His first visit to the courtyard of the prison did not take place until April 2003.
Mr. Arar described the cell as “a grave” and a “slow death.” By June or July of
2003, he had reached his limit. Although he had tried to keep in shape by doing
push-ups and pacing in his cell, he was losing all hope and stopped his modest exercise regime.
In July 2003, one of his interrogators, “Khalid,” upon seeing him for the
first time in months, told Mr. Arar that his wife would divorce him if she saw him
as he was then: thin, listless and crying. The consular visits with Léo Martel, the
Canadian consul, provided a little hope and some connection to Mr. Arar’s family, but Mr. Arar also found them immensely “frustrating.”
On August 20, 2003, Mr. Arar was transferred to Sednaya Prison, where
conditions were “like heaven” compared with those in the Palestine Branch. On
October 5, 2003, he was released from custody after signing a “confession” given
to him in court by a Syrian prosecutor.
3.2
EFFECTS OF TORTURE
The fact-finder for the Inquiry concluded that Mr. Arar’s treatment in Syria constituted torture within the meaning of article 1 of the Convention Against Torture.
I agree. The consequences of Mr. Arar’s ordeal have been profound, and include
physical, psychological, family and community, and economic effects.
The purely physical effects of the torture suffered by Mr. Arar were mostly
short-lived. This is consistent with Mr. Arar’s account that physical force had
been used as part of the interrogation process at the beginning of his detention.
His detention in Sednaya Prison toward the end of his time in Syria also gave
him a chance to heal physically.
Mr. Arar nevertheless had some physical complaints upon his return to
Canada and over the following three to four months. He experienced hip pain,
which was likely connected with his sleeping in cramped and damp quarters on
a hard floor for over 10 months. He also complained of pain around his face and
head and in his neck, shoulders and lower back. Bad dreams continue to disrupt Mr. Arar’s sleep, and he suffers from stress and headaches.
Psychologically, Mr. Arar’s experiences in Syria were devastating. When
Mr. Arar returned to Canada, he was in a “fragile” state. He was suffering from
post-traumatic stress and did not know whom to trust. Mr. Arar’s distrust is
57
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ANALYSIS AND RECOMMENDATONS
rooted in continuing fear. Professor Toope reported that Mr. Arar could not yet
contemplate travel by air, even within Canada. He was afraid that the plane
might be diverted to the United States and, if this occurred, he might be seized
and the ordeal might begin again. He was afraid that he would not be able to
resume any kind of “normal” life. He was afraid that his story would not be
believed.
Professor Toope noted that even the Commission of Inquiry process itself
has caused Mr. Arar and his family anxiety and stress. Mr. Arar’s focus on the
Inquiry and on his “security” concerns has become a significant source of tension within the family. Professor Toope observed that Mr. Arar was particularly
disturbed by certain “leaks” from sources allegedly inside the Canadian government that cast him in a negative light. According to Professor Toope, Mr. Arar
was “devastated” by those leaks.
Mr. Arar’s ordeal has had a profound effect on his family life. Dr. Mazigh
told Professor Toope that she had married a focused, easygoing, patient man.
She described that man as an optimistic person who had believed that he could
work hard and make a good life for his family. Mr. Arar had apparently been
very caring with their daughter, born in 1997, and had been a patient father. His
son, born in 2002, had turned out to be colicky, and so Mr. Arar had often taken
the baby for car rides to try to settle him. As it turned out, Mr. Arar was absent
for much of the boy’s second year of life.
Dr. Mazigh had found the contrast between that man and the man who
had arrived home from Syria shocking. He had been submissive, without any
light in his eyes. Dr. Mazigh reported that, for many weeks, Mr. Arar had
seemed “confused.” He would pace back and forth as he talked to his wife. He
was always tired. He told Dr. Mazigh that he just wanted “a normal life,” which
to him meant a life without conflict.
Professor Toope also noted that, since his return, Mr. Arar has had a difficult relationship with the Muslim community in Canada. Mr. Arar stopped going
to the mosque that he had previously attended. He told Professor Toope that he
was disappointed at the reaction of many Muslims to him and his story. He felt
that this distancing had been exacerbated by the press leaks mentioned
previously.
Finally, Mr. Arar’s ordeal has had devastating economic effects. Mr. Arar
went from being an engineer and a member of the middle class, to having to
rely on social assistance to help feed, clothe and house his family. He told
Professor Toope that not being employed was “destroying” him. By the conclusion of the Inquiry, Mr. Arar had finally been offered a small, part-time position as a computer advisor in his daughter’s school. However, this was little
�MAHER ARAR AND THE RIGHT TO BE FREE FROM TORTURE
comfort for a man who had derived a large part of his sense of self from his professionalism and ability to support his family.
3.3
MR. ARAR’S REPUTATION
Mr. Arar has asked that I “clear his name.” His concern, understandably, is that
the publicity surrounding his case has raised suspicions that he has been
involved in illegal activities. Unfortunately, Mr. Arar has been the subject of a
good deal of publicity, some of which has inaccurately portrayed his status in
Canadian investigations and his possible connections to terrorist activities. The
result has been that Mr. Arar, already the victim of inhumane and degrading
treatment in Syria, has been subjected to further suffering owing to the release
of information that has unfairly damaged his reputation here in Canada.
I have heard evidence concerning all of the information gathered by
Canadian investigators in relation to Mr. Arar. This includes information obtained
in Canada, as well as any information received from American, Syrian or other
foreign authorities. I am able to say categorically that there is no evidence to
indicate that Mr. Arar has committed any offence or that his activities constitute
a threat to the security of Canada.
The public can be confident that Canadian investigators have thoroughly
and exhaustively followed all information leads available to them in connection
with Mr. Arar’s activities and associations. This was not a case where investigators were unable to effectively pursue their investigative goals because of a lack
of resources or time constraints. On the contrary, Canadian investigators made
extensive efforts to find any information that could implicate Mr. Arar in terrorist activities. They did so over a lengthy period of time, even after Mr. Arar’s case
became a cause célèbre. The results speak for themselves: they found none.
Of course, it is virtually impossible to establish a negative, that is, to establish that Mr. Arar has never been involved in any illegal activities connected
with national security. The same would hold true for any individual. However,
my conclusion, coupled with the RCMP’s position that Mr. Arar was never even
a suspect in its investigation — that, at most, he was a person of interest28 —
should remove any taint or suspicion about Mr. Arar that has resulted from the
publicity surrounding his case.
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ANALYSIS AND RECOMMENDATONS
3.4
A MISPERCEPTION GROWS
At the beginning of the Inquiry, many people within government and likely
some members of the public believed that Mr. Arar had not been tortured while
in Syria and that he had voluntarily admitted links to terrorist activities.
It is instructive and disturbing to trace how this misunderstanding grew. Let
me recount a few of the milestones. After the Canadian consul first visited
Mr. Arar in Syrian custody on October 23, 2002, it should have been apparent
that Mr. Arar had likely been tortured in the preceding two weeks. Some
Canadian officials, including Gar Pardy, Director General of Consular Affairs at
DFAIT, operated on that assumption. However, others did not, saying they
required more evidence.
At the beginning of November 2002, the Syrian Military Intelligence gave
Canada’s ambassador a brief summary of a statement Mr. Arar had apparently
given Syrian authorities during his first two weeks in custody. In that statement,
Mr. Arar had said that he had attended a training camp in Afghanistan in 1993.
DFAIT distributed the statement to the RCMP and CSIS without attaching a note
cautioning that it was likely the product of torture and that, even if true, the
admission was of doubtful significance for establishing terrorist links.
In late April 2003, a briefing note to the RCMP Commissioner indicated that
Mr. Arar had “volunteered” to Syrian authorities that he had attended a training
camp in Afghanistan in 1993, the implication being that he might have terrorist
links.
In July 2003, the Syrian Human Rights Committee29 published a report saying Mr. Arar had been tortured while in Syrian custody. The Canadian consul
visited Mr. Arar on August 14, 2003. Syrian officials were present throughout
the visit, and Mr. Arar, who was anxiously hoping to be released, was very careful about what he said in front of them, indicating that the truth would come out
when he returned to Canada. He also stated that he had not been tortured,
beaten or paralyzed. Understandably, the consul was sceptical of this last comment, given the circumstances in which it was made.
Later the same day, Canada’s Minister of Foreign Affairs made a public statement about the consular visit. He had not been properly briefed. He indicated
that, during an “independent” visit, Mr. Arar had confirmed that he had not been
tortured. This statement created an inaccurate picture, as the visit had not been
independent. Syrian officials had been present throughout. Moreover, the
Minister made no reference to the need to view Mr. Arar’s statement about not
being tortured with scepticism.
�MAHER ARAR AND THE RIGHT TO BE FREE FROM TORTURE
When Mr. Arar was released on October 5, 2003, he flew back to Canada
with the Canadian consul. He gave the consul some details about his ordeal, stating that he had been beaten on occasion during the first two weeks of his detention. The consul reported his conversations to other officials at DFAIT a few
days later. However, subsequently, in memoranda, he reported that Mr. Arar
had said that he had not been beaten. No mention was made of the statements
Mr. Arar had made on the plane trip back to Canada.
Mr. Arar first spoke publicly of what had happened to him in early
November 2003. He described how he had been beaten during the first two
weeks of his imprisonment and had given the Syrians a statement. Although
somewhat more detailed, the description was consistent with what he had said
on the plane. Professor Toope found Mr. Arar’s description completely credible.
In the months following Mr. Arar’s release, there were a number of leaks
from unnamed government sources indicating that Mr. Arar had admitted to
having terrorist links in Syria and stating that he was not a “nice guy” or a “virgin,” as would be seen when the truth came out.
It is fair to assume that some government officials and members of the public had the impression that Mr. Arar had admitted to having connections to terrorist activities and they formed a negative impression of him. If nothing else,
some assumed that “where there is smoke, there is fire.” Certainly, at the beginning of the Inquiry, it was obvious to me that many within government believed
that Mr. Arar had not been tortured and that he had voluntarily admitted links
to terrorist activity to the Syrians. They were of the view that the truth would
come out during the Inquiry.
Well, the truth did come out. When Professor Toope’s report was made
public over a year later, the government did not challenge the findings in the
report and, indeed, through counsel, the government indicated that Mr. Arar
had given “a credible” account that he was tortured.
The disturbing part of all of this is that it took a public inquiry to set the
record straight. Getting it right in the first place should not have been difficult,
and it should not have been a problem to keep the record accurate. However,
over time, the misperception grew and seemed to become more entrenched as
it was reported.
In this report, I speak often of the need for accuracy and precision when
collecting, recording and sharing information. Inaccurate information can have
grossly unfair consequences for individuals, and the more often it is repeated,
the more credibility it seems to assume. Inaccurate information is particularly
dangerous in connection with terrorism investigations in the post-9/11 environment. Officials and the public are understandably concerned about the threats
61
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ANALYSIS AND RECOMMENDATONS
of terrorism. However, it is essential that those responsible for collecting, recording and sharing information be aware of the potentially devastating consequences of not getting it right.
Notes
1
2
3
4
5
6
7
8
Kofi Annan, “Message on Human Rights Day” (December 10, 2005) [online]
http://www.ohchr.org/english/events/day2005/hrd2005.htm.
GA Res. 217A (III), UN GAOR, 3d Sess., Supp. No. 13, UN Doc. A/810 (1948) [online]
http://www.un.org/Overview/rights.html [accessed November 10, 2005].
GA Res. 2200A (XXI), UN GAOR, 21st Sess., Supp. No. 16, UN Doc. A/6316 (1966)19 December
1966, 999 U.N.T.S. 171, Can.T.S. 1976 No. 47 (entered into force 23 March 1976, in accordance with art. 49). [online] http://www.unhchr.ch/html/menu3/b/a_ccpr.htm [accessed
November 10, 2005] (entered into force 23 March 1976, in accordance with art. 49).
Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November
1950, 213 U.N.T.S. 221, Eur. T.S. 5, art. 3 [online] http://www.echr.coe.int/NR/rdonlyres/
D5CC24A7-DC13-4318-B457-5C9014916D7A/0/EnglishAnglais.pdf ; American Convention on
Human Rights, 22 November 1969, OAS Treaty Series No. 36, 1144 U.N.T.S. 123, art. 5(2)
[online] http://www.oas.org/juridico/english/Treaties/b-32.htm; African Charter on Human and
Peoples’ Rights, June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 1520 U.N.T.S. 217, art. 5
[online] http://www.achpr.org/english/_info/charter_en.html; Arab Charter on Human Rights,
15 September 1994, art. 13 [online] http://www1.umn.edu/humanrts/instree/arabhrcharter.html
[all accessed November 10, 2005].
Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field, Geneva, 12 August 1949, 6 U.S.T. 3217, 75 U.N.T.S. 31, arts. 3, 12, 50
(entered into force 21 October 1950); Convention (II) for the Amelioration of the Condition
of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August
1949, 6 U.S.T. 3217, 75 U.N.T.S. 85, arts. 3, 12, 51 (entered into force 21 October 1950);
Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, 6 U.S.T.
3316, 75 U.N.T.S. 135, arts. 3, 13, 14, 130 (entered into force 21 October 1950); Convention
(IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949,
6 U.S.T. 3516, 75 U.N.T.S. 287, arts. 3, 27, 32, 147 (entered into force 21 October 1950) [online]
http://www.icrc.org/Web/Eng/siteeng0.nsf/html/genevaconventions [accessed November 15,
2005].
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 U.N.T.S.
3, art. 75; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to
the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, 1125
U.N.T.S. 609, art. 4 [online] http://www.icrc.org/Web/Eng/siteeng0.nsf/html/genevaconventions [accessed November 15, 2005].
GA Res. 3452(XXX), Annex, 30 UN GAOR Supp. (No. 34) at 91, UN Doc. A/10034
(1975)
[online]
http://www.unhchr.ch/html/menu3/b/h_comp38.htm
[accessed
November 10, 2005].
GA Res. 39/46, Annex, 39 UN GAOR Supp. (No. 51) at 197, UN Doc. A/39/51
(1984)10 December 1984, 1465 U.N.T.S. 585, C.T.S. 1987/36 (entered into force on June 26,
1987, in accordance with art. 27 (1)) [online] http://www.ohchr.org/english/law/cat.htm
�MAHER ARAR AND THE RIGHT TO BE FREE FROM TORTURE
9
10
11
12
13
14
15
16
17
[accessed November 10, 2005] (entered into force on June 26, 1987, in accordance with art.
27 (1)) [Convention against Torture].
As of October 7, 2005, there were 140 state parties to the Convention against Torture, including Canada (ratified June 24, 1987), Jordan (acceded November 13, 1991), the Syrian Arab
Republic (acceded August 19, 2004) and the United States of America (ratified October 21,
1994). Canada, the Syrian Arab Republic and the United States of America have made declarations or reservations with regard to the Convention. Canada has recognized the competence
of the Committee against Torture, the treaty body created by art. 17 of the Convention against
Torture, to receive and consider communications under art. 21 to the effect that a state party
claims that another state party is not fulfilling its obligations under the Convention. The Syrian
Arab Republic does not recognize the competence of the Committee against Torture in that
regard. Syria has also declared that its accession to the Convention “shall in no way signify
recognition of Israel or entail entry into any dealings with Israel in the context of the provisions of this Convention.” The United States of America submitted three lengthy
reservations at the time of its ratification, relating to the interaction of the
Convention and U.S. constitutional law, the definition of torture, and the
non-self-executing nature of certain provisions of the Convention. Finland and Sweden have
objected to the United States’ reservations as being contrary to the nature and
purpose of the treaty. The full text of the reservations and objections is available at
[online] http://www.ohchr.org/english/countries/ratification/9.htm#reservations [accessed
November 10, 2005].
Art. 2(1) of the Convention against Torture.
Art. 3(1) of the Convention against Torture. See also Prosecutor v. Anto Furundzija, ICTY Trial
Chamber, IT-95-17/1-T, Judgment (10 December 1998) at para. 144 [online]
http://www.un.org/icty/furundzija/trialc2/judgement/index.htm [accessed November 11, 2005];
“Human Rights Committee, General Comment 20, Article 7” (Forty-fourth session, 1992),
U.N. Doc. HRI/GEN/1/Rev.1 at 30 (1994) [online] http://www1.umn.edu/humanrts/
gencomm/hrcom20.htm [accessed November 15, 2005]; Soering v. United Kingdom,
161 Eur. Ct. H.R. (Ser. A) (1989) at paras. 86–91 (extradition to the United States for a capital crime would violate article 3 of the Convention against Torture) [online]
http://www.worldlii.org/eu/cases/ECHR/1989/14.html [accessed November 15, 2005].
[P] Burns testimony (June 8, 2005), pp. 5850 and 5957. In this respect, art. 4(1) of the
Convention against Torture requires that states parties “ensure that all acts of torture are
offences under [the] criminal law” and that the same apply to an “act by any person which constitutes complicity or participation in torture.”
See also [P] Burns testimony (June 8, 2005), pp. 5886–5887.
See Bouzari et al. v. Islamic Republic of Iran, 71 O.R. (3d) 675 (2004) at para. 87; see also R.
v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 3) [2000] 1 AC
147 (H.L.), [1999] H.L.J. No. 12 (QL) per Lord Browne-Wilkinson at para. 28; see also United
Nations, “Human Rights Committee, General Comment No. 24,” November 4, 1994, para. 10
(the prohibition on torture has the status of a peremptory norm).
Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1 at
paras. 51, 52. The Court noted that torture would constitute cruel and unusual punishment
under section 12 of the Charter.
R.S.C. 1985, c. C-46, as amended by R.S.C. 1985, c. 10 (3rd Supp.), s. 2.
[P] Burns testimony (June 8, 2005), p. 5884. Note, however, that the Canadian Criminal Code
definition explicitly includes omissions, whereas the Convention against Torture definition
does not.
Criminal Code, s. 269.1(2).
63
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ANALYSIS AND RECOMMENDATONS
18
19
20
21
22
23
24
25
26
27
28
29
Ibid., s. 269.1(3).
Ibid., s. 269.1(4). Such evidence is admissible only as evidence that the statement was so
obtained.
Exhibit C-206, Tab 403.
Mr. Arar’s November 4, 2003 press conference, Exhibit P-42, Tab 693.
Closing submissions on behalf of Maher Arar – Submissions to Commissioner O’Connor, p. 1,
para 1.
Mr. Arar’s November 4, 2003 press conference, Exhibit P-42, Tab 693.
The Report of Professor Stephen J. Toope is attached as Appendix 7 in Volume II of the
Factual Background [Toope Report].
Toope Report, p. 808.
Mr. Arar’s November 4, 2003 press conference, Exhibit P-42, Tab 693.
“The chair” and “the tire” are methods of torture. The first involves using a chair that bends
backwards to asphyxiate the victim or fracture the victim’s spine, and the second, restraining
a person and whipping exposed body parts.
I discuss the RCMP investigation as it related to Mr. Arar in chapters III, IV and V.
The Syrian Human Rights Committee is an émigré organization based in London, United
Kingdom.
�III
Events Prior to Mr. Arar’s Detention
in New York
1.
OVERVIEW
Project A-O Canada was the investigative unit within the RCMP that carried out
the investigation that in time involved Maher Arar.
In this chapter, I review the Project A-O Canada investigation from the
Project’s inception in early October 2001 to September 26, 2002, when Mr. Arar
was detained in New York. I discuss the Project’s formation, its relationship
with RCMP Headquarters, the investigative steps it took with respect to Mr. Arar,
its requests for border lookouts in Canada and the United States for Mr. Arar and
his wife and, most importantly, the way it shared information with the American
agencies.
Project A-O Canada shared information arising from its investigation with
the Americans on a regular basis and, in April 2002, it provided the American
agencies with its entire investigative file. Moreover, it shared information in ways
that contravened RCMP policy requiring that information be screened for relevance, reliability and personal information, and that caveats1 be attached. The
information shared by the Project included information about Mr. Arar, some of
which was inaccurate and grossly unfair to him.
2.
FORMATION OF PROJECT A-O CANADA
2.1
TRANSFER OF INVESTIGATIONS FROM CSIS TO RCMP
Following the events of September 11, 2001, those involved in protecting
Canada’s national security were confronted with unprecedented challenges. An
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ANALYSIS AND RECOMMENDATONS
all-out effort was being made by western intelligence and law enforcement
agencies, including Canada’s, to track down individuals involved in the 9/11
conspiracy. Moreover, there was a significant fear, not without foundation, of a
second wave of attacks.
The Americans were under tremendous pressure to bring those who
directed or assisted the 9/11 terrorists to justice. They, in turn, pressed their
allies to assist by investigating terrorist threats within their borders. Canada
received an enormous number of requests for information from the FBI and the
CIA related to all aspects of 9/11, as well as other potential or suspected terrorist threats.
It immediately became apparent to senior officers in the Canadian Security
Intelligence Service (CSIS), the Royal Canadian Mounted Police (RCMP) and
other police forces in this country that Canadian co-operation in the investigation of terrorist threats would require manpower and resources far exceeding
anything that had been devoted to these types of investigations in the past.
Within weeks of the 9/11 attacks, senior officials from Canadian agencies met
to discuss the best way for Canada to address this challenge. Shortly thereafter,
CSIS transferred to the RCMP prime responsibility for the investigation of a number of individuals suspected of terrorist links. [***]. It provided the RCMP with
some of the details of its investigations, as well as information from its holdings.
There was no mention of Maher Arar. However, in time, Mr. Arar came to the
attention of the RCMP through its investigation of Abdullah Almalki.
I have no reason to believe that the transfer of these investigations was
inappropriate.2 CSIS was deluged with work as a result of the 9/11 crisis. Jack
Hooper, Assistant Director of Operations for CSIS, described how, in the wake
of 9/11, CSIS had directed all of its available resources to terrorist investigations,
including round-the-clock surveillance of certain targets. He explained that CSIS
would have been unable to maintain this kind of coverage on a continuing basis.
The increasing demands had made it imperative that it receive assistance, and
the RCMP had been the obvious agency to provide it.
CSIS reviewed its files and resources, initially selecting targets to be transferred based on the belief that, following investigation, the RCMP might be able
to lay charges of supporting terrorism. The Canadian Security Intelligence
Service Act (CSIS Act) authorizes CSIS to disclose information it has collected to
a law enforcement agency where the information may be used in the investigation or prosecution of an alleged contravention of any law of Canada or a
province.3 CSIS considered that the cases transferred to the RCMP were appropriate for continued investigation by a law enforcement agency and that the
transfers were authorized by the CSIS Act.
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
The RCMP quickly recognized that the investigations that had been transferred would be focused, at least initially, on preventing or disrupting terrorist
acts, rather than on prosecution. The primary objective of the investigations
would be to protect Canadians and others from terrorist activities and try to prevent any further attacks from being carried out. Thus, the main focus of the
RCMP investigations became prevention, although prosecution continued to be
one of the possible outcomes.
My statement that I have no reason to believe that CSIS should not have
transferred these investigations to the RCMP may seem contrary to the recommendations of the Commission of Inquiry Concerning Certain Activities of the
Canadian Mounted Police (McDonald Commission)4 and the resulting changes
to Canada’s national security landscape. That report is sometimes interpreted as
indicating that the RCMP should not be involved in any national security activities whatsoever. That interpretation is wrong.
Clearly, the mandates of CSIS and the RCMP are different. However, those
mandates contemplate a continuum in the collection of information concerning
national security threats. CSIS collects information at an earlier phase and on a
broader basis than does the RCMP. It collects information and/or intelligence
under section 12 of the CSIS Act in respect of activities “that may on reasonable
grounds be suspected of constituting threats to the security of Canada” and
advises government of perceived threats to the security of Canada. However,
CSIS is not a law enforcement agency, and once it makes a determination that
sufficient indicators of criminality are present to warrant a criminal investigation, the RCMP may become involved.
Law enforcement agencies such as the RCMP become involved in investigations relating to national security when the investigations are directed at apprehending criminals or preserving the peace and preventing crime. Unlike CSIS,
the RCMP conducts investigations that require the exercise of powers and practices associated with law enforcement and criminal investigations.
After the McDonald Commission, the RCMP continued to assume responsibility for conducting national security investigations from a law enforcement
perspective.5 Thus, it was quite properly involved in any investigation with
national security implications directed towards prosecuting offences under the
Criminal Code. Moreover, the Security Offences Act enacted in 1984 conferred
on the RCMP specific authority to conduct investigations of national security
offences, being those that relate to conduct constituting a threat to the security
of Canada.6
In addition to conducting criminal investigations for purposes of prosecution, the RCMP has a preventative mandate under section 18 of the Royal
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ANALYSIS AND RECOMMENDATONS
Canadian Mounted Police Act (RCMP Act),7 which gives it authority to conduct
investigations aimed at taking steps to preserve the peace and prevent crimes.
Although some have suggested that 9/11 inappropriately thrust the RCMP
back into the national security business contrary to the direction of the
McDonald Commission, that is not the case. The RCMP has conducted investigations with national security implications in the years since the McDonald
Commission. In furtherance of this responsibility, the Force has, over time, developed specific operational and Headquarters units devoted to these types of
investigations and implemented policies focused on them. What has changed
since 9/11 is the number and intensity of the RCMP’s national security investigations and the enactment of Bill C-36 which, among other things, created new
criminal offences relating to national security, as well as certain new investigative powers.8 In the months and years since 9/11, the RCMP has devoted a significantly larger proportion of its resources to these types of investigations, and
it would seem that this higher level of activity will continue to be required for
the foreseeable future.
I heard evidence about certain aspects of the RCMP’s investigation of
Mr. Almalki as it related to Mr. Arar. Although that investigation initially had
some of the earmarks of an intelligence-gathering probe that might be carried
out by CSIS, the powers and investigative steps that are part of a normal criminal investigation came into play in relatively short order. For example, in January
2002, the RCMP obtained search warrants and carried out searches of seven residences and also conducted several interviews related to the investigation. The
RCMP investigations of Mr. Almalki and others continued for some time. Again,
although I heard evidence about only some aspects of the Almalki investigation,
I do know that the RCMP continued to consider prevention and intelligence
gathering the primary objectives of that investigation. To date, no charges have
been laid. Given that prevention, rather than prosecution, was the primary goal
of the investigation that in time involved Mr. Arar, questions arise as to whether,
at some point, the investigation ceased to have a focus that could properly be
investigated by the RCMP as a law enforcement agency and should therefore
have been discontinued, or whether it could have been more properly handled
by CSIS as a security intelligence probe. While the line between the two types
of investigations may be blurred in some cases, it is nonetheless important that
the distinction between what is appropriately the subject matter for an
investigation by the RCMP on the one hand, and what should be handled by
CSIS on the other, be respected and maintained.9 The fact that a particular investigation is being conducted by the RCMP does not mean that it must necessarily remain a law enforcement investigation indefinitely.
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
Throughout this report, I review in detail the investigative steps taken by
the RCMP in relation to Mr. Arar. However, the RCMP’s investigation was not
focused on Mr. Arar, but on Mr. Almalki and others. Mr. Arar was merely a
person of interest. I have no reason to believe that it was not appropriate,
throughout the relevant time period, for the RCMP as a law enforcement agency
to continue its main investigation, in which Mr. Arar came to the investigators’
attention from time to time.10
Following the transfers, the RCMP agreed to keep CSIS advised of the investigations by means of periodic briefings and meetings and, in the case of the
Almalki investigation, the provision of copies of situation reports (SITREPs)
describing its day-to-day progress. CSIS moreover continued its own investigations of the transferred targets, although with significantly less intensity than
prior to the transfers.
2.2
PROJECT A-O CANADA
The investigation transfers from CSIS led the RCMP to set up new projects,
including Project A-O Canada in Ottawa and Project O Canada in Toronto. Here,
I focus on the formation in early October 2001 of Project A-O Canada, which
was given responsibility for investigating Mr. Almalki.
For operational purposes, the RCMP is divided into 14 divisions, each with
responsibility for a specific geographic region. In October 2001, each RCMP
division had a National Security Investigation Section (NSIS), which normally
handled national security investigations. Typically, NSIS officers were provided
with some training in RCMP policies and practices relating to national security
investigations, and they would presumably develop experience in these types
of investigations over time.
It made sense to locate the Almalki investigation in Ottawa, as Mr. Almalki
lived there and the information showed that that was where the investigation
would largely be centered. However, the NSIS in “A” Division, which had operational responsibility for the National Capital Region, did not have the capacity
to undertake the investigation.
In the aftermath of 9/11, “A” Division NSIS, comprising some 20 people,
was swamped with leads and tips. By late November 2001, the RCMP had a
backlog of nearly 10,000 tips. “A” Division also had primary responsibility for
providing protective services for a large number of Canadian and foreign
public officials, as well as many of Canada’s federal buildings, and demand for
protective services had increased dramatically after 9/11.
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ANALYSIS AND RECOMMENDATONS
The senior officers in charge of “A” Division consequently set up a new
project — Project A-O Canada — to conduct the Almalki investigation. With
few exceptions, the officers they appointed to work on the Project were not
members of NSIS, had not received any special training in the conduct of
national security investigations, and had no experience in carrying out such
investigations.
That said, I am satisfied that the decision concerning the composition of
Project A-O Canada was appropriate and reasonable in the circumstances. To
begin with, there does not appear to have been much choice. Although “A”
Division NSIS had no capacity to conduct the Almalki investigation, the investigation was important and “A” Division was the logical place to locate it.
More importantly, it was apparent from the outset that the investigation
would be extensive and complicated, involving the examination and analysis of
large numbers of financial transactions. The officers chosen for Project
A-O Canada were, in the view of their supervisors, among the best criminal
investigators available. This was especially true of Inspector Michel Cabana,
who was asked to be the project leader.11 Inspector Cabana was widely
respected as a good investigator with experience in managing large and complex investigations, including ones involving complicated financial transactions.
The senior officers at “A” Division moreover determined that the project
should involve officers from other police services. That made a good deal of
sense, given the nature of the investigation, the importance of dealing with the
local community, and the need to bring together as much investigative experience as possible.12 As a result, officers from the Ontario and Quebec provincial
police forces and the Ottawa, Gatineau and Hull police services became
involved in the project. Both of the officers appointed as assistant project managers were staff sergeants, one from the Ontario Provincial Police, and the other
from the Ottawa Police Service. Both had excellent investigative credentials for
regular criminal investigations. They had worked with the RCMP in the past and,
together with Inspector Cabana, formed a strong, experienced management
team.
The remainder of the team, which grew to include about 20 investigators,
also had an impressive range of experience and skills. Expertise was added as
required, either from other RCMP units or through the participation of partner
agencies. The recruiting focus was on experience related to criminal investigations, such as writing affidavits, conducting covert entries and taking part in
undercover operations. Legal officers from the Department of Justice were also
involved.
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
In view of the serious concern about the imminent threat of another 9/11type attack at the time Project A-O Canada was formed, it made sense to have
experienced criminal investigators to quickly address possible threats to Canada’s
national security. Initially, it was expected that Project A-O Canada would focus
on Mr. Almalki’s alleged procurement activities, but it was important that these
activities be investigated quickly and thoroughly to see if they brought to light
any other threats. Indeed, the investigation soon expanded to include matters
relating to other possible terrorist activities in the Ottawa region.
In short, Project A-O Canada had a first-rate team of investigators who were
ideally suited to conducting a criminal investigation, particularly one involving
financial transactions such as those expected in the Almalki investigation.
However, the officers assigned to the Project had little training or experience in
investigations concerning national security and terrorism.
2.3
TRAINING
At the outset, only one regular member of Project A-O Canada had any training in national security investigations or experience in conducting this type of
investigation.
That person, the only member of “A” Division NSIS initially assigned to the
Project, had completed the RCMP’s course in criminal extremism investigation
techniques and had worked on several projects involving Islamic extremism. As
matters progressed, he spent the majority of his time on the Project. Over time,
a few other members of “A” Division NSIS with training or experience in national
security investigations were also assigned to the Project, at least on a part-time
basis.
Significantly, however, the officer in charge and other members of the
Project team had no training or experience in national security investigations.
Moreover, the investigators were given no orientation or training on RCMP policies or practices governing information sharing with other agencies as they might
be applied in the national security context. Nor did they receive any orientation
or training about the analysis of terrorism-related information and the need for
precision in such analysis, the cultural values and mores of the community that
would be affected by their investigation, or human rights issues in the context
of a national security investigation.
That said, it must be remembered that Project A-O Canada was formed in
the midst of the post-9/11 crisis. There was little time for training. Indeed,
because of the increased pressures being applied, the RCMP suspended the
“criminal extremism” course it had offered until early 2002. Further, the nature
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ANALYSIS AND RECOMMENDATONS
of Project A-O Canada meant that there would be a certain amount of learning
on the job. The one officer who had training and experience testified that he had
become a kind of consultant on issues such as the background of terrorist organizations, the roles of CSIS and the RCMP’s Criminal Intelligence Directorate
(CID), and liaison officer systems.13 As time passed, a few team members took
relatively short courses on matters that might arise in national security
investigations.
During the time preceding Mr. Arar’s detention in New York, Project
A-O Canada provided American authorities with a great deal of information,
some of which likely played a role in what happened to Mr. Arar.14 The Project
shared much of this information in ways that contravened RCMP policies.
Moreover, some of the information relating to Mr. Arar was inaccurate. These
problems resulted largely from three factors: members’ lack of training and experience in national security investigations and terrorism, a lack of proper direction about information sharing, and a lack of adequate oversight.
Although the circumstances surrounding Project A-O Canada’s creation
made the lack of training and experience among team members understandable, it was incumbent on more senior RCMP personnel to ensure that the
Project was provided with clear instructions about how to conduct its investigation, particularly in the critical area of information sharing. It was also
extremely important for the RCMP to ensure that the lack of training and experience of Project members was properly addressed, either by providing the
required training or, if that was not possible, by adequately overseeing the
investigation, in particular its information-sharing practices.
2.4
PROJECT A-O CANADA INVESTIGATION
At the outset, the mandate of Project A-O Canada was to investigate Abdullah
Almalki, because of his suspected terrorism-related activities.
In the fall of 2001, Project A-O Canada learned from confidential sources
that a person by the name of Ahmad El Maati was allegedly implicated in a terrorist plot directed at a major Canadian target.15 Up to that point, Mr. El Maati
had been a target of the Project O Canada investigation in Toronto. However,
based on this new information, the Project A-O Canada investigation expanded
to include Mr. El Maati and the newly identified terrorism threat.
By the end of November 2001, the targets of the Project A-O Canada investigation, Messrs. Almalki and El Maati, were no longer in Canada. The
investigation thus turned its focus to organizing searches of certain residences
in Ottawa, Toronto and other Canadian cities. Searches conducted on
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
January 22, 2002 produced new information about Messrs. Almalki and El Maati
and others, much of which formed the basis of the Project’s investigation in the
months leading up to Mr. Arar’s detention in New York on September 26, 2002.
The Project A-O Canada investigation was a criminal investigation that
clearly related to national security matters. Its focus was to investigate terrorist
threats to Canada’s national security and to co-operate with others, particularly
CSIS and its American partner agencies, in the investigation of those threats.
There were four aspects of the Project A-O Canada investigation that made
it different from the types of investigations with which the majority of its member officers had previously dealt:
•
•
•
•
the
the
the
the
content — terrorism;
amount of information sharing;
preventative mandate; and
human rights and cultural sensitivity issues.
With respect to the content, investigators collected or received a large
amount of information about actions or associations that might or might not
point to involvement in terrorism-related activities. For example, Project
A-O Canada obtained information about individuals who had connections to
Arab or Muslim organizations, had attended training camps in Afghanistan at
different periods of time, or had associated or communicated with others whose
actions had raised suspicions. It also received information that originated with
other agencies, including some in the United States and Syria.
In conducting the investigation, it was important that members of
Project A-O Canada be able to assess all of this information in order to properly weigh the significance of an individual’s actions and associations and the
possibility of a connection with terrorist activity. This often required a sophisticated understanding of terrorism networks, Muslim and Arab norms and values,
the ideologies that motivated terrorists, and the geopolitical realities in the areas
where information originated. A regular criminal investigator could not be
expected to have the knowledge or experience needed to analyze the various
types of information that might be collected in a terrorism investigation and put
it into the proper context. Without special training or experience, there was a
danger that officers would attach too much or too little significance to a particular piece of information. There was also a danger that they would not fully
appreciate the significance that others, including American officials to whom
they provided information, might attach to particular pieces of information or to
the way the Project labelled or assessed information.
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ANALYSIS AND RECOMMENDATONS
Agencies such as CSIS have personnel who have spent years studying and
analyzing information related to their counter-terrorism mandate. CSIS has a section made up of thoroughly trained and highly sophisticated counter-terrorism
analysts. Project A-O Canada members did not have this type of expertise, and
while they could draw on CSIS expertise or the counter-terrorism expertise at
RCMP Headquarters, they rarely did.
Project members viewed the investigation as being much like other criminal investigations and tended to make their own assessments and decisions. For
the most part, they operated autonomously. They gathered and analyzed information, pursued all possible leads, and shared a great deal of information with
other agencies with little guidance or oversight from those who had specific
responsibility for national security investigations within the RCMP.
The second aspect of the Project A-O Canada investigation that was different from other criminal investigations was the type and amount of information shared with the American agencies. Although RCMP officers often share
information with other agencies in the course of criminal investigations, as time
progressed, members of Project A-O Canada interacted with the American agencies on a more regular basis than usual.16 The Project passed on an enormous
amount of information to its American counterparts, eventually taking the
unprecedented step of providing them with its entire Supertext database,17in the
form of three compact discs (CDs).
It is important to share information in national security investigations, particularly with foreign agencies, but it is a highly sensitive and potentially risky
exercise. It is crucial that the shared information be accurate and that assessments of it be correct. There is no room for imprecision or loose language.
Imprecision, even in what appear to be small details, can be misleading and
can sometimes operate very unfairly against those affected. Misperceptions created by inaccurate information can become entrenched over time and be difficult to dispel.
It is also necessary that those who provide information be aware of and
control, to as great an extent as possible, the use to which the information may
be put. Those involved in the national security milieu need to understand the
importance of sharing information, but they also need a sophisticated understanding of the risks involved in doing so. An appreciation of the perspectives
and cultures of the agencies to which they provide information makes them better able to assess how the information provided may be interpreted and to what
uses it may put it. Sharing information in the national security context may entail
very different considerations and concerns than doing so in other criminal
investigations.
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
Again, members of Project A-O Canada had little experience or training to
assist them in handling the information-sharing challenges confronting them.
This was a new environment for them. [***] Project A-O Canada was dealing
with American agencies that were more sophisticated in matters of national security and might not always play by the rules Project members would expect.
The third aspect of the Project A-O Canada investigation that differed from
other investigations was that its mandate was primarily preventative in nature.
Preventative investigations can be significantly different from investigations
focused on prosecution, which are directed at obtaining evidence about specific,
concrete events. They can be more nebulous. While such investigations must be
connected with criminal behaviour, investigators collect and analyze information
about something that has not yet occurred and may never occur. The capacity
to assess how information relates to a threat and to evaluate in what direction
investigative efforts should be channeled is obviously important. Given that the
threats being investigated may be far from certain, investigators in preventative
investigations must make judgments about whether or not leads are worth pursuing. Doggedly following every possible lead, as one would in a prosecutionoriented investigation, in order to establish, for example, that an individual does
not constitute a threat — essentially proving a negative — could be a highly
unproductive, not to mention interminable, exercise. A different type of analytical and investigative approach is sometimes called for in a prevention-oriented
investigation.
The fourth aspect of the Project A-O Canada investigation that made it different from other criminal investigations was the need to have regard for certain
human rights and cultural sensitivities. Certainly, all criminal investigators must
give appropriate consideration to these issues. However, national security investigations can sometimes raise them in a context unfamiliar to the standard criminal investigator. Moreover, the human rights issues that arose during the
Project A-O Canada investigation were different from any the Project members
had encountered previously.
For instance, Project A-O Canada officers had to weigh how to use information from Syria, a country with a poor record of human rights. Evaluating
such information required an informed appreciation of the role Syrian practices
might have played in obtaining the information and, importantly, the impact
those practices might have had on the information’s reliability. The Project was
also confronted with issues about sharing information with Syria, including how
Syrian authorities might use such information and how they might interpret the
fact that the RCMP was investigating certain individuals.
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ANALYSIS AND RECOMMENDATONS
Further, the Project’s investigation was focused entirely on members of the
Muslim community. Undoubtedly, an understanding of the cultural norms and
practices of that community would have given investigators a distinct advantage
in assessing the significance of specific activities and associations.18
In summary, while Project A-O Canada involved a criminal investigation
that could benefit from the investigative skills of its members, it also involved a
national security investigation, the primary focus of which was the prevention
of terrorist acts. It was that focus that distinguished the investigation from the
criminal investigations in which most of the Project members, including the managers, had previously been involved.
2.5
REPORTING STRUCTURE
Since Project A-O Canada was conducting a criminal investigation, it reported
to Criminal Operations, or CROPS, at “A” Division. Inspector Cabana reported
to the Assistant CROPS Officer, Inspector Clement, who in turn kept Chief
Superintendent Antoine Couture, the CROPS Officer, up to date on the investigation. In addition to regular briefings, the CROPS officers were provided with
the Project’s daily situation reports (SITREPs), which detailed the progress of
the investigation.
Project A-O Canada also kept CID at RCMP Headquarters informed of the
investigation by providing it with copies of its daily SITREPs, holding periodic
meetings and preparing briefing notes. However, because Project members and
senior officers at “A” Division considered this to be solely a criminal investigation, the Project reported to and received instructions from the “A” Division
CROPS officers rather than Headquarters personnel.
In regular criminal investigations, investigators enjoy a high degree of operational independence and report only to CROPS through the division’s chain of
command. Given the potentially far-reaching implications of a national security
investigation, one would expect that such an investigation would be subject to
greater coordination and control from Headquarters CID. NSISs — and
Integrated National Security Enforcement Teams (INSETs), since their inception
in 200219 — which ordinarily conduct national security investigations, are under
divisional command, but have a more centralized reporting relationship with
Headquarters than do other operational units in a division. However, in the case
of the Project A-O Canada investigation, RCMP Headquarters was not always
involved in the same way as for other national security investigations.
Over time, tensions developed between Project A-O Canada and CID.
There were disagreements about whether CID was being kept adequately
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
involved in the investigation. CID was of the view that it was not being fully
informed. It sometimes learned about actions taken by the Project only after the
fact. Project A-O Canada, for its part, believed that providing SITREPs and periodic briefings was sufficient. I discuss the relationship between Project
A-O Canada and CID throughout this report as I review many of the specific
steps in the Project’s investigation. However, there is one general comment that
I will make here.
In my view, the RCMP, through CID and senior officers at “A” Division,
failed to properly direct and oversee the Project A-O Canada investigation. The
circumstances were such that senior officers with greater experience in national
security investigations should have been more heedful of the possibility of some
of the problems that ultimately arose. RCMP Headquarters was aware that the
Project team lacked training and experience in national security investigations,
and it was also aware, or should have been aware of the types of problems that
can arise in these kinds of investigations. The RCMP had an institutional responsibility to ensure that Project A-O Canada conducted its investigation and, especially, provided information to the American agencies, in a proper and
appropriate way.
2.6
PROBLEMS WITH THE PROJECT A-O CANADA INVESTIGATION
In the analysis that follows, I identify several problems that arose in the course
of the Project A-O Canada investigation. Those problems related primarily to
information sharing with American agencies. In general terms, there were three
difficulties:
•
•
•
Project A-O Canada provided information to American agencies in a manner that contravened RCMP policies requiring that information be screened
for relevance, reliability and personal information and that caveats be
attached to documents shared with other agencies. Some of this information related to Mr. Arar.
Project A-O Canada provided American agencies with information about
Mr. Arar that was inaccurate or imprecise and that tended to overstate
Mr. Arar’s importance in its investigation and his possible involvement in
terrorism-related activities.
Project A-O Canada provided American agencies with information containing third-party caveats without obtaining the originators’ consent.
In reaching these conclusions, I do not attribute bad faith to members of
Project A-O Canada. They were dedicated officers who did their jobs in what
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ANALYSIS AND RECOMMENDATONS
they considered was an appropriate manner. However, in the time leading up
to Mr. Arar’s detention in the United States on September 26, 2002, they were
often working under great pressure because of both the urgent nature of the
possible threats and the sheer volume of work in the investigation. Moreover,
they lacked the proper preparation to deal with some of the national security
issues that arose.20
3.
EARLY INVESTIGATIVE STEPS
Mr. Arar first came to the attention of Project A-O Canada as a result of a meeting he had with Abdullah Almalki at Mango’s Café in Ottawa on October 12,
2001. Mr. Almalki, the investigation of whom had been initiated by the RCMP
on October 5, 2001, was suspected of being a member of al-Qaeda. As a result
of information I heard in camera, Project A-O Canada arranged for surveillance
of the meeting.
I am satisfied that Project A-O Canada’s decision to conduct surveillance of
this meeting was a reasonable step in the course of investigating its target,
Mr. Almalki,21 and entirely proper in the circumstances. Although I did not conduct a thorough review of the Almalki file, I did hear some evidence about the
nature of the investigation into Mr. Almalki’s activities and the level of interest
of the various agencies. Having received information that a meeting was to take
place, Project A-O Canada made a routine decision to conduct surveillance.
There is nothing in the evidence to suggest that the decision was motivated by
the fact that Messrs. Almalki and Arar were Muslims or of Arab origin, or that
the surveillance was the result of racial profiling.
Surveillance of the meeting at Mango’s Café led Project A-O Canada to take
a closer look at Mr. Arar. Again, I think that it was reasonable for it to do so.
While the meeting may have been innocent, there were aspects of it that reasonably raised investigators’ suspicions. Messrs. Almalki and Arar were seen
walking together in the rain and conversing for 20 minutes. After the meeting,
they proceeded to a local shopping mall, where they went into a computer
equipment store. On leaving, they continued their discussion, reportedly taking
pains not to be overheard. Given that Mr. Almalki was the target of Project A-O
Canada’s investigation, it was reasonable for the Project to investigate Mr. Arar,
about whom investigators had no information whatsoever.
This was how Mr. Arar became a “person of interest” in the Project’s investigation. Investigators conducting intelligence or criminal investigations must follow up on leads. Associations with suspects or targets of an investigation are
important. Calling someone a person of interest does not mean the person is
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
suspected of any wrongdoing. It may be that the person’s role is not clear to
investigators and more information is required, as was the case with Mr. Arar.
Project A-O Canada conducted a background search on Mr. Arar, obtaining open-source biographical data, and carried out limited surveillance on him
in November 2001. Although officers indicated that it was unusual for surveillance to be conducted on someone who was merely a person of interest,
Project A-O Canada officials reasoned that it had been warranted, given the
seriousness of a possible imminent terrorist threat in the fall of 2001. However,
nothing untoward was observed, and it appears that the Project subsequently
ceased its surveillance of Mr. Arar.
In gathering background information on Mr. Arar, the Project obtained a
copy of his rental application and tenancy agreement from Minto Developments,
his landlord’s property management company. The rental application showed
Mr. Almalki as Mr. Arar’s emergency contact.
Project A-O Canada did not have a search warrant to obtain the tenancy
documents or even a sufficient basis for obtaining a warrant. There were no
grounds to believe that Mr. Arar had committed any offence or that he was
involved in terrorist activities. I note that, when Project A-O Canada applied for
warrants to search the residences of targets of their investigation in January
2002, it did not include Mr. Arar’s residence in its application.
That said, I am satisfied that Project A-O Canada did not act improperly in
obtaining the rental application and tenancy agreement. Project officers asked
for the documents and the property manager, who had an interest in the documents, voluntarily produced copies. There was no compulsion. There was nothing to suggest to the officers that the property manager was breaching an
agreement or understanding with Mr. Arar in producing the documents, and
the property manager did not suggest that Mr. Arar had a privacy interest in
any information contained in them.
I recognize that, were the Government to seek to introduce the documents
in a future court proceeding, there might be an argument that the documents
were seized contrary to Mr. Arar’s rights under the Canadian Charter of Rights
and Freedoms. Mr. Arar might assert that he had an expectation of privacy in
information contained in the documents, including the name of his emergency
contact. However, the success of such an argument is uncertain.22 In any event,
I do not need to decide that legal issue here. The fact that evidence might eventually be found to be inadmissible does not necessarily mean that police officers
acted improperly in obtaining it.23
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ANALYSIS AND RECOMMENDATONS
4.
BORDER LOOKOUTS
Towards the end of October 2001, Project A-O Canada requested that Canada
Customs and U.S. Customs place border lookouts for Mr. Arar and his wife,
Monia Mazigh, as well as certain other individuals.
4.1
CANADIAN LOOKOUTS
I am satisfied that it was appropriate for Project A-O Canada to request a border lookout for Mr. Arar and for Canada Customs to place the lookout in its
system. I conclude that there was no basis to request or issue a lookout for
Dr. Mazigh.
The lookouts requested for Mr. Arar and Dr. Mazigh were to ensure that
they underwent both primary and secondary examinations when entering
Canada. A primary examination involves questioning by a front-line officer. A
secondary examination, conducted by a different officer, is more thorough. At
the discretion of the Customs officer, the secondary examination may be minimally intrusive, with questions only, or may involve a full search of the traveller’s
luggage and, in some circumstances, the traveller’s person.
Any person entering Canada may be referred for a secondary examination.
There are various types of referrals. Some are made by the front-line officer,
who has discretion to refer an individual for a secondary examination. Others
are randomly generated by a computer, and still others are mandatory.
Whenever there is a lookout, the referral for a secondary examination is
mandatory.
The request for lookouts in respect of Mr. Arar and Dr. Mazigh was one of
several measures taken by Project A-O Canada in building profiles of
Mr. Almalki’s associates.24 The purpose of the lookouts was to determine travel
patterns, how many times they crossed the border, and the dates and circumstances of the border crossings, as well as to gather any information brought to
light through documents and goods examined.
The lookouts placed by Canada Customs in response to the RCMP’s request
directed that officers conduct a “very thorough” secondary examination. They
specified that travel and business-related or commercial documents were to be
examined and that photocopies were to be made of all documents. They also
directed that Customs officers prepare narratives of the interviews and contact
the Regional Intelligence Officer (RIO), and that they refrain from divulging the
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
nature of the interest of Canada Customs and the RCMP to the person being
examined.
When considering the issue of lookouts, it is important to bear in mind that
the Supreme Court of Canada has affirmed that, when entering Canada, individuals have a lower expectation of privacy at Customs than they would in most
other situations.25 People do not expect to be able to cross international borders
free from scrutiny. Canada has the right to control who crosses its borders and
to conduct examinations of individuals and goods entering the country, for the
general welfare of the country.
Indeed, all travellers entering Canada must provide information on an
E311 Customs Declaration Card and must be prepared to undergo a secondary
examination, which means that they may be subjected to questioning and to
examination of their belongings in circumstances in which there would be insufficient grounds to obtain a search warrant under the provisions of the Criminal
Code.26
4.1.1
Mr. Arar
The lookout requested for Mr. Arar would put him in a different position from
the normal traveller entering Canada in two respects: he would be subjected to
a secondary examination each time he entered Canada27 and, because of the
lookout’s specific instructions, the examination would likely be more thorough
(more intrusive) than a routine secondary examination. I note, however, that
the examination envisioned for Mr. Arar was still far from the most intrusive
type of search. The RCMP did not request a search of Mr. Arar’s person. The
lookout that was issued indicated only an examination of his travel and businessrelated or commercial documents.
In any event, placing the lookout would impinge on Mr. Arar’s privacy in
ways that normal travellers would not experience. Nonetheless, I am satisfied
that Project A-O Canada had sufficient reason at the time to request the lookout for Mr. Arar.
By the time Project A-O Canada requested the lookout, Mr. Arar was a person of interest in its investigation. In any investigation, it is important to determine the role, if any, of persons associated with the principal subject — in this
case, Mr. Almalki. Project investigators were aware that Mr. Arar had met with
Mr. Almalki at Mango’s Café and that the two men had conversed in the rain.
This raised suspicions. They were also aware that Mr. Arar had listed Mr. Almalki
as his emergency contact on a rental application. This could be indicative of
close ties.
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Project A-O Canada thus had legitimate reasons for being interested in
Mr. Arar. In these circumstances, ascertaining his travel movements could be a
useful investigative step, and the information sought was reasonably connected
with the purpose for which Project A-O Canada requested the lookout. All of
the RCMP officers asked about the lookout request, including Commissioner
Giuliano Zaccardelli, considered the request to have been an appropriate investigative step.28
Although it can fairly be said that Project A-O Canada might have been
able to obtain information through a lookout that it would not have been able
to obtain by means of a search warrant, I do not consider that that, by itself,
means that a lookout should not have been requested. As mentioned earlier, the
fact of travelling outside Canada and then re-entering the country brings with it
a reduced expectation of privacy. Secondary examinations are routinely conducted in circumstances in which search warrants could not be obtained and can
involve examinations of travellers’ belongings that, in other circumstances,
would require warrants. Absent bad faith, it was open to the RCMP to use the
opportunity presented by Mr. Arar’s crossing of the border to try and collect
information that might assist with its investigation.
Once a lookout request is received, it falls to Canada Customs alone to
decide whether to issue the lookout. Canada Customs policy29 provides that it
must independently have “reasonable grounds” for issuing the lookout, but does
not spell out what constitutes reasonable grounds. Frequently, Canada Customs
officers will review the information in a request and decide whether or not reasonable grounds exist. However, Canada Customs officers testified that a lookout request may also be approved if a Customs intelligence officer is associated
with a particular investigation and is generally familiar with the basis for the
request, the theory being that that officer can satisfy himself or herself of the
“reasonable grounds.” In the case of Mr. Arar, a Customs officer was involved
with Project A-O Canada and had a general knowledge of the investigation. For
the same reasons that I conclude that it was reasonable for Project A-O Canada
to request a lookout for Mr. Arar, I am satisfied that Canada Customs had “reasonable grounds” for issuing it.
One other aspect of the lookout for Mr. Arar is important. Lookouts are
classified in different ways, depending on the reason for the request. Among the
various reasons is a wide range of crimes, including terrorism. The lookout for
Mr. Arar was designated as a “terrorism” lookout. According to a Canada
Customs bulletin,30 a terrorism lookout is used for someone suspected of being
a member, associate or sympathizer of a known terrorist organization. Mr. Arar
did not meet these criteria. He was not suspected of anything and, in particular,
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
there was no basis for saying he was suspected of being a member of a terrorist organization. Labelling someone in this way is a very serious matter. Mr. Arar
was a person of interest, nothing more.
In fairness to Canada Customs, the RCMP must bear its share of the blame.
The designation was in keeping with the wording used in the RCMP’s initial letter to Canada Customs requesting the lookout for Mr. Arar, Dr. Mazigh and certain other individuals, which stated: “We are presently investigating in Ottawa,
a group of Islamic Extremist individuals suspected of being linked to the
Al Qaeda terrorist movement. The following individuals and or vehicles have
been identified.” (The letter went on to list all the individuals, their vehicles and
related biographical data.) The RCMP had no justification for describing Mr. Arar
in this way.
Despite the wording of this request, Canada Customs should not have designated Mr. Arar as the subject of a terrorism lookout, as this contravened
Canada Customs policy. Instead, Canada Customs should have entered an accurate description that Mr. Arar was a person of interest, but not a suspect, in an
investigation relating to a person suspected of being involved in terrorism-related
activities. The Customs officer involved with Project A-O Canada had a general
knowledge of the investigation, and should have brought that knowledge to
bear on how the lookout was classified.
While some might suggest that the distinction is hair-splitting, I do not
agree. It is important that precision be used when attaching labels to individuals, particularly in terrorism-related investigations in these times. There is a danger that loose language can lead to unfair and misleading or erroneous
conclusions. If Canada Customs policy does not permit entries of the kind, I
suggest that it be amended to do so. If Canada Customs is going to place lookouts for persons of interest, not merely suspects, then its policy should make the
distinction.
An example of how misdesignation of the type of lookout may be used in
an unfair manner is found in a document obtained through an Access to
Information request and produced by Mr. Arar’s counsel.31 The document
appears to be a Canada Customs printout showing Mr. Arar’s entry into Canada
on December 20, 2001 and again on January 24, 2002. A note appears in each
instance, indicating “L” (presumably lookout) and “Terrorism.” Thus, in a document that was made available to the public, Mr. Arar’s name was associated
with terrorism and, for anyone familiar with Canada Customs policy, he was
shown as someone suspected of being associated with a known terrorist organization. Given that Mr. Arar was not suspected of such an association, linking
his name with “terrorism” was unnecessary and was unfair to him. It is never
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helpful to state the status of an individual inaccurately. And while the harm from
mislabelling may be greater in the case of a document that could be made public, there is still a risk of harm where documents will not be disclosed publicly.
Anyone who requests a lookout — and Canada Customs, when it places a lookout — should be precise in describing the reasons for the lookout and in attaching labels to the subject of the lookout. Labels, once applied, have a way of
sticking to individuals and assuming an unintended importance.
Indeed, when the lookout for Mr. Arar was renewed in January 2002, he
was described as an individual “suspected of belonging to or being connected
to a terrorist organization.” The misleading label in the original lookout became
more specific.
4.1.2
Dr. Mazigh
With regard to the lookout for Dr. Mazigh, I conclude that the RCMP had no
basis for requesting it. The important distinction between Mr. Arar and
Dr. Mazigh is the factual connection with Mr. Almalki. Mr. Almalki, not Mr. Arar,
was the target of the Project A-O Canada investigation. Mr. Arar was a person
of interest because of his association with Mr. Almalki, and given that association, his travels and business connections were relevant to the investigation.
However, there was no information even suggesting a link between Dr. Mazigh
and Mr. Almalki.
The RCMP has no policy or directive setting out criteria for making a lookout request. In explaining why Dr. Mazigh had been included in the lookout
request, one Project officer stated that it was not unusual for spouses to be
involved in the activities of their husbands or wives. Another said that investigators are often interested in the associates of targets, and that a spouse, such
as Dr. Mazigh, might be included out of an abundance of caution.
Although it is not altogether clear, it seems that there is a practice in the
RCMP of requesting lookouts for spouses of individuals who are not suspected
of any wrongdoing, such as Mr. Arar. That practice, if it exists, is inappropriate
and makes little sense. The rationale for including the spouse of a suspect is that
the spouse may be involved in the suspect’s activities. However, the same rationale does not apply to the spouse of a person of interest, who is not suspected
of any wrongdoing. When there is no information to indicate that a spouse has
any connection whatsoever with the person suspected of some wrongdoing, it
is inappropriate to request a lookout. Given Dr. Mazigh’s lack of connection
with Mr. Almalki, there was no basis to expect that information about
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
Dr. Mazigh’s travels would help shed light on Mr. Almalki’s activities as a suspected procurement officer for al-Qaeda.
While secondary examinations at the border may not be the most intrusive
type of search, they are still an intrusion, especially if documentation is seized,
copied and provided to third parties.
When there is no basis for expecting that any information useful to an investigation will be gained from placing a lookout, the RCMP should not request one.
Thus, while Dr. Mazigh might have had to undergo a discretionary or randomly
generated secondary examination when entering Canada, she should not have
been subject to a mandatory examination each time she crossed the border. The
factual linkage to an investigation to justify a lookout request need not be substantial; however, the fact that someone is the spouse of someone who is merely
a person of interest, a potential witness, falls short of the mark.32
For the same reasons that I consider it was inappropriate for the RCMP to
have requested a lookout for Dr. Mazigh, I am satisfied that Canada Customs
should not have placed the lookout. Canada Customs policy requires an assessment of the basis for the request and a determination of whether or not the
request is reasonable. As I point out above, the fact that a Customs officer is
involved in the investigation and is familiar with the reasons for the request may
be considered sufficient cause. However, if that is the approach Canada Customs
adopts, then the officer should obtain sufficient information concerning the basis
for the request to ensure that it is reasonable.
Another very important point is that, in placing the lookout for Dr. Mazigh,
Canada Customs indicated that it was a “terrorism” lookout, as it did for Mr. Arar.
The comments I made about Mr. Arar in this respect apply to an even greater
extent in the case of Dr. Mazigh. There was no basis to “suspect” that she was
a member or sympathizer of a terrorist organization. The label “terrorism” on
Dr. Mazigh’s lookout was inaccurate and unfair.
4.2
U.S. LOOKOUTS
When Project A-O Canada requested Canada Customs lookouts for Mr. Arar and
Dr. Mazigh, it also requested U.S. border lookouts for them.
U.S. Customs has a computer system called the Treasury Enforcement
Communications System (TECS), which, like the Canadian system, provides
lookout information on suspect individuals, businesses, vehicles, aircraft and
vessels.
American authorities declined the invitation to testify at the Inquiry. RCMP
officers testified that the American TECS system is different from a terrorist watch
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list, which has been mentioned occasionally in evidence and in the public discussion of the Arar matter. However, I do not have enough information to comment on this issue or to conclude whether or not a request for a TECS lookout
might result in a person being placed on a terrorist watch list.
It appears that organizations around the world, including Canadian agencies, can submit requests to have individuals placed on a TECS lookout. RCMP
officers testified that they routinely request TECS lookouts for individuals who
surface in Canadian criminal investigations. One of the results of a TECS lookout is that U.S. Customs will inform the person or agency requesting the lookout if the target enters the United States.
In late October 2001, Project A-O Canada sent a written request to U.S.
Customs to have Mr. Arar, Dr. Mazigh and certain other individuals placed on
TECS lookouts. In its request, Project A-O Canada repeated the grossly unfair
descriptions of Mr. Arar and Dr. Mazigh as being part of a “group of Islamic
Extremist individuals suspected of being linked to the Al Qaeda terrorist
movement.”33
I discuss the implications of the language used in this letter to American
authorities in greater detail in the section of this chapter dealing with information sharing.34 Here, I note only that this inaccurate, inflammatory and potentially
dangerous description was improper and should not have been included in the
letter. As I state often throughout this report, the importance of accuracy and
precision when characterizing an individual’s role in a terrorist investigation cannot be overstated.
I have concluded that it was reasonable for Project A-O Canada to request
a Canadian lookout for Mr. Arar. However, making a similar request to another
country raises the question of the use that country will make of the request.
Unfortunately, I have little information about how American agencies or officers
would have used Project A-O Canada’s request, or what the ramifications might
have been for Mr. Arar. The fact that the request was made in the post-9/11
environment was certainly of consequence. Many witnesses have indicated that,
in the aftermath of 9/11, American authorities were more aggressive than their
Canadian counterparts in taking intrusive steps against those allegedly involved
in terrorist activities, in particular men of Muslim or Arab origin.
That said, I accept the evidence that, in 2001 and 2002, the RCMP’s usual
practice was to make requests for TECS lookouts for persons of interest in criminal investigations. There was no policy or directive laying out criteria for submitting foreign lookout requests and no direction regarding the care needed
when dealing with terrorist investigations because of the new post-9/11 environment in the United States. I see no basis for critical comment about Project
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
A-O Canada’s request for an American lookout for Mr. Arar other than its use
of inflammatory language. Quite properly, the RCMP was co-operating with
American agencies in a common investigation. Placing lookouts in both countries would be a reasonable step in their respective investigations. Without evidence about the use to which the United States might have put the lookout
requested for Mr. Arar, I am unable to comment further on whether the request
was appropriate or not.
In Chapter IX, I recommend that the RCMP develop guidelines for submitting lookout requests to foreign countries. In particular, I think it important that
those with special expertise in national security investigations be involved in
decisions to request foreign lookouts. An important factor in arriving at such a
decision should be the potential effect of a lookout on an individual’s rights and
liberty.
Project A-O Canada should not have requested a U.S. lookout for
Dr. Mazigh, for the same reasons it should not have requested a Canadian
lookout.
Finally, with respect to the lookouts, I note that neither “A” Division CROPS
(perhaps with the exception of Inspector Clement), nor CID at RCMP
Headquarters was involved in making the decisions to seek lookouts or in
preparing the wording used in the request for the American lookouts. And while
senior officers would have been advised by way of a situation report that the
requests had been made, they were not provided with a copy of the request letter to U.S. authorities.35
I discuss the effect of the American lookout on what happened to Mr. Arar
in New York in Chapter IV, when I address Mr. Arar’s detention in New York.
5.
CANADA CUSTOMS SECONDARY EXAMINATIONS
5.1
EXAMINATIONS
Canada Customs carried out two secondary examinations of Mr. Arar,
on November 29 and December 20, 2001, and one of Dr. Mazigh, on
November 14, 2002. The discussion that follows is based solely on the evidence
of Canadian officials. Mr. Arar and Dr. Mazigh have not testified. Were they to
testify, they might give different accounts of what happened and additional or
different facts might emerge.
When Mr. Arar returned from a trip to Massachusetts on November 29,
2001, he was subjected to a secondary examination by Canada Customs officials
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at the Ottawa International Airport. During the examination, Canada Customs
seized and copied several documents, including travel agent itineraries, a passport, airline tickets, identity cards, an AT&T customer card and membership
cards.
The following day, a Customs official turned copies of the documents over
to Project A-O Canada. A caveat36 was attached. Although the Customs officer
did not receive specific authorization to share information with the RCMP, he
acted under a general instruction to lend assistance to the Project.
Project A-O Canada entered the information from this examination into its
Supertext database. As a result, the information was provided to the American
agencies when the contents of the database were given to those agencies in
April 2002. Some information from the November 29, 2001 secondary examination was also faxed to the FBI on October 4, 2002, while Mr. Arar was in custody in New York.
On December 20, 2001, Mr. Arar underwent another secondary examination at the Ottawa International Airport. The Customs officer conducting the
examination made photocopies of documents in Mr. Arar’s possession, including a map and directions, a boarding pass, a motel receipt, an Air Canada receipt
and a travel itinerary, as well as Mr. Arar’s driver’s license, social insurance card,
health card and passport. The officer also copied documents relating to a course
Mr. Arar had taught in Massachusetts. He did not advise Mr. Arar that his documents were being photocopied, nor did he seek Mr. Arar’s consent in this
regard.
Mr. Arar was also carrying an IBM laptop computer and a Visor personal
digital assistant (PDA). When questioned about them, he reportedly said he had
purchased them in the United States (apparently on an earlier trip) and had not
paid duty or taxes on either. Officials requested that Mr. Arar provide access to
his computer. He refused.37 The computer and PDA were seized for “non-report”
(failure to declare the items when they were first brought into Canada) and were
held for appraisal and possible viewing by “the RCMP NSIS” (Project A-O
Canada) or CSIS.
The following morning, a Canada Customs official seconded to Project
A-O Canada spent about an hour examining Mr. Arar’s computer and PDA. He
gathered as much information as he could from the computer without the password, including domain names, the user name, serial and registration numbers,
warranty expiration date, and type of computer. This information came from
stickers on the computer and from the screen when the computer was turned
on. Although technical staff at Canada Customs had the capability to access the
computer without a password, this was not done. The officer also copied
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
information from Mr. Arar’s PDA (for which a password was not required),
including names and phone numbers.
Canada Customs attributed a value of $500 to the laptop and $200 to the
PDA. Mr. Arar was able to retrieve the items at the Ottawa International Airport
the following day after paying a penalty of 25% of the attributed value, plus
sales tax.
Canada Customs provided Project A-O Canada with all of the information
obtained from the December 20, 2001 secondary examination, including the
information from Mr. Arar’s computer and PDA. A caveat was attached. The
information was subsequently entered into the Project A-O Canada Supertext
database and, thus, passed on to the American agencies in April 2002.
On November 14, 2002, when Mr. Arar was being detained in Syria,
Dr. Mazigh was subjected to a secondary examination at the Montréal–Dorval
International Airport. Customs officials photocopied some of Dr. Mazigh’s documents, including her personal identification, ticket stubs, traveller’s declaration
card and passport, as well as passport information about her children. Officials
subsequently passed this information on to Project A-O Canada.
On November 21, 2002, a Customs official entered the report of
Dr. Mazigh’s secondary examination into the Intelligence Management System
(IMS) (administered by Canada Customs), together with some “tombstone data,”
including information from Dr. Mazigh’s driver’s license, passport and certificate of citizenship. The official also entered references to Dr. Mazigh’s daughter and son, aged 5 years and 9 months respectively, along with their passport
information.
5.2
POLICY ISSUES ARISING FROM SECONDARY EXAMINATIONS
Four aspects of the secondary examinations of Mr. Arar and Dr. Mazigh give rise
to policy issues:
•
•
•
•
examining and photocopying documents;
examining Mr. Arar’s computer and PDA;
providing information to the RCMP; and
uploading the profiles of Dr. Mazigh and her children into the IMS.
I discuss these below, having regard to the Customs Act, the Customs
Enforcement Manual and the Canada Customs enforcement bulletins, which
give direction as to how that Manual should be applied.
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5.2.1
Examination and Photocopying of Documents
5.2.1.1
Mr. Arar
The Customs Act does not provide direction on examining and photocopying
documents of persons seeking entry to Canada. The Customs Enforcement
Manual and relevant Enforcement Bulletin address this issue.
I am satisfied that, in examining and photocopying Mr. Arar’s documents
on November 29 and December 20, 2001, Canada Customs officials acted in
accordance with the relevant provisions of the Customs Enforcement Manual
and the related Enforcement Bulletin38 as they existed then. In general terms, the
documents in question consisted of travel and personal identification papers.
The one possible exception to my conclusion relates to some teaching materials for a course Mr. Arar taught while in Massachusetts.
The Enforcement Bulletin in force during the two examinations of Mr. Arar
is dated October 17, 1996 and entitled “Examination of Personal Papers and
Journals.” It refers to the Customs Enforcement Manual, Part 4, Chapter 1, paragraph 39, which states in part: “private papers39 and personal journals should
not be reviewed unless there is reason to believe that the papers or journals
contain receipts for goods or refer to the acquisition of the goods or may afford
evidence of an offence.”
The Bulletin goes on to say that reading personal diaries or letters found in
a purse or wallet is not permissible unless the officer has reason to believe they
contain evidence of an offence against an Act administered or enforced by
Canada Customs. Apparently, Canada Customs administers or enforces 95 different Acts.
In addition, the Bulletin indicates that documents not relating to such an
offence may not be examined or copied and that documents may only be photocopied if they relate to goods under seizure or to a Customs Act offence under
investigation.
The title of the Bulletin and the language in paragraph 39 of the Customs
Enforcement Manual appear to limit the direction prohibiting examination and
copying of documents, unless they relate to goods under seizure or a Customs
Act offence, to personal papers and journals, rather than extending it to all documents in the possession of a person being examined. According to that interpretation, the direction in the Bulletin would not apply to documents not
considered “personal.” That is the way the Customs officers who testified at the
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
Inquiry interpreted the Bulletin, and I believe that was a reasonable interpretation on their part.
The Bulletin provides little direct guidance as to what would constitute
“personal papers and journals” and therefore fall within the prohibitions contained in it. However, its reference to personal diaries or letters found in a purse
or wallet would suggest that the prohibitions are not directed at all types of documents that may be found on a person being examined.
I am satisfied that it was reasonable for the Canada Customs officers who
conducted the two secondary examinations of Mr. Arar to examine the documents they found in his possession. They did not consider examining these documents to be prohibited. With the exception of the teaching materials, the
documents related to Mr. Arar’s travel and personal identification. There was
nothing of a particularly private nature about the information obtained from the
documents, particularly in the context of someone entering Canada. Much of the
information obtained would likely have been available from publicly accessible
sources.
It must be remembered that travellers entering Canada are required to complete an E311 Customs Declaration Card and submit it to a Customs officer. The
information provided on that form includes the person’s name, date of birth and
address, the date of departure from Canada, mode of arrival into Canada, country of departure, countries visited while outside Canada and purpose of the
travel, and a description and the value of goods imported. Travellers are also
required to produce their passports, which contain their date of birth and information about their past travels.40
While the information contained in Mr. Arar’s documents went somewhat
beyond what was required on an E311 declaration card and what might be
found in his passport, it was, generally, of the same nature. It seems to me,
therefore, that the Customs officers’ interpretation of what constituted “personal”
information for purposes of the prohibition against examining and copying documents in the Enforcement Bulletin was consistent with the general approach
taken in regard to information about travellers entering Canada.
As for the teaching materials, it is possible that the information in those
documents would fall within the type of personal papers and journals addressed
in the Bulletin. However, without hearing more about the content of those documents and what, if any, expectation of privacy Mr. Arar had in their regard, I
am unable to comment about whether or not it was appropriate for those documents to be examined and copied.
I conclude that the examination by Canada Customs officers of the documents obtained from Mr. Arar during his secondary examinations did not breach
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existing Canada Customs directions. Moreover, I am satisfied that the prohibition in the Bulletin against photocopying documents was intended to apply only
to “personal” documents, as that term is used in the Bulletin, and not to the
kind of documents obtained from Mr. Arar. Thus, I see no basis for criticism of
the actions of the Customs officers with respect to the examination and photocopying of Mr. Arar’s documents on November 29 and December 20, 2001.
I note that on May 31, 2002, Canada Customs amended its Enforcement
Bulletin with respect to examining and photocopying personal documents. I
discuss the amended Bulletin in the context of the examination and copying of
Dr. Mazigh’s documents on November 14, 2002.
5.2.1.2
Dr. Mazigh
Above, I set out my conclusion that Dr. Mazigh should not have been the subject of a lookout. As a result of that lookout, she was subjected to a secondary
examination on November 14, 2002. It is fair to say that it is highly unlikely
that she would have undergone such an examination had there not been a
lookout.
The Government submitted that I should not consider the events relating
to the secondary examination of Dr. Mazigh because they fall outside my mandate, which relates only to Mr. Arar. I disagree. Dr. Mazigh’s secondary examination resulted directly from the investigation of Mr. Arar and, in my view,
warrants comment pursuant to the part of my mandate that directs me to report
on “any other circumstance directly related to Mr. Arar that [I consider] relevant
to fulfilling this mandate.”
During Dr. Mazigh’s examination, a Canada Customs officer examined and
photocopied certain travel and personal identification papers in her possession.41
These related to Dr. Mazigh and to her children, who were travelling with her.
By the time of Dr. Mazigh’s secondary examination, the relevant Canada
Customs Enforcement Bulletin had been amended. While still not entirely clear,
the amended Bulletin, entitled “Examination and Photocopying of Personal
Documents,”42 appears to broaden the prohibition against examining and photocopying travellers’ documents set out in the earlier Bulletin. It, too, limits the
restriction on examining and reading documents to “personal papers and journals,” then goes on to explain the prohibition against reviewing personal papers
and journals, noting that a review of such documents might have more of an
impact on privacy rights than a review of commercial documents, one of the
possible messages being that reviewing some documents, at least commercial
documents, is permissible.
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
Under the heading “Photocopying,” the Bulletin states, “Under no circumstances, are documents of any nature unrelated to the administration or enforcement of the Customs Act to be photocopied unless they are seized for some
other purpose under lawful authority, or permission to photocopy the document is received….” As an example, the Bulletin provides specifically that personal identification of persons entering Canada may not be photocopied and
passed to the police for intelligence purposes.
Finally, the Bulletin provides that “in all instances, individuals are to be
advised when documents are photocopied.”
Apparently, there was some controversy within Canada Customs about the
amended policy. There were discussions about what it meant and the wisdom
behind some possible interpretations. I must say that I find it to be very poorly
drafted. While the title suggests that it relates only to “personal” documents, and
the prohibition against examining and reading documents appears to apply to
only those types of documents, the direction relating to photocopying extends
much more broadly to “documents of any nature.”
Leaving aside my conclusion that Dr. Mazigh should not have been the
subject of a lookout in the first place, it appears that photocopying her documents on November 14, 2002 contravened the directions in the Canada
Customs Enforcement Bulletin then in force.
That said, I find the manner in which Canada Customs has set out its policies with respect to examining and copying documents in the possession of
those seeking entry to Canada to be very confusing. For example, there is no
direction as to what may be examined and copied. The directions are cast only
in the negative, and even these are far from clear.
In Chapter IX, I recommend that Canada Customs carry out a review of its
policies in this area and that it set out, in one place, clear directions with respect
to what is permitted and what is not. I imagine that front-line Customs officers
have enough trouble carrying out their duties without having to wrestle with
unclear enforcement bulletins. I have not heard sufficient evidence, and I do not
believe it comes within my mandate, to make recommendations as to the specific content of Canada Customs policies in this area, other than to say that they
will need to strike an appropriate balance between the enforcement role of
Canada Customs and the need to avoid intruding unnecessarily on the privacy
interests of travellers.
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5.2.2
Examination of Mr. Arar’s Computer and PDA
Canadian officials took two steps with respect to Mr. Arar’s computer and PDA:
they seized the articles for non-payment of duties, and they examined the articles and made notes of the information they found.
I am satisfied that the Customs officers acted within the authority conferred
by the Customs Act in seizing Mr. Arar’s computer and PDA. Subsection 110(1)
of the Customs Act43 provides that:
An officer may, where he believes on reasonable grounds that this Act or the
regulations have been contravened in respect of goods, seize as forfeit
(a) the goods . . . .
Based on the information available to me, I conclude that the Customs officers involved in the seizure of Mr. Arar’s computer and PDA had reasonable
grounds to believe that Mr. Arar had contravened the Customs Act with respect
to those items. Mr. Arar reportedly told them that he had not paid the duties
required by the Act when these items had first been imported into Canada. That
failure would be a contravention of the Act.44
The Customs officers testified that there had been another basis for seizing
the computer and PDA. When asked to provide access to the computer, Mr. Arar
had refused. Taken together, paragraph 13(b) and subsections 99.1(1) and (2)45
of the Customs Act require that someone in Mr. Arar’s circumstance co-operate
with Customs officials by answering questions about goods being imported and,
if requested, opening any package or container that the officer wishes to examine. The Canadian officials involved in the decision to seize Mr. Arar’s computer and PDA understood these provisions to mean that Mr. Arar was required
to provide his computer password to enable them to examine the contents. They
apparently viewed his refusal as a circumstance giving rise to suspicion and as
a separate basis for seizing the computer and PDA. I have difficulty accepting
this rationale. I am very doubtful that, on its own, the refusal of an individual
to provide a computer password to a Customs officer would form the basis for
seizing the computer.
In any event, I am satisfied that, given Mr. Arar’s reported admission that
the computer and PDA had been purchased in the United States and that he
had not paid the applicable duty when bringing them into Canada the first time,
Customs officials had the statutory authority to seize and forfeit those articles.
On the morning following the seizures, Customs officials examined and
made notes of information on the exterior of Mr. Arar’s computer and
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
information that appeared on the screen without the use of a password. They
also examined and made notes of information found on Mr. Arar’s PDA, including telephone contact information.46
It is clear that the purpose of the examinations was to collect information
connected with the lookout placed for Mr. Arar. Thus, while the articles had
been seized and forfeited for non-payment of duty, the Customs officers were
not seeking information relevant to that issue; they were looking for information
that could help Project A-O Canada’s investigation.
Although, as I point out below, I am not able to opine on whether the
examinations of the computer and the PDA breached any of Mr. Arar’s Charter
rights, I am satisfied that the actions of Customs officers in examining the computer and PDA do not warrant criticism. I say this for three reasons. First, the articles had been seized and forfeited under subsection 110(1) of the Customs Act,
and it was the Customs officers’ understanding that, once goods were forfeited
to the Crown, they were authorized to examine the contents, for whatever
reason.
Next, the Customs officers believed they could examine the articles under
the provisions of the Customs Act authorizing them to examine goods being
brought into Canada where there is a reasonable suspicion that the Act has been
contravened, as in this case. Paragraphs 99(1)(a) and (e), together with section
99.1,47 authorize officers to open packages or containers and to examine goods.
Finally, the officers were aware that a lookout had been issued and, in
examining the goods, they were responding to the lookout. The examinations
were not inconsistent with previous practices, and there was no Canada Customs
policy or directive indicating the limits, if any, on the examination of goods that
had been seized and forfeited.48 In these circumstances, I see no basis for critical comment concerning the actions of those involved in the examinations.
That said, I recognize that there may be an argument that the examinations
were not authorized on a proper interpretation of the Customs Act, or that they
contravened Mr. Arar’s privacy rights under the Charter. The Government’s position that the examinations were authorized rests on the propriety of the seizure
under subsection 110(1). However, the seizure was for non-payment of duties,
while the examinations were for an unconnected and different purpose: to further the national security investigation that had given rise to the RCMP’s request
for the lookout for Mr. Arar.
In Chapter IX, I recommend that Canada Customs develop a policy to provide direction to officers about the extent of their examinations of seized articles and, in particular, the examination of computers and other devices that may
contain highly personal information.
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5.2.3
Provision of Information to RCMP
Canada Customs officials provided Project A-O Canada with copies of the documents obtained during the secondary examinations of Mr. Arar, as well as
information obtained from Mr. Arar’s computer and PDA, with the appropriate
caveats.
I am satisfied that Canada Customs officials reasonably believed that they
had the authority under the Customs Act to provide this information to the
RCMP.
The Customs Act was amended on November 29, 2001, the very day that
Mr. Arar first underwent a secondary examination. In the amended Act, paragraph 107(4)(h) reads as follows:
107(4) An official may provide, allow to be provided, or provide access to customs
information if the information. . . .
(h) is reasonably regarded by the official to be information relating to
the national security or defence of Canada.49
Subsection 107(1) defines “customs information” as
information of any kind and in any form that
(a) relates to one or more persons and is obtained by or on behalf of
(i) the Minister for the purposes of this Act or the Customs
Tariff . . . .
Customs officials believed, reasonably, in my view, that they had the authority under the Customs Act to examine the information, make copies and notes,
and provide it to Project A-O Canada. The Customs officials gave the information to Project A-O Canada to assist it with its ongoing investigation into matters relating to Canada’s national security, thus satisfying paragraph 107(4)(h) of
the Customs Act. At the time, Project A-O Canada was investigating serious
threats to Canada’s national security. The events of 9/11 were very recent, and
there was significant concern about a possible second wave of terrorist attacks.
In addition, Project A-O Canada had recently received information of a possible threat to a major Canadian target. Mr. Arar, while not a suspect, was a person of interest in the Project’s investigation. Above, I conclude that he was
properly made the subject of a lookout by virtue of his connection to
Mr. Almalki, who was a target. A Canada Customs officer had been assigned to
the Project A-O Canada investigation team and had some knowledge, at least
in general terms, of the investigation and Mr. Arar. Given the circumstances, I
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
am satisfied that the Customs official involved had reasonable grounds to regard
the documents and information obtained from Mr. Arar as relating to the
national security of Canada. The Customs Act accordingly gave the official
the authority to provide the information obtained from Mr. Arar to Project
A-O Canada.
Before leaving this issue, I wish to point out that, prior to the November 29,
2001 amendment to the Act, Canada Customs had provided Customs officials
with guidance on sharing information with other agencies, in its Customs
Enforcement Manual and enforcement bulletins. However, when the relevant
sections of the Act were amended in 2001, Canada Customs did not immediately
establish guidelines on providing information to other agencies. In fact, it did not
release new guidelines to accompany the statutory amendments for more than
two years. Thus, at the time the Canada Customs officer provided Mr. Arar’s
documents and information to Project A-O Canada, there were no guidelines.
The officer had only the statutory provision on which to rely.
Interestingly, the new guidelines, which were eventually issued on
November 26 and December 5, 2003,50 require that authorization be obtained
from a senior official in order to exchange information. In this respect, the guidelines are stricter than the statute. Given the potential implications of sharing
information with other agencies, the greater control specified in the new guidelines makes sense.
As far as the information obtained from Dr. Mazigh’s secondary examination on November 14, 2002 is concerned, I am satisfied that Customs officers
should not have provided copies of the documents to the RCMP, as doing so
clearly did not fall within the authority conferred by the Customs Act.
The Government has argued that the transfer was authorized under paragraphs 107(4)(h) and 107(5)(a) of the Act. Paragraph 107(4)(h) grants the authority to provide information where it is reasonably considered to relate to the
national security of Canada. In my view, there was no reasonable basis to conclude that information about Dr. Mazigh came within that criterion. There was
no evidence connecting her to suspects or targets of the Project A-O Canada
investigation, and no information in Dr. Mazigh’s documents that related even
remotely to the investigation being conducted by the Project. Dr. Mazigh’s sole
connection was the fact that she was married to Mr. Arar who, by that point in
time, had been in custody in Syria for over a month. Given the lack of any connection between the information about Dr. Mazigh and the Project A-O Canada
investigation, there was no reasonable basis for a belief that would trigger the
authority found in paragraph 107(4)(h) of the Customs Act.
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Paragraph 107(5)(a) authorizes the provision of customs information to a
peace officer (RCMP officer) if the Customs official believes that the information
relates to an alleged offence. In the case of the Project A-O Canada investigation, there was no alleged offence. Moreover, there was no connection whatsoever between the information obtained from Dr. Mazigh’s secondary
examination and the matters being investigated by Project A-O Canada.
Thus, I am satisfied that the Customs officers should not have provided
Project A-O Canada with Dr. Mazigh’s information and documents.
5.2.4
Uploading of Profiles of Dr. Mazigh and Children into IMS
Canada Customs should not have uploaded the profiles of Dr. Mazigh and her
children into the IMS, an automated facility for reporting and compiling intelligence information on targets “known or suspected to be a potential border
risk.”51 Neither Dr. Mazigh nor her children fall into this category.
While the uploaded information was basic information obtained from the
travel itinerary and identification documents of Dr. Mazigh and her children,
that does not afford a reason for storing the information in an intelligence data
bank, nor does the claim that there is limited access to the data bank. Dr. Mazigh
and her children should not have been subjected to the negative connotations
associated with the database, even if only Canada Customs intelligence personnel had access to it, which is by no means clear from the evidence. Information
may be released to the broader public in certain circumstances (e.g., Access to
Information requests), and other government departments and law enforcement
agencies may have access to it.
In its submissions, the Government argued that the information had been
uploaded into the intelligence data bank because Dr. Mazigh had been the subject of a lookout. My conclusion that no lookout should have been placed for
Dr. Mazigh disposes of that as a reason for uploading the information.
Since information stays in the IMS system for 10 years unless expressly
purged, I recommend that Dr. Mazigh’s information and that of her children be
purged forthwith from IMS, if this has not already been done.
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
6.
JANUARY 22, 2002 SEARCHES AND INTERVIEWS
6.1
SEARCHES
On January 22, 2002, Canadian agencies conducted simultaneous searches, pursuant to search warrants, of a number of locations in Ottawa, Toronto and other
Canadian cities. At the same time, the RCMP interviewed various individuals.
Project A-O Canada considered and decided against applying for a search
warrant for Mr. Arar’s residence. It did not have sufficient evidence to obtain
one. Nonetheless, Project members decided that they would attempt to interview
Mr. Arar, as a witness, regarding his associations with Mr. Almalki and others.
[***]. The reliability of such information is always in question. As Deputy
Commissioner Garry Loeppky explained in reference to RCMP policy, the RCMP
has significant concerns about information that is received from another country where human rights abuse may occur. The information is noted because it
relates to law enforcement, but so is its questionable validity or worth. If the
information cannot be substantiated or corroborated, it is given little weight.
[***].
The question of the validity of the search warrants is not before me and it
is not, therefore, appropriate for me to comment further at this time.
In Chapter IX, I recommend that, when information is received from countries that have questionable human rights records, the information be identified
as such and steps be taken to assess its reliability. Further, reliability assessments
should be updated from time to time and the most current assessments should
be used by all Canadian agencies making use of such information or sharing it
with other agencies.
I deal with the issue of the documents and articles obtained by Project A-O
Canada during the searches in Section 7 of this chapter.
6.2
ATTEMPT TO INTERVIEW MR. ARAR
On January 22, 2002, the day the searches were conducted, members of
Project A-O Canada went to Mr. Arar’s residence with a view to interviewing
him. On learning that he was in Tunisia and might be back in a few days, they
left a business card.
Apparently, Mr. Arar learned of the visit and tried to contact the RCMP
while he was still in Tunisia, without success. On January 25, after Mr. Arar had
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returned home, an RCMP officer asked him to attend an interview at RCMP
offices. It seems that, after some discussion, Mr. Arar consented to be interviewed the following day.
Mr. Arar then attempted to contact Michael Edelson, a criminal lawyer in
Ottawa, but was unable to arrange to see him before January 30. As a result, the
proposed interview on January 26 did not take place. Subsequently, Mr. Edelson
contacted a government lawyer assigned to Project A-O Canada and indicated
that Mr. Arar was prepared to meet with the police. The government lawyer
told Mr. Edelson that the RCMP wanted to videotape the statement and have it
made under oath, but would not indicate in what capacity Mr. Arar would be
interviewed (as a witness or a suspect) or what the investigation was about.
Although Mr. Arar was willing to speak with the police, Mr. Edelson considered it prudent to impose conditions precluding the use of any statement in
subsequent legal proceedings, the idea being that any statement would be for
the purpose of providing information to the RCMP and nothing more.
Mr. Edelson advised Mr. Arar that he should only agree to an interview with
conditions attached. Mr. Arar accepted that advice and Mr. Edelson informed
Project A-O Canada of the conditions.
Inspector Cabana considered the conditions exceptionally stringent. He testified that, for all intents and purposes, the interview would have been useless
because of the condition that anything Mr. Arar said could not be used in any
proceedings against Mr. Arar or anyone else. Project A-O Canada therefore
decided not to proceed with the interview.
I do not accept Inspector Cabana’s view that interviewing Mr. Arar would
have been “for all intents and purposes…useless.” Information gained from the
interview could have been used for intelligence purposes. Moreover, information initially provided for intelligence purposes might subsequently have been
used for other purposes, with Mr. Arar’s consent. Bearing in mind that
Project A-O Canada’s primary focus at the time was on prevention of any terrorist actions, rather than prosecution, it is difficult to understand why the Project
would not have wished to obtain as much information as possible, whether or
not it could ultimately be used as evidence.
In any event, the fact remains that Mr. Arar agreed to be interviewed, albeit
with conditions. Agreement to be interviewed subject to conditions such as those
stipulated by Mr. Edelson on Mr. Arar’s behalf does not amount to a refusal to
be interviewed.
After Project A-O Canada decided against proceeding with Mr. Arar’s interview, Project members told American authorities on at least two separate occasions that Mr. Arar had refused to be interviewed.52 Those statements were
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
inaccurate and unfair to Mr. Arar. The fact that Project members made such
statements is cause for serious concern. One should not underestimate the seriousness of a statement that an individual “refused to be interviewed,” particularly
in the minds of law enforcement officers such as FBI agents. The inference, of
course, is that the person had something to hide. Such statements inevitably
raise suspicions — suspicions that, in Mr. Arar’s case, were unfounded and
unfair.
7.
INFORMATION SHARING WITH U.S. AGENCIES
7.1
OVERVIEW
The most significant problems arising from the Project A-O Canada investigation
concerned information sharing with the United States. The information about
Mr. Arar provided to the American agencies is set out in Section 4.10 of the
Factual Background. I do not repeat it here. Rather, I focus on those areas where
I judge that there were problems with the sharing of information or where I
think my comment is warranted. My main conclusions are as follows.
•
•
•
•
•
Project A-O Canada provided the American agencies with information in a
way that did not comply with RCMP policies respecting screening for relevance, reliability53 and personal information and respecting the use of written caveats on documents being shared. Some of this information related
to Mr. Arar.
Project A-O Canada took the unprecedented step of providing the
American agencies with its entire Supertext database, which included all
documents obtained during its investigation.
Project A-O Canada provided the American agencies with information
about Mr. Arar that was inaccurate, in that it unfairly overstated his importance in the investigation or misdescribed facts in a way that would tend to
increase suspicions about his activities.54
Project A-O Canada provided the American agencies with third-party information to which caveats were attached without obtaining the originators’
consent.
The RCMP gave Project A-O Canada unclear and misleading direction with
respect to sharing information and failed to adequately oversee the Project’s
information-sharing practices.
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7.2
IMPORTANCE OF INFORMATION SHARING
Sharing information with domestic and foreign agencies is often critically important to a national security investigation. In recent years, terrorism threats at the
basis of most of these investigations have been global and many investigations
have involved associations reaching across international borders. In order for
those responsible for protecting Canada’s national security to effectively investigate many of those threats, they must have the capacity to share information
with law enforcement and intelligence agencies in Canada and other countries.
Jack Hooper, Assistant Director of Operations for CSIS, stated plainly that
Canadian authorities could not possibly tackle the threat of terrorism without
sharing information with other agencies, including foreign agencies. The threat
posed by terrorism from al-Qaeda was and continues to be real, and it is international. As Mr. Hooper said, “compromising al-Qaeda operations requires an
unprecedented level…of cooperation between police, law enforcement, immigration officials and the like, not just domestically, but internationally as well.”
Prevention is frequently the primary objective when investigating terrorist
threats. The harm resulting from a terrorist attack is potentially devastating.
Investigators often work under great pressure to identify the source of a threat
and ascertain ways of disrupting or preventing an attack. To this end, they must
obtain as much information as possible from domestic and foreign sources.
Not surprisingly, information sharing must be reciprocal if it is to be effective. If an agency wishes to receive information from other agencies, it must be
prepared to provide information in return. The networks within which terrorismrelated information is shared must function on a co-operative basis.
Information sharing among agencies allows a more comprehensive picture
to emerge. Viewing different pieces of information together may allow a more
complete and accurate assessment of the threat being investigated and the steps
needed to address that threat. Sometimes, seemingly inconsequential bits of
information may take on an importance not otherwise apparent when viewed
alongside other information. Broad information sharing is therefore essential to
effective prevention.55
Information sharing became even more important in the aftermath of 9/11.
Threats from international terrorist networks were real and there was an immediate concern about a possible second wave of attacks. In such an environment,
there was no room for investigative agencies to adopt an isolated, stand-alone
approach to terrorist investigation and to refuse to pass on information to other
agencies investigating the same or similar threats. As RCMP Deputy
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
Commissioner Loeppky put it, the “traditional stovepipes” needed to come
down. He suggested that in certain circumstances, the RCMP might even have
a duty to share information, domestically and internationally, to prevent the
commission of an offence.56
7.3
NEED FOR CAUTION
While there is a great need to share information with other agencies, there is also
a need for caution in relation to the content of that information and the use to
which it may be put by the recipient. That is the reason the RCMP has information-sharing policies that apply to all criminal investigations.
7.3.1
Content of Shared Information
The RCMP has a legitimate concern, indeed a responsibility, to ensure that information it provides to other agencies is appropriate for sharing in the particular
circumstances.
When an agency such as the RCMP collects information in the course of an
investigation, it assumes a type of proprietary interest in and control over that
information. The information becomes its work product. The RCMP stores the
information in its files or information storage systems and does not routinely
make it available to the public. It controls the use to which the information may
be put, subject to the requirements of law.
In the interests of conducting thorough investigations, the RCMP collects as
much information as possible that may be related to what is being investigated.
The inclination of a good investigator is to cast a wide net and, as the investigation proceeds, analyze the information to determine what is useful and what
is not. The information gathered may include some of a personal nature about
individuals targeted by an investigation or others connected in some way with
those individuals.
In a normal investigation, the information collected will have varying
degrees of value over time. Some may turn out to be irrelevant, unreliable or
even inaccurate. In some circumstances, the information may be potentially misleading because it creates an inaccurate or unfair picture about a particular event
or individual.
That being the case, the RCMP does not indiscriminately provide all of the
information it collects to others. It, like other agencies that share information, has
developed policies aimed at carefully screening the content of information that
may be shared for relevance and reliability, as well as for personal information.
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Screening for relevance involves considering why another agency is
requesting the information, including the nature of that agency’s investigation
and how the agency might use the information. It is often said that information
should be given only to those who have “a need to know.”57 Moreover, if it is
determined that a recipient agency intends to use information for a purpose of
which the RCMP does not approve, the information need not be provided.
RCMP policy also requires that information be screened for the reliability of
the sources of the information. The policy sets out different categories of reliability and requires that the appropriate label be attached to each source, to
ensure the recipient is made aware of the reliability rating. The obvious intent
is to ensure that recipients are not misled about the value of information. There
is also a practice, not specifically set out in the policy, of screening information
for accuracy. As one would expect, the RCMP is careful to ensure that the information it provides to others is accurate. If there is any doubt in this respect, that
doubt should be flagged. Providing unreliable or inaccurate information to other
agencies is in no one’s best interests and can create potentially serious problems
for those who rely on it and possibly those who are the subjects of the
inaccuracies.58
Finally, RCMP policy requires that information being provided to other
agencies be screened to ensure compliance with applicable laws relating to the
disclosure of personal information. Those laws prohibit the disclosure of personal information, subject to exceptions for consistent use disclosure, disclosure
for law-enforcement purposes, and public interest disclosure.59 Screening for
personal information may also require the RCMP to take into account the consequences of providing personal information, the safety of the individuals
involved, and what might occur if those individuals travel to certain places.
All in all, the RCMP has very sensible policies that require a thorough vetting of information before it is provided to other agencies. These policies do not
in any way diminish the importance of information sharing. Rather, they help
ensure that information is shared for appropriate purposes only, that recipients
are not misled about the reliability or accuracy of information, and that personal
information is properly protected. Sharing irrelevant, unreliable or inaccurate
information does not serve the legitimate security interests of information sharing. Indeed, sharing such information may be worse than not sharing information at all.
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
7.3.2
Control of Information
It is important that the RCMP control, to the extent it is able, the use to which
information provided to other agencies may be put. Given that any information
provided is the product of the RCMP’s information-gathering and, in some cases,
analysis efforts, it is reasonable that the RCMP try to maintain as much control
as possible over how it is ultimately used. Controlling information provided to
other agencies is standard practice in the law enforcement and security intelligence communities.
The reasons behind the need for the RCMP to control shared information
are obvious. Recipients may wish to use information in unacceptable ways, ways
that would lead the RCMP to refuse to share the information if it knew about
them in advance. For example, if it knew that information it was considering
providing to another agency would be used as part of an interrogation involving torture, it could decide not to share that information.
Another example relevant to the Inquiry relates to the American practice of
rendition. The evidence shows that members of the RCMP were unaware of this
practice of sending individuals to other countries for interrogation and possible
torture. It is also clear from the evidence that the RCMP disapproves of the practice and would not provide information to American officials with the knowledge
that it would be used to support a decision to render an individual, particularly
a Canadian citizen, to a country where that person would likely be tortured.
RCMP policy directs that the Force not become involved in activities that might
violate the rights of an individual, subject only to some very narrow exceptions.60
Since the RCMP has a reasonable and legitimate interest in controlling, to
as great an extent as possible, the way in which shared information will be used,
RCMP policy requires that caveats be attached to correspondence, messages and
documents provided to other agencies. The use of caveats is standard in the
law enforcement and security intelligence communities. It enables agencies to
share information for intelligence or information purposes61 while retaining the
capacity to control how their own information is used. RCMP caveats require that
recipients of RCMP information seek the consent of the RCMP before disseminating that information to others. They are a means of attempting to ensure that
Canadian information is not used in a way that would be inconsistent with
Canadian values and objectives.
There is no guarantee that a recipient of information to which a caveat is
attached will honour that caveat. The system is based on trust and caveats are
not legally enforceable. However, the ability and willingness of agencies to
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respect caveats and seek consent before using information will affect the willingness of others to provide information in the future — a significant incentive
for agencies to respect caveats.
Common sense tells us that this incentive is greater when caveats are clear
and in writing. Some witnesses suggested that implied caveats — unwritten
understandings — were an ample substitute for the written ones required by
RCMP policy. I disagree. While written caveats do not provide a complete assurance of compliance, those who are considering breaching a caveat, which is a
type of agreement, will be less likely to do so in the face of a clear and express
written directive. It leaves little, if any, opportunity to justify the breach of trust.
In honouring an RCMP caveat, which evidence suggests is the normal practice, the recipient seeks consent from the RCMP to use the information for a
specified purpose or share it with another party. In deciding whether to consent
or not, the RCMP typically considers the nature of the information, the consequences of the proposed use, and the potential impact on individuals. If the
RCMP does not approve of the use of the information as proposed, it may refuse
its consent, and the recipient, honouring the caveat, will not use the information for that purpose.
The RCMP also has a policy providing that, when it receives information
with caveats from another agency, its members must respect the caveats and
seek the consent of the originating agency before using or disseminating the
information. This is the other side of the coin. Respecting the caveats of others
promotes effective information sharing in the future.
7.3.3
Centralization of Decision Making
The RCMP also has a policy directed at centralizing decisions about information
sharing within the Force. The normal procedure for providing information, particularly national security information to foreign agencies, involves first going
through CID at RCMP Headquarters. The idea is that Headquarters staff have
expertise in matters related to information sharing and can therefore ensure that
the information being shared is appropriate and that the RCMP’s informationsharing policies are uniformly applied. Given that decisions with respect to information sharing can sometimes be difficult and sensitive, it is sensible to
centralize these types of decisions within the RCMP.
However, there are certain exceptions to this centralized approach that
allow continuous investigator-to-investigator information exchange, provided
CID is involved in establishing the initial relationship. It is often not practical or
necessary for CID to be involved in decisions about each piece of information
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
to be shared. That said, the practice is that CID is kept informed, at least in general terms, about the type of information sharing that is taking place.
7.3.4
Post-9/11
RCMP policies on information sharing did not change after the events of 9/11.
Information-sharing policies are national in scope and may only be changed by
written amendment. According to senior officers who testified at the Inquiry,
there was no direction or intention that the then-existing policies on information
sharing be suspended or amended.
If anything, the need for adherence to RCMP information-sharing policies
when dealing with American agencies was even greater in the aftermath of 9/11.
American authorities appeared ready to use extreme measures to deal with terrorism threats, possibly including some that might be unacceptable to the
RCMP.62 I note that the evidence shows that, since the Arar affair, the RCMP has
developed a greater sensitivity to and awareness of the risks to Canadians
accused of links to al-Qaeda when they are in the United States.63 Ward Elcock,
Director of CSIS in the period immediately following 9/11, testified that, despite
the fact that Canada and the United States have what is probably one of the
closest information-sharing relationships in the world, neither side actually
shares everything with the other, and information-sharing policies should continue to be as vigorously applied as before 9/11.64 CSIS, which has similar information-sharing policies to those of the RCMP, did not relax its policies in the
wake of 9/11.
The one possible exception to the need to strictly adhere to RCMP policy
in the aftermath of 9/11 related to the centralization of information sharing. In
the months following 9/11, officers at the operational level and at CID at
Headquarters were swamped with matters arising from increased national security concerns. It was understandable in this situation that instructions would be
given for operational units, such as Project A-O Canada, to share information
directly with their American counterparts, provided RCMP Headquarters was
kept informed of the nature of these information-sharing practices.
However, it was precisely because of the impracticability at the time of
channeling all information to be shared through Headquarters for screening that
there was a heightened need to clearly and firmly instruct operational staff that
RCMP policies respecting screening and caveats were to be properly applied to
any information shared.
Despite this need, some RCMP officers testified that, because of the imminent threat of another terrorist attack following 9/11, it had no longer been prac-
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tical or desirable at the time to adhere to policies on screening information and
using caveats for information shared with the United States. As some expressed
it, “caveats were down.” Both Deputy Commissioner Loeppky and Assistant
Commissioner Richard Proulx, the officer in charge of CID, rejected this position
completely. They were clear that the RCMP, as an institution, had not intended
that RCMP officers, including members of Project A-O Canada, deviate from
RCMP policies, except in regard to centralization, as discussed above.
I am satisfied that, in the period after 9/11, there was no need to depart
from established policies with respect to screening and the use of caveats. The
urgency of investigations and the workload of investigators did not justify such
a departure. Attaching caveats to documents being provided to American agencies is a very simple, straightforward exercise and is not time-consuming.
Similarly, reviewing documents obtained during the course of the RCMP’s investigation for relevance, reliability and personal information would not generally
be a complicated matter. Because these documents were a product of an RCMP
investigation, one would expect that they had already been reviewed and analyzed as part of the investigation. The additional screening before sharing information with another agency is extremely important and, in most cases, should
not create an undue burden on investigators.65 Indeed, CSIS routinely shares
information without deviating from its information-sharing policies.
In short, I agree with the senior officers of the RCMP that there was no
basis for changing RCMP information-sharing policies after 9/11.
7.4
ORIGINAL ARRANGEMENT
Immediately after 9/11, the RCMP, CSIS and the American agencies met to
discuss the threat of another terrorist attack and the need for increased co-operation and coordination among the agencies, including the sharing of relevant
information in a timely manner. These discussions were the starting point for the
information-sharing arrangements that, in time, led Project A-O Canada to provide the American agencies with a significant amount of information about a
number of individuals, including Mr. Arar.
RCMP Assistant Commissioner Proulx testified that there had been an understanding at the meeting that the parties would share all information relating to
terrorist threats in “real time,” that is, in a prompt manner, so that appropriate
preventative or disruptive action could be taken before another tragedy like
9/11 could occur.
According to Assistant Commissioner Proulx, in making this arrangement,
the RCMP had had no intention of deviating from its existing policies related to
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
criminal and national security investigations. It had never intended for information to be shared without prior screening in accordance with RCMP policy or for
caveats not to be attached to all correspondence, messages and documents provided to other agencies.
This information-sharing arrangement was not set down in writing.
Following the September meeting, Assistant Commissioner Proulx discussed it
verbally with senior RCMP officers in the various divisions, including “A”
Division in Ottawa. In turn, the senior officers at “A” Division discussed the
arrangement with Project A-O Canada’s managers. Although there are a few
notes concerning these communications, RCMP Headquarters did not give the
senior officers at “A” Division any formal direction, and those officers did not formally provide Project A-O Canada members with details of the arrangement
that had been reached at the September meeting. Rather, instructions about
information sharing were passed down the RCMP’s chain of command by word
of mouth. The result was confusion. Those involved in the communications
have different recollections of what was said. In the end, Project A-O Canada’s
understanding of the arrangement, as testified to by the project managers, differed in several important respects from the arrangement described by Assistant
Commissioner Proulx.
According to Assistant Commissioner Proulx, the arrangement among the
partner agencies had not involved departing from RCMP policies.66
Superintendent Wayne Pilgrim, Inspector Rick Reynolds and Corporal Rick
Flewelling of CID had a similar understanding. However, they also spoke of an
arrangement involving an implicit caveat, suggesting a potential for departure
from the requirement for written caveats on shared documents.
The senior officer at “A” Division, Assistant Commissioner Dawson Hovey,
indicated that RCMP policies had continued to apply to the Project A-O Canada
investigation despite the new information-sharing arrangement. However, he
had little direct involvement in the investigation and was unaware until later
that Project A-O Canada had shared information without following RCMP policy. According to Chief Superintendent Couture, the CROPS Officer at “A”
Division, there had been a general understanding among the partner agencies
that information was to be shared without caveats. He had formed this impression, in part, based on something Assistant Commissioner Proulx had said in
December 2001. While he believed caveats had been down, he did not believe
that the policy requiring consent to share third-party information to which
caveats were attached had been suspended.
The Assistant CROPS Officer at “A” Division, Inspector Clement, testified
that there was to have been an “open-book arrangement” among the partner
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agencies. He had understood from Chief Superintendent Couture in December
2001 that caveats had been down. However, the understanding among the partner agencies had been that information was to be shared for intelligence purposes and not used for court proceedings.
By the time the communication about information sharing reached
members of Project A-O Canada, it was often referred to as an “open-book investigation” or a “free-flow-of-information agreement.” Members of Project
A-O Canada referred to the parties to the original discussions as “partners to an
agreement.” More specifically, the project managers for Project A-O Canada testified that they had understood the “agreement” to include the following:
•
•
•
Caveats were down. Project managers testified that they had understood
that it was not necessary to attach caveats to documents being shared with
the other agencies, and that RCMP policies requiring this to be done did not
apply. However, they said there had been an implicit understanding that
information shared would be used for intelligence purposes only.
All information obtained by Project A-O Canada could be transferred to the
“partners to the agreement.” It was not necessary to screen information
transferred to the other agencies for relevance and reliability or for personal information. RCMP policies and practices requiring such screening
did not apply.
The parties could share information received from one party to the agreement with the other parties without the consent of the originator, even if
caveats had been attached by the originator.
As a result of these understandings, Project A-O Canada provided information to the American agencies in a manner that was very different from that contemplated by Assistant Commissioner Proulx when he had discussed the
arrangement at the September 2001 meeting, and very different from the direction Assistant Commissioner Proulx testified he had given the senior officers in
the divisions, including “A” Division.
The Project transferred information to U.S. agencies without first screening
it for relevance or reliability, or for personal information. Moreover, it did not
attach written caveats to most of the documentary information provided to the
U.S. agencies prior to Mr. Arar’s detention in New York on September 26, 2002.
The Project also transferred to the U.S. agencies some third-party documents
that contained caveats, including documents received from CSIS and Canada
Customs, without first obtaining the consent of the originators.
This situation should never have arisen. The way information is shared is
critically important to a national security investigation. Furthermore, the lack of
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
training and experience of Project A-O Canada members in such investigations,
a fact that was well known to senior officers, made the need for clear direction
concerning this vital aspect of its investigation even more imperative. Yet instructions from RCMP senior management about how information was to be shared
with the American agencies were unclear and misleading.
It was incumbent on Assistant Commissioner Proulx at RCMP Headquarters
and senior officers in “A” Division to exercise more care to ensure that divisional staff who would be sharing information, such as officers in Project
A-O Canada, received clear and accurate information about what the arrangement with the other partner agencies entailed and, in particular, how information was to be shared.
While I can understand that there were great pressures as a result of 9/11,
it would not have been difficult to communicate the details of the arrangement
clearly and in writing. Indeed, I have difficulty understanding why no one
responsible for passing instructions down the chain of command set out what
was intended in writing, particularly since some understood that there was to be
a significant departure from the RCMP’s written policy. The result was an unacceptable case of miscommunication owing to a far too casual approach to matters that could have a serious impact on the Project investigation and on the
interests of individuals who became involved in that investigation.
Project A-O Canada consequently began its investigation with a serious
misunderstanding about the ways in which information could or should be
shared with the U.S. agencies. That misunderstanding played an important role
in the events that followed.
7.5
PROJECT A-O CANADA’S APPROACH
Project A-O Canada first met and communicated with the American agencies
about its investigation in late October or early November 2001, and continued
to do so regularly after that time. These contacts were mainly to exchange information, seek help with analysis, and obtain operational support. In the early
stages, Project A-O Canada generally provided information verbally.
It is important to note that the other parties to the arrangement did not
always follow Project A-O Canada’s practice of sharing information without
caveats. CSIS witnesses testified there had been no agreement along the lines
understood by Project A-O Canada, that CSIS had never agreed to share information without caveats. Whenever it had provided information to the RCMP, it
had always attached caveats. Moreover, CSIS had not agreed that its information
could be transferred to any of the other agencies without its consent. CSIS wit-
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ANALYSIS AND RECOMMENDATONS
nesses maintained that the provisions of the 1989 memorandum of understanding between CSIS and the RCMP requiring consent had continued to apply. In
other words, CSIS had decided how its own information would be shared and
with whom.
The American agencies also frequently attached caveats when they provided information to Project A-O Canada in documentary form. Whether this
was happenstance or by design, I cannot say, but Project A-O Canada’s practice of sharing virtually all of the information collected during its investigation
with the other agencies without attaching caveats stands apart from the practice
of the other agencies.
It is worth noting that when the Project wanted to use information from the
U.S. agencies in its applications for search warrants in January 2002, it first
sought the consent of the providing agencies.
Department of Justice lawyers assigned to Project A-O Canada throughout
its investigation occasionally provided legal advice, which very likely included
advice about the Project’s information-sharing practices. However, the
Government refused to disclose such advice, claiming solicitor-client privilege.
Therefore, I am unable to comment on the nature of that advice or the effect it
might have had.67
7.6
INVESTIGATION OF MR. ARAR
Project A-O Canada first became aware of Mr. Arar in October 2001, in connection with his meeting with Mr. Almalki at Mango’s Café in Ottawa. During
the subsequent investigation, the Project collected assorted information about
Mr. Arar, including:68
•
•
•
publicly available biographical data;
Mr. Arar’s tenancy agreement and his rental application, which showed
Mr. Almalki as an emergency contact; and
information that Canada Customs had obtained from Mr. Arar during the
secondary examinations of November 29 and December 20, 2001.
It is important to note that Project A-O Canada did not consider Mr. Arar
to be a suspect or a target of its investigation. It did not believe that he had
committed a criminal offence or that he was about to do so. When the Project
sought authority to search the residences of persons suspected of being involved
in illegal activities in January 2002, it did not include Mr. Arar’s residence in its
application. It did not have sufficient information to obtain a search warrant
with respect to Mr. Arar.
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
From Project A-O Canada’s perspective, Mr. Arar was a “person of interest,”
peripheral to the investigation of Mr. Almalki, an individual suspected of conducting activities for al-Qaeda. When the Project’s investigation revealed that
Mr. Arar knew Mr. Almalki and had associated with him on occasion, officials
became interested in interviewing him. As a result, when the Project conducted
searches on January 22, 2002, it also sought to interview Mr. Arar, although the
interview never took place.
Further, when Mr. Arar was being held in New York, Project A-O Canada
sent questions to be asked of him and considered going to interview him
directly. It is important to remember that, both times Project A-O Canada sought
to question Mr. Arar, in January and September 2002, it was interested in him
merely as a potential witness, as someone who knew and had some association
with Mr. Almalki and others, and who might have information that would
advance its investigation.
Even though Mr. Arar was only a person of interest in the investigation, I
am of the view that it was appropriate for Project A-O Canada to share information about him with the U.S. agencies. The agencies were co-operating in
the investigation, and information sharing was vital. Project A-O Canada was
properly interested in Mr. Arar, and it was important that it investigate his connections to Mr. Almalki and others. There is nothing wrong with sharing information about a person of interest.
However, when sharing information about Mr. Arar, it was vitally important that the Project be accurate and precise, so as not to overstate its interest in
Mr. Arar or his status in the investigation.
Project A-O Canada provided documents to the American agencies on several occasions prior to Mr. Arar’s detention in New York, sometimes inaccurately describing Mr. Arar’s status in its investigation. Over time, it variously
described Mr. Arar as:
•
•
•
•
•
•
an “Islamic Extremist...suspected of being linked to the Al Qaeda terrorist
movement;”
a suspect or target;
a principal subject of the investigation;
a person with an “important connection” to Mr. Almalki;
a person linked to Mr. Almalki in a diagram titled “Bin Laden’s Associates:
Al Qaeda Organization in Ottawa;” and
a business associate or close associate of Mr. Almalki.
These descriptions of Mr. Arar were either completely inaccurate or, at a
minimum, tended to overstate his importance in the Project A-O Canada inves-
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tigation. The Project did state its actual interest in Mr. Arar in some documents.
For example, on September 26, 2002, in referring to its attempt to interview
Mr. Arar on January 22, 2002, it called Mr. Arar a witness. On October 4, 2002,
in a fax to American authorities, it said that it was unable to indicate that Mr. Arar
had links to al-Qaeda. The fact remains, however, that the written record provided to American agencies contained many inaccuracies, some of which were
very serious.
It is important to note that, in addition to its written communications with
the U.S. agencies, Project A-O Canada met frequently with U.S. officers, sometimes on a daily basis, and exchanged information verbally. It may be that some
of the discussions either expanded upon or qualified what had been said about
Mr. Arar and his status in the written information provided. Some Project members testified that the U.S. agencies had been told of the extent of their interest
in Mr. Arar and had understood that he was merely a person of interest. This
does not change the fact that several documents provided to the American agencies presented Mr. Arar in a much more serious light.
The need to be precise and accurate when providing information is obvious. Inaccurate information or mislabeling, even by degree, either alone or taken
together with other information, can result in a seriously distorted picture. It can
fuel tunnel vision, the phenomenon on which Justices Kaufman and Cory commented in the Morin and Sophonow inquiries,69 which led investigators astray.
The need for accuracy and precision when sharing information, particularly written information in terrorist investigations, cannot be overstated.
It is not clear whether, on the occasions Project A-O Canada provided inaccurate descriptions of Mr. Arar’s status in its investigation, it had screened the
information for reliability or accuracy. I suspect that the mischaracterizations
resulted from either a lack of attention or a failure to appreciate the significance
that might be attached to the descriptions by the American agencies.
Investigators more familiar with the national security milieu would likely have
been more sensitive to the potential risks and unfairness to Mr. Arar. CSIS, for
example, appears to be generally very careful and precise, as it should be, when
analyzing information, making assessments, and passing them on to others.
Further, in providing the descriptions of Mr. Arar, Project A-O Canada did
not attach caveats and therefore did not, to the best extent possible, maintain
control over how the American agencies might use the information, in accordance with RCMP policy. In my view, the failure to attach caveats made it more
likely that the inaccurate descriptions would be used without seeking the consent of the RCMP.
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
I will turn now to four specific instances when Project A-O Canada shared
information about Mr. Arar with U.S. agencies: the lookout requests, an FBI visit
in February 2002, the three CDs, and a presentation on May 31, 2002.
7.6.1
U.S. Border Lookout Request
In late October 2001, Project A-O Canada sent written requests to Canada
Customs and U.S. Customs for border lookouts for Mr. Arar and Dr. Mazigh, and
their vehicles.70 In those requests, it provided some information about Mr. Arar
and Dr. Mazigh. The request to U.S. Customs was also provided directly to the
U.S. agencies in April 2002.
As I noted earlier, the letters requesting the Canadian and American lookouts described Mr. Arar and Dr. Mazigh as Islamic extremist individuals suspected of being linked to the al-Qaeda terrorist movement. There was clearly no
basis or justification for this description. Moreover, it was highly inflammatory
and, in the post-9/11 environment in the United States, had the potential to
prove enormously prejudicial to them.
There are two parts to the statement. First, there is the assertion that those
named were part of a “group of Islamic Extremist individuals.” I note that this
was not put forward merely as suspicion, but as a statement of fact, even though
Project A-O Canada had no information to support the statement.
The RCMP treats statements from other law enforcement agencies, absent
any credibility problems, as coming from “reliable sources.” It is reasonable to
expect that U.S. agencies would treat statements in the RCMP’s lookout requests
the same way, as would Syrian authorities if the information was passed on to
them by the Americans.
Branding someone an Islamic extremist is a very serious matter, particularly in the post-9/11 environment, and even more so when it is done in information provided to American agencies investigating terrorist threats. In the world
of national security intelligence and counter-terrorism, anyone viewed as an
Islamic extremist is automatically seen as a serious threat in regard to involvement in terrorist activity.71
The second part of the statement was that Mr. Arar and Dr. Mazigh were
suspected of being linked to the al-Qaeda terrorist movement. Again, there was
no basis for this assertion. The RCMP had no information concerning Dr. Mazigh
other than that she was Maher Arar’s wife. As for Mr. Arar, at most, Project A-O
Canada had information that he knew and had associated to some extent,
possibly in suspicious circumstances, with Abdullah Almalki, a man suspected
of being a member of al-Qaeda; he had listed Mr. Almalki as an emergency
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ANALYSIS AND RECOMMENDATONS
contact on his rental application; and he was also known to Ahmad El Maati,
a suspect in the Project O Canada investigation at the time. However, Mr. Arar
was not suspected of any criminal activity and Project A-O Canada had no information on which to base the statement that he was suspected of being linked
to the al-Qaeda network.
Members of Project A-O Canada who testified about these letters, including one of the signatories, Inspector Cabana, acknowledged that the wording
concerning Mr. Arar and Dr. Mazigh was inaccurate. Basically, their explanation
for the offensive language was that they had been under time pressure and had
not considered the implications of branding Mr. Arar and Dr. Mazigh in this
way.
Inspector Cabana suggested that the problem would have been avoided
had the word “suspected” been moved three words forward, to indicate that
Mr. Arar and Dr. Mazigh were “suspected” of being Islamic extremists. I disagree. Project A-O Canada had no information to support such a suspicion. In
fact, it had no information, one way or the other, about Mr. Arar and
Dr. Mazigh’s beliefs in Islam, let alone about any extremist beliefs.
I accept that those responsible for sending the letters did not act maliciously, but that does not excuse the grossly inaccurate and potentially inflammatory description of Mr. Arar and Dr. Mazigh. I do not accept the pressure of
time as a valid reason. Surely, when sending a letter of this nature, it would not
have required an undue amount of time for experienced police officers to ensure
that it did not contain seriously inaccurate and potentially very harmful language.
The letters in question were sent at a time that made the consequences particularly dangerous to those named: not even two months after 9/11 and two
weeks after the invasion of Afghanistan in pursuit of al-Qaeda. In the words of
President Bush, America was at war with al-Qaeda. It was obvious to Canadian
investigators that the threshold for taking steps that might be very intrusive to
an individual’s rights and liberties was lower for American authorities involved
in counter-terrorism investigations than for their Canadian counterparts. A number of witnesses at the Inquiry testified that Canadian officials were aware of the
U.S. authorities’ propensity to deal with anyone suspected of terrorist links, particularly Muslim or Arab men, in ways that were different from what Canadian
authorities would do in similar situations, ways that would be unacceptable
under Canadian law.
The request sent to U.S. Customs officials by Project A-O Canada was for
lookouts to be placed in TECS, an information and communication system also
employed by agencies such as the United States Bureau of Alcohol, Tobacco,
Firearms and Explosives, the Internal Revenue Service, the National Central
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
Bureau of INTERPOL, the Drug Enforcement Administration, the State
Department, and the U.S. Coast Guard. Apparently, the CIA also has access to
this system, as does the FBI when working on a joint operation. Evidence at the
Inquiry indicated that more than 30,000 officials have access to TECS.
Since American authorities declined the invitation to testify at the Inquiry,
there is no direct evidence as to whether or not the letter itself was entered into
the TECS system.72 In any event, the letter requesting the lookout was provided
directly to the U.S. agencies in April 2002, as it was included in the three CDs
that Project A-O Canada gave the U.S. agencies — CDs containing the entire
contents of its Supertext database on the investigation. Thus, regardless of
whether the letter with the offensive descriptions found its way to the American
agencies when it was initially sent, there is no question that those agencies
received it in April 2002 and were in possession of it when Mr. Arar was
detained in New York five months later.
When considering the letter’s significance, it is also important to note that
Project A-O Canada did not attach caveats to it or to the information contained
in the three CDs.73 Thus, there were no restrictions on how the information in
the letter could be used other than those that might flow from an implicit understanding. Even then, the letter itself was sent to U.S. Customs, which was not one
of the partner agencies party to the unwritten “information-sharing agreement.”
It is worth noting as well that the letter requesting the lookouts was never
withdrawn or amended. In November 2001, the Americans informed Project
A-O Canada that the individuals named in the Canadian lookout request and
their respective vehicles had been entered into the TECS system. There was no
indication of the duration of the lookouts or whether they had to be renewed
periodically. Project A-O Canada never withdrew the request for lookouts, nor
did it ask that the language describing Mr. Arar or Dr. Mazigh as “Islamic
Extremist[s]...suspected of being linked to the Al Qaeda terrorist movement” be
amended or removed. Indeed, the fact of supplying the letter to the American
agencies again four months later could have been viewed by those agencies as
an indication that the Project continued to stand behind the statements in the letter.
The lookout request was sent without prior approval from either the CROPS
officers in “A” Division or CID at Headquarters. I was told that requesting a
lookout is a relatively routine investigative step and does not require
authorization from senior officers.74 While a situation report forwarded to CROPS
officers and CID indicated that Project A-O Canada would put “all our target
names, addresses and vehicle information…on the U.S. Customs TECS system,”
it made no reference to the offensive description of Mr. Arar and Dr. Mazigh.75
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ANALYSIS AND RECOMMENDATONS
I note that this is one instance where team members’ lack of training and
experience with respect to national security investigations and the lack of oversight by senior officers in the RCMP likely combined to create a situation that
was grossly unfair to Mr. Arar. The offensive language in the lookout request led
to serious and unacceptable risks for Mr. Arar in the United States. Officers
properly trained in national security investigations would have been aware of
the risks in describing individuals — especially Muslim or Arab men — in this
way and of the dangers in making such an assertion, particularly to American
agencies in the period following 9/11.
7.6.2
February FBI Visit
In February 2002, members of the FBI visited Project A-O Canada offices to
review and analyze certain documents. Project officers testified that the American
agents had been permitted to view materials strictly for “intelligence purposes.”
The Project gave the FBI agents access to the products of the January 22,
2002 searches, as well as materials from the broader investigation. The agents
reviewed two binders of information relating specifically to Mr. Arar. These
binders contained the rental application, a profile of Mr. Arar, a photo of Mr. Arar
and his home, police reports, past employment information, information related
to the NSIS inquiry on Mr. Arar, surveillance reports on the meeting at Mango’s
Café, the results of the November 29, 2001 secondary examination of Mr. Arar,
and other investigative materials related to Mr. Arar.
It is unclear whether the FBI agents obtained copies of the material in the
binders or the rental documents. In any case, they took extensive notes.
The agents were also permitted to review information the RCMP had
received from CSIS that contained caveats requiring CSIS consent prior to any
further sharing of the information. There is no evidence that CSIS provided its
consent. However, Inspector Cabana indicated that the content of the CSIS letters had already been the subject of extensive discussions in a number of meetings involving all partner agencies, including CSIS.
The February visit is a good example of the informal information-sharing
practices followed by Project A-O Canada and shows the type of access to the
results of its investigation it was giving the FBI.
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
7.6.3
Supertext Database on Three CDs
7.6.3.1
Background
Project A-O Canada burned three CDs containing its entire Supertext database
in late March 2002 and provided copies to the American agencies in April 2002.
Included were documents seized during the January 22, 2002 searches and, of
note, all of the documents relating to the Project A-O Canada investigation,
including exhibits, statements, memoranda and reports.76 This material contained
a considerable amount of information relating to Mr. Arar.
By everyone’s account, the scope of the disclosure by means of the three
CDs was unprecedented. None of the officers who testified were aware of any
other instance where an entire file, including the products of an investigation,
had been turned over to another agency, let alone a foreign agency. Senior officers at “A” Division and CID at Headquarters were not aware that the entire
Supertext database was being disclosed and, with one possible exception, would
not have authorized the disclosure had they known.77
I discuss the problems relating to the disclosure of information via the CDs
in detail below. These problems must be viewed in the context of how
Project A-O Canada had been sharing information with the American agencies
up to that point. From the outset, Project members had been given to understand
that senior RCMP officers at “A” Division and CID at Headquarters had authorized them to conduct an “open-book investigation” in co-operation with CSIS
and the American agencies. Their interpretation was that all information the
Project collected should be shared with the other agencies without restraint.
They were authorized — in fact, had been directed — to provide information
without attaching caveats or screening for relevance, reliability or personal information, and without obtaining consent in the case of documents with caveats
received from any of the other three agencies involved in the arrangement.
Project A-O Canada members correctly pointed out that, in the months
between October 2001 and April 2002, they had been meeting on an increasingly
regular basis with American officials and had verbally disclosed much of the
information on the CDs that was unrelated to the searches. They had also disclosed a significant portion of the information obtained through the searches.
They stated, with some justification, I believe, that senior officers had been, or
should have been, aware that Project A-O Canada was providing information
and had not objected.
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ANALYSIS AND RECOMMENDATONS
As I mention above, the senior officers at RCMP Headquarters and, to a
lesser extent, in “A” Division denied having given instructions that RCMP policies were not to apply when Project A-O Canada provided information to other
agencies. With one or possibly two exceptions, they also denied being aware
that Project A-O Canada had been sharing information without following RCMP
policies in the months before the U.S. agencies were provided with the three
CDs. In short, the confusion and misunderstanding that accompanied the original direction to Project A-O Canada about information sharing continued as
the investigation progressed.
The events that led to the sharing of information on CDs began with the
searches of January 22, 2002.
7.6.3.2
Products of January 22, 2002 Searches
On January 22, 2002, the RCMP, with the assistance of other police forces, conducted searches of the residences of seven individuals in Ottawa, Toronto and
other Canadian cities. Mr. Arar’s residence was not among them. During the
searches, Project A-O Canada seized a substantial amount of material that
required processing and analyzing, including 26 computer hard drives, almost
100 CDs and diskettes, some 20,000 pages of documents, about 40 videotapes
and two boxes of shredded documents. Some of the seized information related
to Mr. Arar.
In light of the resources required to analyze this material, Project
A-O Canada decided to share the seized information with CSIS and the American
agencies, as a way of enlisting their help.78 I believe this was a reasonable decision. It was imperative that the information be analyzed and, given the continuing concern about terrorist attacks, that this be done as quickly as possible, but
the RCMP lacked sufficient resources to undertake this enormous task.
Moreover, the volume of material and lack of resources made it impractical for the RCMP to screen the search material for relevance, reliability or personal information before providing it to the American agencies. Indeed,
undertaking that task would have largely defeated the purpose of enlisting help.
Even a preliminary review would have been so time-consuming that it would
have jeopardized timely analysis. In the circumstances, I am of the view that
sharing the information from the searches with the American agencies without
first screening it was a necessary action.
I wish to emphasize, however, that this departure from policy is not something that should be repeated, as the information-screening policies are
extremely important. It was unfortunate, though perhaps understandable, that
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
in early 2002, Canadian authorities did not have sufficient resources to review
the search materials without U.S. assistance. I would hope that the resource
shortage is being addressed in order that this situation may be avoided in the
future.
Project A-O Canada also departed from policy when it failed to attach
caveats to any of the search materials and information provided to the American
agencies in the months following the searches or to the three CDs.
On January 31, 2002, a number of agencies, including the American agencies, met with RCMP officers to formulate a plan for analyzing the search material. Senior officers from CID at Headquarters and “A” Division were present.
Everyone agreed that the products of the searches should be shared among all
the agencies for the purpose of analysis.
There was apparently no discussion of caveats at that meeting. However,
some Project A-O Canada officers testified that the American officials had verbally confirmed to Project members that none of the shared information would
be released more widely without the RCMP’s authorization. Similarly, at a meeting in February, when Project A-O Canada discussed sharing the seized documents with the FBI, it was agreed that the documents would be used for
intelligence purposes only. If the FBI wanted to use the information for prosecution purposes, a Mutual Legal Assistance Treaty (MLAT) application would be
required.
The process of handing over the seized documents to the American agencies for analysis began in February. Following its normal practice, Project
A-O Canada did not attach caveats to any documents transferred during this
period. In discussions about sharing documents, Project A-O Canada asked the
agencies to send letters formally requesting the information.
In a letter dated February 22, 2002,79 the FBI requested that the RCMP provide it with items from the searches (referring to the January 22, 2002 searches),
and then set out a list of specific documents. The last item on the list was other
relevant material related to the investigation. Although, in my mind, the letter
seems to limit the request to seized documents, all of the RCMP witnesses who
were asked were of the opinion that the request had gone beyond seized documents to include other relevant material from the Project A-O Canada
investigation.
The letter from the FBI to the RCMP acknowledged that an MLAT request
would be necessary if the material was to be used in support of a formal criminal prosecution in the United States. This acknowledgement is useful in addressing the issue of the provision of the three CDs to the FBI without caveats. On
the face of it, however, the undertaking relating to MLAT proceedings was
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limited to criminal prosecutions and did not include other proceedings, such as
the removal proceedings that eventually led to Mr. Arar’s removal to Syria.
Moreover, the FBI’s acknowledgement did not address the issue of sharing information with third parties.
7.6.3.3
The Three CDs
There were four problems connected with the transfer of the documents contained on the three CDs:
•
•
•
•
The information on the CDs should not have been provided to U.S. agencies without written caveats.
The portion of the documents not related to the searches should have been
reviewed for relevance, reliability and personal information.
Third-party materials to which caveats were attached, such as letters
received from CSIS and documents received from Canada Customs, should
not have been transferred without the originators’ consent.
Some of the information about Mr. Arar included on the three CDs was
inaccurate.
I have mentioned several times the importance of attaching written caveats
when information is shared. Caveats should have been attached to the three
CDs, in compliance with RCMP policy. In addition to protecting the products of
the searches, this would have protected the balance of Project A-O Canada’s
investigation file, including memoranda and reports, ensuring that the information could not be used in ways the RCMP did not intend or, importantly, in proceedings of which the RCMP did not approve.
Although some conditions were set out in the letter of request received
from the FBI, that letter goes only partway to addressing the Project’s failure to
attach caveats. Even if the undertaking about the use of the information in the
FBI’s letter could be interpreted to apply to material other than that seized during the searches — an interpretation I question — it was still limited to making
an MLAT request in the event of criminal prosecution.
I heard a number of arguments as to why the failure to attach caveats to the
three CDs was not a significant matter. It was argued that most, if not all, of the
information in the documents not related to the search had already been provided verbally to the American agencies during the many meetings that had
taken place before the transfer of the CDs, including during the FBI’s visit to
Project A-O Canada’s offices in February 2002. Even accepting this to be the
case, the fact of handing over information in documentary form raises additional
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
concerns. It increases the risk of the information being used in proceedings not
intended by, or acceptable to, the RCMP, and of greater weight being attached
to the information. Common sense tells us that documentary evidence, particularly in the form of RCMP reports or memoranda, is likely to be accorded more
weight than conversations between officers and agents.
It was also argued that caveats were not necessary because there was an
implied understanding that the information would be used for intelligence purposes only. I repeat that implied understandings are not an adequate substitute
for written caveats. In a matter as important as this, it is difficult to understand
why, when providing an unprecedented amount of information to American
agencies, including search materials that had not been reviewed for relevance,
reliability or personal information, the RCMP would not have exercised the greatest care possible to protect how that information might be used.
It has been further argued that, in the end, caveats would not have made
any difference, that the American agencies would still have done whatever they
were going to do and used the information as they saw fit. This might be true,
but it is far from certain. Surely, clearly spelling out in writing that the information was not to be used for any purpose other than intelligence without RCMP
consent would have reduced the risk of the dishonourable conduct suggested
by those making this argument. Common sense and experience indicate that a
recipient of information is more likely to respect a clearly written caveat than an
unwritten, perhaps even unspoken, implied understanding. That is precisely
why the RCMP and other agencies have policies requiring written caveats.
Moreover, a failure to attach written caveats in an environment where the
use of caveats has become an accepted practice may actually be used to justify
a departure from an implied understanding.
The second problem relating to the CDs was that materials not related to
the searches were not screened for relevance, reliability and personal information. This failure was not caused by time constraints. The urgency attached to
the analysis of the search materials did not apply to the balance of the Supertext
database. Those materials included information that had been collected over a
number of months and actually accounted for a relatively small portion of the
total information on the three CDs. Further, it was information that had served
as the basis for the Project A-O Canada investigation and, as such, had likely
already been analyzed, at least to some extent. It should not have been difficult
for Project A-O Canada to screen this information before turning it over to the
American agencies. RCMP policy and practices requiring this type of screening
are there for a purpose and should not have been breached.
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The third problem was that the CDs contained third-party information to
which caveats applied, including information from CSIS and Canada Customs,80
yet, as was the Project’s practice, that information was transferred to the U.S.
agencies without seeking prior consent from the originators. I accept the evidence of the CSIS witnesses who testified that CSIS had not agreed to the transfer of information subject to caveats without its specific consent. The Canada
Customs information was information obtained from Mr. Arar on November 29
and December 20, 2001, and also had caveats attached. Even though Canada
Customs was not a party to the so-called information-sharing agreement,
Project A-O Canada provided this information to the U.S. agencies without first
seeking the consent of Canada Customs.
The final problem is that some of the biographical and other information
on Mr. Arar in the Project CDs was inaccurate. As mentioned, the CDs contained several references overstating Mr. Arar’s status as “a suspect,” “target,”
“principal subject,” or important figure, as well as the letters with the offensive
language requesting the Canada and U.S. border lookouts.
The CDs also contained information about Mr. Arar that was misleading. For
example, they included erroneous notes taken by RCMP officers during the interview of Youssef Almalki on January 22, 2002. The notes indicated that Youssef
Almalki had said that Mr. Arar had a business relationship with Abdullah Almalki.
In fact, what Mr. Almalki had said was that he was not sure whether or not
Mr. Arar and Abdullah Almalki had such a relationship. Further, one situation
report about the meeting at Mango’s Café erroneously said that Mr. Arar had
travelled from Quebec to meet Mr. Almalki, even though he was living in Ottawa
at the time. A second report noted that Mr. Arar was living in Ottawa.
When taken alone, details like these may seem insignificant. However, it is
important to bear in mind the nature of the intelligence-gathering process and
the frequently-repeated mantra that every bit of information, no matter how
seemingly inconsequential, should be shared because it might turn out to be the
missing piece of a puzzle.
It is possible that a proper review of the information that was being provided to the American agencies would have uncovered some of the inaccuracies.
7.6.3.4
Authority to Transfer CDs
Finally, the question arises as to whether or not the CROPS officers at “A”
Division and the officers with CID at Headquarters were aware that, apart from
providing the documents seized during the searches, Project A-O Canada was
providing its entire Supertext database to the American agencies on the CDs.
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
There is conflicting evidence on this issue. Some Project A-O Canada members
said that senior officers had been aware of the fact. The senior officers, with the
possible exception of Inspector Clement, said they had not. Indeed, some of
the senior officers suggested in closing submissions that Project A-O Canada
had not intended to include anything other than the search-related material on
the CDs; since the inclusion of the entire Supertext database had been a mistake,
they, the senior officers, could not possibly have known about it.
While there is some support for this submission in the evidence, Inspector
Cabana flatly denied it. According to the inspector, he had intended that the
whole database be included on the CDs, and senior officers had known that at
the time. I accept that Inspector Cabana intended that the whole Supertext database be transferred, although it is far from clear whether other members of
Project A-O Canada understood this to be the case. Indeed, the situation report
describing the transfer indicated that only search-related materials had been
included.
Given Project A-O Canada’s intention to take the unprecedented step of
transferring its entire Supertext investigation file to the U.S. agencies, senior officers at CROPS and CID at Headquarters should have been involved in the decision in this regard. I do not propose to review the evidence of Inspector Cabana
and the senior officers on this issue. I accept that Inspector Cabana thought he
had approval to transfer the entire database. I also accept that the senior officers did not know that anything more than the search material was to be provided and that, with the possible exception of Inspector Clement, they would
not have approved the broader transfer. Certainly, CID would not have
approved it, particularly if RCMP policies concerning screening and caveats were
not being followed.
This is another example — a glaring one — of the misunderstandings and
confusion that existed within the RCMP about what Project A-O Canada was
authorized to do and in what instances it needed to involve CID in its operational decisions. The confusion surrounding the transfer of the three CDs flowed
from the October 2001 misunderstanding about information sharing between
Project A-O Canada and other agencies and the applicability of RCMP policies.
7.6.3.5
May 31 Presentation
Starting in April 2002, Project A-O Canada made several presentations about its
investigations to a number of Canadian agencies, as well as to the American
agencies. All these presentations had a similar format: a description of the
Project A-O Canada investigation in general, followed by a look at the “Present
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Situation,” focusing on specific individuals. Although Mr. Arar was generally
included among the individuals mentioned, he was given varying degrees of
prominence.
On May 31, 2002, Project A-O Canada made a major presentation in
Washington, D.C. Its purpose was to persuade the American authorities to initiate a criminal investigation of Mr. Almalki and his associates.
The “Present Situation” portion of the presentation made mention of several individuals, including Messrs. Almalki and El Maati and others81 who, by
anyone’s assessment, were serious terrorist threats — some used the phrase
“heavy hitters.” Mr. Arar’s name was included in this list. At the same time, the
presentation indicated that Mr. Arar and others might be part of an investigative
hearing under Bill C-36, a type of hearing limited to people who may be witnesses. It is not clear whether Project A-O Canada explained the significance of
the investigative hearing process to the Americans.
Mr. Arar was not the focus of the presentation in Washington, DC.
However, the presentation did provide some information about him collected by
Project A-O Canada that showed his associations with Mr. Almalki and others.
In addition, it provided two “facts” about Mr. Arar that were inaccurate.
Evidence relating to one of these “facts” was heard in camera and may not be
disclosed for national security reasons. Suffice it to say that this inaccurate fact
tended to unfairly link Mr. Arar to certain individuals.
The other inaccurate “fact” may be disclosed. In the presentation, Project
A-O Canada incorrectly informed the Americans that Mr. Arar had refused to be
interviewed in January 2002. As discussed earlier, Mr. Arar, through his counsel, had actually agreed to be interviewed, but under conditions that Project A-O
Canada had found unacceptable. Even assuming, for the sake of argument, that
the conditions attached by Mr. Arar’s lawyer were overly stringent, there would
likely be a difference in the minds of law enforcement officers between someone who “refuses” to answer questions, and someone who agrees to answer
questions, but with his lawyer’s conditions attached.
The Americans requested a written copy of the May 31 presentation, and
Project A-O Canada sent them an updated copy, excluding speaking notes, on
July 22, 2002.
This presentation is another example of the problems that persisted with
Project A-O Canada’s information-sharing practices. It overstated Mr. Arar’s status in the Project’s investigation and included inaccurate information about
Mr. Arar. The fact that Mr. Arar was also identified in the presentation as a candidate for a Bill C-36 examination as a witness might have mitigated the overstatements to some extent.
[***].
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
7.6.3.6
Mr. Arar’s Departure for Tunisia
In July 2002, Project A-O Canada learned that Mr. Arar and his family had left
for Tunisia several weeks earlier. There were some indications that the move had
been a permanent one. On July 15, 2002, Project A-O Canada verbally
informed American authorities of Mr. Arar’s departure. They discussed whether
Mr. Arar’s departure had been prompted by the Project A-O Canada investigation or whether it had already been planned.
7.6.3.7
[***]
[***].
[***].
[***].
[***].
[***].
8.
PROJECT A-O CANADA’S RELATIONSHIP TO
HEADQUARTERS
In this section, I discuss the relationship between Project A-O Canada and the
Criminal Intelligence Directorate (CID) at RCMP Headquarters. In earlier sections, I have described this relationship in connection with several investigative
steps taken by Project A-O Canada. Here, I draw these descriptions together
and summarize how that relationship functioned.
8.1
CENTRALIZATION OF NATIONAL SECURITY INVESTIGATIONS
Normally, RCMP investigations are carried out at the divisional level with little,
if any, reporting to Headquarters. Thus, criminal investigators operate in a relatively autonomous fashion, reporting up the chain of command within a division
to the Criminal Operations (CROPS) officer, not to Headquarters in Ottawa.
However, for some time now, RCMP investigations involving national security matters have been treated differently. While investigators in these types of
investigations report to the CROPS officer at the divisional level, they are also
required to report to CID at Headquarters, the premise being that CID should
exercise greater control and coordination over national security investigations
than it does over other types of criminal investigation. Assistant Commissioner
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Proulx testified that it is important that CID be kept up to date about national
security investigations, for monitoring purposes. Since national security is both
a national and international issue, CID needs to be aware of developments in
order to brief the RCMP Commissioner and ensure that the Solicitor General,
the minister responsible for the RCMP, has accurate and timely information. It
also needs to have current information for meetings with other departments or
agencies.
In the normal course of events, national security investigations were carried
out by the NSIS in the relevant division (and Integrated National Security
Enforcement Teams (INSETs) in Vancouver, Toronto, Ottawa and Montreal
beginning in April 2002). Witnesses indicated that the culture within the NSISs
had supported reporting to Headquarters and NSIS members had understood the
important relationship between those conducting an investigation and CID.
The RCMP had policies directing NSISs in the divisions to notify the National
Security Intelligence Branch (NSIB)82 at CID immediately when any new investigation began, and to remain in regular contact with field units to ensure the
NSIB was kept abreast of ongoing investigations. At the time of 9/11, the Officer
in Charge at the NSIB was involved in an exercise to build the investigative
capacity of the RCMP’s national security program across the country and create
a vision for centralized coordination and direction of national security matters.
On November 4, 2003, the Solicitor General issued three ministerial directions to the RCMP aimed at promoting greater centralization of its national security activities.
The RCMP’s view of a need for greater central control of national security
investigations is not unique. Other agencies conducting these types of investigations, including both security intelligence and law enforcement agencies, commonly adopt a centralized and coordinated approach to their investigations. As
an example, CSIS has a highly centralized process for managing all aspects of
its investigative operations.
8.2
PROJECT A-O CANADA
Project A-O Canada was different from most previous RCMP investigations
involving national security matters for at least four reasons.
To begin with, Project A-O Canada was formed in the aftermath of 9/11,
at a time when there was widespread concern that another terrorist attack might
be imminent. For at least the first several months, there was a sense of urgency
about this investigation that had not existed with previous investigations. The
need to quickly investigate possible threats and share information with other
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
investigative agencies was far greater than that normally experienced by RCMP
investigative units.
In addition, with few exceptions, members of Project A-O Canada had
never been involved in a national security investigation. They were experienced
criminal investigators accustomed to reporting to divisional CROPS or assistant
CROPS officers. Reporting to and interacting with officers at CID was not part
of the culture within which they had conducted criminal investigations in the
past.
The third and perhaps most important reason is that a fundamental
misunderstanding existed from the outset between senior officers at RCMP
Headquarters and Project A-O Canada about the way in which the Project was
authorized to share information with other agencies, including the American
agencies.
Finally, Project A-O Canada had much more interaction with the American
agencies than NSISs had had during previous national security investigations.
8.3
REPORTING TO HEADQUARTERS
Even though it viewed its reporting relationship to be with the “A” Division
CROPS officer alone, Project A-O Canada provided CID with a considerable
amount of information on an ongoing basis, keeping it informed of its investigative steps.
Shortly after its creation, Project A-O Canada began to regularly provide
copies of its daily situation reports (SITREPs) to CID. SITREPs describe the investigative steps taken in the course of each day. Thus, a reader of the daily SITREPs
would have a large amount of information about the investigation, some of it
quite detailed. It is important to note that, in providing the SITREPs to CID,
Project A-O Canada was exceeding the reporting requirements set out in the
RCMP policy regarding national security investigations, which requires at least
monthly updates on ongoing national security investigations by means of summaries entered into the SCIS national security database.
In addition to providing SITREPs to CID, Project A-O Canada met periodically with CID officers to inform them about the investigation. Members of CID
attended the all-agency meeting on January 31, 2002 to discuss analyzing the
material seized during the January 22 searches. CID officers were also present
in April 2002, when Project A-O Canada made a presentation describing its
investigation to a number of agencies.
From time to time, Project A-O Canada also provided RCMP Headquarters
with briefing notes on a variety of issues related to the investigation. It must be
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ANALYSIS AND RECOMMENDATONS
emphasized that there is no suggestion that members of Project A-O Canada
ever withheld or concealed any information about the investigation from CID.
When officers from CID made inquiries about the Project’s investigation, members responded appropriately. Thus, the fact that certain information about the
investigation failed to reach CID should not be attributed to any lack of willingness on the part of the Project to provide CID with information.
Indeed, it would appear that officers at CID who received the information
from Project A-O Canada did not always review it with a view to monitoring the
investigation or providing direction about how it should proceed. Undoubtedly,
in the aftermath of 9/11, officers in CID with national security responsibilities
were extremely busy and had difficulty managing the huge flow of new information. CID resources dedicated to national security issues fell far short of what
was required following the terrorist attacks. Be that as it may, the fact remains
that Project A-O Canada did provide CID with extensive information about its
investigation.
8.4
FAILURES IN COMMUNICATION
Despite Project A-O Canada’s willingness to provide CID with information, there
were a number of serious failures in communication.
The most serious involved the misunderstanding about information sharing.
As I describe above, it led to the sharing of information with the American agencies without attaching caveats and, in some instances, the sharing of third-party
information to which caveats applied without obtaining the consent of the originators. While some officers at CID might have been aware of the former practice, Assistant Commissioner Proulx and Deputy Commissioner Loeppky were
not. Had they been, they would have ordered that it be discontinued.
Responsibility for this failure in communication falls primarily on the RCMP
as an institution. Ultimately, the RCMP is responsible for ensuring that clear and
proper direction is provided to operational units such as Project A-O Canada
and that there is adequate monitoring of operational practices.
Nevertheless, Project A-O Canada also bears responsibility for some failures
to properly inform senior officers about what was occurring in its investigation.
There were some instances where the Project shared information with American
agencies without making the content known to senior officers. For instance,
senior officers at “A” Division or CID were not apprised of the fact that
Project A-O Canada had described Mr. Arar and Dr. Mazigh as Islamic extremists in its border lookout request to U.S. Customs.
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
Moreover, some of the information the Project provided to CID with regard
to Mr. Arar was inaccurate and unfairly overstated Mr. Arar’s importance in its
investigation or misdescribed facts in a way that would increase suspicion about
Mr. Arar’s activities.
All in all, the communications between Project A-O Canada and senior officers, particularly at CID, fell short of what one would have expected from a
professional law enforcement agency such as the RCMP.
8.5
TENSIONS
Periodically, tensions arose between Project A-O Canada and CID. There were
likely a number of reasons for this, but in my view I need comment on only two
here. First, there was a difference of culture. While Project A-O Canada provided extensive information to CID, its officers considered that seeking CID concurrence in regard to its investigative steps, including the transfer of specific
information to other agencies, was an unnecessary impediment. In particular,
Project A-O Canada considered it essential to share information with U.S. agencies directly, without channeling it through CID. According to Project members,
the NSIB was so overworked in the post-9/11 period that there would have
been unacceptable delays if the NSIB had had to process material passed on to
it by the Project. The Project preferred a process whereby it shared information
directly and then reported generally on its activities through SITREPs.
CID initially accepted that, after the original information-sharing arrangement was established with U.S. agencies, it would be permissible for Project
A-O Canada to share information directly. However, as time went on and officers at CID became aware of the volume of information being shared, they
became increasingly concerned about the lack of control over the Project’s activities. Concern grew when some officers at CID, including Superintendent
Pilgrim, became aware that Project A-O Canada was sharing information without following RCMP policy regarding caveats. Because of that concern, in June
2002, CID appointed Corporal Rick Flewelling as “file coordinator” for the Project
A-O Canada investigation and directed him to bring information-sharing practices back into line with pre-9/11 methods of operation.
Unfortunately, CID did not go the next step and ask Project A-O Canada
to confirm in writing with the American agencies that all the information provided to that point was subject to the usual RCMP caveats.
Project A-O Canada and CID discussed these tensions periodically, including, somewhat ironically, at a meeting on September 26, 2002, the day Mr. Arar
was detained in New York. That time at least, it was decided that Project
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A-O Canada would continue to provide information directly to the U.S. agencies,
but Corporal Flewelling of CID would be informed of certain contacts with the
U.S. agencies and Project A-O Canada would maintain a log of contacts with
American officials. Further, Corporal Flewelling would be seconded to monitor
Project A-O Canada’s dealings with third parties.
Corporal Flewelling testified that problems had continued for a time after
he had become involved. For instance, he had not always received timely notice
of meetings and had sometimes been informed of actions only after the fact.
Eventually, however, the problems had been resolved.
8.6
CONCLUSION
The relationship between Project A-O Canada and CID was far from ideal. CID
should have exercised greater control over the Project’s investigation, particularly in view of the lack of training and expertise in national security investigations of most of its members, including its managers. As well, CID should have
ensured that the Project was provided with clear direction in regard to sharing
information with the American agencies and that the Project complied with
RCMP policies.
For its part, Project A-O Canada provided CID with extensive information
about its investigation. While members did not always welcome CID’s involvement, they complied with directives and requests for information from
Headquarters. The Project did share information in ways that contravened RCMP
policies, but Project members believed they were authorized to do so. On some
occasions, however, CID was unaware of the content of information the Project
shared with U.S. agencies.
It is worth repeating that, in the period following 9/11, CID was significantly understaffed and under-resourced. The volume of work flowing from
9/11 created workloads that, understandably, had not been anticipated. The role
of CID and its relationship with Project A-O Canada should be viewed with this
fact in mind.
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
Notes
1
2
3
4
5
6
7
8
9
10
“Caveats” are written restrictions on the use and further dissemination of shared information.
I phrase my conclusion in this way because I did not consider it necessary or practical to hear
evidence about the investigations transferred to the RCMP. Further, while I did hear some
evidence regarding Mr. Almalki, it was only evidence that related to my mandate. I am therefore not in a position to opine more conclusively on the transfer of responsibility for the
investigations.
One should not read into my statement concerning the appropriateness of the transfer of the
investigations that Mr. Almalki did anything wrong, or that he is a threat to the security of
Canada. Mr. Almalki has not been charged with any offence and has publicly maintained that
he has never been involved in any terrorism-related activities. Like any other person being
investigated, Mr. Almalki is presumed to be innocent.
R.S.C. 1985, c. C-23. Paragraph 19(2)(a) of the Act reads:
“19(2) The Service may disclose information referred to in subsection (1) for the purposes of
the performance of its duties and functions under this Act or the administration or enforcement
of this Act or as required by any other law and may also disclose such information,
(a) where the information may be used in the investigation or prosecution of an alleged contravention of any law of Canada or a province, to a peace officer having jurisdiction to investigate the alleged contravention and to the Attorney General of Canada and the Attorney
General of the province in which proceedings in respect of the alleged contravention may be
taken . . . .”
Canada, Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted
Police, Second Report: Freedom and Security under the Law (Ottawa: Supply and Services
Canada, 1981).
When I use the term “national security investigation” in connection with the RCMP, I am referring to an investigation carried out by the RCMP under the authority conferred by section 18
of the Royal Canadian Mounted Police Act (RCMP Act), hence a criminal investigation with
national security implications. Section 18 of the Act reads:
“It is the duty of members who are peace officers, subject to the orders of the Commissioner,
(a) to perform all duties that are assigned to peace officers in relation to the preservation of
the peace, the prevention of crime and of offences against the laws of Canada and the laws
in force in any province in which they may be employed, and the apprehension of criminals
and offenders and others who may be lawfully taken into custody . . . .”
R.S.C. 1985, c. S-7. The Act covers a potentially long list of offences, including any that relate
to a threat to the security of Canada, such as conspiracy, attempt, murder, kidnapping, arson,
mischief and the use of explosives.
R.S.C. 1985, c. R-10.
See my Policy Review report for a more detailed discussion of the RCMP’s involvement in
national security investigations and the structure within the RCMP for handling these types of
investigations.
I discuss the difference between the roles of the RCMP and CSIS in Chapter IX of this analysis and throughout the Policy Review report.
Again, I word this conclusion in this manner because I have not reviewed all of the information gathered in investigations of persons other than Mr. Arar. In Chapter IX, I recommend that
the RCMP periodically review its national security investigations, particularly those with a preventative mandate, to determine whether they continue to be appropriate for investigation by
a law enforcement agency.
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11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
After he left Project A-O Canada in February 2003, Inspector Cabana was promoted to
Superintendent. For reasons of simplicity, I refer to him throughout this report as “Inspector,”
the rank he held at the relevant time.
An integrated approach to policing is very important in investigations that may cross jurisdictional borders or ones that will require the broad range of skills available in different police
forces. In Chapter IX, I make recommendations related to an integrated policing approach for
national security investigations.
Liaison officer systems are designed to facilitate interaction and information sharing between
agencies.
In Chapter IV, I discuss the use by American officials of information supplied by Project
A-O Canada.
In August 2002, Project A-O Canada received information that, while in custody in Egypt,
Mr. El Maati had told Canadian consular officials that his alleged confession to Syrian authorities was the product of torture and was false.
The RCMP had a long-standing relationship with the FBI and, in the post-9/11 era, institutionally, there were periodic interactions between the RCMP and the CIA. Moreover, after
9/11, the CIA assumed a more operational role in the United States than it had before and any
information shared by Project A-O Canada with U.S. agencies could have been obtained by
the CIA. This was understood by Project A-O Canada managers.
Project A-O Canada used Supertext to store and manage all documents associated with the
Project, including exhibits, statements, memos, reports and, at least to some extent, officers’
notes. In theory, every piece of paper generated or received by Project A-O Canada was to
be scanned into Supertext, including situation reports, surveillance reports, and reports from
outside agencies.
I heard evidence from members of the Muslim and Arab communities about the “immigrant
experience” and how some activities or associations could be erroneously interpreted as more
significant than was actually the case.
In 2002, the RCMP established Integrated National Security Enforcement Teams (INSETs) to
conduct national security investigations in Vancouver, Toronto, Montreal and Ottawa. In 2003,
Project A-O Canada was placed under the direction of the Ottawa INSET. I discuss INSETs in
detail in the Policy Review report.
While doing so may not be totally appropriate, I cannot help comparing the training and experience of Project A-O Canada members with those of some of the CSIS personnel who testified at the Inquiry, who dealt with similar challenges in assessing and sharing national security
information. While the mandate of CSIS is different from the RCMP’s, there are many common
elements when it comes to sharing information. The CSIS personnel had undergone extensive
training and had a good deal of experience with information-gathering and information-sharing practices. As a matter of routine, they strictly adhered to CSIS policies when sharing
information.
I repeat that Mr. Almalki has never been charged with any offence and is presumed innocent
of criminal wrongdoing.
See, for example, R. v. Plant, [1993] 3 S.C.R. 281.
I recognize that Chief Superintendent Brian Garvie, who prepared a report for the RCMP in
response to a complaint made to the Police Complaints Commission about the Arar matter,
concluded that the RCMP should have obtained a search warrant for the lease documents.
For the reasons given above, I do not think that the officers acted improperly in proceeding
without obtaining a warrant. Mr. Garvie’s report is summarized in the Factual Background.
Project A-O Canada requested lookouts for other individuals at the same time.
R. v. Simmons, [1988] 2 S.C.R. 495 at 528.
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
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37
38
39
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41
42
43
44
45
I leave aside the issue of the search of an individual’s person because it does not arise with
respect to Mr. Arar.
As it turned out, Mr. Arar was not subjected to a secondary examination on one occasion
when he entered Canada after the lookout was placed. This was due to human error.
I note that the RCMP has no policy or directives setting out when officers may request a border lookout. I will come back to this issue when I discuss the request relating to Dr. Mazigh.
Customs Enforcement Manual, Exhibit C-188, Tab 11.
CCRA Enforcement Bulletin, Exhibit C-188, Tab 19.
Exhibit P-174.
Exhibit C-87. I note that Chief Superintendent Garvie’s report concluded that there was no justification for the lookout request for Dr. Mazigh other than the fact that she was Mr. Arar’s wife.
Exhibit C-30, Tab 44.
See Section 7.7.
Exhibit C-30, Tab 43.
The caveat provided that the RCMP was not to disseminate the information without the consent of Canada Customs.
This information is found in a report of a Canada Customs officer, now living in the United
States, who declined to testify. Thus, this information was not given under oath or subjected
to cross-examination.
Exhibit C-188, Tab 16.
The use of the word “private” is somewhat confusing. Elsewhere in the Manual, the word
“personal” is used. A question arises as to whether “private” is different from “personal.” The
title of the Bulletin suggests not and, in evidence, no one suggested there was a difference.
As a result, I proceed as if the two terms are interchangeable in the context of interpreting this
Bulletin.
In Smith v. Canada (Attorney General), [2001] 3 S.C.R. 902, 2001 SCC 88, the Supreme Court
approved the collection, storing and sharing of this information with another agency of the
Crown. I note, however, that that case involved unemployment insurance, which may engage
different considerations from those that apply to information concerning a national security
investigation.
These included Dr. Mazigh’s personal identification documents, ticket stubs, the E311 Customs
Declaration Card, her passport and her children’s passports.
Exhibit C-188, Tab 17.
R.S.C. 1985, c. 1 (2nd Suppl.).
Let me repeat that my analysis is based solely on the information provided by government officials. It is possible that I would reach different conclusions if Mr. Arar were to testify.
Paragraph 13(b) of the Act provides that:
“13. Every person . . . stopped by an officer in accordance with section 99.1 shall
. . . (b) if an officer so requests, present the goods to the officer, remove any covering from
the goods, unload any conveyance or open any part of the conveyance, or open or unpack
any package or container that the officer wishes to examine.”
Subsections 99.1(1) and (2) read as follows:
“99.1 (1) If an officer has reasonable grounds to suspect that a person has entered Canada without presenting himself or herself in accordance with subsection 11(1), the officer may stop that
person within a reasonable time after the person has entered Canada.
(2) An officer who stops a person referred to in subsection (1) may
(a) question the person; and
(b) in respect of goods imported by that person, examine them, cause to be opened any package or container of the imported goods and take samples of them in reasonable amounts.”
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48
49
50
51
52
53
54
55
56
57
58
In the next section, I discuss the issue of providing the RCMP with information obtained from
the examination of Mr. Arar’s computer and PDA.
Section 99.1 is set out above. Paragraph 99(1)(a) states that “An officer may, at any time up to
the time of release, examine any goods that have been imported and open or cause to be
opened any package or container of imported goods and take samples of imported goods in
reasonable amounts.”
Paragraph 99(1)(e) reads:
“where the officer suspects on reasonable grounds that this Act or the regulations or any other
Act of Parliament administered or enforced by him or any regulations thereunder have been
or might be contravened in respect of any goods, examine the goods and open or cause to
be opened any package or container thereof.”
I note that the Customs Enforcement Manual and Enforcement Bulletin as they existed at the
time appeared to permit photocopying of documents relating to goods under seizure.
Under the previous regime, the Minister or persons authorized by the Minister had to give
authority for any communication of information to other agencies. Only more senior individuals in the Canada Customs hierarchy had authority from the Minister to release information.
Exhibit C-189, Tab 6.
Exhibit C-371, p. 1.
I refer to the presentation to American authorities on May 31, 2002 and the letter of
September 26, 2002, when Mr. Arar was being detained in New York. I discuss both in more
detail below.
I recognize that “screening for reliability” frequently refers to determining the reliability of
sources. I also include ensuring that information being shared is accurate and put in its proper
context, so as not to mislead.
Project A-O Canada provided most of this same information to senior officers in “A” Division
and CID at RCMP Headquarters. In Chapter V, I discuss the impact of this on the RCMP’s institutional response to Canadian efforts to have Mr. Arar released from Syrian custody.
Shortly after September 11, 2001, the U.N. Security Council adopted Resolution 1373, which,
among other things, directs that all states find ways of “accelerating the exchange of operational information, especially regarding actions or movements of terrorist persons or networks
. . . .”
In this regard, he made reference to the RCMP’s mandate under section 18 of the RCMP Act,
which directs the RCMP to, among other things,
“perform all duties that are assigned to peace officers in relation to the preservation of the
peace, the prevention of crime and of offences against the laws of Canada . . . .”
Many witnesses explained that, when referring to “relevance,” what is intended is the recipient’s “need to know.” This is a well-established approach. The U.S. National Commission on
Terrorist Attacks upon the United States (9/11 Commission) suggested a shift from the “needto-know” to a “need-to-share” approach, envisioning that this change would promote greater
information sharing among agencies. I am not sure that these labels are particularly helpful.
In Chapter IX, I emphasize the importance of information sharing in national security investigations. I suggest that the proper test for sharing information is its “relevance” to an investigation. I do not use the term “relevant” in the legal or evidentiary sense. Rather, I suggest that
relevance should refer to a possible connection or use to the recipient’s investigation.
The RCMP’s 2001 Criminal Intelligence Program Guide (Exhibit P-12, Tab 44) appropriately
stresses that “information must be accurate, have integrity, be complete and be up-to-date” and
that “information/intelligence must undergo a review for relevance and an evaluation for
source reliability and information validity prior to filing” in data banks.
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
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I discuss screening for privacy concerns and the applicable exceptions in Chapter IX.
Exhibit P-12, Tab 31, paras. M.3.a and M.3.b.
In this report, I sometimes refer to the RCMP’s sharing of information “for intelligence purposes.” I use that phrase because it was frequently used by many witnesses. In using it, I am
not suggesting that the RCMP should be collecting or sharing information unless doing so is
properly part of its mandate as a law enforcement agency.
[IC] Proulx testimony (December 9, 2004), pp. 7750–7759.
[P] Loeppky testimony (July 28, 2005), pp. 8708–8721.
[P] Elcock testimony (June 22, 2004), pp. 307–312.
In the context of the Project A-O Canada investigation, there was one very significant exception. The materials obtained during the searches of January 22, 2002 were very extensive and
so screening them was not practical. I discuss the provision of those materials to the U.S.
agencies in Section 7.9.2.
Jack Hooper confirmed that CSIS had not been a party to any arrangement among the
partner agencies to depart from existing information-sharing policies.
While I did not consider it necessary to reject the claims of solicitor-client privilege in the circumstances where they were made in the Inquiry, I am satisfied that, as a general rule, an independent review body must have access to such information in order to effectively carry out
its mandate. I make a recommendation to this effect and set out my reasons for this position
in the Policy Review report.
I include here information about Mr. Arar collected by Project A-O Canada that is not subject
to national security confidentiality.
Ontario, Commission on Proceedings Involving Guy Paul Morin: Report (Toronto: Ministry of
the Attorney General, 1998) (Commissioner: The Honourable Fred Kaufman); Manitoba, Report
of The Inquiry Regarding Thomas Sophonow (Winnipeg: Manitoba Justice, 2001) (Chairman:
The Honourable Peter Cory).
In this section, I discuss only the information provided in the request sent to U.S. Customs. I
look at the practical effects of the lookout requests and state my views as to the propriety of
those requests in Chapter IV.
See, for example, Exhibit P-259, “Islamic Extremists in Detention: How Long Does the Threat
Last?”
I discuss this issue further in Chapter IV. I restrict my remarks here to noting that the INS
order directing that Mr. Arar be removed from the United States says that Mr. Arar’s name had
been entered into the TECS system. It is possible that the entry was created by American
authorities for reasons unrelated to the Canadian request.
I discuss the transfer of the three CDs in more detail below.
The RCMP has no policies or guidelines specifying when lookouts may be requested and what
information should be included in such requests. In Chapter IX, I make a recommendation
dealing with lookout requests.
Exhibit C-30, Tab 43.
Project A-O Canada did not provide its case management database (E&R III) to the U.S.
agencies.
Some members of Project A-O Canada disputed the claim that senior officers had not been
aware of their intention to disclose the entire Supertext database. They suggested that senior
officers had implicitly approved the disclosure. I discuss this issue in Section 7.9.4 below.
As it turned out, CSIS was unable to help with the analysis owing to a lack of resources.
Exhibit C-30, Tab 127.
CSIS information provided on the CDs does not appear to have related to Mr. Arar.
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81
82
For reasons of national security confidentiality, these names cannot be disclosed.
The RCMP has a specialized branch within CID to monitor national security investigations. This
branch has been reorganized since 9/11. At the start of Project A-O Canada, RCMP
Headquarters monitored national security investigations through the National Security
Investigations Branch (NSIB). I use that appellation.
�IV
Detention in New York
and Removal to Syria
1.
OVERVIEW
On September 26, 2002, Maher Arar arrived at John F. Kennedy International
Airport in New York on a flight from Zurich, Switzerland. He had started his trip
in Tunisia and was connecting through New York on his way to Montreal. Upon
his arrival at the airport in New York he was detained by American authorities.1
On October 7, the Regional Director of the U.S. Immigration and
Naturalization Service (INS) issued an order finding Mr. Arar to be a member of
al-Qaeda and directing his removal2 from the United States. On October 8, 2002,
Mr. Arar, still in American custody, was flown to Jordan. A short time later he
was driven to Syria, where he was imprisoned for almost a year.
In this chapter, I review the interactions of Canadian and American officials during the period Mr. Arar was detained in New York. There were several
communications between the RCMP and American officials. The most noteworthy were on September 26, the day Mr. Arar was initially detained, when the
RCMP provided the FBI with questions to be asked of Mr. Arar and, on
October 4, when it answered a number of questions concerning its investigation
of Mr. Arar.
I also review the actions of the Canadian consular officials in New York
who were advised of Mr. Arar’s detention. In particular, I review how consular
officials responded to Mr. Arar’s statement that American immigration officials
had told him that he would be sent to Syria.
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ANALYSIS AND RECOMMENDATONS
2.
ROLE OF RCMP
2.1
DECISION TO DETAIN MR. ARAR
Approximately one hour before Mr. Arar was scheduled to arrive in New York
on September 26, 2002, the FBI called Project A-O Canada to notify it of his
pending arrival and of the American authorities’ intention to question him and
deny him entry into the United States. The FBI indicated that Mr. Arar would be
sent back to Zurich, where his flight had originated.
I am satisfied that that telephone call to Project A-O Canada was the first
indication that Canadian officials had that the American authorities would take
any action with respect to Mr. Arar. While the RCMP had information that
Mr. Arar was in Tunisia, Canadian officials had no reason to believe that he
would travel through the United States if he returned to Canada or that the
American authorities would detain him or otherwise interfere with his travel
plans if he did.
The RCMP, particularly Project A-O Canada, had had extensive communications with American agencies over the previous year about the Project’s investigation, which only incidentally related to Mr. Arar. I have carefully reviewed
all of the evidence of communications between Canadian and American authorities that in any way related to Mr. Arar. There is no evidence to suggest that
members of the RCMP or any other Canadian officials ever discussed a scenario
with American officials that involved Mr. Arar’s being detained or sent to Syria
if he travelled to the United States.
There is also no evidence that Canadian officials otherwise participated or
acquiesced in the American decision to detain Mr. Arar on his arrival in
New York.
That said, I do conclude that it is very likely that American officials relied
on information the RCMP had provided to American agencies in making the
decision to detain Mr. Arar on his arrival in New York. I refer here to information about Mr. Arar, some of which was inaccurate, that was given to the
American agencies at different times in the months preceding his detention in
New York, as discussed in Chapter III.
The reasons for this conclusion relating to Mr. Arar’s detention in New York
are essentially the same as those for my conclusion that American authorities
very likely relied on that same information in deciding to remove him to Syria.
For simplicity, I discuss those reasons only once, in Section 2.7.
�DETENTION IN NEW YORK AND REMOVAL TO SYRIA
For the time being, I merely note that, in responding to Canadian inquiries,
American officials have consistently said that American agencies were interested
in Mr. Arar because of information provided by Canadian officials.
That leads to the question of what effect, if any, the Treasury Enforcement
Communications System (TECS) lookout requested by Project A-O Canada in
November 20013 had on the American decision to detain Mr. Arar. In the lookout request, Project A-O Canada stated that Mr. Arar and others should be
entered into the data bank (as lookouts) “so as to provide information to U.S.
Customs line officers.”4 Without the evidence of the American authorities, I am
unable to conclude whether or not the lookout played any kind of role, as I cannot say whether that lookout was still in effect on September 26, 2002 and, if
so, what steps, if any, were taken because of it.
I recognize that the order removing Mr. Arar from the United States refers
to a TECS lookout, and there is evidence that the Americans had entered
Mr. Arar’s name in the TECS system prior to the Canadian request, on their own
initiative.5 However, that evidence does not establish that Mr. Arar was the
“subject of a TECS/NAILS6 lookout as being a member of a known terrorist
organization,” as the wording in the removal order indicates. It is possible that
the TECS lookout referred to in the removal order was a separate lookout initiated by American authorities and not the one resulting from the Project A-O
Canada request. Without the American evidence, I can go no further than that.
2.2
QUESTIONS SENT BY FAX ON SEPTEMBER 26, 2002
When, on September 26, 2002, the FBI agent informed Project A-O Canada of
the American government’s intention to deny Mr. Arar entry to the United States,
he asked whether the RCMP had any questions it wanted put to Mr. Arar while
he was in New York. Project officers testified that it had been their understanding that the FBI had thought the answers to the questions might be useful
in its own investigation as well as the Project A-O Canada investigation. The
Project quickly assembled a list of questions for Mr. Arar, relying primarily on
questions that had been prepared for a proposed interview with Mr. Arar in
January 2002, which had never taken place.
2.2.1
Submission of Questions
Within an hour of receiving the FBI’s request for questions, Project A-O Canada
sent a list of questions to the FBI by fax. I conclude that Project A-O Canada did
not act improperly in sending these questions.
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Mr. Arar’s counsel raised the concern that it had been improper and contrary to the Canadian Charter of Rights and Freedoms for the RCMP to send
those questions to be asked of Mr. Arar while he was in American custody. The
basis for this concern relates back to Project A-O Canada’s earlier attempt to
interview Mr. Arar in January 2002. At that time, Mr. Arar, through his counsel,
had set out certain conditions under which he would be willing to be interviewed — conditions that would have precluded the use of his answers in legal
proceedings. Because the RCMP officers had considered the conditions to be
unduly restrictive, they had not proceeded with the interview.
Mr. Arar’s counsel suggested that, when the Project had sent questions to
New York, it had known that those conditions would not be honoured and that
Mr. Arar would not have access to a lawyer, since he was being detained at the
border and not in connection with some other, more formal, process. The RCMP
would therefore accomplish through questioning in New York what it had been
unable to do in January 2002: have Mr. Arar interviewed without the conditions
set by his Canadian counsel.
While one may have great sympathy for Mr. Arar’s situation in being
detained and questioned in New York, I do not think that the members of
Project A-O Canada should be faulted for sending the questions to the American
authorities.
To begin with, I am satisfied that, in sending the questions, the officers
were not intentionally trying to circumvent the conditions attached by Mr. Arar’s
lawyer to the proposed January 2002 interview. The Americans were the ones
who introduced the idea of sending questions, indicating that there was some
urgency involved, as Mr. Arar was going to be refused entry to the United States
and returned to Zurich without delay. Project A-O Canada merely responded to
the request.
Project A-O Canada officers expected that American authorities would
question Mr. Arar in accordance with American law and, rightly or wrongly,
believed that American law would provide someone in Mr. Arar’s position with
similar protections to those afforded by Canadian law. They knew of the requirement in American law to give accused persons a Miranda warning, for example.
The officers testified that they had thought Mr. Arar would be able to ask for
legal assistance if he wished, that he would be free to refuse to answer the questions if he saw fit, and that the outcome for him, whether he answered the questions or not, would be the same: he would be returned to Zurich in relatively
short order.
As it turned out, the American authorities treated Mr. Arar quite differently
from what Project officers expected. However, at the time they sent the
�DETENTION IN NEW YORK AND REMOVAL TO SYRIA
questions, the officers had no idea of what would eventually transpire. It did not
occur to them that the American authorities were contemplating sending Mr. Arar
to Syria. Quite understandably, they believed what the Americans had told them,
that is, that Mr. Arar would be sent back to Zurich.
Moreover, there was a legitimate investigative reason for sending the questions. Project A-O Canada had been working closely with the Americans for
nearly a year, investigating what were considered to be serious threats of terrorism-related activities. Mr. Arar was properly a person of interest in its investigation, and the Project had wanted to interview him as a witness for some
time. Quite reasonably, the Project wanted to know if he had information that
could assist the investigation.
The purpose of the questions, at least as Project A-O Canada understood
it when it sent them, was to gather information related to the investigations
being conducted in Canada and the United States. At that point, there was no
indication that the American authorities intended to institute legal proceedings.
On the contrary, Project A-O Canada expected, reasonably, that there would
be no legal proceedings. Mr. Arar would be questioned, refused entry to the
United States and put on a plane back to Zurich.
It is important to bear in mind that, in January 2002, Mr. Arar did not refuse
to be interviewed. In fact, he agreed, subject to certain conditions that would
prevent the answers from being used in any legal proceedings. While those conditions previously set by Mr. Arar’s lawyer may be the basis for an argument that
the answers provided in New York would not be admissible in Canadian legal
proceedings against Mr. Arar, it is not a question that I need to address.
For the reasons given above, I am satisfied that, in the circumstances as
they understood them on September 26, 2002, the officers of Project
A-O Canada acted reasonably and in good faith in sending the questions for
Mr. Arar to the FBI.
However, in sending the questions, it was extremely important — particularly since the American authorities were going to interview Mr. Arar in connection with a terrorism-related investigation — that Project A-O Canada ensure
that any information about Mr. Arar included in the communication be accurate
and that its use be restricted by attaching caveats, in accordance with RCMP
policy. Unfortunately, this was not done.
2.2.2
Inaccurate Information
The list of questions faxed to the FBI by Project A-O Canada contained information about Mr. Arar that was inaccurate and portrayed him in an unfair way.7
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It indicated that Mr. Arar had been in “Herndon, Va., D.C.” on
September 11, 2001, implying that he had been in the Washington, DC area on
the day hijackers had flown a plane into the Pentagon. Needless to say, any
possible connection with the events of 9/11 would be treated very seriously by
the Americans. However, Project A-O Canada now accepts that the information
about Mr. Arar’s whereabouts on 9/11 was incorrect. In fact, he was in
San Diego, California on business that day.
Further, the two concluding paragraphs of the fax indicated, among other
things, that Mr. Arar had declined to be interviewed in January 2002 and “soon
after…departed the country rather suddenly for Tunisia.” The opening paragraph of the fax also referred to Mr. Arar’s “sudden” departure from Canada.
There are a number of problems with these statements. Mr. Arar did not
decline to be interviewed in January 2002. As I have said above, he agreed to
be interviewed on condition that the answers not be used in legal proceedings.
There is an important difference between someone who is willing to provide
information, albeit not for legal proceedings, and someone who refuses to
answer any questions whatsoever. Further, Mr. Arar did not leave Canada “soon
after” the interview exchange. He left five months later. There is no evidence that
he left “suddenly.”
Taken together, these inaccurate pieces of information paint a suspicious
and potentially inflammatory picture of someone who refused to be interviewed,
probably because he had something to hide, and who quickly pulled up stakes,
leaving Canada in order to avoid further investigation. In the eyes of law
enforcement officers such as the FBI agents, this misleading picture could raise
suspicions that Mr. Arar was involved in illegal activities, probably terrorismrelated, that were serious enough to cause him to flee the country where he
and his family had lived for many years. It is worth noting that the Canadian and
American investigators already believed that two of the primary targets had fled
Canada in response to investigative activity. The way Project A-O Canada portrayed Mr. Arar’s departure from Canada suggested a similar pattern of behaviour. The problem, of course, is that this was unfair to Mr. Arar, who was not a
target, had not refused an interview and had not left Canada suddenly.
A member of Project A-O Canada explained that the American agencies
had already been given the information in earlier Project A-O Canada disclosures. It is true that the Americans had been told previously that Mr. Arar had
declined an interview. They had also been told that he had left the country. It
is not clear, however, whether the descriptive language that linked his departure to the refusal to be interviewed and characterized the departure as “sudden”
had been used previously. In any event, even if they had been given this
�DETENTION IN NEW YORK AND REMOVAL TO SYRIA
inaccurate information before, it hardly helped to repeat it, particularly at a time
when Mr. Arar was in the United States being confronted by U.S. authorities
who were conducting a terrorism-related investigation.
I emphasize here, as I do several other times throughout this report, the
need for care and precision when sharing information in the security intelligence environment. The fax containing the erroneous information is a prime
example of a recurring problem throughout the Project A-O Canada investigation. Sharing inaccurate information about individuals in connection with a terrorism investigation can create serious risks and operate very unfairly against
those affected. In this instance, the inaccurate information was provided at a
time when Mr. Arar was particularly vulnerable. Viewed from his perspective,
when he was initially being detained in New York and his fate was probably still
up in the air, the last thing Mr. Arar needed was for Canadian officials to provide their American counterparts with inaccurate information suggesting he had
something to hide and was avoiding investigation.
It is disappointing that, when they testified at the Inquiry, some members
of Project A-O Canada still did not appear to understand the unfairness or the
risks to which they had exposed Mr. Arar by providing this inaccurate information to the American authorities. One officer explained that Mr. Arar’s departure
had been described as “sudden” because it had been sudden in the minds of
Project members, in that they had not expected it. It seems that he did not appreciate the fact that the statement that “soon after [he] departed the country rather
suddenly for Tunisia” might convey a very different meaning to the FBI.
Having heard the evidence of the Project A-O Canada officers, I do not
attribute any bad faith to them in relation to these statements. Rather, I think that
the statements resulted from a failure to consider properly what message they
were conveying and to appreciate some of the potential implications. This is
another instance where, in my view, the lack of training and experience of the
Project A-O Canada officers in investigations relating to national security played
a role.
2.2.3
Caveats
Project A-O Canada sent the September 26, 2002 communication to the FBI
without attaching caveats, in contravention of RCMP policy.
While by far the largest part of the communication was a list of questions
for Mr. Arar, the communication also contained specific information about him,
some of which was incorporated into the questions. In addition to the
inaccuracies discussed above, there was information showing links to Abdullah
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ANALYSIS AND RECOMMENDATONS
Almalki, who was suspected of being a member of al-Qaeda. The information
provided included the following:
•
•
Mr. Arar had listed Mr. Almalki as an emergency contact on his tenancy
agreement (actually on his lease application).
Mr. Arar had met Mr. Almalki at Mango’s Café in Ottawa and they had
walked in the rain.
Again, RCMP witnesses pointed out that this information about Mr. Arar
had been provided to the U.S. agencies previously. It is important to note that,
on those earlier occasions, the information had also been provided without written caveats. In Chapter III, I discuss the importance of written caveats and how
attaching them reduces the risk that information will be used for unacceptable
purposes.
There are four points I wish to make about the failure of Project
A-O Canada to attach caveats in the circumstances existing on September 26,
2002.
To begin with, I reject the suggestion that the Project could not have
attached caveats because doing so would have rendered the questions to be
asked useless. It was argued that, if honoured, caveats would have prevented
the American authorities from asking the questions. I suppose that is one possible interpretation of what caveats would have meant, although I would have
thought that, since the RCMP had sent the questions, it would have been clear
to the FBI that the RCMP was consenting to the questions being asked. Thus,
asking the questions would not be a breach of the caveats. Be that as it may,
Project A-O Canada could have very easily addressed the perceived problem by
attaching the caveats as required, along with a note to the effect that the RCMP
consented to the use of the questions and information for the purpose of asking Mr. Arar questions, but that, in all other respects, the attached caveats
applied.
The second point I wish to make is that the time at which the information
was sent turned out to be significant. On September 26, 2002 and the days that
followed, the American authorities were apparently considering Mr. Arar’s fate.
Although they had indicated to Project A-O Canada that Mr. Arar would be sent
back to Zurich almost immediately, they actually held him for about 12 days. On
October 3, they sent the RCMP a request for information, indicating that the
information might be used for removal or law enforcement purposes. It would
therefore appear that Mr. Arar’s fate had not been settled when Project
A-O Canada provided the information without caveats on September 26.
�DETENTION IN NEW YORK AND REMOVAL TO SYRIA
The order issued on October 7, 2002 by the Regional Director of the INS,
which found Mr. Arar to be a member of al-Qaeda and directed that he be
removed from the United States, specifically referred to information obtained
from the questions for Mr. Arar provided by Project A-O Canada on
September 26. The American authorities did not seek the consent of the RCMP
to use the information contained in the September 26 communication in the INS
proceeding, as written caveats would have required them to do. While I cannot
be certain that they would have refrained from using the information without
seeking consent in the face of written caveats, it is certainly more likely that
they would have done so.
My third point concerns the fact that some Project A-O Canada members
testified that, even though information had been included in the list of questions,
there had been no need to attach written caveats because, from the beginning
of their relationship with the American agencies, they had been instructed by
their senior officers that “caveats were down,” based on an understanding that
information would be used for intelligence purposes only. They indicated that
the Americans had been bound by the understanding that had existed from the
outset.
As I have repeated several times, attaching written caveats to shared information is very important to prevent its use for unacceptable purposes. Sending
the information about Mr. Arar on September 26 without caveats increased the
risk that American authorities would use the information in proceedings affecting Mr. Arar without seeking the consent of the RCMP.
Finally, I note that senior officers at “A” Division and in the Criminal
Intelligence Directorate (CID) were unaware that the communication was being
sent and, thus, that it was being sent without caveats. However, in fairness to
members of Project A-O Canada, I point out that officers from “A” Division and
CID took the same position as Project A-O Canada members, namely, that
attaching caveats to the questions would have defeated the purpose of sending
them. They also seemed unable to grasp that there was a way around the perceived dilemma. The unacceptable result of this lack of vision was that information about Mr. Arar, some of which was inaccurate, was sent to the FBI
without caveats, contrary to RCMP policy, at a time that was likely critically
important to Mr. Arar’s ultimate fate.
2.3
OCTOBER 4, 2002 FAX
On September 27, 2002, the day after Project A-O Canada had faxed questions
for Mr. Arar to New York, the FBI informed Project A-O Canada that Mr. Arar
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was still being held in New York and reiterated that he would be sent back to
Zurich. When no further news was received from the FBI in the days that followed, Project members concluded, reasonably in my view, that Mr. Arar had
been sent back to Zurich.
The RCMP did not hear directly from the Americans again until late afternoon on October 3, when [***] sent a fax to CID asking seven specific questions
about Mr. Arar and his activities and associations. The U.S. official indicated
two potential purposes for the information sought about Mr. Arar, whom it
described as an al-Qaeda operative: removal from the United States pursuant to
the Immigration and Nationalization Service (INS) process and law enforcement
proceedings. The questions largely concerned Mr. Arar’s contacts and possible
connections with other individuals, sleeper cell members and known terrorists.
The U.S. official asked that the response be sent to the FBI for evidentiary purposes.
The next morning, CID forwarded the U.S. official’s fax to Project A-O
Canada, which sent a response that same day, with a copy to CID.
The response included information obtained from Mr. Arar’s secondary
examination at the Canadian border on November 29, 2001 and the searches
executed on January 22, 2002, as well as a reference to Mr. Arar’s meeting with
Mr. Almalki at Mango’s Café. It also included information provided by CSIS,8
which was subject to CSIS caveats.
Importantly, the reply made it clear that Project A-O Canada had yet to
complete either a detailed investigation of Mr. Arar or a link analysis on him.
The Project indicated that, while Mr. Arar had had contact with many individuals of interest, it was unable to indicate links to al-Qaeda.
The RCMP’s response contained two caveats: one stating that the information was the property of the RCMP and could not be distributed or acted upon
without the authorization of the RCMP, and the other, that the “third-party rule”
might affect the disclosure of specified information in the response that had
been obtained from CSIS.9
I am satisfied that it was appropriate for the RCMP to respond to [***]
questions and that the manner in which it responded complied with RCMP
policies respecting caveats and respecting relevance, reliability and personal
information.
In the first place, the RCMP still had no idea that American authorities were
considering sending Mr. Arar to Syria. While the communication requesting
information referred to the possibility of removal or law enforcement proceedings, there was no hint of removal to Syria.
�DETENTION IN NEW YORK AND REMOVAL TO SYRIA
Further, the information requested met the “relevance” requirement for sharing information. The questions sought information about Mr. Arar’s associations
and activities with Mr. Almalki and others who were subjects of the Project A-O
Canada investigation. Mr. Arar was properly a person of interest in the investigation, and his associations and activities were relevant in that respect.
Project A-O Canada was aware that the Americans were interested in the investigation. It had been co-operating and sharing information with them over an
extended period of time. [***] request was specific about the uses to which the
information might be put, that is, removal or law enforcement, and the information sought was relevant to the purposes identified. Finally, the U.S. Agencies
could be said to have had a “need to know” the information.
I see no problem with respect to the reliability of the information provided
in this instance. It was accurate and precise. Moreover, while the assessment of
reliability of some information was not worded as precisely as it might have
been, I am satisfied that, when read as a whole, the response would not have
misled the recipients.10 Project A-O Canada properly pointed out that its investigation did not indicate links between Mr. Arar and al-Qaeda. Unfortunately,
Project A-O Canada did not take this opportunity to set the record straight concerning the several inaccuracies concerning Mr. Arar contained in earlier disclosures to American authorities.11
Project A-O Canada’s response did include some information that might be
considered personal information about Mr. Arar, but none of it was core biographical data. In any event, the information was given to the FBI, a law enforcement agency [***] RCMP policy permits the disclosure of personal information to
law enforcement agencies under the “consistent use” exception in the Privacy
Act.12 In my view, the RCMP did not improperly disclose personal information
about Mr. Arar in the October 4 response to the [***] questions.
It is important to remember that the RCMP attached a caveat to its response,
precluding the use of the information without its authorization. That was clearly
the proper thing to do. Project A-O Canada had no reason to suspect that U.S.
authorities would not respect the caveat. It was reasonable for it to assume that,
if the information was to be used in any proceeding affecting Mr. Arar, American
officials would seek the RCMP’s consent, and the RCMP would have the option
of refusing after considering the use to which the Americans intended to put this
information and the consequences for Mr. Arar. Certainly, the thrust of the testimony of RCMP witnesses was that, had they been asked if the information
could be used in a process that could result in Mr. Arar’s removal to Syria, they
would have said no. As it turned out, the American agencies did not seek the
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RCMP’s authorization to use the information contained in the response for purposes of the INS proceedings that led to Mr. Arar’s removal.
The RCMP’s response of October 4 is a good example of the way information should be shared. The information was accurate and precise, and fairly
described the status of the Project A-O Canada investigation relating to Mr. Arar.
A caveat was attached, as required by RCMP policy. That reply stands in contrast to the information-sharing practices that preceded it, when information was
sometimes loosely or inaccurately presented and no caveats were attached.
Indeed, this was the first time that Project A-O Canada attached a caveat to written information provided to the American agencies.
That said, I do not know if American authorities respected the caveat, or
relied upon information in the October 4 reply to support the removal order. It
is certainly possible that they relied solely on information previously supplied,
to which no caveats had been attached.
Unfortunately, in responding to the questions on October 4, the RCMP did
not seize the opportunity to spell out clearly and in writing that all previous disclosures of information were subject to the same caveat as that attached to the
response. Clearly, this would have been an opportune time to do so. On
October 4, 2002, Project members learned that the American authorities were
considering some rather serious steps with respect to Mr. Arar, that is, removal
or prosecution. They were also made aware that the Americans were asserting
that Mr. Arar was connected to al-Qaeda.The first two questions in the
October 3rd request specifically referred to information previously provided by
the RCMP. It must have been obvious that information about Mr. Arar previously supplied to the American agencies, without caveats, was being considered in the American decision-making process.
It is worth noting that the fact of attaching a caveat for the first time could
have sent an unintended signal to American officials that information provided
previously without caveats was not subject to caveats. In any event, it appears
that it did not occur to anyone in the RCMP, including those at CID who were
involved in this exchange, to take this additional step in an attempt to ensure
that American officials would not use any information originating with the RCMP
in an unacceptable way.
It is somewhat ironic that, when the RCMP stated in writing that its investigation could not link Mr. Arar to al-Qaeda, it attached a caveat indicating that
the information could not be disseminated without consent. Meanwhile, all the
information about Mr. Arar previously provided by the RCMP, some of which
was inaccurate and prejudicial, remained without caveats.
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The final comment I have regarding the October 4, 2002 communication
relates to the information that originated with CSIS. The RCMP’s response did
specify that the CSIS information might be subject to the third-party rule.
However, the information in question had been provided to the RCMP with
caveats, which the RCMP breached, as it did not obtain the consent of CSIS
before disclosing the information to the Americans. I accept the evidence of
CSIS witnesses that there had been no general agreement that the RCMP could
provide CSIS information to the Americans without CSIS consent. The RCMP
should not have shared the information without first seeking approval.
It is not clear whether CSIS would have given its consent to the provision
of the information to the Americans. In any case, I was impressed with the way
CSIS approaches information sharing generally. CSIS routinely ensures that
caveats are attached to information being shared. When consent is sought to
use its information, it considers the uses to which the information may be put
and the potential consequences to individuals of the proposed use, among other
things. Had the RCMP sought the consent of CSIS to forward its information on
October 4, it seems likely that CSIS would have inquired into the uses being contemplated.13 Although it is impossible to say whether that would have changed
anything that occurred, such inquiries would have been a step in the right
direction.
2.4
TELEPHONE CONVERSATIONS BETWEEN CID OFFICER AND FBI
OFFICIAL
During the time Mr. Arar was detained in New York, Corporal Rick Flewelling,
the officer at CID with responsibility for monitoring the Project A-O Canada
investigation, had two telephone conversations about Mr. Arar with an FBI official with whom he had previously spoken about the Project investigation. The
first took place in the early evening of Friday, October 4. It is not clear who
placed the call. The second, initiated by the FBI official, was held at about
6:10 pm on Saturday, October 5.
By the time of the first telephone call, Mr. Arar and his brother had told
DFAIT officials that Mr. Arar was concerned that he would be sent to Syria. I will
come back to DFAIT’s response on hearing of this concern. For present purposes, however, what is important is that, when Corporal Flewelling spoke with
the FBI official on October 4 and 5, he was not aware of Mr. Arar’s concerns
about Syria.14 It appears that this information was first passed on to the RCMP
through Inspector Roy, the RCMP liaison officer at DFAIT, at a later date, likely
October 7.
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In the first telephone conversation, the FBI official indicated that Mr. Arar
was scheduled to appear at an immigration hearing on October 9. He stated
that Mr. Arar had never officially entered the United States and would be sent
back to Switzerland. The two men also discussed Mr. Arar’s dual nationality.
Corporal Flewelling suggested that Mr. Arar be sent to Canada, indicating
that the RCMP would look into setting up surveillance. The corporal believed
that the official had taken his suggestion seriously and that the October 9 hearing would determine whether Mr. Arar would be sent to Zurich or Canada.
During the evening of October 5, the FBI official called Corporal Flewelling
at home and told him that the FBI was unable to read Project A-O Canada’s
October 4 fax responding to the seven questions from the Americans. He asked
for another copy. The official then went on to say several things about Mr. Arar’s
situation that provided some insight into what the American authorities were
considering. He indicated that they feared they did not have enough information to bring charges against Mr. Arar and therefore would be seeking to remove
him from the United States. Significantly, he mentioned that Mr. Arar was a dual
citizen and had asked to be sent to Canada. He also said that Washington
wanted to know whether the RCMP could charge him and whether he could be
refused entry to Canada.
Corporal Flewelling responded that there was insufficient evidence to
charge Mr. Arar in Canada and that Mr. Arar probably could not be refused
entry to Canada, since he was a Canadian citizen.
This was obviously a very important phone call, which took place at a critical point during Mr. Arar’s detention in New York. One can deduce from the
questions asked by the official that Mr. Arar’s fate was still undecided. Canada
was a possible, but by no means certain, destination. Although Syria was not
specifically mentioned as an option, the FBI official did allude to Mr. Arar’s dual
citizenship. By then, everyone involved in the investigations knew that his second country of citizenship was Syria. Thus, indirectly at least, Syria was part of
the discussion. Furthermore, Washington — presumably meaning senior officials — was involved. Clearly, the Arar case was not routine. It was being treated
as a very serious matter.
The question arises as to what message Corporal Flewelling took from the
conversation. He testified, and I accept his evidence, that it did not occur to
him that one of the options being considered by the American authorities was
removal to Syria. After the call, he continued to believe that Mr. Arar would be
sent to either Zurich or Canada. It did not cross his mind that the answers he
had given the agent, to the effect that Mr. Arar likely could not be refused entry
to Canada and would not be charged in Canada, might lead the American
�DETENTION IN NEW YORK AND REMOVAL TO SYRIA
authorities to consider Syria as an option.15 The reference to Mr. Arar’s dual citizenship did not set off any warning bells, and Corporal Flewelling did not ask
the FBI official if Syria was a possibility. Corporal Flewelling had no knowledge
of an American practice of “rendering” people suspected of terrorist activities to
countries such as Syria.16
It is possible that someone else in Corporal Flewelling’s place would have
caught on to the fact that Syria was being considered and asked specific questions about the American authorities’ intentions. However, even assuming that
Corporal Flewelling had asked questions about whether Syria was being considered, it is not possible at this point to gauge how the FBI official would have
responded. Throughout Mr. Arar’s detention in New York, American authorities
were less than forthcoming with the RCMP and with Canadian consular officials
about their plans for Mr. Arar. Indeed, some witnesses described them as having been duplicitous. Despite several Canadian inquiries and a number of conversations about Mr. Arar, there is no evidence that American officials ever
indicated to a Canadian official that Syria was being considered. The American
authorities appear to have intentionally kept Canadian officials in the dark about
their plans to remove Mr. Arar to Syria.
Corporal Flewelling was not the only one not to read any warning signals
into the October 5 telephone conversation. When he reported the phone call to
Project A-O Canada and his superiors at CID, none of those informed interpreted it as signalling that Mr. Arar might be sent to Syria.
2.5
OCTOBER 7 AND 8 COMMUNICATIONS WITH U.S. AUTHORITIES
In its faxed response to the Americans questions on October 4, Project
A-O Canada requested access to Mr. Arar for the purpose of conducting an
interview in relation to its investigation. Throughout the day of October 7,
Project A-O Canada members had a number of conversations internally and two
with the FBI about the possibility of having Project members go to New York
to interview Mr. Arar. In one conversation on October 7, an FBI official asked
whether the Project could link Mr. Arar to al-Qaeda or any other terrorist group.
The Project officer recorded his reply in his notebook, as follows: “I advised
him that at this point, other than through Almalki, we could not link him.”
That same day, the Regional Director, Eastern Region, U.S. Immigration and
Naturalization Service, Department of Justice, made an order finding Mr. Arar to
be a member of al-Qaeda and refusing him entry to the United States. It was this
order that led to Mr. Arar’s removal to Syria.
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The answer provided by the Project A-O Canada officer is somewhat equivocal. It accurately states that Project A-O Canada had no evidence independent
of his connection to Mr. Almalki to link him to al-Qaeda, but seems to suggest
that Mr. Arar’s connections to Mr. Almalki might in fact link him to that organization. Such an interpretation of the officer’s comment would be somewhat
inconsistent with Project A-O Canada’s statement in the October 4 fax to the FBI
that the Project had yet to complete a link analysis and that, while Mr. Arar had
contact with many individuals of interest, the Project was unable to indicate any
links to al-Qaeda.
It is interesting that, as late as October 7, the very day the order finding
Mr. Arar a member of al-Qaeda was made, the FBI was still looking for evidence to link him to a terrorist group. Further, despite Project A-O Canada’s
statement in the October 4 fax that it was unable to indicate links to al-Qaeda,
the FBI was continuing to pursue the subject with the Project. There are a number of possible explanations for the question about Mr. Arar’s links at that stage,
including the possibility that the FBI official who asked it had not seen, or been
informed of, Project A-O Canada’s October 4 fax. In any event, without evidence from American authorities, I cannot go further than to point out that, on
October 7, the question was asked and an answer given.
During the conversation in question on October 7, the FBI official indicated that Mr. Arar would be sent to Canada after a hearing scheduled for
October 9. Later that same afternoon, Project A-O Canada informed the FBI
that its officers would not be going to New York to interview Mr. Arar. The
Project then started preparations to conduct surveillance of Mr. Arar, in anticipation of his possible return to Canada.
On October 8, at around 4 o’clock in the morning, Mr. Arar was served
with an INS removal order, taken from the detention centre where he was being
held in New York and put on a plane, the first leg of a journey that ended in a
Syrian jail. The RCMP was not immediately informed of Mr. Arar’s removal.
On the morning of October 8, the RCMP liaison officer at DFAIT showed
members of Project A-O Canada consular reports relating to Mr. Arar which,
for the first time, alerted them to the possibility that Mr. Arar would be sent to
Syria.17 Later that morning, the FBI official who had spoken to Corporal
Flewelling on October 4 and 5 arrived at Project A-O Canada offices with information found in Mr. Arar’s possession during his detention. The FBI official told
Project members that Mr. Arar was still in New York (even though he was not).
He indicated that the FBI did not have any information that would allow it to
hold Mr. Arar, adding that it was an INS matter and that Mr. Arar “could well
be sent to Canada or Syria.” That was the first time an American official had
�DETENTION IN NEW YORK AND REMOVAL TO SYRIA
mentioned the possibility of Syria to the RCMP. He also said that the U.S.
Department of Justice was still considering whether to permit Project A-O
Canada to interview Mr. Arar.
In light of the information that Mr. Arar might be going to Syria rather than
Canada, the Project team met to reconsider whether it should interview Mr. Arar
in New York. However, Project members were concerned that, if Mr. Arar
refused to co-operate, the United States could use his refusal as a reason to send
him to Syria. They did not want to be seen as participating or acquiescing in a
decision to send him to Syria. That perception, they reasoned, could be harmful to the RCMP. Because of that concern, the Project members decided that it
would not be advisable to interview Mr. Arar unless they knew three things:
why Mr. Arar was in U.S. custody, what Mr. Arar had said to the American
authorities and, importantly, where he was going to be sent. Later in the day,
Project A-O Canada put those questions to an American official, who responded
that he did not have the answers and that Mr. Arar’s case was now an INS
matter.
Although Mr. Arar had already been removed from New York by this time,
the Project’s reaction to the prospect of Mr. Arar’s removal to Syria is noteworthy. The officers did not want to do anything that could be seen as participating or acquiescing in the decision. They were obviously aware that, if nothing
else, a decision to send Mr. Arar to Syria against his wishes would be problematic from a public perception standpoint, and they did not want to be associated
with such a decision. Nonetheless, the officers did nothing to discourage the
Americans from sending Mr. Arar to Syria once they learned of the possibility,
even though they did not know he had already been removed from the
United States.
Finally, on an unrelated matter, Mr. Arar’s counsel has queried whether an
RCMP officer or other Canadian official was present at any time when Mr. Arar
was questioned by American authorities in New York. I have canvassed this
issue and there is no evidence to suggest that any Canadian officials were present on any of the occasions when Mr. Arar was interviewed while detained in
New York.
2.6
AMERICAN REMOVAL ORDER
The October 7, 2002 removal order for Mr. Arar indicated that, on October 1, the
INS had instituted removal proceedings under section 235(c) of the U.S.
Immigration and Nationality Act, charging Mr. Arar with being a member of a
foreign terrorist organization. The Regional Director of the INS who signed the
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order stated that, based on all the information, classified and unclassified,
Mr. Arar was clearly and unequivocally inadmissible for entry into the United
States, and that he was a member of a foreign terrorist organization, al-Qaeda.18
According to the order, the Commissioner of the INS had determined that
Mr. Arar’s removal to Syria would be consistent with the United Nations
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, meaning that he was satisfied that Mr. Arar would not be tortured, apparently because of an assurance received from Syrian authorities.19
The unclassified information relied upon is described in the order. It pertains to interviews of Mr. Arar on September 26 and 27 at John F. Kennedy
International Airport. During the interviews, Mr. Arar reportedly said that he was
a citizen of Syria and Canada, and that he had lived in Tunisia for three months.
While he denied any links to a terrorist organization, he did admit to an association with Abdullah Almalki, which included three business dealings with him.
He also admitted having met Mr. Almalki at a restaurant (Mango’s) in October
2001 and having talked in the rain with him. Finally, he admitted knowing
“Ahman El-Maati.” Clearly, the unclassified information falls well short of establishing that Mr. Arar is a member of al-Qaeda. If there is information supporting that conclusion, it must be classified.
The order states that a detailed discussion of the classified information relied
upon is contained in a separate addendum. That addendum has not been disclosed and there is no way of knowing for certain what information it contains.
2.7
RCMP INVOLVEMENT IN REMOVAL ORDER
I have carefully reviewed all of the evidence relating to communications about
Mr. Arar between the RCMP and American officials both before and during
Mr. Arar’s detention in New York. There is no evidence to suggest that any
members of the RCMP participated or acquiesced in the American decision to
remove Mr. Arar to Syria.20 On the contrary, as I have indicated above, no members of the RCMP other than Inspector Roy even considered the possibility of
Syria until October 8, after Mr. Arar had been removed from the United States.
Inspector Roy testified that he had only learned of the “Syrian threat” on
October 7, and had had no contact with American officials about that threat.
The question arises as to whether the American authorities relied upon
information provided by the RCMP in making the removal order. Without the
evidence of the American authorities or access to the classified addendum to the
removal order, I cannot be sure what information they used. However, I do
�DETENTION IN NEW YORK AND REMOVAL TO SYRIA
conclude that it is very likely that they relied on information received from the
RCMP in making the decision to remove Mr. Arar to Syria.
The rationale for my conclusion may be broken down into three parts:
•
•
•
Over time, the RCMP provided the American agencies with information
about Mr. Arar, including some inaccurate information, which would have
been relevant to the American decision.
The fact that the RCMP provided most of the information without written
caveats increases the likelihood that American authorities relied on information received from the RCMP.
There is nothing in the evidence to suggest that American authorities did
not rely on information received from the RCMP. Indeed, the available information suggests the contrary.
In the 11 months preceding Mr. Arar’s removal to Syria, the RCMP co-operated with the U.S. agencies in their investigation of a number of individuals and
provided its American counterparts with information, including some about
Mr. Arar, that was relevant to the American investigation into terrorist activities
of al-Qaeda. The information about Mr. Arar included information pertaining
to his associations with Messrs. Almalki and El Maati, who were suspected of
being connected with al-Qaeda. The RCMP also provided what amounted to
assessments of Mr. Arar’s status, including a statement to the effect that he was
an important associate of Mr. Almalki and also that he was an Islamic extremist. In addition, the RCMP shared information that seemingly showed occasional
suspicious actions by Mr. Arar, such as his meeting and walk in the rain with
Mr. Almalki in October 2001, and his “sudden” departure from Canada after
declining to be interviewed.
The Government correctly pointed out that, prior to September 26, 2002,
Project A-O Canada provided the U.S. agencies with over 25,000 documents,
only 94 of which mentioned Mr. Arar, the implication being that it would have
been apparent that Mr. Arar was a very small part of the investigation — a person of little consequence. One of the difficulties with that suggestion is that the
interest in Mr. Arar resulted from his links to Mr. Almalki and others. Project A-O
Canada described Mr. Arar as a “close associate” of Mr. Almalki and a person
with an “important” connection to him. It also linked him to others being investigated. Thus, to the extent that the documentary record provided by the Project
tended to establish suspicions about Mr. Almalki and others, it would have
increased the level of interest in or suspicion about Mr. Arar. It would be a mistake to conclude that documents other than those with specific mentions of
Mr. Arar would not be considered relevant to his situation. Moreover,
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Project A-O Canada also provided information about Mr. Arar verbally, at meetings and in telephone conversations.
With the exception of the fax of October 4, 2002 discussed above, none of
the information about Mr. Arar provided by the RCMP had written caveats
attached. In Chapter III, I describe all of the information about Mr. Arar provided
to the American agencies and how in my view the failure to attach caveats created unacceptable risks that they would use the information without first seeking the consent of the RCMP.
Some members of the RCMP testified that there had been an “implied
understanding” that the information would not be used for anything other than
intelligence purposes without consent. I discuss the circumstances of any such
understanding or agreement in Chapter III. I will not repeat that discussion here,
other than to say that any such understanding or arrangement was, at best, informal and loose, and fell short of providing the clarity and moral imperative that
would accompany written caveats.
While I cannot be certain whether or not the American authorities honoured some informal “understanding” or “agreement,” it seems unlikely, given
their actions. What we do know is that, during the period when American
authorities were deciding what to do with Mr. Arar, they were not forthcoming
with Canadian officials. Despite having received co-operation from the RCMP for
many months, they were not open about their intentions with regard to him. It
seems that they believed — quite correctly — that, if informed, the Canadians
would have serious concerns about the plan to remove Mr. Arar to Syria, particularly if they were viewed as having participated or acquiesced in the decision. Even after Mr. Arar was removed, they continued to obfuscate until
Mr. Arar had arrived in Syria. Given that pattern of conduct, it is hard to imagine that the American authorities would have somehow felt morally bound by
an informal or loosely worded understanding or agreement not to use Canadiansupplied information without first obtaining consent.
On the contrary, given their resolve to remove Mr. Arar to Syria irrespective of what Canadian officials might have thought, it appears more likely that
the American authorities would have seized the opportunity presented by the
Project’s failure to follow normal practice or policy by attaching caveats in order
to use the information supplied to support their decision to remove Mr. Arar to
Syria. Certainly, they did not seek consent to use information originating with
the RCMP in the INS proceeding prior to Mr. Arar’s removal.
Moreover, there is a reference to Canadian information in the removal order
itself. In referring to unclassified information on which the removal decision
was based, the order describes answers provided by Mr. Arar during interviews
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on September 26 and 27 at the airport in New York. While the information is
derived from answers given by Mr. Arar, I note that those answers relate primarily to information that the RCMP had already given the FBI. For example,
Mr. Arar indicated that he had three business dealings with Mr. Almalki and that
he had met with Mr. Almalki and they had talked in the rain in October 2001;
both these pieces of information had previously been provided to the Americans
by the RCMP. Obviously, the information obtained during the RCMP investigation and later supplied to the American agencies played a role in the interrogation of Mr. Arar, and it would seem very likely that it was at least partly the
basis for the removal order.
The conclusion that the American authorities very likely relied on information supplied by the RCMP is further supported by American actions during
Mr. Arar’s detention in New York, which show that “the case” the Americans
were seeking to establish against Mr. Arar was linked to and based on matters
that were the subjects of the RCMP investigation.
Clearly, when the FBI sought questions for Mr. Arar from Project
A-O Canada on September 26, it knew the questions would be based on the
Canadian investigation. Moreover, some of the information described in the
unclassified portion of the American removal order relates directly to those
questions.
Further, when the American authorities sent Project A-O Canada seven
questions about Mr. Arar on October 3, some of the information sought related
to information previously provided by Project A-O Canada. The Americans indicated that they were considering two types of proceedings: removal or law
enforcement. Again, the inference is inescapable: the American investigation
was closely linked and intertwined with the Canadian investigation. The
American authorities considered information in the RCMP’s holdings to be relevant to the decisions being considered and were seeking to expand upon information previously received from the RCMP.
The same comment applies to the query made by an FBI agent on
October 7, concerning whether the Project had any information linking Mr. Arar
to al-Qaeda. The American authorities considered the Canadian information
relevant.
It was argued that the Americans had been conducting a separate, independent investigation into Mr. Arar and that there was no basis for concluding
that anything other than the information from that investigation had been behind
the removal decision. In particular, it was noted that the removal order had
found that Mr. Arar was a member of al-Qaeda, whereas the information provided by the RCMP had fallen far short of establishing that conclusion. Indeed,
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on October 4 and 7, Project A-O Canada had indicated that it did not have sufficient information to link Mr. Arar to al-Qaeda. Thus, it was contended, the
American authorities must have had independent information to show that
Mr. Arar was a member of al-Qaeda and, therefore, had had no need to rely on
information received from the RCMP.
The evidence about the scope of the American investigation is not clear.
However, accepting that there was a separate U.S. investigation and even that
some information from that investigation was relied upon to support the removal
order, that does not invalidate the otherwise logical conclusion that information
received from Canada was also relied upon.
It is worth noting that the American agencies never provided their Canadian
counterparts, [***] with any information about Mr. Arar emanating from the U.S.
investigation that would come close to showing that Mr. Arar was linked to alQaeda. If they had such evidence, it is hard to fathom why they never shared
it. That failure would be particularly surprising in the context of the co-operative investigation conducted during the months leading up to Mr. Arar’s detention. Senior RCMP officers testified that, after 9/11, there had been an agreement
with the American agencies that information would be exchanged freely, albeit
in accordance with existing policy. I accept that evidence. One would expect
that, if anything, the Americans would have had a greater incentive than the
Canadians to share information in the circumstances.
The American authorities knew that Mr. Arar resided in Canada. They also
knew that the RCMP had collected some information about him, in particular
information relating to his associations with Mr. Almalki. In the post-9/11 world,
the Americans were enormously concerned about terrorist threats, including any
that might originate in Canada. If U.S. authorities had significant information
about Mr. Arar showing links to al-Qaeda, one might reasonably ask why they
would not have shared it with their Canadian counterparts. If they had information tending to link Mr. Arar, a Canadian, to al-Qaeda, why not provide that
information to the Canadian investigators, so that the supposed threat posed by
him could be dealt with? Why hoard the information? When, on October 5, they
asked the RCMP whether Mr. Arar could be charged criminally if they sent him
to Canada and the RCMP responded in the negative, why would they not have
offered any information in their possession?
It is important to keep in mind that, when the American authorities were
considering what to do with Mr. Arar after detaining him on September 26, they
did not rely solely on their own, independently obtained information. Why
would they ask the RCMP for questions to pose and for information about
Mr. Arar, and why would they ask whether the RCMP had evidence linking
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Mr. Arar to al-Qaeda if the American investigation had independently established a case? Clearly, in the days leading up to the making of the removal order,
the American investigators were scrambling to put together a case. They were
looking for whatever information they could get, including information from
Canada.
I recognize that, on October 4 and 7, Project A-O Canada told the
Americans that they could not link Mr. Arar to al-Qaeda. However, that does not
mean that the American authorities did not use information about Mr. Arar provided by the RCMP to complete whatever picture was eventually relied upon.
The evidence strikes me as very strong that they relied on whatever information
about Mr. Arar was available, including information provided by the RCMP without caveats.
The evidence also indicates that, in the post-9/11 environment, American
investigators tended to evaluate information about terrorist-related activities with
a more suspicious eye than their Canadian counterparts. Thus, one should be
careful about assuming that the American authorities had any information about
Mr. Arar other than that provided by the RCMP. The finding that Mr. Arar was a
member of al-Qaeda may have been based on very sparse evidence.
Also of significance is the fact that there is nothing in the evidence to suggest that the Americans did not use Canadian information in deciding to remove
Mr. Arar to Syria.
In the time since Mr. Arar’s removal to Syria, American officials have made
a number of statements about the basis for the decision to remove him. A review
of those statements shows that their position has evolved over time. Shortly after
Mr. Arar’s removal, they indicated that Canadian officials had been involved in
the American decision to remove him. They gradually modified that position,
eventually saying that the Canadians had not been involved. However, they
have maintained consistently that they relied upon information received from
Canada in making the decision. For example, in December 2003, Colin Powell,
then Secretary of State, stated clearly that the United States had relied upon
Canadian-supplied information. On one occasion, he said that the Arar affair
had been triggered by enquiries made by Canadian sources and that Mr. Arar
would not have been on the U.S. radar screen had he not been the subject of
attention by Canadian agencies.
This latter position is consistent with the position taken by American authorities in two letters, one to Congressman Edward J. Markey and the other to the
Inquiry. In each instance, in what appears to be “formal positions,” American
authorities state that Mr. Arar’s name was placed on a terrorist watch list based
on information received from Canada. The letter to the Inquiry indicated that the
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information had been received “as part of an ongoing general sharing of
information between the governments of the United States and Canada.” Both
letters indicate that the U.S. government decision was based on its own assessment of the security threat to the United States posed by Mr. Arar.21
Obviously, none of the American statements I refer to were made under
oath or have been subjected to cross-examination. Thus, they are not evidence
normally admissible in a court of law and must be approached with caution. I
am satisfied, however, that nothing has come to the attention of Canadian officials or the Inquiry to suggest that the American authorities did not rely on
Canadian information in deciding to remove Mr. Arar to Syria. On the contrary,
the statements from the Americans have asserted the opposite, consistently and
clearly.
Finally, I refer to a memorandum on FBI letterhead dated November 19,
2003, with the reference heading “Maher Arar,” which was produced in evidence by the Canadian government. This memorandum is consistent with a conclusion that U.S. authorities relied upon RCMP-supplied information in removing
Mr. Arar to Syria. The purpose of the memorandum is stated as follows:
“Information contained in this memorandum was obtained from the Royal
Canadian Mounted Police (RCMP) for the sole purpose of the Immigration and
Naturalization Service (INS) administrative proceeding under Title 8 U.S.C.
Section 1225(c)(l).”22 Although some details are inaccurate, the extensive information about Mr. Arar in the memorandum is unquestionably information provided to the Americans by the RCMP.
During the Inquiry, the Government was unable to provide details about
who had requested this memorandum, to whom it had been sent, or why it had
been sought and sent in November 2003. However, on its face, the memorandum on FBI letterhead supports a conclusion that American authorities relied
upon Canadian-supplied information.
3.
CSIS’ RESPONSE TO DETENTION OF MR. ARAR
I am satisfied that CSIS did not participate or acquiesce in the American decisions to detain Mr. Arar and send him to Syria. Further, CSIS did not provide any
information about Mr. Arar to the Americans either before or during Mr. Arar’s
detention in New York.23
I am also satisfied that CSIS responded appropriately when informed of
Mr. Arar’s detention in New York. CSIS was not aware in advance that the
American authorities were considering sending Mr. Arar to Syria and had no
discussions or contacts with them about the decision. In the confidential version
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of the Factual Background, I describe the way in which CSIS responded to
Mr. Arar’s detention in New York. For reasons of national security confidentiality,
I am unable to refer to some of that detail in the public version. As a result, my
discussion here is briefer and my conclusions are not explained as fully as might
otherwise have been the case.
CSIS was first informed of Mr. Arar’s detention in New York by DFAIT on
October 2. The following day, the RCMP delivered to it the Project A-O Canada
situation reports for September 26 and 27, which indicated among other things
that Project A-O Canada had sent the FBI questions for Mr. Arar on
September 26.
When CSIS learned about Mr. Arar’s detention, one of its officials in Ottawa
sent two communications to the CSIS Washington office, in part to ask that
inquiries be made about what was happening with respect to Mr. Arar. [***].
The communications were not viewed as urgent, however, as there had been
nothing in the messages CSIS had received about Mr. Arar’s circumstances in
New York to indicate that there was any urgency.
It appears that the CSIS official in Washington did not contact the American
authorities about Mr. Arar’s situation until October 10, at least two days after
Mr. Arar had been removed to Syria.
In my view, CSIS should not be faulted for not contacting U.S. authorities
and making inquiries about Mr. Arar sooner. It was clear to CSIS that DFAIT
and the RCMP were involved in the matter and were in contact with U.S. authorities. Moreover, as far as CSIS knew, there was no indication that any action was
imminent or, in particular, that Mr. Arar was in danger of being sent to Syria.
Given its lack of previous involvement with the Americans in connection with
Mr. Arar, it did not make much sense for CSIS to insert itself into the situation.
On October 4, the RCMP provided the Americans with information about
Mr. Arar that it had received from CSIS without first consulting CSIS or seeking
its consent to transfer the information. I am satisfied that, had it been consulted,
CSIS would have followed its usual practice and inquired into the use to which
the information might be put. It is far from clear, however, whether this would
have led the American authorities to disclose their intentions regarding Mr. Arar’s
removal to Syria.
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4.
DFAIT’S ROLE
4.1
BACKGROUND
Mr. Arar was detained in New York from September 26 to October 8, 2002.
DFAIT first became aware of the possibility that Mr. Arar was being detained on
September 29 and was actually informed of his detention on October 1.
Maureen Girvan, the Canadian consul in New York, was the DFAIT official24 with primary responsibility for handling Mr. Arar’s case. She involved her
superiors in the Consular Affairs Bureau in Ottawa, including Director General
Gar Pardy, in all decisions on how to proceed in connection with Mr. Arar.
Ms. Girvan visited Mr. Arar at the Metropolitan Detention Centre (MDC) in
New York on October 3. In addition, Canadian consular officials, including
Ms. Girvan, spoke to a number of American officials about Mr. Arar’s case while
he was being detained, had several phone conversations with Mr. Arar’s family
members, and also spoke to American lawyers who might represent Mr. Arar in
whatever legal proceedings ensued.
The most significant DFAIT-related issue in regard to what occurred while
Mr. Arar was in New York is whether Canadian consular officials paid sufficient
attention to warning signs that the American authorities were contemplating
sending Mr. Arar to Syria.
In closing submissions, Mr. Arar’s counsel enumerated the warning signs
that should have alerted consular officers to the possibility of Mr. Arar’s removal
to Syria and made them take more aggressive steps to address that concern.
They may be summarized as follows:
•
•
•
On October 1, Mr. Arar’s brother informed DFAIT that Mr. Arar had indicated that he would be deported to Syria.
Also on October 1, a senior officer with the U.S. INS advised that Mr. Arar’s
case was of such seriousness that it should be taken to the highest level and
suggested that the Canadian ambassador in Washington contact the
Department of Justice.
By October 2, consular officials had learned that Mr. Arar was being held
on the ninth floor of the MDC, a secure wing for terrorism suspects. Officials
at MDC would not tell Ms. Girvan what charges Mr. Arar was facing or why
he was being detained.
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•
•
•
•
On October 3, Mr. Arar told Ms. Girvan that, during the time he had been
held at the airport in New York, two immigration officers had informed
him that he would be sent to Syria.
Also on October 3, during her visit with Mr. Arar, Ms. Girvan learned that
Mr. Arar’s case was considered an immigration matter and the American
authorities were alleging that he was a member of al-Qaeda.
DFAIT was aware of the American National Security Entry-Exit Registration
System (NSEERS), aimed at persons born in certain Muslim countries,
including Syria.
DFAIT was aware of the Syrian practices of holding detainees incommunicado while interrogating and abusing them.
I have heard the testimony of all the DFAIT officials who were involved in
assessing Mr. Arar’s situation as it unfolded and in making decisions about what
ought to be done. I am satisfied that DFAIT officials acted appropriately in the
circumstances as they reasonably understood them. Based on their experience
and the information they had received, they did not believe that there was an
imminent risk that Mr. Arar would be sent to Syria. Their experience with individuals in “terrorism-related” cases was that they were held in American detention for months. Moreover, they had never known American authorities to
remove a Canadian citizen to a country other than Canada when the individual
had requested to be sent to Canada and was travelling on Canadian documents.
They were caught completely off guard when they learned of Mr. Arar’s fate.
American authorities were not forthcoming with Canadian consular officials
about what was occurring. They did not inform them that Mr. Arar’s case would
be dealt with on October 7, and at no time did they give the consular officials
any indication of their intention to send Mr. Arar to Syria.
I note that, beginning five days before Mr. Arar’s removal, the consular officials took reasonable steps to assist Mr. Arar and his family in retaining counsel to represent his legal interests in any American proceedings.
Below I discuss the most important events relating to the threat of Mr. Arar’s
removal to Syria and the reasons for my conclusion that Canadian officials acted
appropriately.
4.2
POSSIBILITY OF REMOVAL TO SYRIA
Between October 1 and October 3, DFAIT officials received several pieces of
information that suggested the possibility that Mr. Arar would be sent to Syria.
On October 1, consular officials learned that Mr. Arar was being detained at the
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MDC. Despite making several inquiries, they were unable to determine what
charges he was facing or even why he was being held. In fact, American officials appear to have been deliberately evasive about his situation.
On the same day, Mr. Arar’s brother called DFAIT Headquarters in Ottawa
to point out that Mr. Arar had told him in a telephone conversation that he
would be sent to Syria, his country of birth. In response to that information,
Lisiane Le Floc’h, with the Canadian Consulate in New York, called the INS
office in New Jersey to find out if there was a deportation file on Mr. Arar, as
would be expected if he was to be sent to Syria. She was told there was no file
and, importantly, that it was unlikely that Mr. Arar was a deportation case, as the
MDC did not handle such cases. Canadian consular officials had no reason not
to accept this information.
Ms. Le Floc’h nonetheless pursued the matter further, entering into contact
with the INS public affairs office, where she eventually spoke to a superior officer. Initially, the officer indicated that he was unaware of the case, but when he
called her back, he indicated that the case was of such seriousness that it should
be taken to the highest level. It is at this point that the suggestion was made that
the Canadian ambassador in Washington contact the U.S. Department of Justice.
While this was obviously a very unusual and serious comment, the officer
did not suggest that the information previously provided by the INS, to the effect
that it was unlikely that Mr. Arar was a deportation case, was inaccurate, nor did
he mention the possibility of Syria.
Ms. Girvan quite properly passed on the information about Mr. Arar’s case
to her supervisors in Ottawa, so that the best judgment of those in the Consular
Affairs Bureau could be engaged. She continued to consult with her superiors,
including Mr. Pardy, throughout the days that followed.
On the evening of October 1, Ms. Girvan sent a fax to the MDC asking
about the charges on which Mr. Arar was being held. The MDC called the following day and informed Ms. Girvan that Mr. Arar was being held on the ninth
floor, a special security unit used for terrorism suspects. This confirmed the seriousness of Mr. Arar’s case, but it also tended to reinforce the perception that it
was not immigration-related, but more likely involved a “criminal” investigation
related to terrorism. Although the MDC advised that Mr. Arar was being held on
an immigration violation, Ms. Girvan assumed that the description was a cover
for a terrorism investigation. There was no mention of removal to Syria, and
Ms. Girvan was able to arrange a consular visit for the next day.
On October 3, Ms. Girvan visited Mr. Arar at the MDC. Mr. Arar told her
that, on September 27, while he was being held at the airport in New York,
two immigration officers had spoken to him and told him he would be sent to
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Syria. This was the second time that Ms. Girvan had heard about the possibility
of Mr. Arar’s being sent to Syria, the first being after the October 1 phone call
from Mr. Arar’s brother. However, both reports appear to have derived from the
one incident at the airport.
During the consular visit, Mr. Arar showed Ms. Girvan what appeared to be
an official document alleging that Mr. Arar was inadmissible to the United States
under section 235 of the Immigration and Nationalization Act. The document
referred to the fact that Mr. Arar was a native of Syria and a citizen of Syria and
Canada, and stated that he was a member of a designated foreign terrorist
organization, al-Qaeda.
Ms. Girvan, who had no training in legal matters, interpreted this document
to mean that Mr. Arar would be held and investigated for terrorism by the FBI.
Her experience told her these types of investigations took a considerable amount
of time. When the information was passed on to Mr. Pardy, he made a similar
assessment. It seems clear that Ms. Girvan’s interpretation of the document was
incorrect. The document in fact gave notice of an immigration proceeding.
What is very important to note about this document and its potential implications for Mr. Arar is that Ms. Girvan and other consular officials did not rely
solely on their own interpretation of what was involved in Mr. Arar’s situation.
By October 3, they were arranging for Mr. Arar to be represented by legal counsel. Indeed, a lawyer visited Mr. Arar at the MDC on October 5, and it is reasonable to conclude that Mr. Arar showed her the document referring to
section 235 of the Immigration and Nationalization Act.
A concern was raised that Ms. Girvan had not looked into the nature of a
section 235 immigration hearing and ascertained the possible consequences for
Mr. Arar. However, it must be remembered that Ms. Girvan is not a lawyer. She
would have required the assistance of U.S. legal counsel to gain a proper understanding of U.S. immigration proceedings. Quite properly, her focus after the
consular visit was on assisting Mr. Arar in retaining counsel.
4.3
LEGAL REPRESENTATION
I am satisfied that Canadian consular officials, particularly Ms. Girvan, did everything that could be expected to assist Mr. Arar in obtaining legal counsel.
After the consular visit on October 3, it was apparent that a legal process
had either begun or was being planned. Consular officials do not provide legal
representation for Canadians detained abroad. Many are not lawyers and, in any
event, it is not part of the Consular Affairs Bureau’s mandate to provide legal
advice, nor should it be. When Canadians are detained in countries other than
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Canada, the law of the country in which they are being held — in this case, the
law of the United States — likely applies. The role of consular officials with
respect to legal proceedings is to assist detainees and their families to obtain
legal advice by facilitating the process for identifying and retaining competent
counsel in the jurisdictions where the detainees are in custody. While consular
officials may lend assistance, in the end, it is up to the detainees to select and
retain their own counsel.
On October 2, a friend of Mr. Arar’s family told Ms. Girvan that the family
had found a lawyer, Amal Oummih, to act as Mr. Arar’s counsel should the
need arise. On October 3, Ms. Girvan sent the MDC a fax marked “urgent” to
notify it that Ms. Oummih would be visiting Mr. Arar. DFAIT officials also spoke
with Mr. Arar’s brother and wife about the lawyer. After her consular visit on
October 3, Ms. Girvan spoke to the family friend again and brought up the possibility of having someone from the Centre for Constitutional Rights (CCR) represent Mr. Arar, as she knew that the CCR had experience in similar cases.
Ms. Girvan also left two messages for Ms. Oummih, as she wanted to tell her
about her visit with Mr. Arar.
Ms. Oummih returned Ms. Girvan’s calls late in the day on October 3 and,
after hearing what Ms. Girvan had to say, indicated that she would visit Mr. Arar.
The visit took place on Saturday, October 5. In the meantime, out of a desire
to keep Mr. Arar’s options open, Ms. Girvan also spoke to the CCR about
Mr. Arar’s case. When Ms. Girvan left her office at the end of the day on Friday,
October 4, she was comfortable that legal counsel, Ms. Oummih, was involved
and would take appropriate steps to represent Mr. Arar’s interests. In my opinion, that was a reasonable understanding on Ms. Girvan’s part.
On Monday, October 7, Ms. Girvan spoke to Ms. Oummih about her
October 5 visit with Mr. Arar. Ms. Oummih told Ms. Girvan that she was not yet
representing Mr. Arar, as she needed agreement from the family. She also said
that the District Director of the INS had called to inform her that an INS interview would be held at seven o’clock that evening. She indicated that, if she was
retained, she would attend. Ms. Girvan, quite reasonably, did not consider there
to be any issues with the lawyer’s retainer, as she had spoken to the Arar family friend, who had said that Ms. Oummih would be retained.
However, it seems that the INS interview with Mr. Arar had actually taken
place on Sunday, October 6. Apparently, there was a miscommunication
between the INS District Director and Ms. Oummih as a result of the fact that a
voice mail message was left on October 6, but Ms. Oummih did not pick it up
until October 7 and interpreted it as referring to an interview that day.
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Although Mr. Arar appears to have attended the October 6 meeting without counsel, Ms. Oummih was not aware of that when she spoke to Ms. Girvan
on October 7. She was still intending to go to the interview, which she believed
was scheduled for that evening. October 7 was the day the INS ordered Mr. Arar
removed from the United States.
On the basis of the foregoing, I am satisfied that consular officials acted
appropriately in assisting Mr. Arar to retain counsel. It was reasonable for
Ms. Girvan to conclude that Ms. Oummih, a lawyer selected by the family, had
the matter in hand when she went to see Mr. Arar on October 5. Ms. Girvan
believed that Ms. Oummih would be able to determine the nature of any proceedings affecting Mr. Arar and the need for action in regard to any proposed
removal. Mr. Arar would tell his counsel everything he had related to Ms. Girvan,
including the information about the threat of removal to Syria, and would show
her the same document he had shown Ms. Girvan. If Ms. Oummih considered
that consular officials should do something to assist with the legal proceedings
then underway, she would advise Ms. Girvan.
When Ms. Oummih spoke to Ms. Girvan on October 7, she did not ask
that Canadian consular officials take any steps to assist with the INS proceedings, nor did she mention that there was an imminent threat of removal to Syria.
It was clear that Ms. Oummih had been talking to the INS and the INS was aware
that she was involved, as the INS District Director had left her a voice mail message. It was reasonable for consular officials to conclude that, from a legal standpoint, Mr. Arar’s case was being attended to.
4.4
DIPLOMATIC OPTIONS
In addition to assisting Mr. Arar with retaining legal counsel, Canadian consular
officials also considered whether any diplomatic steps to address Mr. Arar’s
detention in New York were warranted. By way of background, it is important
to look at the evidence relating to how consular officials assessed Mr. Arar’s situation, and, in particular, the possibility that he might be sent to Syria.
Consular officials took the signals that Mr. Arar might be sent to Syria seriously, in the sense that they were concerned about such a possibility and gave
it earnest consideration. However, they assessed that it was highly unlikely that
Mr. Arar would be sent to Syria, particularly in the short term. Their assessment
of Mr. Arar’s situation was based on many factors. Ms. Girvan testified that she
was not aware of any other case where the United States had removed a
Canadian citizen to a country other than Canada when the citizen had been
travelling with Canadian documents and had wanted to be sent to Canada. A
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Canadian citizen such as Mr. Arar could be sent to a place other than Canada
directly from the airport by means of an expedited removal process, but it
seemed most unlikely that this would occur once the person had been taken to
the MDC and held there. Further, in responding to an inquiry, an INS official had
indicated that it was unlikely that Mr. Arar was a deportation case, as the MDC
did not handle such cases and the INS did not have a file on him. In any event,
Ms. Girvan’s experience with deportation cases was that they generally took six
to eight weeks to process and the Canadian consul would be notified and
involved. Based on her experience, Ms. Girvan believed that, once Mr. Arar was
taken to the MDC and was “in the system,” he would not be precipitately
removed. Therefore, what made sense was to ensure that Mr. Arar had counsel
to assist him in whatever process was going to take place.
Most importantly, there was no precedent for the American government’s
action in regard to Mr. Arar: sending a Canadian from the United States to a
country with a poor human rights record. It was completely unexpected by
Canadian consular officials. U.S. authorities never even raised the possibility of
Syria with them or, it appears, with Ms. Oummih. While a superior officer at INS
did say on October 1 that the situation was “serious,” he did not mention Syria.
The only mention of Syria was to Mr. Arar, and even that was while he was still
at the airport. I have not heard any evidence that the threat was repeated to
him after he was taken to the MDC. And permitting Mr. Arar to see counsel was
inconsistent with American practice in expedited removal cases. Moreover, by
the time Ms. Girvan heard about the threat directly from Mr. Arar on October 3,
Ms. Oummih was involved, and Ms. Girvan believed that Ms. Oummih would
be able to assess the situation and determine whether there was a need for
concern.
In his testimony, Mr. Pardy rejected the idea that the NSEERS program was
an indication that Mr. Arar would be sent to Syria. The NSEERS program deals
with foreigners upon arrival in the United States, not after they are detained.
Mr. Pardy testified that there had been no evidence to suggest that, under the
NSEERS program, American authorities would remove a Canadian citizen to a
country other than Canada.
On balance, the Canadian consular officials considered Mr. Arar’s circumstances with care and, based on their experience, did not judge that there was
a realistic concern that Mr. Arar would be sent to Syria, particularly in the immediate future.
As mentioned above, on October 1, when the Consular Affairs Bureau was
having difficulty determining why Mr. Arar was being held and what the
American authorities were intending, a senior official at INS suggested the
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Canadian ambassador in Washington contact the U.S. Department of Justice
(DOJ). Consular officials had two thoughts about the suggested course of action.
One was that it is usually better in matters of this sort to work through lower
levels first, rather than immediately “go to the top.” Bypassing normal channels
has a way of freezing what are often more productive routes of communication.
Experience told them that informal communication was much quicker and more
effective in many situations. Second, it was felt that, if the best approach turned
out to be to “go to the top,” contact should be made with the State Department,
not the DOJ. The State Department was considered the usual and more appropriate route to address a problem such as this.
After hearing about the threat of Syria and the statement of the INS official
on October 1, consular officials did consider “going to the top” by sending a
diplomatic note to the U.S. State Department. The purpose of the note would
have been to seek more information about the reasons for Mr. Arar’s detention.
On October 1 and 2, consular officials were primarily concerned about finding
out why Mr. Arar was being held.
A diplomatic note is a formal communication between two countries.
Responses are often slow — a few days to a few months. Moreover, sending a
diplomatic note stifles communication at lower levels, as all subsequent communications must go through the State Department. A diplomatic note is seen
by DFAIT officials as a heavy weapon and, possibly, counterproductive.
On October 2, the diplomatic note option was set aside when the MDC
responded with some information about Mr. Arar, to the effect that he was being
held on the 9th floor, and agreed to a consular visit the following day. After the
consular visit, a visit with the lawyer, Ms. Oummih, was planned for Mr. Arar.
It appeared to consular officials that, with the lawyer’s assistance, they would be
able to find out what they needed to know about Mr. Arar’s circumstances,
including the nature and potential consequences of any legal proceedings, and
could then determine whether any diplomatic action was required.
In my view, it was reasonable for the consular officials to await the outcome
of Ms. Oummih’s visit with Mr. Arar before deciding whether other steps might
be necessary. As I have said, there was no basis for them to believe that the
American authorities were about to send Mr. Arar to Syria without providing
advance warning to either the Canadian Consulate or Mr. Arar’s lawyer. Indeed,
based on their experience, they had every reason to believe the opposite.
On hearing Ms. Oummih’s report of her visit with Mr. Arar, consular officials still had no reason to be concerned about an imminent threat to Mr. Arar.
There was nothing to alert them to an immediate need to implement diplomatic
options or “go to the top.” With the benefit of hindsight, one can say that other
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action, including involving the Minister of Foreign Affairs or the Canadian ambassador, might have been advisable. However, at the time, that did not seem warranted.
Delivering consular services sometimes requires making judgment calls.
That was certainly the situation in Mr. Arar’s case. The Canadian consular officials did not carelessly disregard the concerns about Syria or the seriousness of
Mr. Arar’s circumstances. On the contrary, they took Mr. Arar’s situation very
seriously and devoted a good deal of thought and attention to how best to
proceed.
The consular officials involved in Mr. Arar’s case, in particular Ms. Girvan
and Mr. Pardy, were experienced and dedicated professionals. They were very
concerned about Mr. Arar’s case and used their best judgment and their considerable experience in making decisions about what should be done. I am satisfied that their decisions were entirely reasonable in the circumstances. Clearly,
the American action in removing Mr. Arar to Syria was an unfortunate and
highly undesirable outcome; however, in the events leading up to that outcome,
I do not find that there was anything that the consular officials did or did not
do that warrants critical comment.
4.5
VIENNA CONVENTION
According to the Vienna Convention on Consular Relations, a contracting state
has an obligation to inform a foreign national of his or her right to contact consular officials and to facilitate such contact without delay. On October 3,
Mr. Arar told Ms. Girvan that, while in custody at the airport in New York, he
had asked to see someone from the Canadian Consulate. The Consulate General
in New York was never contacted concerning Mr. Arar’s request. Moreover,
Mr. Arar was held in American custody for four days without any access to a
lawyer or his family. Essentially, no one knew where he was.
At one point, Canadian officials considered sending a diplomatic note to the
United States to complain of its failure to notify the Canadian Consulate of
Mr. Arar’s detention on a timely basis, in breach of its obligations under the
Vienna Convention. As I understand it, they have yet to do so.
If that is the case, I recommend that a diplomatic note to that effect be sent.
Breaches of the Vienna Convention should not be allowed to go unchallenged.25
�DETENTION IN NEW YORK AND REMOVAL TO SYRIA
5.
LACK OF INTERAGENCY COMMUNICATIONS
The RCMP was notified of Mr. Arar’s detention in New York on September 26,
2002. There was a period during which Project A-O Canada members believed
that Mr. Arar might have been sent back to Zurich, Switzerland, but by October 2
at the latest, they knew that he was still in New York. Between then and
October 8, when Mr. Arar was sent to Syria, members of the Project had several communications about Mr. Arar with their U.S. counterparts.
Meanwhile, on October 1, 2002, DFAIT was informed by Mr. Arar’s brother
that Mr. Arar had said the Americans were going to send him to Syria. Mr. Arar
told Ms. Girvan the same thing during the consular visit on October 3. While
DFAIT officials did not consider it likely that Mr. Arar would be sent to Syria,
they nevertheless were aware of the concern.
The sole point of contact between DFAIT and the RCMP during Mr. Arar’s
detention was Inspector Roy, the RCMP liaison officer assigned to DFAIT.
Inspector Roy testified that he had not been informed of the concerns about
Syria expressed by Mr. Arar and his brother until October 7 or possibly
October 8. He had passed on the information to Project A-O Canada officers on
the morning of October 8. This was the first time members of Project A-O
Canada heard of this concern.
After DFAIT became aware of Mr. Arar’s concern about being sent to Syria,
Project A-O Canada had several communications with the Americans, two of
which are germane to this discussion. First, on October 4, in response to a
request from [***] the Project sent the FBI answers to seven questions about its
investigation as it related to Mr. Arar. The American request indicated that the
information was required for one of two purposes: removal or law enforcement.
There was no mention of Syria, and Project members assumed that the removal
being referred to was a return to Zurich.
Second, on October 5, Corporal Flewelling of CID spoke with an FBI official about Mr. Arar and answered questions about what Canada might do if
Mr. Arar was sent to Canada. There was no mention of possible removal to Syria
during this conversation.
What is initially striking about these events is that two Canadian government
agencies, DFAIT and the RCMP, were each dealing directly with American
authorities in relation to Mr. Arar’s situation without knowing what the other
was doing and without having the benefit of information in the other’s possession. DFAIT officials were not aware that the RCMP was providing information
about Mr. Arar to the American investigators. The RCMP, on the other hand,
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was not aware that Mr. Arar had been told that he would be sent to Syria at a
point when it was providing information to the Americans. While this failure to
connect may be viewed as unfortunate, I can understand why it occurred.
The RCMP does not have a policy requiring it to communicate with DFAIT
when it learns that someone connected with one of its investigations has been
detained abroad. Canadians detained outside Canada are entitled to consular
services on request, and the RCMP’s general approach is based on the notion
that detainees will be able to contact a consular officer if they wish. The RCMP
need not assume that task simply because it happens to be investigating a
detainee.
There was no reason for the RCMP to believe that any request made by
Mr. Arar for consular assistance in the United States would not be granted;
indeed it was reasonable to assume the contrary. Thus, from the RCMP’s standpoint, there was no need for it to notify DFAIT that Mr. Arar was being detained
in New York when it learned that fact on September 26; Mr. Arar could seek
consular assistance if he wished to do so.
Further, I do not believe that there was any requirement that the RCMP
notify DFAIT that it was providing information about Mr. Arar to the U.S. authorities while he was being detained in New York. As I conclude above, it is appropriate for the RCMP to provide information to authorities in another country
about a Canadian being detained there when the detainee is part of an investigation in both countries, provided, of course, that the RCMP complies with its
policies concerning screening information and attaching caveats. Sharing information is part of the RCMP’s normal operational practices and, barring anything
unusual, there would be no need to inform DFAIT of what it was doing in this
regard. Viewed from the RCMP’s perspective, there was nothing respecting
Mr. Arar’s detention that required it to notify DFAIT of its communications with
American authorities while Mr. Arar was in New York.
Similarly, there was no policy requiring DFAIT to notify the RCMP about
what Mr. Arar had said about being sent to Syria. As I said above, DFAIT considered it very unlikely that Mr. Arar would be sent to Syria, and it undertook
a reasonable course of action to try to sort out what was actually occurring and
to involve legal counsel to act for Mr. Arar. I do not believe that, in the circumstances, DFAIT should be faulted for not having informed the RCMP about the
threat of Syria, given its assessment of the threat at the time.
That said, I think that there is something to be learned from Mr. Arar’s
unfortunate saga. The international environment with respect to counter-terrorism is different from that for all other law enforcement activities. It is important
that, when DFAIT or other Canadian officials become aware that a Canadian is
�DETENTION IN NEW YORK AND REMOVAL TO SYRIA
being detained in another country in connection with a terrorism investigation,
they carefully consider all of the possibilities in regard to what may occur and,
in particular, how that person’s human rights or civil liberties may be affected.
In assessing the situation, Canadian agencies in any way involved in the
detainee’s case should consult with one another and develop a coherent and
consistent approach to the situation for all Canadian agencies. Experience tells
us that terrorism investigations are unique in many respects. For one, agencies
and officials in other countries may take what Canadians view as extraordinary
steps in combating the threat of terrorism. Whether those steps are justified or
not, they tend to impact individual liberties and human rights in ways that are
different and often much more serious than what occurs in other types of investigations. That reality calls for extraordinary care by Canadian officials when a
Canadian is caught up in a terrorism investigation in another country. In
Chapter IX, I recommend a process for managing the situation when a Canadian
is detained abroad in a terrorism-related investigation.
Notes
1
2
3
4
5
6
7
8
9
As I noted in Chapter I, the description of the events relating to Mr. Arar’s detention and
removal is based primarily on the evidence of Canadian officials. American officials did not
testify at the Inquiry. Moreover, I have not heard evidence of Mr. Arar’s description of those
events. If Mr. Arar were to testify, it is possible that I would come to different conclusions about
what in fact happened.
I use the word “removal” throughout in describing the process by which Mr. Arar was taken
from the United States and turned over to Syria. While the Order in Council refers to “deportation,” the American order refers to “removal,” the more accurate term under American law.
I do not think that, for the purpose of the Inquiry, anything turns on the use of the two terms.
I describe the nature of the lookout in Chapter III.
Exhibit C-30, Tab 44.
I note that Mr. Arar apparently entered the United States once without incident after Project
A-O Canada requested the American lookout, possibly indicating that the Canadian lookout
request was not the basis for detaining him at the border. However, it is worth noting that
Mr. Arar’s previous entries to the United States were prior to the end of January 2002, after
which Project A-O Canada provided further information to authorities about him.
The U.S. Immigration and Naturalization Service’s (INS) NAILS system is used by inspectors at
ports of entry to check incoming travellers. It is also used by INS officers to make entries into
TECS.
Exhibit C-30, Tab 221.
This information is subject to national security confidentiality and, in my opinion, should not
be disclosed publicly.
While a reference to the third-party rule was not attached to each piece of information received
from CSIS, I believe that, in the context, it was sufficiently clear that the CSIS caveats applied
to all of the CSIS information.
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10
11
12
13
14
15
16
17
18
19
20
21
22
23
I am unable to discuss this issue more fully because of national security confidentiality
concerns.
I refer here to inaccuracies in the request for U.S. lookouts, including the misdescription of
Mr. Arar as an Islamic extremist, as well as inaccurate information in some documents included
on the three CDs given to U.S. authorities in April 2002, the May 31, 2002 presentation, and
the September 26, 2002 response to the FBI’s request for questions for Mr. Arar.
R.S.C. 1985, c. P-21.
CSIS might not have had any objection to information being shared for one purpose, such as
intelligence, but might have been more concerned in the face of an indication that certain proceedings were being contemplated.
There is some evidence that Corporal Flewelling went to the RCMP’s Immigration and Passport
Office to inquire about U.S. removal proceedings on October 4. However, the evidence is
unclear about exactly what happened and what was said. In the end, I am unable to attach
any significance to that visit.
Indeed, Corporal Flewelling testified that he had thought his answers would actually help
Mr. Arar, as the American authorities would be more inclined to release him and he could then
come to Canada.
At the time, Canadian officials were not aware of any instance where American authorities had
removed someone from the United States to a country such as Syria.
There was some evidence suggesting that Inspector Roy had been informed of the possibility
that Mr. Arar would be sent to Syria as early as October 3 or 4. However, this evidence was
not conclusive and Inspector Roy testified that he had not been aware of the possibility until
October 7.
Interestingly, the removal order states that “the most serious international terrorist threat to US
interests today stems from Sunni Islamic extremists such as Osama bin Laden and individuals
affiliated with his Al-Qaeda organization” (Exhibit P-20). This language suggests that the
RCMP’s October 2001 request for a U.S. border lookout, which referred to Mr. Arar and others as a “group of Islamic Extremist individuals suspected of being linked to the Al Qaeda terrorist movement” (Exhibit C-30, Tab 44), would have been taken very seriously by the
Americans.
At the Inquiry, I heard expert evidence from Julia Hall of Human Rights Watch, who testified
that diplomatic assurances from totalitarian regimes that they will not torture detainees are of
no value and should not be relied upon for the purposes of article 3 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The fact that
Mr. Arar was tortured in Syria despite an assurance to the contrary is a concrete example of
the problems to which Ms. Hall referred.
Below I set out my conclusion that CSIS also did not participate or acquiesce in the American
decision to remove Mr. Arar to Syria.
Exhibits P-124 and P-125.
Exhibit C-30, Tab 549.
In April 2002, the RCMP included information received from CSIS on the three CDs given to
the American agencies, without first seeking CSIS’ consent. None of the CSIS information
related to Mr. Arar. On October 4, the Project passed on CSIS information about Mr. Arar to
the American authorities without CSIS’ consent.
�DETENTION IN NEW YORK AND REMOVAL TO SYRIA
24
25
In this section, I sometimes refer to DFAIT officials and at other times, to consular officials.
Consular officials are part of DFAIT and were the ones primarily involved in Mr. Arar’s case.
However, other DFAIT officials had some involvement. I use the broader term as needed.
In Chapter IX, I also recommend that the Canadian government send a diplomatic note or
some other communication to the American government to officially complain about the much
larger issue of the removal of Mr. Arar to Syria, an action the Canadian government considers unacceptable.
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�V
Imprisonment and Mistreatment
in Syria
1.
OVERVIEW
Maher Arar arrived in Syria on October 9, 2002 and was imprisoned there until
his release on October 5, 2003. During the first two weeks of his imprisonment,
the Syrians interrogated and tortured Mr. Arar and he provided them with a
statement.
In this chapter, I review the actions of Canadian officials in connection with
Mr. Arar’s imprisonment in Syria. I examine the way in which they assessed his
treatment at the hands of the Syrian authorities, the interactions between
Canadian investigative agencies and the Syrian authorities, the Canadian efforts
to have Mr. Arar released, and certain actions that may have sent the Syrians
mixed signals about whether the Canadian investigative agencies wanted
Mr. Arar released. I also review the role of the Consular Affairs Bureau in providing assistance to Mr. Arar throughout his imprisonment in Syria.
2.
BACKGROUND INFORMATION ON SYRIA’S HUMAN
RIGHTS REPUTATION
When Mr. Arar arrived in Syria in October 2002, Syria had a well-established reputation for committing serious human rights abuses. Canadian officials had easy
access to information about Syria’s record in the area of human rights. Two of
the most authoritative sources about Syria’s practices are the U.S. State
Department’s annual Country Reports on Human Rights Practices and Amnesty
International’s annual reports on human rights.
In its 2002 and 2003 reports, the U.S. State Department indicated that there
was credible evidence that Syrian security forces continued to make use of
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ANALYSIS AND RECOMMENDATONS
torture. Torture was most likely to occur while detainees were being held at
one of the many detention centres run by the various security services throughout the country, especially when authorities were attempting to extract a confession or information. Reported methods of torture included administering
electrical shocks; pulling out fingernails; forcing objects into the rectum; beating, sometimes while the victim was suspended from the ceiling; hyper-extending the spine; bending the detainees into the frame of a wheel and whipping
exposed body parts; and using a chair that bent backwards to asphyxiate the victim or fracture the victim’s spine.
The U.S. State Department also reported that prison conditions in Syria were
poor and did not meet international standards for health and sanitation. Facilities
for political or national security prisoners were generally worse than those for
common criminals. In cases of political or national security offences, suspects
might be detained incommunicado for long periods without charge or trial and
without access to a lawyer. Security courts were subject to political influence and
the Supreme State Security Court did not observe constitutional provisions safeguarding the rights of the accused.
Amnesty International’s 2002 report was similar to the U.S. State
Department’s reports, indicating that torture and ill-treatment continued to be
used routinely against political prisoners in Syria, especially during incommunicado detention at the Palestine Branch and Military Interrogation Branch detention centres. The Amnesty International report referred to several of the torture
techniques described by the U.S. State Department, including the metal chair
with moving parts and the use of electric shock. In addition, Amnesty
International reported that procedures before the courts fell short of international fair trial standards.
In Canada, DFAIT prepares annual reports evaluating the state of human
rights in most countries, including Syria. DFAIT’s reports on Syria for 2001 and
2002 incorporate the State Department’s review of Syria’s human rights violations. While the 2001 DFAIT report quotes the State Department report verbatim with respect to “credible evidence of torture” and the use of torture to extract
confessions, the 2002 report qualifies the use of torture as “allegations” and
omits mention of the use of torture to extract confessions. However, the 2002
report does refer to some of the torture techniques alleged to be used, including sleep deprivation, beatings and electric shocks.
The DFAIT reports also incorporate Amnesty International’s (AI’s) annual
country reports and specifically mention AI’s findings of routine torture and illtreatment of prisoners, especially during the initial stage of detention and interrogation in Tadmur Political Prison. Reference is also made to AI’s reports of
�IMPRISONMENT AND MISTREATMENT IN SYRIA
secret arrests in cases involving political or national security offences and prolonged detentions without due process.
There are three points about the DFAIT reports that are relevant to the
Inquiry. The first is that the Canadian ambassador to Syria, Franco Pillarella,
approved both the 2001 and 2002 reports. Thus, the Ambassador would have
specifically put his mind to the issue of the human rights practices in Syria when
considering the contents of those reports.
Second, DFAIT’s report for 2002 was released on January 9, 2003, approximately three months after Maher Arar arrived in Syria, yet there was no mention in that report of Mr. Arar, the circumstances relating to his removal and
detention, the fact that he had been held incommunicado by the Syrian Military
Intelligence (SMI) at its Palestine Branch for close to two weeks, or the consular visits he had received. Also missing from the 2002 report were the details
surrounding the detention of Abdullah Almalki and the allegation made by
Ahmad El Maati1 that he had been tortured while in Syrian detention. This was
information of which many Canadian officials were aware by the time the report
was prepared, although how much Ambassador Pillarella knew is unclear.
Lastly, the DFAIT reports were not distributed to certain officials within the
Canadian government who might have benefited from the information in them.
The e-mail distribution list did not include anyone in DFAIT’s Consular Affairs
Bureau. Moreover, the reports apparently were not distributed to CSIS or the
RCMP.
In Chapter IX, I make recommendations respecting the process that should
be followed when Canadian officials deal with countries with questionable
human rights practices. In some instances, several Canadian government departments or agencies may have dealings with a country such as Syria at the same
time, as occurred in Mr. Arar’s case. It is important that DFAIT share its reports
on the human rights practices of the detaining country with the other government departments and agencies, in order that Canadian officials may proceed on
a common understanding when such a situation arises.
For example, the DFAIT reports will be relevant to Canadian government
decisions about what interaction, if any, should take place between Canadian
investigative officials and the country with a poor human rights record when a
Canadian is detained in that country. Further, should Canadian officials receive
information from such a country, the DFAIT reports will be useful in assessing
the reliability of such information. I discuss these issues more fully in Chapter IX.
By October 22, 2002, Canadian officials were aware of the circumstances
relating to Mr Arar’s imprisonment in Syria. They knew that the Syrians considered Mr. Arar to be a national security suspect. Certain Canadian officials also
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knew that he had been held incommunicado for close to two weeks and that
the SMI had obtained a statement from him. Those circumstances fell squarely
within the pattern of interrogation and abuse described in the publicly available
reports.
3.
INITIAL PERIOD
3.1
EFFORTS TO LOCATE MR. ARAR
During the period from October 8, 2002, when Mr. Arar was taken from the
Metropolitan Detention Centre (MDC) in New York, to October 21, 2002, when
the Syrian deputy foreign minister informed the Canadian ambassador that
Mr. Arar was in Syria, Canadian officials were uncertain of Mr. Arar’s whereabouts and took various steps to try to locate him.
On October 8, DFAIT officials learned that Mr. Arar had been moved from
the MDC, where he had been held in New York. Canadian consular officials in
New York made inquiries of Mr. Arar’s lawyer, the MDC and the U.S.
Immigration and Naturalization Service (INS) as to his whereabouts.
Interestingly, the INS said that it had no record of Mr. Arar being moved. On
October 10, an INS official called the Canadian consul in New York and told her
that Mr. Arar had been removed from the country, but would not provide further details. At that point, because the INS official did not mention Canada, the
working assumption within DFAIT was that Mr. Arar had been sent to Syria,
the country of his birth.
Also on October 10, Canadian officials received an informal indication from
an American official that Mr. Arar had been sent to Syria via Jordan. The same
day, Scott Heatherington, the Director of DFAIT Foreign Intelligence Division
(ISI) heard from the U.S. Embassy in Ottawa that Mr. Arar had been removed
to Syria.
Daniel Livermore, Director General of DFAIT’s Security and Intelligence
Bureau (ISD), promptly sent a message to Ambassador Pillarella in Syria requesting that he ascertain Mr. Arar’s location, status and condition, noting that “there
are concerns that Arar may be aggressively questioned by Syrian security services.”2 The next day, Ambassador Pillarella raised the Arar matter with the Syrian
deputy foreign minister, who advised that he would check and get back to him
on whether Mr. Arar was in Syria.3
In addition, the Canadian ambassador to Jordan, Rod Bell, was asked to
make inquiries about Mr. Arar, because of information DFAIT had received that
�IMPRISONMENT AND MISTREATMENT IN SYRIA
he had been “dumped” in Jordan. However, on October 12, Ambassador Bell
was told there was no indication that Mr. Arar had entered Jordan.
Meanwhile, on October 10, DFAIT Headquarters asked Léo Martel, the
Canadian consul in Damascus, to make a formal request to the Syrian Foreign
Ministry for information about Mr. Arar’s whereabouts. On October 14, the first
business day after the Thanksgiving weekend, Mr. Martel sent a diplomatic note4
to the Syrian Foreign Ministry seeking its assistance in locating Mr. Arar. The
Canadian Embassy in Damascus never received a response to Mr. Martel’s note.
The Syrian deputy foreign minister was out of Damascus for a few days.
On October 17, Ambassador Pillarella followed up on his earlier enquiry and
was able to schedule a meeting for October 20 to discuss whether Mr. Arar was
in Syria. Also on October 17, a DFAIT official raised the matter with the Syrian
ambassador to Canada, Ahmad Arnous, in Ottawa.
When Mr. Arar could not be located, Canada’s Foreign Affairs Minister,
Bill Graham, also became involved in the case. On October 15, the Minister met
with the U.S. ambassador, Paul Cellucci. Ambassador Cellucci told Minister
Graham that there was evidence Mr. Arar had contacts with people that made
him a danger to the United States, and that some of his information came from
Canadian sources. He also said that Mr. Arar’s dual citizenship gave the
Americans the right to deport him elsewhere. When interviewed by a Canadian
journalist the next day, Mr. Cellucci reportedly said that the United States
Immigration and Naturalization Service authorities had acted properly in deporting Mr. Arar to Syria and that the Canadian government should talk to its local
people, who might know the reasons.
On October 18, Minister Graham raised the matter of Mr. Arar with
Ambassador Arnous and asked for the co-operation of the Syrian authorities in
locating him. The Ambassador replied that, according to his information,
Mr. Arar was not in Syria, but he promised to check further with authorities in
Damascus. Also on October 18, Prime Minister Jean Chrétien was provided with
a written briefing on the Arar case.
On October 20, Ambassador Pillarella met with the Syrian deputy foreign
minister. He briefed him on the Arar case, emphasizing that Mr. Arar was not the
subject of any police inquiry in Canada, and discussed dual citizenship and bilateral relations in the context of Mr. Arar’s situation. The Syrian deputy foreign
minister stated that he was “99% certain” that Mr. Arar was not in Syria and
agreed to confirm this information by October 21.5
On October 21, the Syrian deputy foreign minister contacted Ambassador
Pillarella as promised and advised him that Mr. Arar had arrived in Syria from
Jordan that very day. Ambassador Pillarella requested consular access to
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Mr. Arar. The deputy minister said he could not grant access, as Mr. Arar was
not in his custody, but arranged for the Canadian ambassador to meet with
General Hassan Khalil, the head of the Syrian Military Intelligence, the next day.
Ambassador Pillarella passed on the news about Mr. Arar’s presence in
Syria to DFAIT Headquarters in Ottawa. During the evening of October 21,
Gar Pardy, Director General of the Consular Affairs Bureau, sent Ambassador
Pillarella a message outlining the representations that should be made to the
Syrian authorities. Included was a statement that the Government of Canada
would appreciate it if Syria would permit Mr. Arar to return to Canada, “a country that he can return to at any time.”
I am satisfied that, from the time Mr. Arar left the MDC in New York on
October 8 until he was finally located in Syria on October 21, Canadian officials
took reasonable and appropriate steps to try to determine his whereabouts. They
asked both the Americans and Syrians for information. They approached very
senior officials in the Syrian government, including the deputy foreign minister,
as well as the Syrian ambassador in Ottawa. They sent a diplomatic note to the
Syrian Foreign Ministry. While they strongly suspected that Mr. Arar was in Syria,
they were unable to confirm it until October 21.
The fact of the matter is that American and, later, Syrian officials were not
forthcoming. For the reasons set out below, I find that, on October 8, 2002,
Mr. Arar was taken from the United States to Jordan, where he remained for
only a short period of time before being taken to Syria. He was likely in Syria
by October 9 or October 10 at the latest. The Syrian authorities decided to hold
him incommunicado and did not disclose his presence in Syria until October 21.
Given the circumstances, there was nothing else Canadian officials could have
done to determine Mr. Arar’s whereabouts before the Syrians finally acknowledged they were holding him.
3.2
FIRST CONSULAR VISIT
On October 22, Ambassador Pillarella met with General Khalil and made
arrangements for a consular visit the following day. In the Ambassador’s experience, this was the first time that Syrian authorities had granted consular access
to a detained individual like Mr. Arar, who held dual Canadian and Syrian citizenship. There had been no consular visits with Abdullah Almalki, another
Canadian citizen who by then had been in Syrian custody for about five months.
The Syrian government has never recognized second citizenships for Syrian citizens and thus does not grant consular privileges to officials from other
countries.
�IMPRISONMENT AND MISTREATMENT IN SYRIA
During the October 22 meeting, General Khalil told the Ambassador that
Mr. Arar had just arrived in Syria and had already admitted to connections with
terrorist organizations. He promised to pass on any information the Syrian
authorities might gather about Mr. Arar’s involvement in terrorist activities.
On October 23, Mr. Martel, the Canadian consul, visited Mr. Arar. After
being taken along a circuitous route, he arrived at what turned out to be the infamous Palestine Branch,6 although he did not know it at the time. He only
learned that later, upon making inquiries of his employees.
When Mr. Arar was brought into the room where Mr. Martel had been waiting, he walked normally, but appeared submissive and disoriented. Mr. Martel
shook his hand — his handshake appeared normal — and Mr. Arar was then
seated at a distance from him. Mr. Martel did not observe any physical signs of
abuse on Mr. Arar. However, Mr. Arar wore long pants and possibly long
sleeves. In his report of the visit, Mr. Martel indicated that Mr. Arar had
appeared healthy, but added “this is difficult to assess.”7 When asked about this
comment, Mr. Martel explained that he had no training in observing the signs
of torture and was not a doctor.
There were, however, many indications that all was not well. The visit was
very controlled. Mr. Martel was not allowed to meet with Mr. Arar alone. Syrian
officials were present throughout and insisted that Mr. Arar speak Arabic, with
a Syrian official serving as interpreter. They wrote down the whole conversation.
Occasional exchanges bypassed the need for the interpreter, but when
Mr. Martel began to question Mr. Arar about his circumstances, it was clear that
Mr. Arar was not being permitted to answer all the questions. Mr. Arar gave
Mr. Martel eye signals communicating that he could not speak freely.
Mr. Arar did say two things during the meeting that provided some indication of how he had been treated to that point. When Mr. Martel asked him how
long he had stayed in Jordan, Mr. Arar answered “only a few hours” before he
was cut off. This signified that Mr. Arar had been in Syria for nearly two weeks,
a fact that directly contradicted General Khalil’s statement of the day before that
Mr. Arar had just arrived.
The second noteworthy thing that Mr. Arar said was prompted by the Syrian
officials. Toward the end of the interview, Mr. Martel asked Mr. Arar if he would
like the Embassy to provide him with anything. Mr. Arar’s answer was obviously
prompted or dictated by the Syrian officials. Mr. Martel recorded the answer:
I am a Syrian and I obey the law of Syria. I am proud of my country of origin and
I am also proud of Canada, my country of adoption. I have been respected by my
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ANALYSIS AND RECOMMENDATONS
Syrian brothers and I am happy to have come back to Syria. The authorities have
not exercised pressure on me. You can see I feel well. Anything I ask for I receive.8
This answer is transparently artificial and obviously contrived. I cannot
imagine that Mr. Arar would have voluntarily answered Mr. Martel’s question in
this fashion. By this point, Mr. Arar had been detained in New York for 12 days
and then removed by force to Syria and imprisoned there. It would have been
ridiculous in these circumstances for him to volunteer that “I am happy to come
back to Syria.” It is also revealing that he said “the authorities have not exercised
pressure on me,” when no one had suggested that they had.
Upon returning to the Embassy, Mr. Martel prepared his report of this first
consular visit, reviewed it with Ambassador Pillarella, and sent it to the Consular
Affairs Bureau in Ottawa.
3.3
DATE OF ARRIVAL IN SYRIA
The evidence is overwhelming that Mr. Arar arrived in Syria around October 9
and was held incommunicado until October 21, when Syrian officials informed
the Canadian ambassador that he was in Syria.
As described above, during the first consular visit, Mr. Arar told Mr. Martel
that he had been in Jordan for only a few hours. Since there is no doubt that
Mr. Arar was removed from the United States on October 8, the only logical
conclusion to be drawn from Mr. Arar’s answer is that he had been in Syria for
close to two weeks. Since the Syrian officials did not permit Mr. Martel to pursue this line of questioning about Mr. Arar’s whereabouts, Mr. Arar was unable
to provide further details at that time. However, there would have been no reason for Mr. Arar not to tell the truth about where he had been. Indeed, given
the circumstances, it would have been foolhardy for him to suggest that he had
been in Syria for longer than was actually the case. I cannot imagine that
Mr. Arar would have risked provoking his jailers by lying about the matter in
what must have been an already very tense and difficult situation for him.
Mr. Martel’s observations during the consular visit also provide evidence to
support the conclusion that Mr. Arar had been in Syria for nearly two weeks at
that point. The controlled nature of the visit suggests that the Syrian authorities
had something to hide; they did not want Mr. Arar speaking freely. If Mr. Arar
had arrived only a day or two before and was being treated well, why would
they take such care to prevent Mr. Martel from asking questions about Mr. Arar’s
circumstances and to have Mr. Arar say that he was happy to be in Syria and had
not been pressured by the authorities?
�IMPRISONMENT AND MISTREATMENT IN SYRIA
Moreover, the scenario suggested by Mr. Arar’s statement — that Mr. Arar
had been held incommunicado at the Palestine Branch in Syria for close to two
weeks — is entirely consistent with the Syrian human rights record, which
reveals that Syria, in particular the Syrian Military Intelligence, has a practice of
holding prisoners like Mr. Arar incommunicado for purposes of interrogation
and torture when initially imprisoned. Unlike Mr. Arar, the Syrian authorities
would have a motive for lying about when Mr. Arar had arrived in Syria. If they
had held Mr. Arar incommunicado at the beginning of his imprisonment, one
would not expect them to admit it.
Further, General Khalil’s statement to Ambassador Pillarella on October 22,
that Mr. Arar had just arrived in Syria and had already admitted to connections
with terrorist organizations, is improbable on the face of it. It seems most
unlikely that Mr. Arar would have made an admission of that significance within
a few hours or at most a day of his arrival in Syria, particularly if any questioning had not involved mistreatment or torture.
I note that every time Mr. Arar has spoken about his ordeal since his release,
his statements have been consistent with what he told Mr. Martel on October 23,
2002, that is, that he had been in Jordan for only a few hours. I am aware that
these statements were not made under oath and were not subject to cross-examination. Nevertheless, I refer to them to call attention to the fact that nothing
Mr. Arar has said since has in any way undermined or been inconsistent with
what he told Mr. Martel at the very first opportunity, on October 23, 2002.
Accordingly, I conclude that Mr. Arar arrived in Syria around October 9
and was held incommunicado until October 21, when Syrian officials acknowledged his presence there.
3.4
TORTURE
Based on all the evidence and information available to me, I conclude that the
SMI tortured Mr. Arar while interrogating him during the period he was held
incommunicado.
In Chapter II, I set out the description of that torture, as given by Mr. Arar
to Professor Toope, the fact-finder I appointed to investigate and report on what
happened to Mr. Arar. I will not repeat it here other than to say that the physical abuse inflicted on Mr. Arar occurred largely in the first three days of his
imprisonment. That physical abuse was accompanied by threats of continued
abuse and Mr. Arar said that, in time, he had told his interrogators whatever
they had wanted to hear.
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Professor Toope concluded that Mr. Arar’s description of what had happened to him, although not given under oath, was credible and that the events
had occurred as Mr. Arar had described them.
I reach the same conclusion as Professor Toope, essentially for two reasons. First, I am impressed with and accept Professor Toope’s report. Professor
Toope has considerable experience in interviewing victims of torture and assessing their descriptions of what happened to them. His analysis of Mr. Arar’s
description of events is thorough and well reasoned. Significantly, Mr. Arar did
not overstate what happened to him when it would have been easy to do so.
Moreover, Mr. Arar’s description had telling similarities to those of others who
were also in Syrian custody around the same time. The fact-finder commented
favourably on Mr. Arar’s demeanour, personal characteristics and recounting of
what had happened. In short, he believed him, and I attach great weight to
Professor Toope’s assessment.
I have also considered statements made by Mr. Arar shortly before and after
his release from Syrian custody about the issue of torture. Here I refer to statements he made to Mr. Martel during the August 14 consular visit and on his way
back to Canada. I discuss those statements later in this report, but for now, I simply make the point that, in my view, there is nothing in those statements that
detracts from what Mr. Arar told Professor Toope.
My second reason for concluding that the SMI tortured Mr. Arar during the
initial stage of his imprisonment is that all of the objective indicators point to that
conclusion. Here I refer to the “facts” that were known to Canadian officials
immediately after Mr. Martel visited Mr. Arar for the first time on October 23.
I am satisfied that, after the first consular visit, Canadian officials should
have realized that Mr. Arar had likely been tortured as part of the Syrian interrogation during the time he had been held incommunicado. I reach this conclusion because Canadian officials either were or should have been aware of the
following:
•
•
•
The Syrian human rights record showed abuse of political prisoners during
interrogation.
Mr. Arar was a terrorism-related prisoner and, as such, a “political prisoner,”
and was being held by the SMI at its Palestine Branch, factors that commonly entered into the Syrian pattern of inflicting torture.
Mr. Arar had been held incommunicado for close to two weeks at the
beginning of his imprisonment. According to reports on Syria’s human rights
practices, the reason for holding detainees incommunicado was to conduct
interrogations accompanied by torture.
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•
•
•
•
•
•
•
On October 22, 2002, General Khalil reported that Mr. Arar had already
made a statement admitting connections to terrorist organizations, a most
improbable development if interrogation had not been accompanied by
abuse and/or torture.
General Khalil falsely stated on October 22 that Mr. Arar had just arrived
in Syria, thereby suggesting that he had something to conceal.
The controlled nature of the first consular visit also suggested that the SMI
had something to hide.
The prompted statement by Mr. Arar that the authorities had not exercised
pressure on him suggested the opposite.
Mr. Arar’s submissive demeanour during the October 23 consular visit was
also telling.
In August 2002, Canadian officials had been informed that Ahmad El Maati,
another Canadian suspected of terrorism-related activities, had alleged that
he had been tortured while in Syrian custody.
DFAIT officials were alive to and had raised the prospect of physical abuse
in Syrian prisons on a number of occasions before the first consular visit.
For example, on October 10, when Canadian officials were attempting to
locate Mr. Arar, Mr. Livermore, Director General of ISD, raised the concern that Mr. Arar could be the subject of “aggressive” questioning if he was
in Syria.
When taken together, these factors paint a very strong, virtually overwhelming picture of interrogation and torture during the period prior to the first
consular visit with Mr. Arar. The only evidence at variance with this picture is
the fact that Mr. Martel did not see any physical signs of abuse during the
October 23 consular visit. In his testimony, Mr. Martel said that Mr. Arar had
walked normally and shaken hands normally, and he had not seen any burns,
red marks, or other signs of abuse on Mr. Arar’s face, hands or wrists. However,
as mentioned earlier, Mr. Arar had been seated at a distance from him and had
been wearing long pants and possibly a long-sleeved shirt.
In his testimony, Mr. Martel made the obvious point that the Syrian authorities would never have let him see an individual with visible signs of mistreatment or torture. I have had the benefit of reviewing Mr. Arar’s description of
what happened to him. I find the description he gave Professor Toope particularly helpful, in that it provides an example of the type of abuse that could occur
without necessarily leaving any physical signs that Mr. Martel would have been
able to observe. While I do not wish to minimize what Mr. Arar experienced,
the physical abuse he described suffering is less serious than that described by
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several others who have reported torture in Syria. Moreover, given their record
for torture, one would expect that Syrian interrogators have considerable aptitude in inflicting torture in ways that result in few, if any, physical signs.
In my view, the indicators on October 23 that Mr. Arar had been tortured
were very strong and the fact that Mr. Martel did not observe any actual signs
of physical abuse was not a sufficient deterrent to what should have become the
position of all Canadian officials dealing with Mr. Arar’s case: that it was likely
that Mr. Arar had been tortured while being questioned in Syria and, importantly, that any statement or confession he had made was the result of that
torture.
Henry Hogger, a former British ambassador to Syria and expert witness on
consular affairs, testified that this was the conclusion he would have reached.
On being presented with the facts as they were known after the first consular
visit, Mr. Hogger stated that they created a “strong suspicion” that torture had
taken place, although he could not be certain. He believed that the likelihood
of torture in Mr. Arar’s case was greater than usual, given that Mr. Arar had
been held by the SMI at its Palestine Branch in connection with a national security matter, that he had been held incommunicado for nearly two weeks, and
that he had “confessed.” Mr. Hogger astutely pointed out that torture can be
inflicted without leaving any physical marks. Thus, the fact that a consular official such as Mr. Martel could not observe any actual physical signs of torture
would not indicate that torture had not taken place.9
3.5
ASSESSMENTS BY OFFICIALS
On receiving the report of the October 23 consular visit, Gar Pardy, Director
General of the Consular Affairs Bureau, correctly sized up the situation. He was
quite rightly pleased that Mr. Martel had been able to visit Mr. Arar at all. This
was unusual in Syria, and was seen as very good news. The promise of continued consular visits likely meant that Mr. Arar would not be subjected to physical abuse or torture in the future. In other words, the incommunicado period of
detention during which physical abuse and torture were inflicted had ended.
Another positive point was that the consular report gave Mr. Pardy and other
consular officials a benchmark for monitoring Mr. Arar’s condition in the future,
which from a consular perspective would be helpful.
That said, Mr. Pardy was under no illusion as to what likely had occurred
prior to October 23. On reviewing the consular report and assessing the available information, he accepted the statement made by Mr. Arar during the consular visit about having spent only a few hours in Jordan and reached what he
�IMPRISONMENT AND MISTREATMENT IN SYRIA
called “the working assumption” that Mr. Arar had been in Syria from about
October 9, 2002, had been kept incommunicado and had likely been subjected
to abusive interrogation and torture. Myra Pastyr-Lupul of the Consular Affairs
Bureau had the same reaction. Obviously they could not conclude with certainty that Mr. Arar had been tortured, but they thought it likely and proceeded
on that assumption. I commend Mr. Pardy and Ms. Pastyr-Lupul for the way
they assessed the situation. In my opinion, their approach to the issue of the possibility of torture was the proper one.
Other Canadian officials were much more hesitant about reaching a conclusion of possible torture. Ambassador Pillarella, for instance, felt that Canada
was fortunate to have been permitted a visit with Mr. Arar. He was ambivalent
about when Mr. Arar had arrived in Syria, saying “maybe” to the suggestion that
Mr. Arar had been held incommunicado. At one point, he testified that he had
not known whether to believe Mr. Arar or the Syrian officials about the date of
Mr. Arar’s arrival in Syria.
I am of the view that the Ambassador took far too cautious an approach to
the situation with which he was confronted. He was Canada’s representative in
Syria at the time and was ideally placed to assess all of the circumstances and
draw reasonable conclusions about what likely had happened. Yet, in his testimony, the Ambassador seemed strangely reluctant to conclude that it was even
likely that Mr. Arar had been abused or tortured. I had the impression that, for
him, matters had to be more black and white than had been the case. He stated
that he believed in facts, the implication being that there had been no facts to
establish that Mr. Arar had been held incommunicado or physically abused. He
pointed to the case of another individual who had been held by the SMI and had
not been physically abused or tortured. Ambassador Pillarella obviously required
more concrete evidence — such as actual physical signs of beatings — than had
been available in Mr. Arar’s case. Absent specific proof of abuse or torture, he
had not been prepared to reach any conclusion or even adopt an “operating
assumption” to that effect.
Other officials with DFAIT and, over time, in other agencies also formed
opinions about what had occurred and the likelihood that Mr. Arar had been
abused or tortured. I do not think that there is anything to be gained from
reviewing all of those assessments here.10 Suffice it to say that there was no consistent, clearly articulated government position about what had happened to
Mr. Arar. Different officials had varying levels of certainty or doubt about how
Mr. Arar had been treated or mistreated. Indeed, because of an unsatisfactory
reporting process, Foreign Affairs Minister Bill Graham was not informed of
Mr. Pardy’s “working assumption” that Mr. Arar had likely been tortured when
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interrogated during his initial period of detention. That led to an undesirable situation: the Canadian minister responsible for managing Mr. Arar’s situation
while he was detained in Syria was not properly informed of what should have
been viewed as a critically important element of the case, the likelihood of
torture.11
After the first consular visit, DFAIT was in the best position within the
Canadian government to make an appropriate assessment of Mr. Arar’s situation.
However, at the time, DFAIT did not have any policies or guidelines to assist
officials in detecting torture or responding to indications of possible torture. In
Chapter IX, I make recommendations to address these issues in the future.
Before leaving the subject of the assessments made of Mr. Arar’s treatment,
I have one further comment about the reluctance of some officials to recognize
what likely happened to this individual. Detecting torture in countries such as
Syria will always be difficult. It is unrealistic to expect torturers to admit to their
actions or allow outsiders to make observations that would prove conclusively
that torture has occurred. Thus, an assessment that depends solely on “hard
facts” is unlikely to ever uncover torture. Canadian officials must be more sophisticated in their assessments, taking into consideration all of the available information in order to draw reasonable inferences about what may have happened.
The Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (Convention against Torture) provides that the human
rights record of a country must be considered in assessing the risk of torture.
Mr. Arar’s case is an excellent example of a situation where it should not have
been particularly difficult to arrive at a conclusion that Mr. Arar probably had
been tortured during interrogation.
3.6
IMPLICATIONS OF FAILURE TO DEVELOP CLEAR STATEMENT
The failure to develop a clear statement about what had happened to Mr. Arar
while in Syrian custody had two possible implications.
The first relates to Mr. Arar’s alleged confession to the Syrian authorities.
Shortly after the October 23 consular visit, General Khalil provided Ambassador
Pillarella with a bout de papier 12 setting out in very summary form the results of
the Syrian interrogation of Mr. Arar. According to the bout de papier, Mr. Arar
had said that he had trained in Afghanistan in 1993. Although the bout de papier
was circulated to DFAIT ISI, the RCMP and CSIS in relatively short order, no
one attached a reliability assessment or cautionary note to it to point out that
Mr. Arar had made the statement while held incommunicado and that at least
some DFAIT officials had developed the “working or operating assumption” that
�IMPRISONMENT AND MISTREATMENT IN SYRIA
physical abuse or torture had been used to obtain it. Recipients were left to
make of it what they would.
A considerable number of those who received the bout de papier had at
least some awareness of the Syrian human rights record. However, many did not
have the full range of facts that would be needed for a proper assessment of
what had happened to Mr. Arar. Indeed, some, including most Project
A-O Canada members, lacked the necessary experience and training to make
such an assessment. Some indicated that they would look to DFAIT in matters
such as this.
DFAIT officials had access to all of the facts and were ideally positioned to
set out the circumstances under which Mr. Arar had been interrogated and provide an assessment that Mr. Arar’s statement was likely the product of torture.
They should have done so. Without such a cautionary statement, the danger
was that Canadian officials, particularly those investigating Mr. Arar, would
attach unwarranted weight to Mr. Arar’s statement and draw conclusions that
were unfounded and unfair to Mr. Arar. Giving credence to statements obtained
through torture can be dangerous, as the reliability of such statements is at best
uncertain. Professor Richard Ofshe, an expert witness at the Inquiry, explained
how torture as a method of interrogation removes all choices but one: “If the
individual has already been convinced that the interrogator is unmovable, then
it makes no sense to resist the torture. The only thing in front of them is to minimize the amount of torture. That is the only choice they’ve got. And they can
do that by complying.”13
The conclusion that DFAIT should have attached a description of the circumstances under which Mr. Arar’s statement had been taken and an assessment of the likelihood of torture should not be taken to suggest that CSIS and
the RCMP should not have done their own reliability assessments. As Ward
Elcock, Director of CSIS in the period immediately following 9/11, testified,
reliability assessments are done whenever there is “suspicion of torture.” Both
CSIS and the RCMP knew of Mr. El Maati’s allegations of torture and some of
the facts surrounding Mr. Arar’s detention. They should have done their own
assessments.
Officials who received the bout de papier attached varying degrees of
importance to it. However, it is clear that some Canadian investigators had an
increased level of suspicion about Mr. Arar’s possible links to terrorist activities
as a result of the information derived from the Syrian interrogation of Mr. Arar.14
The second possible implication of the failure to develop a single clearly
articulated government position about what likely had happened to Mr. Arar
has to do with the diplomatic efforts to have Mr. Arar released. As I point out
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above, Minister Graham was not given the full picture about the likelihood of
torture. That was unfortunate, given that he was the senior Canadian official
responsible for seeking Mr. Arar’s release. In his testimony, he indicated that, if
he had known of the concern about torture, he would have been more “energized” in his efforts to have Mr. Arar released. Although I am not sure exactly
what he meant by this comment or what other steps he might have taken to try
to obtain Mr. Arar’s release at the time, the point remains that those responsible
for making decisions about what should be done, such as Minister Graham,
should be provided with all the relevant facts.
Other Canadian officials eventually became involved or were asked to assist
with the efforts to obtain Mr. Arar’s release. For example, in May and June 2003,
Mr. Pardy developed a proposal for a letter to Syria seeking Mr. Arar’s release,
to be signed jointly by the Minister of Foreign Affairs and the Solicitor General.
It was felt that having the Solicitor General, the minister responsible for the
RCMP and CSIS, sign the letter might carry extra weight with Syrian authorities.
A draft letter was prepared. However, after receiving advice from officials,
including some within the RCMP and CSIS, the Solicitor General decided against
signing the letter in the form proposed. Mr. Arar’s “statement” to the Syrian
authorities likely played a role in the assessment made by some officials of
Mr. Arar’s status in the ongoing investigation and the advice given to the Solicitor
General. I discuss the proposed letter in detail below. However, I raise it here
to highlight the importance of a coordinated approach to assessing the circumstances under which a statement such as Mr. Arar’s may have been taken, in
order that all officials who may be involved in ongoing diplomatic efforts operate on a consistent and informed basis — in this case, one alive to the risks of
torture and an unreliable statement.
4.
CANADIAN INVESTIGATIONS
4.1
BOUT DE PAPIER
On November 3, 2002, Ambassador Pillarella met with General Khalil and discussed Mr. Arar’s case. According to his testimony, the Ambassador indicated
that Canada wanted Mr. Arar returned to Canada, as he had not been charged
with anything, and General Khalil responded that he was certain Mr. Arar was
a member of al-Qaeda, adding that Mr. Arar had admitted to taking mujahedeen
training in Afghanistan in 1993 and having associations with others who were
terrorists. The Ambassador asked if he could have a written résumé of the
�IMPRISONMENT AND MISTREATMENT IN SYRIA
information, thinking that it would be in the interest of both Canada and Mr. Arar
to know what information the Syrian authorities had against Mr. Arar.
General Khalil arranged for the production of the bout de papier described
above. Ambassador Pillarella delivered the document to DFAIT ISI when he
travelled to Ottawa the next day. After having it translated, DFAIT distributed it
to the DFAIT Consular Affairs Bureau, the RCMP and CSIS.
This series of events raises two very important issues. The first is whether
the Ambassador should have asked for the bout de papier in the first place. By
the time he met with General Khalil, the Ambassador should have been aware
that the information in question was likely the product of torture. That being the
case, there is a concern that requesting the bout de papier could have been
viewed as condoning the use of torture and even encouraging it in other cases.
Decisions about how to interact with a country with a poor human rights
record such as Syria, particularly when a Canadian is detained in that country,
can be very difficult and do not lend themselves to simple or prescriptive rules.
At the time that Ambassador Pillarella obtained the bout de papier, DFAIT had
no policy spelling out the process or criteria for making decisions about receiving information from such a country. In effect, the decision was left to the
Ambassador’s judgment.
In my view, the Ambassador’s action in obtaining the bout de papier was
not unreasonable. The Ambassador did not ask for the information volunteered
by General Khalil during the meeting of November 3. However, once the
Ambassador was made aware of what Mr. Arar had allegedly confessed, he considered that it would be helpful to have “the allegations” set down in writing,
for clarity if nothing else.
Moreover, in a situation such as Mr. Arar’s, it could be advantageous for
Canadian officials to know what Syria considered the case against him to be.
Depending on the circumstances, Canadian officials might be able to assist by
disproving the allegations. Indeed, in Mr. Arar’s case, when it appeared some
months later that the Syrian authorities were going to put Mr. Arar on trial,
Mr. Pardy attempted to obtain information through Mr. Arar’s family to disprove
the statement that Mr. Arar had been in Afghanistan for mujahedeen training in
1993. Further, depending on what information was made available, there might
also be an advantage in terms of diplomatic efforts. Canadian officials might be
in a better position to seek access to or argue for a detainee’s release if they had
more information about the detainee’s case.
Importantly as well, by November 3, the Syrian authorities were permitting
consular visits of Mr. Arar. Two visits had taken place, on October 23 and 29,
and the Syrians had indicated that more would follow. Thus, even if Mr. Arar had
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been tortured previously, it appeared unlikely that there was any intention to
subject him to physical torture in the future.
Given all these circumstances, I am satisfied that Ambassador Pillarella did
not act unreasonably or improperly in obtaining the bout de papier and delivering it to Ottawa. That said, I am of the view that Canada needs a more structured and disciplined approach to interacting with and receiving information
from countries with questionable human rights records. In Chapter IX, I recommend that decisions to receive information from a country such as Syria be
made on a case-by-case basis, relying on all available information, in a manner
that allows for accountability. It is important in these types of situations that
Canadian officials exercise caution, to avoid taking any action that appears to
condone or encourage human rights abuses.
The second issue that arises with respect to the bout de papier has to do
with what happened after Ambassador Pillarella delivered it to DFAIT ISI. As I
point out above, DFAIT did not carry out a formal assessment of whether the
information reportedly obtained from Mr. Arar had been obtained through torture, even though it was in the best position of any Canadian agency to conduct
such an assessment. Had it carried one out, it would have concluded that the
information was likely a product of torture and, therefore, of questionable reliability. Not only did DFAIT fail to do an assessment, it passed the bout de papier
on to the RCMP and CSIS without providing an appropriate warning about the
likelihood of torture.
There was some evidence suggesting that a discussion about the possibility of torture had taken place at a meeting of DFAIT, RCMP and CSIS officials in
Ottawa on November 6, 2002. However, if such a discussion was held, it was
very casual at best, and the RCMP officers who should have been warned of the
concern about torture and the reliability of the bout de papier received no such
warning. Thus, the bout de papier was distributed to the RCMP and CSIS without adequately drawing attention to the extremely important concern about its
questionable reliability. This was unfair to Mr. Arar and potentially misleading
to those who received the information. Indeed, as I discuss below, it appears
that the RCMP officers became more suspicious of Mr. Arar’s connections to terrorist activities as a result of the bout de papier, and this heightened suspicion
may have affected their willingness to support efforts to obtain Mr. Arar’s
release.
In Chapter IX, I recommend that, when a Canadian agency or department
receives information from a country with a questionable human rights record, it
conduct a proper reliability assessment and attach that assessment to the information if it is disseminated to others.
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4.2
CSIS TRIP
4.2.1
CSIS Investigation into Mr. Arar
National security confidentiality concerns prevent me from disclosing publicly
most of the investigative actions undertaken by CSIS after Mr. Arar’s removal to
Syria. However, I am able to discuss, in general terms at least, the trip that CSIS
personnel took to Syria in November 2002.
On November 6, 2002, a meeting was held at DFAIT in Ottawa and a number of issues relating to Mr. Arar were discussed, including the bout de papier
brought back by Ambassador Pillarella and the possibility of CSIS travelling to
Syria to meet with the SMI. In attendance were CSIS, RCMP and DFAIT ISI representatives, as well as Ambassador Pillarella. No one from Consular Affairs was
invited. Mr. Pardy did not become aware of the CSIS trip until after the fact.
Ambassador Pillarella briefed the attendees on the results of his meetings
with Syrian authorities. At the Inquiry, he testified that the bout de papier had
been received with some scepticism by everyone at the meeting, but that there
had been no discussion about the risk or possibility of torture. Inspector Michel
Cabana, the senior officer with Project A-O Canada, testified that it had been
agreed at this meeting that information obtained to that point was not specific
enough to determine its accuracy and that more detailed information was
required. It had also been agreed that CSIS officials would travel to Syria to meet
with SMI officials in order to obtain information about Mr. Arar and to discuss
other matters. While DFAIT ISI officials were interested in having CSIS go to
Syria, they were concerned that CSIS not take on any consular duties with
respect to Mr. Arar. RCMP representatives indicated that they did not want CSIS
to interview Mr. Arar for evidentiary reasons. CSIS agreed with the concerns
expressed by DFAIT and the RCMP.
On November 19, 2002, CSIS officials travelled to Damascus, where they
met with the SMI and obtained some information concerning Mr. Arar. The senior CSIS official present at the meeting testified that the officials had not given
the Syrian authorities any information about Mr. Arar and that there had been
no discussion about when Mr. Arar would be released or about CSIS’ views
regarding Mr. Arar’s imprisonment. The official indicated that they had very purposefully not raised the subject of Mr. Arar’s release, as it had been a consular
matter. According to that official, no one from CSIS had suggested that CSIS did
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not want Mr. Arar released and returned to Canada. I have no reason not to
accept this evidence.
The CSIS officials did not see Mr. Arar, provide the SMI with questions to
ask Mr. Arar, or encourage the SMI to interrogate Mr. Arar further. The
exchange between the two agencies as it related to Mr. Arar was limited to the
provision by the SMI of information it had reportedly obtained from him.
However, I note that CSIS did not do an adequate reliability assessment of
the information provided by the SMI, particularly with respect to whether that
information could be the product of torture. Moreover, CSIS shared this information with other agencies without giving a warning about the likelihood of
torture. As a result, any reliance on this information by CSIS and others was misguided and misplaced.
CSIS relied on this information to the prejudice of Mr. Arar on at least two
occasions in circumstances that I heard in camera. I repeat what I stated earlier
in relation to DFAIT: if CSIS had done an adequate assessment, it would have
concluded that the information was likely the result of torture and therefore of
questionable reliability. Unfortunately, an assessment was done by a person
with no expertise in torture and the conclusion was that there likely was no
torture.
I am satisfied that it was appropriate for CSIS personnel to meet with the
SMI in the circumstances that existed in November 2002. There was appropriate consultation among Canadian officials about the proposed trip beforehand,
DFAIT was consulted and approved, and the Minister of Foreign Affairs was
apprised of the trip in advance. Moreover, the CSIS officials who met with the
SMI were careful not to encroach on matters that were more properly the
domain of the DFAIT Consular Affairs Bureau. In particular, they did not discuss
the question of Mr. Arar’s release. Their role in relation to Mr. Arar was to
receive information, and nothing else.
Furthermore, there was a legitimate investigative purpose in meeting with
the SMI to receive information obtained from Mr. Arar. There was reason to
believe that the SMI had information relevant to the Canadian investigation in
which Mr. Arar was a person of interest.
There are occasions when it is necessary for Canadian investigative officials to interact with countries with poor human rights records, such as Syria.
These interactions can be very important in countering the global threat of terrorism. However, there are significant risks attached, particularly when the country in question is detaining a Canadian. The officials of the detaining country may
interpret communications with Canadian investigative officials as a sign of
approval of their abusive tactics or, in a case where Canada is seeking the release
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of the individual, as a signal that the investigators do not support the Canadian
position. Moreover, when verbal communications take place, there is the risk
that the officials of the detaining country may, intentionally or otherwise, put a
different construction on something that is said to suit their own purposes. One
should not expect that officials in countries of this sort will necessarily act in an
honourable or straightforward manner.
Such risks were demonstrated in this case by what occurred in January
2003. Syrian officials indicated, on at least three occasions, that CSIS had said it
did not want Mr. Arar released and returned to Canada. While the Syrian officials did not specifically link the alleged CSIS statement to the meeting in
November 2002, that appears to have been the implication. In any event, the
CSIS visit seems to have provided Syrian officials with a platform to take the
position, even if concocted, that CSIS had said it did not want Mr. Arar
returned.15
Clearly, great care must be taken when Canadian investigative agencies are
proposing to interact with officials in a country with a poor human rights record,
particularly when a Canadian is being detained in that country. Decisions in this
respect must be made on a case-by-case basis, though in accordance with applicable policies. Moreover, it is essential that all Canadian agencies with an interest or expertise in the area be involved in the decision making and that those
with ultimate responsibility be directly accountable for the decisions made. In
addition, any interactions that do take place must be as controlled as possible,
to safeguard against Canadian complicity in human rights abuses or the perception that Canada condones such abuses. If it is determined that there is a
credible risk that the Canadian interactions would render Canada complicit in
torture or create the perception that Canada condones the use of torture, then
a decision should be made that no interaction is to take place.
Finally, I repeat what a number of RCMP and CSIS witnesses said about
information from a country with a questionable human rights record. As Deputy
Commissioner Garry Loeppky put it, the RCMP would have significant concerns
about the validity or value of information received from a country where human
rights abuses may occur. The reliability of such information is always in question. While it would be wrong to ignore such information or to automatically
assume that abuse or torture was used to extract it, the possibility of torture is
an important factor in assessing its reliability.
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4.3
CONTINUING RCMP INVESTIGATION
After hearing about Mr. Arar’s imprisonment in Syria on October 21, 2002, Project
A-O Canada continued its investigation and took specific steps to gather as
much information about Mr. Arar as it could. For reasons of national security
confidentiality, I am unable to go into many of the specifics of the investigation.16
However, I am able to say that the investigation as it related to Mr. Arar was
comprehensive and thorough.
From October 2002, when it learned of Mr. Arar’s imprisonment in Syria,
until about March 2003, Project A-O Canada periodically considered taking three
steps in connection with Mr. Arar: offering to share information from its investigation with the Syrian authorities, seeking an opportunity to interview Mr. Arar,
and sending questions to Syria to be asked of Mr. Arar. In the end, it did none
of these things.17 The RCMP had no direct contact with the Syrians about Mr. Arar
at any time during his detention. Thus, while I would be very concerned about
the RCMP providing information or questions to authorities in a country such as
Syria for purposes of interrogating a Canadian detainee, the RCMP took no such
steps with respect to Mr. Arar. It is worth pointing out as well that the RCMP officers testified that they would not have taken any of those steps without involving DFAIT. That is an important point. In Chapter IX, I make recommendations
to ensure that, in the future, no steps such as those mentioned above may be
taken without following a coordinated and accountable process within the
Canadian government.
Periodically during the time that Mr. Arar was imprisoned in Syria,
Project A-O Canada provided senior officers at “A” Division and in the Criminal
Intelligence Directorate (CID) at RCMP Headquarters with information emanating from its investigation. On occasion, the information that was passed up the
chain of command was inaccurate or tended to overstate Mr. Arar’s status in
that investigation. For example, a briefing note to the RCMP Commissioner dated
October 17, 2002 described Mr. Arar as a “target” of the investigation, rather
than a “person of interest,” and contained some inaccurate information about his
activities. I discuss the implications of this reporting in my discussion about
DFAIT’s efforts, in May and June 2003, to obtain a letter seeking Mr. Arar’s
release signed by both the Minister of Foreign Affairs and the Solicitor General,
the minister responsible for the RCMP.
It is important to bear in mind that, while the RCMP was investigating
Mr. Arar, DFAIT provided it with copies of some consular reports and the bout
de papier containing a summary of Mr. Arar’s alleged confession to the SMI. As
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stated earlier, there was no mention that the “confession” was probably the
product of torture even though DFAIT should have been aware of the likelihood. Furthermore, the report of the first consular visit, which took place on
October 23, 2002, was interpreted by some as indicating that Mr. Arar had not
been tortured.
Leaving aside the question of whether DFAIT should have provided consular information obtained from Mr. Arar to the RCMP at all, it was important
when it did so to make it clear that Mr. Arar had likely been tortured. Viewed
in that light, the confession described in the bout de papier would have been
subject to serious concern about its reliability. As it was, it increased the interest or suspicions of some investigators about Mr. Arar.
In the end, the RCMP’s extensive investigation of Mr. Arar, which continued after Mr. Arar was imprisoned in Syria and, indeed, for months even after
his return to Canada and involved co-operation with American agencies, did
not turn up any evidence that he had committed a criminal offence. Throughout,
Mr. Arar was a person of interest only. There is no evidence indicating that
Mr. Arar constitutes a threat to the security of Canada.
5.
EFFORTS TO OBTAIN MR. ARAR’S RELEASE
5.1
MR. EDELSON’S LETTER
Shortly after learning that Mr. Arar had been imprisoned in Syria, Michael
Edelson, an Ottawa lawyer who had previously acted for Mr. Arar, met with
Mr. Pardy, Director General of Consular Affairs, to discuss steps to try to obtain
Mr. Arar’s release. They came up with the idea of asking the RCMP to provide
a letter to aid their efforts to persuade the Syrian authorities to release Mr. Arar.
On October 31, 2002, Mr. Edelson wrote to tell Project A-O Canada that
Mr. Pardy thought that a letter from the RCMP could be helpful. The lawyer
asked that the RCMP letter confirm the following four points:
•
•
•
•
the RCMP had not made any request to have Mr. Arar “deported” to Jordan
or Syria;
Mr. Arar did not have a criminal record;
Mr. Arar was not wanted in Canada for any offence and there was no
warrant for his arrest; and
Mr. Arar was not a suspect with respect to any terrorism-related crime.
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There was considerable discussion within the RCMP about how to respond
to the letter. On November 16, 2002, Inspector Cabana wrote to Mr. Edelson and
addressed the first two points, indicating that the RCMP had not played a role
in the situation in which Mr. Arar found himself and that Mr. Arar had no criminal record. He went on to say that it would be improper to comment on
Mr. Arar’s situation in relation to the RCMP investigation. He did not confirm that
Mr. Arar was not wanted for any offence and that there were no warrants for his
arrest in Canada. He then referred Mr. Edelson back to DFAIT.
Not surprisingly, this letter was not useful to those attempting to obtain
Mr. Arar’s release and so was not given to the Syrian authorities. Nothing further was done to try to obtain the RCMP’s assistance in the release efforts until
the months of May and June 2003. I discuss those events below.
There are two aspects of Mr. Edelson’s attempt to obtain a letter from the
RCMP that deserve comment. First, this effort reveals a lack of a coordinated and
cohesive approach by Canadian officials with respect to obtaining Mr. Arar’s
release. Mr. Pardy was supportive of Mr. Edelson’s efforts. However, as RCMP
officers testified, the RCMP considered Mr. Pardy’s suggestion that Mr. Edelson
seek a letter from the RCMP highly inappropriate. It viewed the matter of
Mr. Arar’s release as DFAIT’s responsibility and did not consider that it should
play a role.18 As a result, there was resistance to providing the letter requested
and little inclination to work constructively towards providing a letter that would
be helpful.
There was no government policy or guideline to provide direction as to
how decisions to respond to a request such as Mr. Edelson’s should be made
or what role the RCMP should play in seeking the release of a detainee such as
Mr. Arar. DFAIT and the RCMP had potentially different interests in relation to
what should be done. When Canadians are detained abroad in connection with
terrorism-related investigations, it is very important that there be a coordinated
and cohesive approach to the Canadian response, including efforts to obtain
the release of an individual, if warranted. It is also important that decisions of
this nature be made in a way that ensures accountability and, when differences
of approach between departments or agencies arise, there be a process to
resolve such differences. In Chapter IX, I make recommendations for such a
process.
My second comment with respect to Mr. Edelson’s request has to do with
Mr. Arar’s status in the Project A-O Canada investigation. As I mention several times in this report, Mr. Arar was a person of interest, not a suspect in
that investigation. A number of reasons were given for the RCMP’s disinclination
to indicate in a letter that Mr. Arar was not a suspect with respect to a
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terrorism-related offence. Among them was the fact that, as a matter of practice,
the RCMP does not comment on the status of individuals in an investigation.
I leave it to those responsible for making decisions in the future to decide,
on a case-by-case basis, whether such a practice is always the best course.
However, I note that in Mr. Arar’s case, at least one senior officer considered it
problematic to indicate that Mr. Arar was not a suspect because of the bout de
papier reporting Mr. Arar’s alleged confession about attending a training camp
in Afghanistan in 1993, which DFAIT shared with the RCMP around the same
time. The problem, of course, was the likelihood that torture had been used,
making the “confession” unreliable, and the lack of a cautionary note to that
effect.
5.2
MINISTER’S INVOLVEMENT
5.2.1
Meetings With Secretary Powell
On November 14, 2002, Foreign Affairs Minister Bill Graham met with U.S.
Secretary of State Colin Powell. In the course of their meeting, they discussed
Mr. Arar’s case and Minister Graham raised Canada’s concerns about the
American removal of Mr. Arar to Syria.
In response, Mr. Powell insisted that the United States was unfairly taking
the blame for Mr. Arar’s situation. He maintained that Canadian law enforcement
officers had been aware of Mr. Arar’s expulsion to Syria all along and suggested
that, in some fashion, they had given their blessing. He also emphasized that the
American decision to remove Mr. Arar had been based on information provided
by Canada. Minister Graham replied that Canada did not countenance sending
Mr. Arar to Syria.
When informed of Secretary Powell’s statement, members of the RCMP
objected strongly. They insisted, as they have to this day, that RCMP officers
had not been involved in the decision to send Mr. Arar to Syria.
My conclusions in this respect are set out in Chapter IV. I have found no
evidence to support a conclusion that RCMP officers participated or acquiesced
in the American decision to send Mr. Arar to Syria. On the other hand, I find that
it is very likely that the decision was based, at least in part, on evidence provided
by the RCMP.
I have one observation about Minister Graham’s meeting with Secretary
Powell. The Minister was not briefed on the operational circumstances relating
to Mr. Arar’s case before the meeting. He knew very little about the actual
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investigation. This was the result of a long-standing practice whereby operational details of law enforcement investigations were not provided to others,
including politicians, to protect the independence of the investigations. In most
circumstances, there is merit to this approach and I can understand why Minister
Graham was not briefed more fully in this case.
That said, I think that there needs to be more flexibility in some cases, particularly where a minister becomes involved in a matter connected with a
Canadian detained abroad in a terrorism-related investigation. In such a situation, it may be important to brief the minister about circumstances relating to the
case and include operational information, in order for the minister to effectively
carry out his role. The meeting of November 14, 2002 is a good example of a
situation where there would have been benefit to providing the minister with
more information. Unlike Minister Graham, Secretary Powell appeared to be
well informed about the operational details of the case. Minister Graham was not
able to effectively respond to the Secretary’s assertions. That was unfortunate.
I can imagine situations where there may be a significant advantage to
Canadian diplomatic efforts to brief a minister about the circumstances of a particular investigation, even a criminal investigation. Doing so need not compromise the investigation — or the autonomy of the investigation — and need not
involve the minister in giving operational directions. However, when communications between a minister and a law enforcement agency are necessary, those
communications should be clear and in writing so that there can be no misunderstanding about the role played by the minister. In Chapter IX, I set out recommendations for a consultative process to be used to address circumstances
when a Canadian is detained abroad in connection with a terrorism-related matter. I envision the use of that process for decision making with respect to
whether a minister needs to be briefed about an investigation.
Minister Graham raised the Arar case with Secretary Powell a second time
during a NATO meeting in Prague on November 21 and 22, 2002. Secretary
Powell essentially repeated the message conveyed during the meeting on
November 14, 2002.
5.2.2
Minister Graham’s Telephone Call to Syrian Foreign Minister
Following the November 14, 2002 meeting with Secretary Powell, Minister
Graham decided to call the Syrian foreign minister, Farouk Shara’a, to discuss
the Arar case. Initially, the telephone call was scheduled for November 19, 2002.
However, the phone call did not proceed.
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Although Minister Graham could not recall why the call had not taken
place, I find that it was postponed pending receipt of a report on the visit to
Syria by CSIS personnel scheduled for November 19 and the days following. I
conclude that it was reasonable for Minister Graham to delay his phone call to
Minister Shara’a until after he had a report of the CSIS visit, as he needed to have
as much information as possible about what the Syrian authorities were thinking before making the call. Moreover, no matter how well Minister Graham’s
telephone call was received by Minister Shara’a, it was unlikely that Syria would
respond very quickly. Therefore, the delay was not likely to be a matter of great
consequence.
DFAIT officials next attempted to arrange a phone call between the two
ministers for December 16, 2002. Again, the call did not take place, this time
because of scheduling problems.
By the time Minister Graham did speak to Minister Shara’a by telephone on
January 16, 2003, Syrian officials were alleging that CSIS had indicated it did not
want Mr. Arar returned to Canada. Minister Graham communicated Canada’s
position as plainly as he could, spelling out clearly and forcefully that Canada
wanted Mr. Arar returned. I will come back to the alleged CSIS statement and
the content of Minister Graham’s phone call in more detail below.
For present purposes, I note that almost two months elapsed between the
time it was decided that Minister Graham should speak to Minister Shara’a and
the time the call actually took place. Obviously, in cases such as Mr. Arar’s, one
should not unnecessarily delay entreaties seeking the detainee’s release.
However, in Mr. Arar’s case, there was also merit in proceeding in an informed
manner. It made sense for the Minister to await the report of the CSIS trip before
placing the call, to learn the “lay of the land,” as it were. All the same, one
would have thought that the call could have been arranged sooner than
January 16, 2003.
In any event, it does not appear to have really mattered when the phone
call was placed, as it does not seem to have had any effect. Mr. Arar remained
in a Syrian prison for another eight months.
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5.3
MIXED SIGNALS
5.3.1
Questions for Mr. Almalki
5.3.1.1
Relevance
On January 15, 2003, the Canadian consul, Léo Martel, delivered a letter from
the RCMP to General Khalil on the instructions of Ambassador Pillarella.
Enclosed was a series of questions to be posed to Abdullah Almalki, a subject
of Project A-O Canada’s investigation who was incarcerated at the Palestine
Branch at the time.
In the letter, the RCMP offered to share with the Syrian authorities “large
volumes of highly sensitive documents and information, seized during investigative efforts or obtained from confidential informants associated to terrorist
cells operating in Canada.”19
Among the questions to be posed to Mr. Almalki were some about his relationships with a number of individuals, most of whom the SMI would have considered to be very heavily involved in terrorist activities. Although not a terrorist
suspect or even the subject of a national security investigation, Mr. Arar was
included with these individuals.
The Inquiry is directed at investigating or reporting on the actions of
Canadian officials as they relate to Mr. Arar, not Mr. Almalki. Some have accordingly argued that addressing the matter of the questions for Mr. Almalki falls
outside my mandate. I do not agree. At the time the questions were delivered,
Mr. Arar was in the custody of the SMI. The covering letter referred to investigative efforts in regard to “terrorist cells operating in Canada,” the implication
being that Mr. Almalki was a member of a terrorist cell. Further, by this point,
the SMI would have believed that Canadian investigators suspected Mr. Arar of
being linked to Mr. Almalki. Indeed, Ambassador Pillarella, who had considerable contact with the SMI, testified that the cases of Messrs. Almalki and Arar had
been connected in the Syrian authorities’ minds. The message in the covering
letter and the questions for Mr. Almalki had the potential to heighten the SMI’s
concern about the seriousness of Mr. Arar’s involvement in terrorist activities.
The argument against my addressing this matter goes on to say that there
is no evidence that the letter worsened Mr. Arar’s position in the eyes of the SMI,
and thus delayed his release. Indeed, there is no evidence that the SMI paid any
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attention to the letter at all, as it never responded. Thus, the letter and questions
cannot be said to have “caused” Mr. Arar any harm. They did not cause any of
the matters enunciated in the Order in Council — in particular, his imprisonment
and treatment in Syria.
In my opinion, that argument takes an unnecessarily narrow view of my
mandate. As I state in Chapter I, I do not think that the mandate limits me to
investigating and reporting only on actions of Canadian officials found “to have
caused” one of the events listed in paragraphs i) to iv) of the Order in Council.
The enumerated matters are illustrative, not restrictive. The mandate directs that
I report on actions of Canadian officials in relation to Mr. Arar, including in
regard to the matters enumerated. The action of sending Mr. Arar’s Syrian custodians a letter and questions that could have been interpreted as suggesting that
Mr. Arar had links to a terrorist cell in Canada is a matter “in relation to Mr. Arar.”
Unlike criminal or civil trials, public inquiries are not focussed on whether
actions have caused certain harms. They are concerned more generally with the
propriety of actions, even when those actions merely increase the risk of harm,
rather than “cause harm” in the legal sense.
Moreover, paragraph (v) of the list in the Order in Council specifically
directs that I report on “any other circumstances directly related to Mr. Arar that
[I consider] relevant to fulfilling [my] mandate.”20 I am satisfied that the “Almalki
questions” fall within this part of my mandate. The questions and covering letter could have had the effect of raising the SMI’s suspicions about Mr. Arar.
That, in itself, is a circumstance directly related to Mr. Arar.
In addition, I believe that it is important that I report on the “Almalki questions” because they provide one of the clearest examples of a problem that
needs to be addressed and avoided in the future. In Chapter IX, I make recommendations as to how Canadian officials should manage situations where
Canadians are detained abroad in connection with terrorism-related allegations.
The “Almalki questions” and the surrounding events present a compelling argument for taking steps to ensure that decisions about communications between
Canadian investigators and regimes such as that in Syria that could affect
Canadian detainees are appropriate, consistent with government policy and
made by those who are politically accountable.
Thus, I am satisfied that addressing the questions sent to Syria for
Mr. Almalki falls within my mandate. With that said, I will go back to the summer of 2002, when the series of events that led up to the provision of the questions began.
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5.3.1.2
Background Events
By the summer of 2002, the RCMP was having internal discussions about sending questions to be posed to Abdullah Almalki, who was in Syrian custody. The
Syrian authorities had offered to ask questions of Mr. Almalki. It was also considering sending questions for another subject of investigation, Ahmad El Maati,
who by this time was in Egyptian custody.
In July 2002, Project A-O Canada had a number of meetings with representatives of CSIS and DFAIT ISI to discuss sharing information with Syrian
authorities. Representatives of the Department of Justice were also involved, as
were officers from CID at RCMP Headquarters.
On August 15, 2002, the RCMP officers were advised that Mr. El Maati had
informed a Canadian consular official in Cairo that he had been interrogated
and tortured while in Syrian custody from November 2001 to January 2002 and
that the statement he had given Syrian authorities had been false. The information about Mr. El Maati’s allegation of torture and recantation of his statement
was made available to the RCMP, CSIS, DFAIT and Justice personnel involved
with the investigations relating to Messrs. Almalki and El Maati.
On several occasions over the next five months, RCMP and DFAIT ISI officials debated the issue of the RCMP sending questions to the SMI for Mr. Almalki.
Clearly, there was some discussion about whether Mr. Almalki might be tortured. However, there is serious conflict in the evidence as to whether or not
DFAIT ISI ultimately approved the decision to send questions to the SMI. Project
A-O Canada officers testified that the ISI officers had approved sending questions, whereas the ISI officers testified that they had advised against doing so.
The issue was discussed at a meeting on September 10, 2002, which was
attended by officers from Project A-O Canada and CID, officials from DFAIT ISI
and Ambassador Pillarella. Those present have varying recollections about what
discussion took place concerning the issue of torture. Some testified that they
did not recall a rather ominous comment made by Jonathan Solomon, a comparatively junior official with DFAIT, to the effect that “if you are going to send
questions, would you ask them not to torture him?” Others indicated that they
remembered hearing the comment, but had not considered it important at the
time.
While I accept that the “torture” comment was made at the September 10
meeting, it appears to have been interpreted as more of a casual remark made
in passing than a forceful statement or position. No one from DFAIT prepared
a memorandum for the RCMP recording the concern about the possibility of
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torture. I would have expected that, when dealing with a matter as serious as
the risk of torture, DFAIT officials would have provided much clearer direction
when the issue of sending questions to Syria was raised.
On October 10, Mr. Solomon wrote an internal memorandum that read
in part:
The RCMP are ready to send their Syrian counterparts a request that Al Malki be
asked questions provided by the RCMP, questions relating to other members of his
organization. Both ISI and DMSCUS/HOM [Ambassador Pillarella] have pointed out
to the RCMP that such questioning may involve torture. The RCMP are aware of
this but have nonetheless decided to send their request.21
Mr. Solomon testified that his statement about the RCMP being aware of the
possibility of torture had been a reference to the discussion at the September 10
meeting, while his comment that the RCMP had “decided to send their request”
might have been an assumption on his part.
Ambassador Pillarella testified that he had not been warned of the possibility of torture at the September 10 meeting.
What followed over the ensuing months was a disappointing and very
unfortunate lack of communication between DFAIT officials and the RCMP.
Another meeting between the RCMP and DFAIT was held on October 25
to discuss the issue of providing Syrian authorities with information about
Mr. Almalki. Mr. Solomon testified that the possibility of sending questions for
Mr. Almalki and the issue of torture had been raised for a second time. He indicated that DFAIT officials had come out of the meeting displeased with the
RCMP position and had decided to draft a memorandum to propose that the
Deputy Minister of Foreign Affairs send a short letter to the RCMP recommending that questions not be sent. Mr. Solomon drafted a memorandum dated
October 30 setting out what he thought might be stated in a letter to the RCMP.
Included was a warning that, if the RCMP sent questions, “there [was] a credible risk that [questioning] would involve torture”22 and it was therefore not
appropriate to send questions. Other DFAIT ISI officials testified that they also
had believed that there was a credible risk of torture if questions were sent.
In any event, ISI never forwarded the draft memorandum to senior officials
within the department and, consequently, DFAIT did not send the proposed letter to the RCMP. The explanation given by ISI officials for this failure is that
they had believed that the matter had been resolved within the RCMP and had
understood that the RCMP was not going to send questions to Syria for
Mr. Almalki. However, no one in DFAIT could point to a conversation or
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exchange during which this understanding had been reached and there is no
document or record setting out the basis for such an understanding.
For his part, Inspector Cabana testified that he had not been aware of
DFAIT’s understanding that the questions were not to be sent. He said that the
“credible risk of torture” concern had never been communicated to the RCMP
despite at least one more meeting with DFAIT officials in November 2002.
According to the RCMP officers, when they had sent the questions to Syria for
Mr. Almalki, they had been under the impression that DFAIT officials, who
knew of their plans, had no objections. Indeed, this belief on their part had
been reinforced when Ambassador Pillarella had agreed to have the questions
delivered to General Khalil.
I find it most unfortunate that, in a matter as important as the questioning
of a Canadian citizen in Syrian custody when the prospect of torture was very
real, that there could have been such a total breakdown in communication
between Canadian officials. DFAIT’s concern about torture should have been
communicated clearly and forcefully, if necessary, to the RCMP.
5.3.1.3
Delivery of Questions
By mid-December, Project A-O Canada had abandoned any idea of travelling
to Syria to interview Mr. Almalki itself. Based on the advice of Ambassador
Pillarella, it had determined that the SMI would be most unlikely to permit a
direct interview and had decided to send the SMI questions to be posed to
Mr. Almalki instead.
Project A-O Canada thus arranged to have a series of questions for
Mr. Almalki translated into Arabic. The communication failure between the
RCMP and DFAIT Headquarters in Ottawa persisted. The RCMP believed that
DFAIT was aware of the translation process, while DFAIT officials other than
Ambassador Pillarella, to whom I will come back, apparently had no idea that
the RCMP had set in motion a process to send questions to Syria.
By December 20, both the English and Arabic versions of the questions had
been prepared and approved by the “A” Division CROPS Officer and CID at
RCMP Headquarters. Interestingly, there also appears to have been a miscommunication about the questions at RCMP Headquarters. Superintendent Wayne
Pilgrim, the senior officer in the NSIB, approved the questions, but his superior,
Assistant Commissioner Richard Proulx, was not involved in the approval
process and even later was under the impression that questions had not been
sent.
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On January 7, 2003, Project A-O Canada sent the final version of the questions to the RCMP liaison officer (LO) in Rome, who had responsibility for Syria.
The LO prepared a draft covering letter and sent it to the Project for approval.
It seems that no one within the RCMP was overly concerned about the possibility that torture might be used to obtain answers to the questions. Some never
gave the matter any thought, while others believed the risk was warranted
because of the “imminent” nature of the terrorism threat being addressed in the
RCMP investigation. In any event, the RCMP officers reasoned that, if DFAIT
had no objections, there was no problem. They were encouraged by the fact that
the Canadian Ambassador had agreed to have the questions delivered to the
SMI.
The questions for Mr. Almalki included a series on his relationships with a
number of individuals, most of whom, by anyone’s assessment, were serious
terrorist threats. Mr. Arar was included in this list of individuals. There was no
discussion within the RCMP or elsewhere about the potential impact on Mr. Arar
of sending questions in which he was linked with individuals who were serious
terrorist threats. According to Inspector Cabana, the inclusion of Mr. Arar’s name
did not imply that he was a terrorist.
As I mention above, the covering letter addressed directly to General Khalil
offered to share information seized “during investigative efforts . . . associated
to terrorist cells operating in Canada.” The letter also offered to send a second
series of questions, depending on how the RCMP assessed the quality and accuracy of the answers to the first. No second set of questions was ever sent.
On January 14, 2003, the RCMP LO met with Ambassador Pillarella in
Damascus and gave him a sealed envelope containing the covering letter and
questions. Although the Ambassador did not open the envelope, he knew it
contained questions for Mr. Almalki. There was no discussion of the possibility
of torture or of a mixed message to the Syrians concerning the Canadian position on Mr. Arar’s release. In his testimony, the Ambassador stated that he
recalled the LO saying something about having “authority from Ottawa.” The
Ambassador indicated that he had thought consultations had taken place
between the RCMP and DFAIT ISI and that DFAIT had approved the decision
to provide questions. Consequently, there had been no reason for him to verify
DFAIT’s approval. When the LO testified, he could not recollect the conversation about having “authority from Ottawa.”
Ambassador Pillarella gave the sealed envelope to Mr. Martel and instructed
him to deliver it to the SMI. The Ambassador said that his decision to deliver the
envelope with the questions had been based on the “extraordinary unprecedented cooperation” displayed by the Syrian authorities with respect to Mr. Arar
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and the unlikelihood that they would “turn around and mistreat another
Canadian.”23 The Ambassador went on to say that, since there had been no indication from the consular visits that Mr. Arar had been mistreated, there had
been no reason for the Ambassador to assume there would be mistreatment of
Mr. Almalki if the questions were put to him. This reasoning was flawed. As I
conclude above, the Ambassador should have appreciated that Mr. Arar had
likely been tortured when questioned.
The Ambassador testified that he had been unaware that DFAIT ISI officials in Ottawa had concluded that there was “a credible risk of torture” if the
questions were provided to the Syrian authorities. On January 15, 2003,
Mr. Martel delivered the envelope to the SMI. He was not aware of the envelope’s contents, as he had not been informed by the Ambassador. Canadian officials never received a reply to the letter, and there is no indication of whether
or not the questions were posed to Mr. Almalki.
When the questions were submitted, no one from the Canadian Embassy
had visited Mr. Almalki. Despite requests from consular officials, the Syrian
authorities had consistently refused access.
5.3.1.4
Conclusions
I reach two conclusions about the questions for Mr. Almalki. First, the description of the various circumstances surrounding the questions presents a picture
of an enormous failure of communication among Canadian officials.
DFAIT ISI was of the view that there was a “credible risk” of torture if the
questions were delivered to the SMI. Officials with ISI testified that the RCMP had
been informed of this and had agreed not to send the questions.
In contrast, officers with both Project A-O Canada and RCMP CID testified
that they had had the exact opposite view of the situation. They had understood that ISI was not opposed to submitting the questions to Syria and had not
raised any serious concerns about torture. Further, they pointed to the fact that
Ambassador Pillarella, Canada’s representative in Syria, had had the final say
and had agreed to give the Syrians the questions.
Ambassador Pillarella is the final element in this sorry state of affairs. He testified that he had understood that ISI had authorized the delivery of the questions and had been unaware of ISI’s concern about a risk of torture. Incredibly,
there is virtually no written record of the communications among the various
parties involved.
This startling breakdown in communication clearly attests to the need for
a formalized, coherent process for addressing issues relating to Canadian citizens
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detained abroad in connection with terrorism-related investigations. In
Chapter IX, I recommend such a process. This situation should never be allowed
to recur.
My second conclusion with respect to the questions for Mr. Almalki is that
providing them to the SMI had the potential to create an impression in the
Syrians’ minds of mixed messages from Canada regarding what should happen
with respect to Mr. Arar.
On the one hand, on January 16, 2003, Minister Graham clearly indicated
in a telephone call to the Syrian foreign minister that Canada’s position was that
Mr. Arar should be released and returned to Canada. On the other, one day
before that telephone call, the RCMP delivered to the SMI a letter and questions
that could reasonably suggest that the RCMP was investigating terrorist cells in
Canada, that Mr. Almalki was involved in those cells, and that there was a possible connection between Mr. Arar and Mr. Almalki. Ambassador Pillarella testified that he was convinced that the Syrian authorities had linked the cases of
Messrs. Arar and Almalki when dealing with Canada. Given these circumstances,
there was a risk that the SMI would conclude that, while the Canadian politicians
wanted Mr. Arar returned to Canada, the RCMP considered him to be a serious
terrorist threat. Given the SMI’s propensity to do what it considered in its own
best interests, it would not be surprising if it decided to hold Mr. Arar until all
of its investigations, including those relating to Mr. Almalki, were complete.
All of that said, I have no way of knowing what effect, if any, the questions
for Mr. Almalki had on the SMI’s view of Mr. Arar and his imprisonment. It may
be that there was no effect at all. The fact remains, however, that sending the
questions in the particular circumstances was unwise and increased the risk that
Syria would not respond favourably to Minister Graham’s entreaties that it
release Mr. Arar. In addition, sending the questions created an unacceptable risk
that the Syrians would harm Mr. Almalki when asking the questions.
Finally, I note that one of the reasons given by Inspector Cabana for sending the questions was the continued existence of an “imminent threat” to the
security of Canada. However, the questions were not sent until January 2003. By
then, the threats being investigated by Project A-O Canada no longer fell within
the “imminent” category. Sixteen months had passed since the attacks of 9/11
and the last specific threat — a threat to blow up a prominent building in the
National Capital Region — was over a year old. Moreover, the two main targets
of the Project A-O Canada investigation, Messrs. Almalki and El Maati, were in
custody overseas. Without diminishing the importance of the Project’s investigation, I think it fair to say that, by that time, the threats being investigated fell
short of being “imminent.”
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I recognize that this may be another instance where lack of training and
expertise in national security investigations on the part of Project investigators
played a role. This deficiency is most unfortunate given Canada’s obligation
under article 10 of the Convention against Torture to ensure that education and
information regarding the prohibition against torture are fully included in the
training of law enforcement personnel who may be involved in the interrogation or treatment of any individual subjected to any form of arrest, detention or
imprisonment. The point remains that it is essential that persons with the necessary expertise and experience be involved in making decisions about the
“imminence” of threats.
I note also in regard to the issue of lack of training that the RCMP LO
responsible for Syria had no training with respect to Syria’s human rights record.
5.3.2
Alleged CSIS Statement
In January 2003, Syrian officials informed Ambassador Pillarella that CSIS had
told the SMI that it did not want Mr. Arar returned to Canada. If true, this would
have undermined Canadian efforts to have Mr. Arar released. CSIS denied making the statement.
The events involving the alleged statement began on January 15, 2003,
when Ambassador Pillarella and Mr. Martel met with Deputy Foreign Minister
Haddad to review Mr. Arar’s case and discuss the possibility of a visit by his
wife, Dr. Mazigh. At that meeting, Mr. Haddad said two rather curious things.
First, he stated that Mr. Arar did not want to return to Canada. This was obviously false, as Mr. Arar clearly wanted to be released from Syrian custody and
go back to Canada. He had given Mr. Martel a letter to his wife to that effect.
The second statement is the one that raises the issue of the CSIS position.
In a note to DFAIT Headquarters, Ambassador Pillarella recorded what the
Deputy Foreign Minister had said as follows: “CSIS would have indicated to military intelligence [SMI] that they have no wish to see Arar return to Canada and
they were quite content with the way things were.”24 In their testimony,
Ambassador Pillarella and Mr. Martel both suggested that Deputy Foreign
Minister Haddad might not have mentioned “CSIS” specifically, but might in fact
have said “your people” or “you,” or something to that effect. I am satisfied,
however, that the Ambassador correctly reported the conversation, including
the reference to CSIS, in the note prepared shortly after the meeting.
Ambassador Pillarella was not provided with details as to what CSIS official
had supposedly made the statement or in what circumstances. I note, however,
that around the same time, he was told essentially the same thing by two other
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Syrian officials, Deputy Minister Walid Mouallem and General Khalil.
Ambassador Pillarella testified that, each time the alleged statement had been
raised, he had assured the Syrian officials that Canada did want Mr. Arar back
if the Syrian authorities had nothing against him.
Ambassador Pillarella quite properly reported the January 15 conversation
with Deputy Foreign Minister Haddad to DFAIT Headquarters in Ottawa. On
receiving the report, DFAIT contacted CSIS, and Jack Hooper, Assistant Director
of Operations for CSIS, was informed. He in turn met with the CSIS personnel
who had travelled to Syria in November 2002 on the assumption that, if anyone
from CSIS had made the statement, it would have been during that trip. The
individuals in question assured Mr. Hooper that they had not told the SMI that
CSIS did not want Mr. Arar back in Canada, nor had they said anything to create that impression. Accordingly, Mr. Hooper informed DFAIT that no one from
CSIS had made the alleged statement.
On January 16, the day after Deputy Minister Haddad had told Ambassador
Pillarella about the “CSIS statement,” Minister Graham called Foreign Minister
Shara’a. Having been briefed about the Ambassador’s conversation and the “CSIS
statement” prior to this telephone call, Minister Graham specifically raised the
issue of the suggestion that Canada did not want Mr. Arar to be returned and
emphasized that “the Canadian government would like Mr. Arar to be returned
to Canada.”25 This message was clear and direct.
At around the same time, a DFAIT official delivered a similar message
directly to Ambassador Arnous in Ottawa. Interestingly, during their conversation, Ambassador Arnous mentioned that he, too, had heard about the “CSIS
statement.”
In addition, DFAIT Headquarters asked Ambassador Pillarella to inform
General Khalil and Deputy Minister Haddad of the Minister’s clear statement
about the Canadian position. Ambassador Pillarella emphasized in his testimony
that he had made it clear in all his contacts with Syrian officials that Canada’s
position was that Mr. Arar should be released and returned to Canada.
It appears that, after the Minister’s phone call, the issue remained dormant
for about two months, until March 21, 2003. On that date, the Syrian ambassador to Canada, Ahmad Arnous, met in Ottawa with two Canadian members of
Parliament, Marlene Catterall and Sarkis Assadourian, who were intending to go
to Syria to see Mr. Arar and plead for his release. At that meeting, Ambassador
Arnous once again referred to the fact that CSIS did not want Mr. Arar returned
to Canada. Mr. Assadourian responded that the Syrians had misunderstood what
CSIS had said, and both Ms. Catterall and Mr. Assadourian indicated that this was
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a serious misinterpretation and that Canada spoke with one voice in saying that
it wanted Mr. Arar back.
Ms. Catterall reported the conversation to Myra Pastyr-Lupul of the Consular
Affairs Bureau, who recognized the significance of this information and considered it imperative that CSIS rectify the situation. When Ms. Pastyr-Lupul raised
the matter, she was advised to place a note in the file. She wrote:
They [Ms. Catterall and Mr. Assadourian] learned that, initially during this case, CSIS
officials told the Syrians that they “have no interest in Arar”. The Syrians took this
to mean that the CSIS have no interest in having Arar back. They [CSIS] may have
meant that they have no security reasons to investigate Arar in Canada. Due to the
miscommunication, the Syrians believed that CSIS did not want Arar back in Canada,
and therefore decided to detain him/keep him in Syria.26
Ms. Pastyr-Lupul moreover indicated that she believed that CSIS should
send a clear message that it had no information to lead it to believe Mr. Arar was
a security threat.
Through no fault of Ms. Pastyr-Lupul, the matter apparently went no further.
CSIS was never informed that the issue had resurfaced and was not asked to
communicate directly with the SMI to clarify any misunderstanding.
Two questions arise with regard to the “CSIS statement.” First, did someone
from CSIS actually make the statement? Second, should more have been done
to set the record straight with the Syrian authorities?
There is no evidence other than the statements of Syrian officials to
Canadian officials that a CSIS employee actually made the statement. The senior official from CSIS who travelled to Syria in November testified at the Inquiry
and was questioned closely on this matter. He denied having made the statement
or any other statements likely to have been misconstrued by the Syrians to mean
that CSIS did not want Mr. Arar back. I have no reason not to accept that evidence. Moreover, senior CSIS personnel testified that, before the trip, the participants had been instructed not to discuss the issue of Mr. Arar’s release with
the Syrians. They had been told that the issue was a consular matter and should
be left to consular officials. Other CSIS officials who had dealt with Mr. Arar’s
case also testified at the Inquiry and also denied making the statement to the
Syrians. It is possible that there were contacts between CSIS personnel and the
SMI about which I have not heard — for example, contacts relating to
Mr. Almalki, who was in SMI custody throughout the relevant period. If there
were, it is possible that someone else made the statement. However, I have no
evidence of that having occurred.
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It does seem rather unusual that three Syrian officials would refer to a statement in early 2003 and then Ambassador Arnous would repeat it again some
time later if the statement was never made. However, I recognize that Syrian officials were far from forthcoming and candid in their dealings with Canadian officials. They lied about Mr. Arar’s whereabouts during his early days of
imprisonment. Moreover, Deputy Minister Haddad’s statement on January 15
that Mr. Arar did not want to return to Canada was obviously false. It is therefore certainly plausible that Syrian officials also lied about a statement by CSIS
that it did not want Mr. Arar returned to Canada. They could have been using
that as an excuse to mask their own wishes to continue holding Mr. Arar.
On the other hand, the evidence shows that CSIS did have some reasons
for not wanting Mr. Arar to return to Canada. There was ongoing concern about
embarrassment to the government if Mr. Arar was released and turned out to be
involved in terrorist activities. There was also concern about the need for additional resources to monitor Mr. Arar’s case if he was returned to Canada, as well
as about the effect Mr. Arar’s release could have on some pending security certificate cases.27 CSIS also expressed concern that the U.S. government might
question Canada’s motives and resolve if Mr. Arar was released, as the American
authorities had removed him because of his alleged terrorist connections. That
said, there is no evidence that any of these concerns led anyone from CSIS to
tell the Syrians that CSIS did not want Mr. Arar released.
Thus, while the possibility that someone from CSIS made the alleged statement is disturbing, I have no reason not to accept the evidence of the CSIS personnel who testified that the statement was not made by them.
With regard to the issue of whether DFAIT or CSIS should have done more
to set the record straight with the Syrian authorities, I am satisfied that, when the
concern first arose in mid-January 2003, DFAIT responded reasonably. Minister
Graham used clear language in addressing the matter in his phone call to
Minister Shara’a. DFAIT moreover took steps to inform Ambassador Arnous,
Deputy Minister Haddad and General Khalil about the Canadian position.
It was reasonable, in my view, for Canadian officials to consider that the
Syrian misperception about the “CSIS statement” had been cleared up. Those
involved at DFAIT and CSIS did not consider it necessary to take the additional
step of having CSIS convey directly to the SMI that Canada spoke with one voice
in saying it wanted Mr. Arar back. While such a communication might have
been prudent to ensure that all doubt was erased, I can understand why officials
would have considered the minister-to-minister conversation sufficient. Further,
there was nothing in the responses of the Syrian foreign minister, ambassador,
deputy minister and general to indicate to Canadian officials that more needed
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to be done. The matter appeared to have been resolved, at least until March 21,
when Ambassador Arnous met with Ms. Catterall and Mr. Assadourian and
raised the issue again.
The fact that the Syrian ambassador raised the issue again over two months
after Minister Graham’s phone call to the Syrian foreign minister is troubling. The
assumption after that phone call had been that the Syrians understood that
Canada had a single position. Indeed, the fact and content of the Minister’s
phone call had been recounted to Ambassador Arnous in January and he had
appeared satisfied.
Thus, when he raised the issue again on March 21, there should have been
concern that something had gone awry. Significantly, it was Ambassador Arnous
who brought up the “CSIS statement” at that meeting. Moreover, he did not
mention the Minister’s phone call of January 16. It is possible that the
Ambassador was still using the issue as a smokescreen to excuse the lack of
action. However, the matter was murky at best. There was no way to be certain
about what was really going on in the Syrian authorities’ minds and whether they
had made up the CSIS statement for their own purposes or really believed that
CSIS did not want Mr. Arar returned. There was a reasonable concern that the
Minister’s phone call had failed to accomplish its purpose. Given the uncertainty, it seems to me that it would have been wise to pursue the matter further.
It would not have been difficult for CSIS to clarify the matter, preferably in writing, with the SMI.
When assessing this situation, it is important to keep in mind the power
structure in Syria. As pointed out by Daniel Livermore, Director General of ISD,
the Syrian foreign minister wielded less influence than Syria’s intelligence service, the SMI. Further, General Khalil, the head of the SMI, who was in charge of
Mr. Arar’s detention, preferred dealing with other intelligence agencies rather
than with politicians or police forces. Thus, a view expressed to the SMI by
Canada’s intelligence agency, CSIS, might have carried more weight for the SMI
than one expressed to the Foreign Ministry on the same subject. If CSIS said or
was understood to have said that Canada did not want Mr. Arar back, that might
have been accorded more importance than a statement by a foreign minister
that the Canadian government wanted him back.
I recognize that it is by no means certain that a clarification by CSIS would
have made any difference to the Syrian authorities. In situations such as this, it
is difficult to know what may help and what may be to no avail. However, when
a Canadian is being held in what could be expected to be unacceptable conditions, and the Canadian government has taken the position that it wants the person released, all Canadian agencies that have something to contribute should do
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everything possible to support Canada’s position. In many cases, the task of
seeking release will fall solely to DFAIT. However, if, as in this case, circumstances are such that it would be helpful for other departments or agencies to
assist and support release efforts, then those departments or agencies should
become involved.
I would add that, even if the Syrian officials made up the “CSIS statement,”
there was still an advantage to setting the record straight, to prevent the fabricated excuse from confusing any future diplomatic entreaties for Mr. Arar’s
release. Furthermore, a false allegation should not be allowed to go unanswered.
CSIS was in the best position to put this issue to rest.
In Chapter IX, I recommend the development of a process for addressing
issues relating to Canadians detained abroad in terrorism-related cases. Part of
that process calls for coordination of efforts among Canadian agencies and
departments. Had there been a more formalized coordinated process in place
in March of 2003, the issue of the “CSIS statement” could have been handled in
a much more satisfactory way.
5.4
VISIT BY MEMBERS OF PARLIAMENT
On April 22, 2003, two Canadian members of Parliament, Marlene Catterall and
Sarkis Assadourian, visited Mr. Arar while he was in custody in Syria.
The idea for the MPs’ visit was conceived in late 2002 and travel plans were
made for mid-March 2003. DFAIT briefed the two MPs about the case on
March 11. However, approval from the Syrian government and the necessary
visas were not received in time for the planned departure date and the trip had
to be postponed until the April recess of Parliament.
DFAIT arranged for the MPs to deliver a letter from Minister Graham to the
Syrian foreign minister expressing support for the visit and echoing the MPs’
desire to see Mr. Arar released. In that letter, the Minister indicated that there
was no Canadian government impediment to Mr. Arar’s return.
Ms. Catterall also sought a letter from Solicitor General Wayne Easter stating that there was no evidence on which to charge Mr. Arar, as she was concerned about the possibility that the Syrian authorities understood that CSIS did
not want Mr. Arar returned to Canada. The Solicitor General declined her
request, stating that, in his view, his role was confined to law enforcement and
national security and did not include representing Canada’s interests abroad, a
responsibility that fell to the Prime Minister and the Minister of Foreign Affairs.
At the time, the government had no formal policy governing situations where
investigative agencies were called on to assist in obtaining the release of a
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Canadian detained abroad. In Chapter IX, I make recommendations for a process
to address such situations.
Upon their arrival in Damascus, the two MPs were briefed by Ambassador
Pillarella on the consular visits held up to that point, the fact that there had been
no consular visits for over two months, and the conversations he had had with
Syrian officials. He indicated that the Syrians had serious concerns that Mr. Arar
might have been involved with al-Qaeda and might have attended a training
camp in Afghanistan. Even though this latter information probably had its source
in the Syrian interrogation of Mr. Arar, Ambassador Pillarella did not caution
the MPs that the information was likely the product of torture.
On April 22, the two MPs, along with Ambassador Pillarella, met with Syrian
officials. Ms. Catterall delivered Minister Graham’s letter and made a plea for
Mr. Arar’s release. Deputy Foreign Minister Mouallem explained that the U.S.
decision to remove Mr. Arar to Syria via Jordan had taken his government by
surprise. The Syrian authorities had not asked for him; they had expected him
to be sent to Canada. He indicated that, because of the international campaign
against terrorism, Syria had had no choice but to take Mr. Arar and question him
on his alleged affiliation with al-Qaeda. The MPs were advised that the Syrian
authorities had finished their investigation and would be sending Mr. Arar to
stand trial on charges of belonging to al-Qaeda and having received military
training in al-Qaeda camps in Afghanistan.
The MPs and Ambassador Pillarella met with Mr. Arar for about fifteen or
twenty minutes. The meeting was very controlled. Mr. Arar was permitted to
speak in Arabic only and his responses were translated. The MPs were told to
confine their questions to Mr. Arar’s health and family matters. Mr. Arar
appeared thin and somewhat disoriented. There was discussion about Mr. Arar’s
family, and the MPs told Mr. Arar that the Canadian government was doing
everything possible to obtain his return to Canada.
After the meeting, Ambassador Pillarella had a debriefing session with the
MPs and prepared a report of the day’s events for Ottawa. In his report, he indicated that, had the MPs “been more fully briefed in Ottawa, they would have
reconsidered undertaking their mission to Damascus.”28 This comment seems
to suggest that, when the MPs learned that Syrian authorities considered Mr. Arar
a threat, their faith in his case was shaken. In her testimony, Ms. Catterall denied
that this had been said and stated that she did not know where the Ambassador
had gained that impression. The Ambassador concluded his report by noting
the remarkable level of co-operation by Syrian authorities, given that Mr. Arar
was a Syrian citizen and the Syrians do not usually grant access in such cases.
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This was not the only time that the Ambassador complimented the Syrians for
allowing consular access to Mr. Arar.
The Ambassador’s report on the MPs’ visit was sent to DFAIT Headquarters
and subsequently distributed to the RCMP and CSIS. Mr. Pardy gave authorization to distribute the report to the RCMP, but not to CSIS. I discuss the issue of
the distribution of consular reports below. Here, I simply make the point that
consular visits are intended to assist detainees, as was obviously the case on
April 22, and it is the normal expectation that consular reports will be kept confidential. They are not intended to be used to investigate allegations against
detainees. In Chapter IX, I recommend a process that uses a case-by-case
approach to addressing the question of distributing consular reports to other
agencies.
5.5
“ONE VOICE” LETTER
5.5.1
May 5 Memorandum
During the months of May and June 2003, DFAIT made a number of proposals
for a letter from Canada to Syria seeking Mr. Arar’s release. The thrust of those
proposals was to send a message to Syria that Canada — including the RCMP
and CSIS — spoke with one voice in seeking Mr. Arar’s release and that there
was no reason Mr. Arar could not be returned to Canada. In my view, the RCMP
and CSIS should have been supportive of DFAIT’s efforts to have Mr. Arar
released from his illegal and inhumane detention in Syria. By that time, he had
already been separated from his wife and two small children for over seven
months.
By April 2003, Mr. Pardy’s frustration about the lack of progress in obtaining Mr. Arar’s release was growing. He expressed his disheartenment in an
e-mail to Dr. Mazigh on April 12, 2003, indicating that not everyone in Canada
agreed with what DFAIT was doing in support of Mr. Arar and that the Syrian
authorities were aware of the fact. By then, the Syrians were not sending
encouraging signals about Mr. Arar’s situation. Consular access had become
increasingly limited and, during the MPs’ visit to Syria, Syrian officials indicated
that Mr. Arar would be charged and tried shortly.
Mr. Pardy therefore prepared a draft action memorandum for the Minister
of Foreign Affairs aimed at establishing a common understanding within the
Government of Canada and producing a letter expressing a single point of view,
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to be signed by the Solicitor General (the minister responsible for CSIS and the
RCMP) and the Minister of Foreign Affairs, for use with the Syrian authorities.
The memorandum, dated May 5, 2003, was circulated to other agencies,
including the RCMP and CSIS. It emphasized that Mr. Arar was not wanted in
Canada for any criminal activity and provided some background on his case. It
also outlined the two elements that Mr. Pardy believed were required if there
was to be any hope of Mr. Arar’s release: a clear statement, preferably signed
by the Solicitor General and the Minister of Foreign Affairs, that Canada had “no
evidence” that Mr. Arar was or had been a member of al-Qaeda, and a statement
that the information used by the United States to remove Mr. Arar to Syria had
not originated with Canadian authorities, since Canada did not have any information indicating that he belonged to al-Qaeda.
On May 8, a meeting of DFAIT, CSIS and RCMP officials was held to discuss Mr. Pardy’s memorandum, but no agreement was reached. In a briefing
note prepared after the meeting, CSIS advised the Solicitor General “very
strongly” against signing a joint letter.29 Among other things, CSIS was uncomfortable with a statement that there was “no evidence” linking Mr. Arar to
al-Qaeda. Also, as I state earlier, there was concern that Mr. Arar’s release might
send the wrong message to the United States, the country that had rendered
Mr. Arar to Syria, about Canada’s motives and resolve in the fight against terrorism. CSIS wanted to make it clear to the Solicitor General that there was
“political jeopardy” in signing a joint letter and that bringing Mr. Arar back to
Canada was going to be a political “hot potato” with American authorities.30 The
briefing note failed to bring the following points to the Solicitor General’s
attention:
•
•
•
•
Mr. Arar was imprisoned in a country where authorities had a propensity
to torture people.
[***].
Mr. Arar, a Canadian citizen with a wife and two young children, had been
in Syria for a long time.
The United States had removed Mr. Arar to Syria in very questionable circumstances.
Jack Hooper testified he was certain DFAIT would have raised these matters with its Minister. DFAIT had expertise in consular issues, whereas CSIS had
expertise in security intelligence. Its advice to the Solicitor General had been
restricted to those matters that related to the duties of the Solicitor General.
A follow-up meeting involving the same agencies was held on May 12, but
again, no agreement was reached. The RCMP and CSIS balked at a statement that
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Canada had “no evidence” that Mr. Arar was a member of al-Qaeda. Mr. Pardy
agreed to redraft the memorandum and supply a copy to all parties before submitting it to his Minister.
5.5.2
June 5 Memorandum
In a memorandum to his Minister dated June 5, Mr. Pardy abandoned the suggestion of a joint letter from the Solicitor General and the Minister of Foreign
Affairs and recommended instead that Minister Graham send a letter to the
Syrian foreign minister. The proposed draft letter contained a plea for Mr. Arar’s
return on humanitarian and compassionate grounds, as well as an assurance
that there was no Canadian government impediment to Mr. Arar’s return to
Canada, but did not include the “no evidence” reference. The language used was
virtually identical to that in the Minister’s earlier letter to the Syrians delivered
by the two MPs in April, a letter that had failed to draw a formal response from
Syrian authorities or improve consular access to Mr. Arar.
5.5.3
June 17 Proposal
On June 12, Minister Graham met with Dr. Mazigh, who requested that the
Government of Canada make a clear statement that it had no evidence linking
Mr. Arar to terrorism and that it wanted him returned to Canada immediately.
She indicated that she understood that not everyone in government wanted
Mr. Arar returned, and that a letter from CSIS to the Syrian authorities would
have more clout.
In response, the Minister’s office revised the draft letter prepared by
Mr. Pardy, adding, “I assure you that there is no evidence he is involved in terrorist activity”31 to the statement concerning there being no impediment to
Mr. Arar’s return to Canada. It is understandable that the Minister was looking
for more robust language in what would now be his second letter to the Syrian
minister of foreign affairs, since the earlier “no impediment” language had
seemed to have no effect.
Mr. Pardy was asked to seek concurrence from the Solicitor General, the
RCMP and CSIS on the proposed language. On June 18, the RCMP responded,
with CSIS approval, by suggesting the following new language for a letter to
Syria:
Mr. Arar is currently the subject of a national security investigation in Canada.
Although there is not sufficient evidence at this time to warrant Criminal Code
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charges, he remains a subject of interest. There is no Canadian government impediment to Mr. Arar’s return to Canada.32
The proposed language was not helpful. The problem, of course, was that
Mr. Arar was not “the subject of a national security investigation.” In fact, had
such a message been sent to the Syrians, it might have actually made matters
worse for Mr. Arar. Deputy Commissioner Loeppky himself described this language as counter-productive to efforts to seek Mr. Arar’s return to Canada.
Mr. Pardy testified that the position of the RCMP and CSIS seemed to have hardened over the months.
In the end, Minister Graham did not send another letter. Mr. Pardy shifted
his focus away from front-line government personnel and appealed to the Prime
Minister to become involved. As I describe below, he succeeded.
In reviewing the roles of the RCMP and CSIS in DFAIT’s efforts to obtain a
“one voice” letter, it is important to bear in mind Mr. Arar’s status in the Canadian
investigation. The RCMP was the lead investigative agency with respect to
Mr. Arar. RCMP witnesses at the Inquiry testified that Mr. Arar had not been
suspected of any criminal offence. He had not been the subject or target of the
Project A-O Canada investigation, but a person of interest, whom the Project had
wanted to interview as a witness because of his associations with certain
individuals.
5.5.4
RCMP’s Role
The RCMP should have been supportive of DFAIT’s efforts to obtain a “one
voice letter” seeking Mr. Arar’s release. I recognize that the RCMP is a law
enforcement agency and that, clearly, the primary responsibility for making
efforts to obtain Mr. Arar’s release fell to the Minister of Foreign Affairs and
DFAIT. However, there were a number of circumstances in May and June 2003
that should have prompted the RCMP to support those efforts. To begin with,
the RCMP knew that Mr. Arar was being held in Syria, a country known for its
abusive treatment and beating of prisoners, as well as its harsh detention conditions. The RCMP also knew, or should have known, that the likelihood of a
fair trial in Syria was remote, since Syria’s reputation in this regard was widespread. It was reasonable to assume that Mr. Arar’s human rights were being violated and would be further violated in the future. Certainly, DFAIT was very
concerned.
The RCMP also knew, or should have known, that it had provided American
agencies with a good deal of information about Mr. Arar (although it might not
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have appreciated at this point just how inaccurate some of it was) and that it was
possible that the information had been used to send Mr. Arar to Syria. Certainly,
American officials referred on several occasions to having relied on Canadian
information. By the time the “one voice” letter was being sought, the RCMP was
aware that the American authorities had removed Mr. Arar to Syria using the
questionable practice of extraordinary rendition, when they could have instead
removed him to Canada, a few hundred miles away. Most importantly, the RCMP
knew that Canada wanted Mr. Arar returned. The Minister of Foreign Affairs,
who next to the Prime Minister was the most senior individual politically
accountable for Mr. Arar’s fate, had formally asked Syria for Mr. Arar’s release.
Canada’s position unquestionably was that it wanted Mr. Arar returned.
In view of all these circumstances, the RCMP should have been as supportive as possible of the attempts to obtain Mr. Arar’s release.
I can understand the RCMP’s reluctance to sign an unequivocal statement
directed at a foreign agency that there was “no evidence” that Mr. Arar was a
member of al-Qaeda or connected to terrorist activities. In fairness, the RCMP
must be very careful in making this kind of absolute statement. Moreover, it did
have some information that raised its interest in Mr. Arar’s associations, such as
his meeting at Mango’s Café with Mr. Almalki on October 12, 2002. That said,
the RCMP did not suspect Mr. Arar of having committed any offence.
While the RCMP was invited to provide alternative language to the June 17
proposal, Deputy Commissioner Loeppky indicated that the RCMP “[did] not
believe it would be advisable for Mr. Graham to send this letter to his Syrian
counterpart”33 and, as discussed, the language proposed was not helpful. There
were surely ways the RCMP could have fairly stated its position, yet helped
Mr. Arar. For example, the letter could have said that Mr. Arar was not the subject of a national security investigation in Canada. That would have been true.
Moreover, it could have indicated that the RCMP, the lead investigative agency
in Canada with regard to Mr. Arar, supported the government’s request for his
return. Having the Solicitor General sign the letter might have sent this latter
message. In any event, given the SMI’s negative attitude toward politicians, it
would have been helpful for the RCMP, the lead Canadian investigator, to communicate its support for Minister Graham’s position.
Before leaving the issue of the RCMP’s role, there is one further point I
wish to make. Unfortunately, some senior RCMP officers might have made decisions about how to respond to the DFAIT requests for assistance on the basis
of inaccurate information about Mr. Arar.
A briefing note to the Commissioner dated April 30, 2003,34 which provided
a short description of Mr. Arar’s status, contained some of the same inaccurate
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information that the RCMP had provided to the American agencies about
Mr. Arar. It stated that Mr. Arar had “refused” to be interviewed by the RCMP
(referring to January 2002) and had left for Tunisia “shortly” after being
approached for an interview. It also indicated that Mr. Arar was a “highly connected individual associated with several suspected criminal extremists.” These
statements are a good example of how inaccurate information can, over time,
become the accepted truth and be passed on as such. Mr. Arar had not refused
an interview or left “shortly” after being approached about one, and it was an
overstatement to say that he was highly connected to several suspected criminal extremists. Moreover, the briefing note also said that Mr. Arar had “volunteered” that he had received training in a camp in Afghanistan, referring to his
statement to Syrian interrogators. The note did not mention that this statement
was likely the product of torture and therefore of dubious reliability, or that his
attendance at a camp in 1993 carried a totally innocent connotation. Thus, senior officers in the RCMP might have had a more negative view of Mr. Arar’s case
than was warranted and been less supportive of DFAIT’s release initiatives than
would have been the case had they been supplied with accurate information.
5.5.5
CSIS’ Role
CSIS should have been supportive of DFAIT’s initiatives to obtain a letter that
would assist in obtaining Mr. Arar’s release from Syrian custody. I can understand that, like the RCMP, CSIS was concerned about approving a letter that
would unequivocally assert to the Syrians that there was “no evidence” that
Mr. Arar was linked to al-Qaeda or terrorist activities. However, in my view, it
could have taken steps to assist the release efforts.
It was well known that the SMI, which was holding Mr. Arar, paid more
heed to intelligence agencies than to politicians or even police officers. CSIS
also knew that Canada’s official position was that it wanted Mr. Arar returned.
It was in a unique position among Canadian officials and agencies to send a
message to the SMI that might have carried weight.
Although a letter signed by the Solicitor General, the minister responsible
for CSIS, could have been very helpful in the endeavour to obtain Mr. Arar’s
release, CSIS advised the Solicitor General “very strongly” against signing a letter after the May 8, 2003 meeting to discuss Mr. Pardy’s proposal. While CSIS
was against the “no evidence” language in the proposed letter, a different letter, in which the disputed language was modified or even removed to take institutional concerns into account, could nonetheless have been drafted.
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The Inquiry record reveals that CSIS, for reasons of its own, preferred that
Mr. Arar not return to Canada. On June 5, at the time Mr. Pardy’s latest draft letter was being forwarded to Foreign Affairs Minister Graham, Jack Hooper,
Assistant Director of Operations for CSIS, called an assistant deputy minister at
DFAIT to discuss DFAIT’s efforts in general to obtain the release of terrorismrelated detainees abroad. His conversation that day and other evidence indicate
that CSIS was concerned that, if detainees such as Mr. Arar were returned to
Canada, CSIS would require more resources to monitor individuals. Mr. Hooper
also testified that, during the June 5 call, he had been thinking that, if Mr. Arar
returned to Canada and made allegations of torture, CSIS could encounter difficulties in engaging the full process in security certificate cases. By this, he
meant that efforts to deport individuals from Canada to Syria might be impaired
because of an increased concern that Syria engaged in torture. Although this
concern had been on his mind on June 5, Mr. Hooper said that he had not raised
it in the telephone conversation.
The important point here is that, throughout the time DFAIT was trying to
obtain a “one voice” letter, CSIS had reasons to prefer that Mr. Arar not return.
While it did not have an “official” position opposing Mr. Arar’s return, it did
nothing to assist DFAIT. Indeed, it advised the Solicitor General not to sign a
“one voice” letter. And although Jack Hooper apparently did not attempt to
interfere with a proposed letter to be signed by the Foreign Affairs Minister,
CSIS joined with the RCMP on June 18 in proposing inaccurate language for the
letter, to the effect that Mr. Arar was the subject of a national security investigation. I find that CSIS should have offered support to DFAIT in its efforts to
have Mr. Arar released. The institutional concerns it raised could not justify a failure to be supportive of the Canadian position that Mr. Arar be released forthwith.
5.5.6
Summary
I have discussed the series of events relating to the “one voice” letter in some
detail because it is an excellent illustration of the reason Canada needs a protocol to coordinate the activities of all Canadian agencies that deal with individuals detained abroad in connection with terrorism-related matters. In
Mr. Arar’s case, Canada’s official position was clear: Mr. Arar should be released
and returned to Canada. The RCMP and CSIS could have been supportive of
efforts to obtain his release without compromising the integrity of the Canadian
investigation or saying anything inaccurate.
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I note that there appears to be strong support for establishing a system
under which all agencies involved in a case such as Mr. Arar’s would consult and
develop a coordinated course of action. Decisions would be made and any disagreements among agencies resolved in a politically accountable manner. Once
a course of action was determined, all agencies would be fully supportive.
This proposed regime was set out in a presentation prepared by Mr. Pardy
at the end of February 2003, and Mr. Hooper discussed its main features in his
telephone call with DFAIT on June 5, 2003. In Chapter IX, I recommend that a
protocol along the above lines be developed.
5.6
PRIME MINISTER’S LETTER
When, towards the end of June 2003, there was still no consensus for a letter
from the Minister of Foreign Affairs to the Syrian foreign minister and it appeared
unlikely that the Solicitor General would sign any letter, DFAIT officials put forward the idea of having the Prime Minister send a letter. It was felt that such a
letter would send a strong message to the Syrians that all Canadian agencies,
including the RCMP and CSIS, wanted Mr. Arar released.
At this same time, DFAIT was involved in preparations for the Prime
Minister to send a special envoy, Senator Pierre De Bané, to Saudi Arabia in
relation to another matter involving a Canadian citizen in detention, William
Sampson. The senator was asked and agreed to deliver a letter from the Prime
Minister of Canada to the President of Syria.
The Prime Minister’s letter, dated July 11, 2003, asked that Mr. Arar be
released and returned to Canada. In it, the Prime Minister stated: “I can assure
you that there is no Canadian government impediment to his return.”35 This language was acceptable to the RCMP and CSIS. The letter did not say that Mr. Arar
was the subject of a national security investigation in Canada.
The senator travelled to Saudi Arabia and then Syria. On July 22, he delivered the Prime Minister’s letter to the Syrian deputy foreign minister and was
assured that the letter would be brought directly to the attention of the President
of Syria.
Thus, in the end, Canada did speak with “one voice.” One would hope that
the message the Syrians received was that all Canadian agencies supported the
request for Mr. Arar’s release.
I have no way of knowing for sure what impact the Prime Minister’s letter
had, or whether the three and a half months taken to obtain a “one voice” letter made any difference in terms of when Mr. Arar was released. In any event,
the point I wish to make again is that, if Canada decides at the senior political
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level that it wants a detainee released, Canadian agencies should be as supportive as possible of that decision.
6.
CONSULAR SERVICES
6.1
CONSULAR VISITS PRIOR TO AUGUST 2003
Mr. Arar was in Syrian custody from about October 9, 2002 to October 5, 2003.
During that time, he had a total of nine consular visits. The Canadian consul, Léo
Martel, was the only person permitted access to Mr. Arar, with the exception of
the visit by the two MPs and Ambassador Pillarella on April 22, 2003. The last
consular visit, on August 14, 2003, raises issues that are different from the others and I discuss it separately, in Section 6.3 below.
I am satisfied that Mr. Martel and Ambassador Pillarella did everything reasonably possible to obtain as much access to Mr. Arar as possible. The background relative to their requests for access to Mr. Arar is very important. Mr. Arar
is a dual citizen of Canada and Syria. As a Canadian citizen, Canada quite properly asserted that Mr. Arar was entitled to consular services, including visits from
Canadian consular officials, while in custody.
Syria, however, held a very different view of the matter. Syria takes the
position that an individual born in Syria is a Syrian citizen only; it does not recognize any other citizenship. Thus, because Mr. Arar was born in Syria, the
Syrian government did not recognize his Canadian citizenship and, consequently, did not accept that he had a right to Canadian consular services. As
Syria would have it, Canadian consular officials had no right to any information
about Mr. Arar, including the reasons for his detention, and no right of access
to him. Leaving aside the legality of this position, the practical result was that
Mr. Arar was in Syrian custody and Canadian officials trying to provide him with
consular services were subject to the Syrian authorities’ wishes or even whims.
While some may suggest that pressure could have been brought by Canada in
this respect, the fact remains that the Syrians controlled the situation and would
decide what they would permit as they saw fit. All analysis of what Canadian
consular officials did in respect of Mr. Arar must be viewed against this
background.
The Syrian position with respect to dual nationals was not newly adopted
for Mr. Arar. It is well known that Syria has taken this position for years.
According to evidence I heard, records at the Canadian Embassy in Damascus
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showed that Syrian authorities had not granted Canada consular access to a
Canadian/Syrian dual national for at least 14 years.
In view of this practice, it was a welcome surprise when, on October 22,
General Khalil indicated that a consular visit with Mr. Arar could take place the
following day and that there could be regular consular visits.36
As it turned out, consular visits were permitted far less frequently than
General Khalil had initially intimated. As mentioned, there were nine visits,
spread over 10 months, as follows: October 23 and 29, November 12 and 26,
December 10, 2002, January 7, February 18, April 22 (the MPs’ visit) and August
14, 2003. As time passed, the Syrian authorities became much less responsive to
Mr. Martel’s requests for visits. Phone calls were not returned and Mr. Martel
judged, reasonably I believe, that the Syrian authorities might refuse access completely if he pushed too hard for more visits. Mr. Martel had to walk a rather fine
line in seeking access without unduly aggravating the Syrians, who were inconsistent and somewhat unpredictable in their responses to requests. It must be
remembered that, in the first part of 2003, Syria was preoccupied with the situation in Iraq and responding to Canadian requests for visits with Mr. Arar might
have fallen far down the list of priorities.
In March 2003, Mr. Martel was informed that, in future, requests for visits
would be dealt with by the Ministry of Foreign Affairs rather than the Syrian
Military Intelligence. No reason was given for the change. However, it was not
an auspicious sign for Mr. Arar. Experience indicated that the Ministry was much
more bureaucratic and very slow to respond to requests for visits. In point of
fact, after this time, only two visits took place and both were the result of somewhat unusual circumstances. The first, on April 22, was the visit from the two
MPs. Four months elapsed before the other, on August 14. That visit came
shortly after a public outcry in response to a report issued by the Syrian Human
Rights Committee, a human rights organization based in London, United
Kingdom, that Mr. Arar had been tortured. I come back to the August 14 visit
below.
I will not go through the steps Mr. Martel took to obtain consular access to
Mr. Arar for each of the visits. Suffice it to say that I believe he acted reasonably in the circumstances and, in the end, was able to visit Mr. Arar far more
often than one would have expected, based on previous experience with Syrian
authorities.
Mr. Arar’s counsel raised concerns regarding the way in which Mr. Martel
and his superior, Ambassador Pillarella, had reported on the substance of the
consular visits. It was suggested that the reports of the visits had not always
been accurate or complete, that they had brought “optimism rather than
�IMPRISONMENT AND MISTREATMENT IN SYRIA
scepticism” to the evaluation of Mr. Arar’s position, and that they had failed to
describe the obvious limitations about what could be learned in the controlled
atmosphere of the visits. The most obvious example of these failures, it was
suggested, was the report on the first consular visit.
In my view, the reports, when reviewed as a whole, were satisfactory. It is
true that, in certain instances, they could have contained more detail or different insights, but they were reasonably accurate. They revealed that the visits
were very controlled and that what Mr. Arar said had to be taken with a “grain
of salt.” While the first report did not include all of the details about Mr. Arar’s
condition, it adequately painted a picture of someone who was frightened and
submissive and who was being forced to say things he did not believe. In fact,
properly interpreted, that report supported the conclusion that Mr. Arar had
likely been tortured during the preceding period. It provided sufficient detail to
assist a reader in making a proper assessment of Mr. Arar’s circumstances and
the likelihood that he had been tortured. As I discuss above, however, it would
have been helpful if DFAIT officials had specifically spelled out that assessment,
either in this report or elsewhere, to avoid any misunderstanding among
Canadian officials on this issue.
Obviously, when a Canadian is detained in a country with a questionable
human rights record, such as Syria, it is important that consular officers be properly trained to recognize and report on indications of abuse and torture.
Mr. Martel testified that he had no training in this respect and that DFAIT did not
offer consular officers training in observing the signs of torture. Since the culmination of the Arar matter, DFAIT has implemented a training program to
address this situation. In Chapter IX, I recommend that consular officials posted
to countries where there is a serious possibility of torture receive training on how
to conduct interviews in prison settings in order to determine as effectively as
possible whether torture has occurred.
It was also pointed out that Mr. Martel’s reports had not described the inhumane conditions in which Mr. Arar had been held. It must be borne in mind that
Mr. Martel was prohibited by the Syrian authorities from exploring issues such
as Mr. Arar’s detention conditions during his consular visits. Mr. Martel was
operating under significant limitations, and I do not believe that there was much
more he could have done to elicit further information from Mr. Arar. Mr. Martel’s
main goal was to procure as many consular visits as possible. Asking questions
of which the Syrian authorities clearly did not approve could have jeopardized
that goal.
Mr. Arar’s counsel also raised a concern that neither Mr. Martel nor the
Ambassador had sought a confidential or private meeting with Mr. Arar. In
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making this point, they recognized that such a request might well have been
refused. However, they suggested that the request should have been made and
objection taken to a refusal. I note that Mr. Martel’s judgment was that such a
request would certainly be refused and it was therefore better not to run the risk
of aggravating the Syrians by asking.
I think that was a reasonable judgment. In most cases, it probably makes
sense for Canadian officials to make objections if a country fails to provide visits, in order that Canadians not be seen as condoning improper actions without
at least voicing a protest. However, protesting may not always be the wisest
approach. Clearly, in situations such as these, there are judgment calls to be
made about what to do or not do. Ambassador Pillarella and Mr. Martel were in
Syria — on the ground, so to speak. Their judgment, based on experience, was
that it was best not to push a point they saw as hopeless. I can see the sense in
that. In circumstances such as these, discretion must be exercised in deciding
whether to assert a position for the purpose of maintaining a principle, or follow an approach that, in the short run, may be in the best interests of a particular detainee.
6.2
DISTRIBUTION OF CONSULAR REPORTS
After each visit with Mr. Arar, Mr. Martel prepared a consular report describing
the visit, how Mr. Arar had appeared, and what Mr. Arar had said. Many of the
conversations related to Mr. Arar’s family and Mr. Martel sometimes recorded
messages for Dr. Mazigh and the children.
As a general rule, the reports were reviewed by Ambassador Pillarella and
then forwarded to the Consular Affairs Bureau in Ottawa. Once in Ottawa, they
were made available to DFAIT ISI. It was understood by everyone involved that
the reports were not to be distributed outside of DFAIT without the approval of
the Director General of Consular Affairs, Gar Pardy.
ISI provided the RCMP with consular reports relating to three consular visits with Mr. Arar, on October 23, 2002 and April 22 and August 14, 2003. It also
appears that it provided the RCMP with the report of Canadian consul Maureen
Girvan’s consular visit with Mr. Arar at the MDC in New York on October 3,
2002. In addition, it seems likely that ISI provided reports of the consular visits
of January 7 and April 22, 2003 to CSIS. Mr. Pardy accepted responsibility for
the distribution of all of these consular reports to the RCMP, but not to CSIS.
DFAIT publishes a booklet, A Guide for Canadians Imprisoned Abroad.
Under the heading “Protection, Advice and Assistance,” the Guide as it existed
during the relevant period assured detainees that if they chose to talk to
�IMPRISONMENT AND MISTREATMENT IN SYRIA
Canadian officials, any information given would remain completely confidential
and would be protected under Canada’s Privacy Act. It went on to say that the
information would not be passed on to anyone, other than consular officials
concerned with the detainee’s case, without the detainee’s permission.
The Government and some of those who sought to explain the disclosure
of consular information to those outside the Consular Affairs Bureau cited section 8 of the Privacy Act37 as providing the necessary authority. Subsection 8(1)
of that Act prohibits the disclosure of personal information under the control
of government without consent, except as authorized in the section.
Subsection 8(2) sets out exceptions to the non-disclosure, three of which, it has
been argued, are relevant to the disclosures in this case: paragraphs 8(2)(a), (e)
and (m) permit disclosure for purposes consistent with the use for which information was obtained, for purposes of enforcing a law, and for purposes that are
in the public interest.
When asked why he had authorized DFAIT to share information from
Mr. Arar’s consular visits, Mr. Pardy gave two, interrelated reasons. The first was
consent. He suggested that, during Ms. Girvan’s consular visit at the MDC in
New York on October 3, 2002, Mr. Arar had consented to disclosure of any
information for purposes that would assist him. The second was the “consistent
use” exception provided for in paragraph 8(2)(a) of the Privacy Act. Mr. Pardy
said that the purpose behind providing the information to the RCMP had been
to hopefully dissuade officers from visiting Mr. Arar in Syria, his thought being
that Mr. Arar would be better off if the RCMP did not visit. According to that reasoning, it might be said that the information had been provided for “a use” consistent with the purpose for which the information had been obtained in the
first place: to assist Mr. Arar.
I am satisfied that Mr. Pardy was acting in good faith in authorizing the
provision of the consular reports to the RCMP and that he believed he had the
necessary authority to do so. However, there are problems with both of the
bases on which he proceeded.
In regard to consent, I think it is a stretch to conclude that, during the consular visit in New York, Mr. Arar consented to the release of all future consular
reports, particularly to investigative agencies such as the RCMP. In my view, his
conversation with Ms. Girvan, in which he asked for her assistance in addressing his particular circumstances at the time, that is, his detention in the MDC,
cannot fairly be interpreted to have had the reach suggested by Mr. Pardy.
Certainly, Ms. Girvan did not interpret it that way.
The second reason given by Mr. Pardy for sharing the reports was to assist
Mr. Arar by dissuading the RCMP from going to Syria to interview him. The
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problem is that the people who received the reports, such as Inspector Cabana
of Project A-O Canada, did not understand that to be the reason they were
being provided. The investigators viewed the reports as providing information
relevant to their investigations rather than a basis for “assisting” Mr. Arar.
Mr. Pardy’s reasoning does not appear to have been communicated to the recipients and there was no effort to ensure that the reports were used only to assist
Mr. Arar.
It was argued before me that the statutory authority to share the consular
reports found in the exemptions in subsection 8(2) of the Privacy Act trumps the
assurance of confidentiality to detainees found in the consular guide as it was
worded then. From a technical legal standpoint, that argument may be right.
However, I must say the result is rather distasteful. The guide stated that anything said during a consular visit would not be shared without the detainee’s permission. I expect that most detainees would have understood “sharing” to
include providing the information to agencies investigating them. I note that the
guide has since been revised to state that the information “will not normally be
passed on to anyone” (my emphasis). If it is the intention that discussions during consular visits may be shared in some circumstances, then the guide should
set out that intention in very clear language and should specify the circumstances in which information will be shared and with whom.38 Moreover, in
some cases, such as Mr. Arar’s, the detainee may not see the guide or be told
about its contents. If it is contemplated that information obtained during a consular visit may be disseminated outside the Consular Affairs Bureau, consular
officials should clearly inform detainees of the uses that may be made of information given during a visit.
In Chapter IX, I make recommendations relating to the provision of consular services for Canadians detained abroad in connection with a terrorismrelated investigation. A key element of those recommendations is directed at
coordinating the actions of all Canadian government departments and agencies
involved in responding to detentions of this sort. Included is a recommendation
that consular officials make clear to detainees the circumstances, if any, in which
information obtained during a consular visit may be provided to others outside
Consular Services.
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6.3
AUGUST 14 CONSULAR VISIT
6.3.1
Background
During June, July and early August 2003, Ambassador Pillarella made repeated
requests for the resumption of consular access to Mr. Arar. He sent a diplomatic
note and met with high-ranking Syrian officials, to no avail.
Also in the summer of 2003, the London-based Syrian Human Rights
Committee (SHRC) issued its 2003 annual report on the human rights situation
in Syria. In the chapter dealing with unlawful detentions, the report stated that
the SHRC had received confirmed reports that “Mr. Arar [had] been subject to
severe torture and intensive interrogation and charged with cooperating with
Al-Qaeda.”39
Moreover, on July 29, 2003, the SHRC wrote Dr. Mazigh with details about
Mr. Arar’s detention. It indicated that Mr. Arar had suffered heavy and severe
torture in the initial stage of interrogation and added: “At present, he receives
torture and abuse from time to time as a daily routine of the Syrian prison practices against political detainees.”40 Dr. Mazigh forwarded the letter to DFAIT.
The details in that letter prompted DFAIT to continue to push for immediate
consular access. The last consular visit had been the visit by the two MPs on
April 22, and the last time Mr. Martel had seen Mr. Arar had been over five
months earlier, on February 18.
The SHRC’s letter led to a flurry of events that eventually resulted in a consular visit on August 14. On August 7, Dr. Mazigh, accompanied by Alex Neve
from Amnesty International, held a press conference at which she outlined the
allegations of torture contained in the letter. That same day, Minister Graham’s
office contacted Ambassador Pillarella, directing that he try again to get consular access to Mr. Arar. Also on the same day, John McNee, Assistant Deputy
Minister for the Middle East, registered DFAIT’s concerns about the new allegations with the Syrian ambassador to Canada. Mr. McNee also requested that
consular access be provided and that Mr. Arar be returned to Canada. In the
meantime, DFAIT tried to arrange a call between Minister Graham and his Syrian
counterpart in regard to the torture allegations.
On August 12, Ambassador Pillarella was told that the Canadian consul
would be allowed to meet with Mr. Arar. The details would be sorted out at a
meeting the Ambassador was to have with General Khalil on the morning of
August 14.
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In an e-mail message to Ottawa reporting on the proposed meeting with
Mr. Arar, Ambassador Pillarella made the troubling comment that the meeting
“should help us to rebut the recent charges of torture,”41 referring to the SHRC
report. I describe this as a “troubling” comment because, on its face, it reveals
an interest in disproving the allegations of torture, hardly the attitude one would
expect from the Canadian ambassador with respect to allegations of torture
against a Canadian citizen. In his testimony, Ambassador Pillarella denied that
this was what he had intended. He said that his choice of words had been unfortunate and that he had actually meant that the allegations of torture in the SHRC
letter had been inconsistent with observations made during the eight consular
visits made to that point. Mr. Arar had not presented visible signs of torture during those visits. Ambassador Pillarella testified that, while there might be general allegations of torture, that did not mean that torture occurred in every case.
Mr. Martel, who conducted the August 14 visit, testified that he had not been
instructed to try to “rebut charges of torture.” Rather, his role had been to visit
detainees, observe what he could, including signs of mistreatment, and report
back.
As planned, Ambassador Pillarella met with General Khalil on August 14.
During their two-hour meeting,42 the Ambassador obtained the general’s agreement for a consular visit that day. Without the evidence of the Syrian authorities, it is impossible to be sure why consular access was granted at this point.
What is clear is that Ambassador Pillarella had been attempting to obtain access
to Mr. Arar for months, without success. Two things may have entered into the
Syrian authorities’ decision to grant access on August 14. First, the Prime
Minister’s letter seeking Mr. Arar’s release had been delivered on July 22. While
that letter might have played some role in the decision to grant access, it seems
unlikely that it was the trigger, as the Syrians had had the Prime Minister’s letter for over two weeks by then and had not responded.
Interestingly, however, permission for access followed almost immediately
on the heels of the publicity concerning the SHRC report and letter to
Dr. Mazigh. It appears more likely that the general permitted access to Mr. Arar
because of the spotlight on the allegations of torture and the resulting public
pressure. Since the SHRC letter had said that Mr. Arar was receiving torture and
abuse “as a daily routine,” the general might have allowed access with a view
to showing that Mr. Arar did not exhibit any signs of physical beatings and
thereby “rebutting” the allegations of torture. Whatever the reason, on August
14, the Syrian authorities permitted access to Mr. Arar for the first time in close
to four months.
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6.3.2
Visit
There are three sources of information about the consular meeting of August 14:
Mr. Martel’s testimony, the notes he made during the meeting, and the typed
consular report. Mr. Arar has not testified. His version of what transpired may
differ from the evidence at the Inquiry. Indeed, in statements made since his
return to Canada, Mr. Arar has disputed some of the details in Mr. Martel’s
account. However, Mr. Arar’s statements are not evidence and, therefore, the discussion that follows is based solely on the evidence heard at the Inquiry. If
Mr. Arar were to testify, my analysis of what occurred might change accordingly.
Mr. Martel met with Mr. Arar for about thirty minutes in the presence of
General Khalil, two aides and an interpreter. In his report, Mr. Martel indicated
that he had questioned Mr. Arar as much as possible about his detention conditions. Mr. Arar had been able to express himself freely at times; however, at
some points, Mr. Martel had had difficulty determining whether Mr. Arar’s statements had been made freely or prompted. As to his treatment, Mr. Arar had said
that conditions had been more difficult in the past and that he did not want
adverse media coverage, as he felt this would harm his case. Mr. Martel’s report
went on to say that Mr. Arar had indicated that “the Press will know the truth
when I return home,”43 suggesting, of course, that he did not consider it wise
to provide details while still in Syrian custody. The report also stated that
Mr. Arar had said that he had not been beaten or tortured or paralyzed, but that
his long detention had destroyed him mentally. Mr. Arar had indicated that, as
far as he knew, he was not receiving worse treatment than other prisoners.
During the visit, General Khalil indicated that Mr. Arar’s case would be
going to civilian court in a week and Mr. Arar could choose his own lawyer.
Mr. Arar asked the general what law he had broken and reaffirmed that he did
not belong to any terrorist organizations. When asked about future visits, the
general said he would have to seek higher authority. Shortly after the August 14
consular visit, Mr. Arar was moved from the Palestine Branch to Sednaya, a
facility where, by all reports, the conditions of imprisonment were much less
severe. Mr. Arar remained at Sednaya until his release on October 5, 2003.
There are two concerns that arise in connection with the August 14 consular
visit. The first relates to the adequacy and accuracy of the report that Mr. Martel
prepared after the visit. That report, of course, became the official record of
what had been said during the visit, yet it lacked some of the detail relating to
Mr. Arar’s treatment that was included in the handwritten notes taken during the
consular visit.
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Two omissions are noteworthy. In his notes, Mr. Martel indicated that
Mr. Arar had said that the size of his cell was three by six by seven feet and that
he slept on the ground. Mr. Martel did not include this information in his report.
The failure to note the cell size, in particular, was unfortunate. The fact that
Mr. Arar had been kept in a cell that size for close to a year should have been
very alarming to consular officials. The cell size lends added significance to
Mr. Arar’s statement that he had been “mentally destroyed,” particularly as the
statement was made in a situation in which he obviously did not feel free to
make too many negative comments about his treatment. In order to present a
full and accurate picture of how serious Mr. Arar’s circumstances were, it would
have been very helpful for Mr. Martel to have included the details concerning
the cell size in his report. According to expert witness Henry Hogger, when he
was an ambassador, he would have been surprised to have not been informed
of such circumstances if the information had been relayed to his consul. He
would have wanted to inform his foreign ministry that a citizen was being held
in a cell that size. He indicated that it was the type of information that should
be included in a consular report and that, as an ambassador, he would have
wanted it conveyed to him.
In his handwritten notes on the consular visit, Mr. Martel also recorded the
words “very beginning very little” after the words “I have not been paralyzed —
not beaten — not tortured.”44 Mr. Martel stated that the note “very beginning
very little” pertained to Mr. Arar’s response to a question about whether his
Syrian jailers were causing problems for him or making life difficult, and not to
the statement that he had not been beaten or tortured. In any event, Mr. Martel
did not include the words “very beginning very little” in his report. He merely
recorded that Mr. Arar had said he had not been paralyzed, beaten or tortured.
The second concern regarding the August 14 consular visit is that DFAIT
distributed the report on the visit to the RCMP. In section 6.2 above, I discuss
the authority relied upon for doing this. Accepting for the moment that distributing the report was authorized, the problem is that there was no accompanying assessment warning of the difficulties in relying upon Mr. Arar’s statement,
as reported, that he had not been tortured. One would expect that, in distributing the report, particularly to those investigating Mr. Arar, DFAIT would have
pointed out the constraining circumstances of the visit and the need for great
caution in relying upon what Mr. Arar had said.
It must be borne in mind that, in November 2002, DFAIT had provided the
RCMP with the bout de papier containing Mr. Arar’s allegedly incriminating statement to Syrian authorities. Although there had been a serious concern at that
time that the statement had been the product of torture, DFAIT had failed to
�IMPRISONMENT AND MISTREATMENT IN SYRIA
bring that concern to the attention of the RCMP. That unfortunate problem, on
which I have already commented, was compounded by the distribution of the
report on the August 14 consular visit. That report indicated that Mr. Arar had
said that he had been mentally destroyed; however, it also quoted him as saying he had not been beaten or tortured. Although Mr. Martel testified that he had
approached this statement with scepticism, he made no note of his scepticism
in his report. Moreover, when DFAIT45 provided the report to the RCMP, there
was no mention made of the circumstances under which the consular visit had
taken place and the need for great care in attaching weight to Mr. Arar’s statement. Thus, leaving aside the question of whether the report should have been
distributed in the first place, distributing it to the RCMP might well have added
to a false perception that Mr. Arar’s statement referred to in the bout de papier
had not been obtained by torture.
I repeat here what I have said several times throughout this Report. It is
essential that officials take great care to be accurate and precise when they provide information to others about an individual or an investigation in relation to
national security matters. They must be thorough and endeavour to ensure that
they do not create unintended perceptions on the part of the recipients.
Mr. Arar’s alleged statement to the SMI, a summary of which was given to
Ambassador Pillarella in November 2002, might have been interpreted by some
officials, particularly investigators, as an indication that Mr. Arar had been
involved with terrorist organizations. If the statement was the product of torture,
there would obviously be a serious concern about reliability. Distributing a consular report that could be interpreted as indicating that Mr. Arar had said that the
alleged statement had not been obtained by torture could be very prejudicial to
Mr. Arar and could create a false sense of reliability in the minds of investigators. Those who might otherwise have considered that there was no evidence
that Mr. Arar had been involved in any terrorist activity might have a new basis
for suspicion — suspicion derived from information of dubious reliability that,
in the circumstances, could be inaccurate and unfair to Mr. Arar.
I recognize that Mr. Arar was released about six weeks after the August 14
visit and that he has never been charged with any offence. In that sense, some
may say that no harm came from the failure to provide any warning about the
potential unreliability of Mr. Arar’s statement that he had not been tortured, as
recorded in the August 14 report. I do not accept this. Creating inaccurate and
unfair perceptions is harmful and should always be avoided. Moreover, in my
view, the prejudice arising from inaccurate and unfair information is particularly
great in terrorism-related investigations which, understandably, evoke strong
emotional responses.
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6.3.3
Minister’s Statement
On August 14, the same day as the consular visit, Minister Graham was asked
in a press scrum about the SHRC allegations that Mr. Arar had been tortured. He
replied that he had spoken to officials in his department, that Mr. Arar had been
interviewed independently by consular officials that day, and that he was in
good condition and rejected all allegations of torture.
Some of the Minister’s statements were inaccurate. Mr. Arar had not been
interviewed independently. Syrian officials, including General Khalil, had been
present throughout. Further, while Mr. Arar might have rejected allegations of
torture in some of what he had said, stating that “he rejects all allegations of torture” was going too far in view of the context in which the consular visit had
taken place. Mr. Martel was sceptical about Mr. Arar’s disavowal of torture.
Moreover, torture may be physical or mental, and Mr. Arar had said he had
been mentally destroyed. That statement in itself was inconsistent with a rejection of “all allegations of torture.” A fair reading of the consular report shows that
Mr. Arar was being very careful in what he said. His objective at that point was
to be released. Telling his full story could wait until he returned to Canada.
The Minister’s inaccurate statements, which appear to have resulted largely
from some inaccurate information he was given about the consular visit, were
very unfortunate. While there might have been no immediate consequence,
statements like the Minister’s create perceptions in the public mind, particularly
in newsworthy cases such as Mr. Arar’s. The perception that Mr. Arar had not
been tortured was wrong and, no doubt, the Minister’s statements planted the
seeds of that misperception in the minds of some. Tellingly, even during the
early stages of the Inquiry, some government officials still believed that Mr. Arar
had not been tortured. In all likelihood, those officials and probably some members of the public were influenced by the inaccurate message taken from the
August 14 consular visit. It is ironic and disappointing that the consular visit of
August 14, which was meant to help Mr. Arar, ended up being turned against
him in this way.
�IMPRISONMENT AND MISTREATMENT IN SYRIA
6.4
ARRANGING LEGAL ASSISTANCE
6.4.1
Prior to August 14, 2003
Prior to August 14, 2003, consular officials did not take any steps to obtain a
lawyer for Mr. Arar. Some internal discussions took place in November 2002
about asking the Syrian authorities to allow a lawyer to see Mr. Arar during a
consular visit. Anwar Arar, a member of Mr. Arar’s extended family and a lawyer
in Syria who had sought assistance from the Canadian Embassy to locate
Mr. Arar early in his detention, indicated that he wanted to meet with Mr. Arar
at an upcoming consular visit. However, consular officers did not take any steps
to facilitate Anwar Arar’s access, nor did they tell Maher Arar of Anwar Arar’s
involvement.
Shortly after the April 22, 2003 visit by the Canadian members of Parliament,
consular officials had further discussions about legal representation in the event
that Mr. Arar was charged. However, they did not take any steps to arrange
representation until after August 14, 2003. In particular, they never asked Syrian
officials if a lawyer would be permitted to visit Mr. Arar and they did not provide Mr. Arar with a list of lawyers.
Mr. Martel testified that there had been no point in taking steps with respect
to legal representation prior to August 14, 2003. He was certain that Syrian officials would not have permitted Mr. Arar to contact a lawyer, nor would they
have permitted a lawyer to visit him. The Syrian record in this regard was clear.
Moreover, during this period, there was no legal proceeding pending and the
charges Mr. Arar might eventually face were not known.
6.4.2
After August 14, 2003
On August 14, 2003, General Khalil told Ambassador Pillarella that Mr. Arar
would be put on trial within a week and indicated that Mr. Arar could have a
lawyer. Although the general implied that Mr. Arar would be found guilty and
the sentence would not be lenient, he said that Mr. Arar would be tried in a civil
court, where there was no death penalty, rather than a military court.
The Consular Affairs Bureau reported the news to Dr. Mazigh and informed
her that Mr. Arar could have a lawyer of his choice. The next day, Dr. Mazigh
suggested the names of two lawyers and indicated that her preference was
Haytham Al Maleh, a human rights lawyer.
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In the days that followed, consular officials took a number of steps with
respect to the anticipated trial. They sent a diplomatic note to the Syrian foreign
minister seeking further consular access to Mr. Arar and permission to have an
observer at the trial (they had in mind James Lockyer, a noted Canadian criminal lawyer). They met with Mr. Arar’s family and supporters to discuss the legal
process, the retention of a lawyer and the observer’s role, and advised that the
lawyers suggested by Dr. Mazigh might not be the best choice because of “political” concerns (one had been imprisoned in Syria). They discussed the best strategy for obtaining Mr. Arar’s release.
In addition to contacting the two lawyers suggested by Dr. Mazigh,
Mr. Martel attempted to contact other lawyers, in particular Jacques El-Hakim, a
lawyer who did not regularly do criminal work, but was apparently viewed as
being “influential” by Syrian authorities.
On August 20, a Syrian contact told Canadian officials that Mr. Arar’s file
might have been transferred to the Supreme State Security Court. If true, this
would have been bad news. Security courts in Syria are secretive and accord little, if any, due process to accused persons.
On August 25, Mr. Pardy met with members of Mr. Arar’s family and raised
the issue of the allegation that Mr. Arar had been in Pakistan and Afghanistan
for over seven months in 1993. Mr. Pardy expected that the allegation, derived
from Mr. Arar’s alleged statement to the Syrian authorities during the initial
stages of his detention, would be part of the case against Mr. Arar. He asked the
family to look for documentary records that could be used to disprove it.
By September 2, there was still no indication of what the charges against
Mr. Arar would be and no information about the process or timing of a trial.
Canadian officials continued to consider Mr. El-Hakim the best choice for a
lawyer, although they recognized that the decision should rest with the client’s
family. In the meantime, Mr. Martel obtained some legal advice from
Mr. El-Hakim’s firm about Mr. Arar’s case.
By September 3, however, Dr. Mazigh had decided that Mr. Al Maleh
should represent her husband. The lawyer had quoted a fee of $10,000.
Dr. Mazigh asked if the Government of Canada could contribute and was told
that it could not. On September 9, Mr. Martel learned that Mr. Arar’s family had
retained Mr. Al Maleh. The lawyer met with the prosecutor for the Supreme
State Security Court on September 11, but was unable to obtain any information
about the case. He told Mr. Martel that the trial was not expected for a week or
two. On September 22, Canadian officials were told the same thing.
In the meantime, on September 10, the Canadian Embassy in Damascus
sent a diplomatic note to the Syrian Ministry of Foreign Affairs requesting that
�IMPRISONMENT AND MISTREATMENT IN SYRIA
Canadian officials be permitted to be present during Mr. Arar’s trial. On
September 22, Mr. Al Maleh offered the opinion that consular officials would not
be allowed to attend the trial.
On October 1, Mr. Al Maleh met with a judge, presumably of the Supreme
State Security Court, who advised that the Arar file was still incomplete.
Mr. Al Maleh was not given access to Mr. Arar. On October 5, Mr. Arar was
released without a formal trial having taken place.
6.4.3
Issues
Two questions arise about the Consular Affairs Bureau’s actions in assisting
Mr. Arar to obtain counsel. The first is whether consular officials should have
assisted Mr. Arar to retain a lawyer before August 14, 2003. The second relates
to the adequacy of their efforts after August 14, 2003 to assist Mr. Arar in retaining a lawyer and to provide Mr. Arar’s lawyer of choice with the information
they had regarding Mr. Arar’s case.
By way of background, when a Canadian detained abroad is going to trial,
consular officials have the general responsibility to assist by providing the names
of lawyers and helping the detainee to retain counsel. They should also help to
obtain information about the reason for detention and the charges. However,
consular officials do not pay legal expenses, provide legal advice or interpret
local laws, and they usually attend trials only when there is a need. Consular officials do not get involved in matters of substance between lawyers and clients.
Consular officials did not take any steps to assist Mr. Arar in retaining a
lawyer prior to August 14, 2003. Mr. Martel considered that any such steps very
likely would be fruitless. The Syrian authorities were apparently still investigating Mr. Arar’s case, no charges had been identified or laid, and there was no
immediate prospect of a trial. Although it appeared in December 2002 that the
Syrian authorities were investigating whether Mr. Arar was connected to the
Muslim Brotherhood, nothing concrete was alleged. Later, in April 2003, the
Syrian authorities indicated that they were investigating links with al-Qaeda.
That same month, they said that their investigation was complete and charges
would be laid shortly. However, they did nothing.
The SMI was permitting consular access (sporadically, as time went on),
but the experience with Syrian authorities was that they would not permit a
lawyer to see a detainee in Mr. Arar’s circumstances. That proved to be the case
later in September, when Mr. Arar’s family did retain a lawyer. Mr. Al Maleh was
unable to obtain information about charges or the proposed date for Mr. Arar’s
trial and, significantly, he was not permitted to see his “client.” In this instance,
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the SMI did not permit legal counsel access to Mr. Arar even in the face of a
pending trial.
Obviously, during the period prior to August 14, 2003, it would have been
possible for consular officials to put Mr. Arar’s family in touch with a lawyer or
at least raise the subject with the family and have a discussion about the possible advantages of seeking legal assistance. Retaining a lawyer even before
charges are laid can, in some situations, cause detaining authorities to think
twice about inflicting or continuing abusive treatment. However, it is worth noting that consular officials were in frequent contact with Dr. Mazigh throughout
the period prior to August 14, 2003 and she had the active support of people
familiar with issues relating to detainees in countries such as Syria. This was not
a case where the detainee’s family would not have considered the need for a
lawyer or pursued the matter if it had thought it helpful to do so. While there
was some discussion about Anwar Arar, a lawyer, visiting Maher Arar in the
early stages of his imprisonment in Syria, consular officials did not pursue the
matter, and neither Dr. Mazigh nor any of the supporters pressed the issue of
the need for Mr. Arar to have a lawyer during this period.
I understand why consular officials did not take steps prior to August 14,
2003 to help Mr. Arar or his family to obtain a lawyer. In view of what occurred
when Mr. Arar did retain counsel in September 2003, it appears that Mr. Martel’s
assessment that the Syrian authorities would not have permitted a lawyer to see
Mr. Arar was correct.
I am also satisfied that the steps that consular officials took after August 14
were reasonable and appropriate. The possible concerns are that consular officials failed to immediately respect the Arar family’s choice of lawyer, and once
counsel had been retained, did not provide him with information they possessed
that could have aided in his defence, such as the bout de papier that Ambassador
Pillarella received in November 2002.
While it is true that consular officials demonstrated a perhaps marked preference for retaining Mr. El-Hakim as counsel for Mr. Arar, that preference was
motivated entirely by Mr. Arar’s best interests and was based on their assessment
of the circumstances in Syria. In any event, in relatively short order, before any
legal steps were necessary, the Arar family retained counsel of its own choice.
Further, I do not think that there was anything untoward in the consular
officials’ failure to provide Mr. Arar’s lawyer with material they had about his
case. Certainly, I do not attribute any improper motive to the officials in this
regard. It must be remembered that, during the period between August 14 and
Mr. Arar’s release, Syrian authorities repeatedly refused to indicate the nature of
the charges against Mr. Arar. Consular officials were operating in something of
�IMPRISONMENT AND MISTREATMENT IN SYRIA
an information vacuum. Even Mr. Al Maleh had no success in obtaining information. I have no doubt that, if the case had crystallized, consular officials would
have been fully supportive of Mr. Arar and would have provided whatever assistance they could, including supplying his counsel with any relevant information in their possession.
Moreover, it is not as though consular officials did nothing in this respect.
Mr. Pardy did speak to Mr. Arar’s family about the importance of finding information to disprove a possible allegation that Mr. Arar had been in Pakistan and
Afghanistan in 1993. While consular officials were not certain that this allegation
would be part of “the case” against Mr. Arar, this was a prudent initiative.
The fact that I am not critical of the way Canadian officials acted in this case
should not be seen as an indication that consular officials should not generally
disclose information to defence counsel when Canadians are detained abroad.
On the contrary, consular officials should provide information to defence counsel, to the extent they are able, to help counsel make full answer and defence.
I discuss this role for consular officials in Chapter IX.
6.5
CALL FOR FAIR AND OPEN TRIAL
By September 24, 2003, Canadian officials still did not know the charges against
Mr. Arar. They had been told that his trial would take place within a week or
so, but had been told the same thing previously and nothing had happened. By
this time, they had also been led to believe that the trial might take place in the
Supreme State Security Court.
On September 24, Minister Graham commented to the media that he was
pleased the trial was going forward and that Mr. Arar would have an opportunity to defend himself, adding that Mr. Arar could get a “fair and open trial.” This
comment caused concern for Dr. Mazigh and some officials within Consular
Affairs, who felt that the comment could be interpreted as approving a trial that
in fact was going to be closed, in circumstances where the charges and the evidence remained unknown.
It was entirely appropriate for Minister Graham to involve himself in this
case. In Chapter IX, I recommend that decisions relating to Canadians detained
abroad in relation to terrorism offences be made in a way that will ensure political accountability, and that the Minister of Foreign Affairs be informed and
involved in cases where there is credible evidence that a Canadian has been or
is being tortured.
Apparently, the strategy behind the comment to the media was the following. The Minister’s first choice was that Mr. Arar be released. He had
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communicated that position to the Syrian foreign minister in January 2003 and
the Prime Minister’s letter to the President of Syria requesting Mr. Arar’s release
had also made this position clear. However, if Syria would not release Mr. Arar,
the next best option was for Mr. Arar to be tried so that he could defend himself, instead of remaining in detention, without trial, indefinitely. In other words,
the fallback strategy was to bring the matter to a head.
The next day, the Minister made another public comment to the effect that
Mr. Arar, who had been held in a Syrian prison for a year, could get a fair and
open trial. He went on to say that he had been assured that Mr. Arar would be
facing a civil process, not a military one, and that this process would be open.
By this point, consular officials had been told that the case might be dealt
with in the Supreme State Security Court, which likely meant a closed process.
Apparently, Mr. Graham had not been given this new information. In any event,
it is by no means clear that a trial in a civil court would be fair and open.
While the comment about a fair and open trial might have been an indirect
way of attempting to pressure Syria into providing such a trial for Mr. Arar, it
would have been better not to endorse the Syrian system in advance. Instead, I
think a comment such as “we trust the Syrians will provide Mr. Arar with a fair
and open trial and we will monitor the situation closely” would have struck a
better note.
I note that, on September 25, Minister Graham met with the Syrian foreign
minister at the United Nations in New York and made it clear that Canada
wanted Mr. Arar returned to Canada. Thus, he emphasized the first option of his
strategy for the Arar case.
Although some may question the strategy of pressing for a trial while at
the same time taking the position that Mr. Arar should be released, the decision
to do so was a matter of judgment. Mr. Pardy, Canada’s most experienced consular official, who was familiar with Mr. Arar’s case, believed that the best course
of action was to call for Mr. Arar’s release. However, he could see the merit in
calling for a fair and open trial as an alternative, something that might at least
bring Mr. Arar’s case out of darkness and into the public eye. The difficulty, of
course, is that trials in the Syrian security court are unlikely to be either fair or
open.
When an individual is caught in a situation such as Mr. Arar’s, deciding
what may assist and what may not is always a difficult matter of judgment.
Clearly, care must be taken not to appear to support countries such as Syria in
using their legal processes if it is likely that those processes will violate principles of fairness and due process. However, one must be careful about
�IMPRISONMENT AND MISTREATMENT IN SYRIA
second-guessing judgments made in good faith or attempting to lay down in
advance inflexible rules about how these types of situations should be managed.
This was the second time in two months that the Minister had spoken publicly on the Arar case based, in part at least, on inaccurate information. The
other occasion was after the August 14 consular visit, which I describe above.
In Chapter IX, I make recommendations relating to the way DFAIT should
respond to situations where Canadians associated with terrorism-related allegations are detained abroad. I emphasize the importance of a press strategy as
part of a coordinated government response to the plight of Canadians detained
abroad. Great care must be taken to communicate information to the public that
is accurate and fair to all those involved. It is equally important not to appear
to condone practices by other countries that contravene the principles of fairness and due process that characterize the Canadian approach to the administration of justice.
6.6
MAHER ARAR’S RELEASE
Maher Arar was released from Syrian custody on October 5, 2003. That day,
Mr. Martel and another DFAIT official were summoned to the Palestine Branch.
General Khalil told them that Mr. Arar had been acquitted by the judge and was
free to go. Syrian officials also told the Canadian officials that they would release
documents relating to Mr. Arar and criminal matters at a later date. This was
never done.
As they were driving away from the Palestine Branch, Mr. Arar told
Mr. Martel that he had been transferred to a better prison (Sednaya) 45 days
previously and that he had been well treated.
Mr. Arar later told others that, on the day of his release, he had been taken
to court and ordered released. There had been no trial. Canadian officials were
never advised of the charges, if any, against Mr. Arar.
Several witnesses offered opinions about the reasons for Mr. Arar’s release.
However, without hearing from the Syrian authorities, we are left to speculate.
I have set out the various opinions in the Factual Background. They need not
be repeated here.
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Notes
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
Messrs. Almalki and El Maati were both the subjects of a terrorism-related investigation in
Canada and were both detained in Syria. Mr. Almalki was still in Syrian detention when
Mr. Arar was taken to Syria.
Exhibit C-206, Tab 61.
Other efforts to locate Mr. Arar were undertaken, but they are subject to a claim of national
security confidentiality.
A diplomatic note is a means by which one country formally communicates with another
country.
[P] Pillarella testimony (June 14, 2005), p. 6769.
In published reports on the Syrian human rights record, the Palestine Branch is described as
a place where the SMI holds prisoners incommunicado during early periods of detention and
inflicts torture while interrogating them.
Exhibit C-206, Tab 130.
Ibid.
[P] Hogger testimony (November 10, 2005), pp. 12551-12552 and 12606-12611.
The evidence in this respect is described in some detail in the Factual Background.
Minister Graham was also not informed that, in August 2002, Canadian officials had learned
that Ahmad El Maati, who had been in Syrian custody from November 2001 to January 2002,
had alleged that he had been tortured during interrogation by Syrian authorities.
“Bout de papier” (literally, “scrap of paper”) is a term used in diplomacy to describe a relatively
informal communication or record of a meeting.
[P] Ofshe testimony (June 8, 2005), p. 5983.
The different assessments of the bout de papier are described in Chapter III of the Factual
Background.
I discuss the January 2003 Syrian statements below in Section 5.3.2.
Some aspects of the Project A-O Canada investigation after Mr. Arar’s imprisonment are
described in Chapter IV of the Factual Background.
As I discuss later in this chapter, it did provide the Syrians with questions for Mr. Almalki, who
was being held by the SMI at the same time as Mr. Arar, and also offered to provide the
Syrians with information about Mr. Almalki from its investigation. That information would
have included some about Mr. Arar.
I note, however, that Deputy Commissioner Loeppky testified that the RCMP should co-operate in efforts to get a Canadian released, at least to the extent of providing information, if it
knows that the United States relied upon information supplied by the RCMP to illegally deport
the Canadian. [P] Loeppky testimony (July 6, 2004), pp. 1428-1433.
Exhibit C-359, Tab 10.
Order in Council P.C. 2004–48, Appendix 1(A).
Exhibit C-30, Tab 290.
Exhibit C-206, Tab 159.
[IC] Pillarella testimony (March 30, 2005), p. 13409.
Exhibit C-206, Tab 285.
Exhibit C-206, Tab. 288; [P] Graham testimony (May 30, 2005), p. 4184.
Exhibit P-99.
Security certificates under the Immigration and Refugee Protection Act are used by the
Government of Canada to remove persons who pose a danger to national security.
Exhibit C-206, Tab 395.
Exhibit C-28, Tab 4.
�IMPRISONMENT AND MISTREATMENT IN SYRIA
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
[P] Hooper testimony (August 25, 2005), pp. 10670-10672.
Exhibit P-19, p. 41.
[P] Hooper testimony (August 25, 2005), pp. 10717-10718.
Exhibit C-28, Tab 10.
Exhibit C-30, Tab 451.
Exhibit P-132, Tab 18, pp. 3–4.
There is no evidence about what prompted General Khalil, the head of the SMI, to permit
access to Mr. Arar. One factor was likely that Mr. Arar had already given a statement to the
Syrians. Another may have been that the Syrians were holding Mr. Arar at the request of
American authorities and did not have the same concerns or suspicions about him as they did
in other cases. There is no way of knowing for certain.
R.S.C. 1985, c. P-21.
I also note that the word “normally” does not appear in the French-language version of the
guide, which is thus more restrictive.
Exhibit P-42, Tab 478.
Exhibit C-206, Tab 573.11.
Exhibit C-206, Tab 502.
Most of the discussions at the meeting are subject to a claim of national security
confidentiality.
Exhibit P-134, Tab 24.
Exhibit P-42, Tab 508.
It was not Mr. Martel who provided the report to the RCMP.
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Return to Canada
1.
OVERVIEW
In this chapter I describe and comment on a number of significant events that
occurred after Maher Arar’s release from prison in Syria.
When Mr. Arar returned home, he described his ordeal privately to
Canadian officials and publicly to the media in a press conference. Canadian
consul Léo Martel subsequently prepared written communications that inaccurately recorded Mr. Arar’s statements on his trip home. Other unknown officials
clearly did not believe his statements that he had been beaten and tortured, and
decided to leak information to the media, much of which was damaging to his
reputation. The RCMP also prepared a briefing for senior officials about their
investigation of Mr. Arar that omitted information that reflected badly on the
force.
2.
TRIP HOME
After Mr. Arar was released from Syrian custody on October 5, 2003, Canadian
consul Léo Martel accompanied him back to Canada. During the trip home,
Mr. Arar revealed bits and pieces of his time in Syrian detention to Mr. Martel.
It was obvious to Mr. Martel that Mr. Arar, who had been through a great deal,
did not want to go into the details of his experiences at that time. In the course
of their conversation, Mr. Martel mentioned that there were press reports that
Mr. Arar had been stuffed into a tire and subjected to electric shock. Mr. Arar
responded that those suggestions were unfounded, adding, “they have other
means.” While he did not elaborate at the time, he indicated that he had had a
“difficult time” during the first two weeks of detention and that his Syrian jailers
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had hit him from time to time, but nothing really serious. He said that, after the
initial interrogation, they had had what they wanted and had left him alone.
Mr. Arar also described the dark cell, measuring three by six by seven feet, in
which he had been held, and the other degrading conditions to which he had
been subjected. Mr. Martel believed that Mr. Arar was telling the truth.
It is worth noting that the description Mr. Arar gave Mr. Martel of his treatment in Syria on the plane trip home is essentially the same as the one he subsequently gave during a press conference on November 4, 2003 and the one he
gave Professor Stephen Toope, the fact-finder I appointed for this Inquiry. While
the later descriptions contained more detail, the main elements were consistent:
Mr. Arar had been beaten on occasion during the early days of his imprisonment
and not afterwards; he had not been subjected to the tire treatment or electric
shock (although, in his later descriptions, he indicated that he had been threatened with both); and he had been held in degrading and inhumane conditions,
which had had a terrible impact on his mental well-being.
I note as well that Professor Toope, who had available to him the evidence
of what Mr. Arar had told Mr. Martel on his trip home, as well as what he had
said in the November 4, 2003 press conference, concluded that the description
that Mr. Arar had given him was credible.
On October 7, 2003, Mr. Martel briefed officials from DFAIT Headquarters
on Mr. Arar and his treatment in Syria. In essence, Mr. Martel repeated what Mr.
Arar had told him on the trip home. He indicated that Mr. Arar had been
“beaten” occasionally during the first two weeks in Syrian detention, had not
been subjected to the tire treatment or electric shock, and had suffered mentally.
He also said that Mr. Arar had been held in a small, dark cell, which had had
serious effects on his physical health and mental well-being.
3.
MR. ARAR’S PRESS CONFERENCE
Mr. Arar spoke about his experiences publicly for the first time at a press conference on November 4, 2003. Reading from a prepared statement, he described
what he had lived through from September 26, 2002 to October 5, 2003.
I will not repeat what Mr. Arar said here. A detailed description of what he
experienced is provided in Chapter II. As I have said, the description Mr. Arar
gave at the press conference was more detailed than the one he had given
Mr. Martel, but was nevertheless consistent with it. Moreover, Foreign Affairs
Minister Bill Graham and Senior Policy Advisor Robert Fry, who had met privately with Mr. Arar on October 24, 2003, testified that what Mr. Arar had said
�RETURN TO CANADA
at his press conference had been fairly consistent with what he had told them
in private.
After the press conference, Canadian officials took a number of steps to
register Canada’s objections with the Syrian government concerning the abuse
Mr. Arar had suffered. On November 4, Minister Graham met with the Syrian
ambassador to make a formal protest. After the meeting, the Minister issued a
press release calling on the Syrian government to take the allegations of torture
seriously and to quickly investigate all the details of the detention of Mr. Arar
and others in Syria.
Subsequently, Canada sent a diplomatic note to the Syrian Ministry of
Foreign Affairs, referring to Mr. Arar’s allegations of torture and mistreatment
and requesting that Syria conduct a formal investigation into the allegations. It
does not appear that the Syrians ever responded to this diplomatic note.
4.
MR. MARTEL’S RECOLLECTIONS
Beginning in early November 2003, Mr. Martel prepared a number of written
communications in which he indicated that Mr. Arar had told him on the trip
home that he had not been beaten while in Syrian detention. They were
incorrect.
In a memorandum dated November 3, 2003 prepared for the Minister’s
office in anticipation of Mr. Arar’s press conference, Mr. Martel stated that, after
Mr. Arar had been released, he (Mr. Martel) had pressed him for answers regarding the question of torture and Mr. Arar had confirmed that he had not been
beaten. Otherwise, the memorandum was basically consistent with what Mr. Arar
had said. Toward the end of the memorandum, Mr. Martel indicated that the
Canadian Embassy shared Headquarters’ concern about the possibility that
Mr. Arar would “go public” and claim he had been tortured.
Mr. Martel explained the discrepancy between what he had reported in this
memorandum and what he had stated at the October 7 DFAIT meeting by pointing out that the November 3 memorandum had been prepared quickly, from
memory, and he had forgotten that Mr. Arar had told him he had been beaten
occasionally. He added that Mr. Arar had told him that the beatings had not
been serious.
This issue of Mr. Martel’s recollection of what Mr. Arar had told him arose
again on November 17 and 18, 2003 when, in a series of e-mails between him
and Headquarters in Ottawa, Mr. Martel repeated that, during the trip back to
Canada, Mr. Arar had never mentioned being beaten during the first two weeks
of his detention in Syria. Again, in testimony, he explained that this was a
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ANALYSIS AND RECOMMENDATONS
memory lapse and repeated that Mr. Arar had told him the beatings had not
been serious.
The issue came up again on February 8, 2004, when a Canadian official
had a discussion with Mr. Martel and prepared a report of that discussion.
According to the report, Mr. Martel had said that the information Mr. Arar was
giving the media contradicted what Mr. Arar had told him in interviews just prior
to his release (probably a reference to the August 14, 2003 consular visit during
which Mr. Arar, in the presence of his Syrian jailers, had said he had not been
tortured). The report indicated that Mr. Martel had said that the information
Mr. Arar had given him was likely more accurate, being more candid and not
tainted by the spectre of big money and lawsuits. Mr. Martel had allegedly called
Mr. Arar a liar.
Mr. Martel disputed this portion of the report, saying that it did not accurately capture what he had been trying to communicate to the official. He
explained that, at the time of the conversation, he had had a civil lawsuit instituted by Mr. Arar on his desk — one in which he had been named as a defendant. He stated that he had been trying to point out that what was alleged in the
lawsuit was inconsistent with what Mr. Arar had said.
Mr. Martel testified that he had never called Mr. Arar a liar and that he
wanted to set the record straight by saying that he did not believe that Mr. Arar
had ever lied to him. There is a problem with the lawsuit explanation. Mr. Arar’s
lawsuits against the Canadian government (including Mr. Martel) were not filed
until April 2004, two months after the reported conversation. Mr. Martel may
have confused the conversation of February 8, 2004 with one that took place
after the litigation was commenced.
I describe this series of events relating to Mr. Martel’s recollections in considerable detail for only one reason. It provides a good example of how inaccurately reported information can result in unfortunate consequences. When
Mr. Arar returned to Canada, there was enormous public and political interest
in what had happened to him. Those who had been involved in his case —
and could potentially be the subject of criticism if the matter touched off a
firestorm — would arguably be in a better position if it turned out that Mr. Arar
had not been tortured. At least, they might have perceived that to be the case.
Moreover, a comment made by Mr. Arar during the August 14, 2003 consular
visit, in the presence of his Syrian jailers and obviously under pressure, led to
public reports that Mr. Arar had said he had not been tortured. The difficulty
with Mr. Martel’s memorandum of November 3, 2003, his e-mails of
November 17 and 18, 2003 and his conversation of February 8, 2004 is that they
tended to reinforce the notion that Mr. Arar had not been tortured and that what
�RETURN TO CANADA
he was saying publicly was self-serving and for the purpose of possibly enhancing a damage claim in a lawsuit.
However, the fact of the matter is that Mr. Arar was tortured when interrogated at the beginning of his imprisonment, as he has described on several
occasions. The problem with people concluding that Mr. Arar was not tortured
was very evident to me during the early stages of this Inquiry. Several witnesses,
either directly or through counsel, made it clear that they were not prepared to
accept that Mr. Arar had been tortured. They had serious doubts about the truth
of what he had said publicly and thus were suspicious about him generally. In
fairness, over time, as the facts emerged, those views softened and I think it is
fair to say that, in the end, there was widespread acceptance of the fact that
Mr. Arar had been tortured. Certainly, Government counsel, who acted for all of
the government agencies and departments involved, did not suggest otherwise.
The point I wish to make, however, is that reporting facts incorrectly, as
Mr. Martel did, even unintentionally, can create a false perception that becomes
difficult to dispel. In this case, the truth has emerged, but only through the elaborate process of a public inquiry.
What is most troubling is that, had a public inquiry not been held in this
case, some of the written record within government and, certainly, the views of
many government officials, would have been incorrect. There would have been
a widespread perception that Mr. Arar had not been tortured and that he had
lied when describing what had happened to him after returning to Canada.
Unquestionably, that perception would have spread to the public domain. That
would have been most unfair to Mr. Arar.
Thus, I come back to what I say repeatedly throughout this report: it is critically important that care and precision be used when reporting or describing
facts, particularly in relation to terrorism-related matters, which tend to engender strong emotions and positions. Small inaccuracies have a way of becoming
large misperceptions.
5.
LEAKS
5.1
INTRODUCTION
The evidence presented at the Inquiry leads me to conclude that, over time,
Government of Canada officials intentionally released selected classified information about Mr. Arar or his case to the media. The leaks extended over the
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ANALYSIS AND RECOMMENDATONS
period from July 2003, before Mr. Arar returned to Canada, to July 2005, during
the course of this Inquiry.
I am satisfied that the issue of leaks falls within my mandate, as it relates
directly to Mr. Arar and to the conduct of Canadian officials. While it is not my
role to draw legal conclusions about possible breaches of Canada’s Privacy Act,
Security of Information Act or Criminal Code, I am satisfied that I should report
on the nature and purpose of the leaks and the impact they had on Mr. Arar.
Perhaps not surprisingly, the identity of the Canadian officials responsible
for the leaks remains unknown despite the fact that several administrative investigations have been conducted by the relevant government departments or agencies into the sources of the leaks. There is also an ongoing criminal investigation
into a leak of information to Juliet O’Neill, a reporter for the Ottawa Citizen.
Although there appears to be little cause for optimism that investigations will ultimately determine the source of any of the leaks, I do not consider that my mandate directs me to pursue such investigations. To do so as part of a public
inquiry would be a huge endeavour and determining the source of the leaks is
not sufficiently linked to my mandate to be warranted. That said, I do not consider myself constrained in reporting on the leaks by the fact that the specific
sources are unknown. The evidence at the Inquiry is more than sufficient to
enable me to comment on the origins of the leaks in general terms, their purpose and the impact they had on Mr. Arar and his family.
Criminal investigations are generally kept confidential in order to ensure
fairness to individuals subject to investigation, who may never be charged, and
to protect the ongoing effectiveness of the investigations. There is an additional
rationale for confidentiality in the case of national security investigations: the
need to protect classified information.
Nonetheless, the fact that an investigation is being conducted may sometimes become known, generating interest on the part of the media and the public. In those instances, government authorities with access to classified or
confidential information are in a position to sway public opinion by selectively
divulging information to the media. Because the public cannot know the full picture, leaks of selected information can be misleading and unfair to individuals
who may be subjects of the investigation or persons of interest to the investigation. This is especially so when the leakor adds a spin to the leaked information to get his or her message out.
Leaking classified information is clearly wrong and a serious abuse of trust.
It can also be a dangerous practice if the information is subject to a legitimate
national security confidentiality claim. Leaking classified information may harm
national security, international relations or national defence.
�RETURN TO CANADA
This case is an example of how some government officials, over an
extended period of time, used the media to put a spin on an affair and unfairly
damage a person’s reputation. Given the content of the released information,
only individuals with access to classified information could have been responsible for the leaks. The obvious inference is that this was done to paint a picture they considered favourable either to the Canadian government or to
themselves.
It is worth bearing in mind that leaks of government information can have
different aims. In some cases, the leakor is seeking to disclose what he or she
perceives to be government wrongdoing that would not otherwise come to light.
Other leaks, however, seek to advance the interests of the Canadian government or of government officials, in some cases by disparaging the reputation
of another. This was the case with some of the leaks concerning Mr. Arar, which
were aimed at tarnishing Mr. Arar’s reputation and undermining his credibility.
Some were likely intended to persuade the Government of Canada not to call a
public inquiry.
While most leaks likely involve a breach of some form of confidentiality,
using confidential information to manipulate public opinion in favour of the
Canadian government’s interests or the interests of the leakor of the information
is obviously more egregious. This is particularly so when third parties are targeted in a way that is unfairly prejudicial to them.
Because it can be so difficult to counter this type of leak, one can only
hope that some of the public and the media are sophisticated enough to perceive the reality of what is occurring and to reserve judgment until there is a fair
and transparent disclosure of all of the relevant facts.
5.2
NATURE AND CONTEXT OF LEAKS1
This Inquiry heard evidence of at least eight media stories containing leaked
information about Mr. Arar and/or the investigation that involved him.2 Some of
the leaks sought to portray Mr. Arar as an individual who had been involved in
terrorist activities such as training in Afghanistan, had named other “terrorists”
while imprisoned in Syria, and was “a very bad guy”3 and “not a virgin.”4 The
sources of the leaked information were both human (unnamed government officials) and documentary (classified or confidential documents).
The first leak occurred in the summer of 2003, before Mr. Arar’s return to
Canada, at a time when the public campaign to obtain his release from Syrian
custody had intensified. An unidentified official was quoted as saying that
Mr. Arar was a “very bad guy” who had received military training at an al-Qaeda
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ANALYSIS AND RECOMMENDATONS
base. The article also noted that the unnamed government official had refused
to provide further details, attributing the need for secrecy to ongoing intelligence
operations. The apparent purpose behind this leak is not attractive: to attempt
to influence public opinion against Mr. Arar at a time when his release from
imprisonment in Syria was being sought by the Government of Canada,
including the Prime Minister.
Around the time of Mr. Arar’s return to Canada in October 2003, four more
leaks were reported. On October 9, 2003, the Toronto Star quoted “an official
closely involved in the case” 5 as saying that American officials had contacted
their Canadian counterparts when Mr. Arar’s name had been noted on a passenger flight list (referring to Mr. Arar’s arrival in New York on September 26,
2002). According to the unnamed source, conversations had then taken place
between American and Canadian officials about Mr. Arar, in particular about
whether he had travelled to Afghanistan and whether he could be charged if
returned to Canada. The next day, October 10, 2003, an article in the Globe and
Mail cited unnamed Canadian government sources as saying that Mr. Arar had
been “roughed up,” but not tortured, while in detention in Syria.6
This latter comment that Mr. Arar had not been tortured is consistent with
the reaction of several Canadian officials on Mr. Arar’s return to Canada: they
attempted to downplay the seriousness of the ordeal he had endured in Syria.
The implication in this regard is that, if Canadian officials were in any way
involved in what happened to Mr. Arar, it would be better from their standpoint if he had not been seriously mistreated.
On October 23, 2003, the CTV 11 o’clock news broadcast a segment quoting “senior government officials in various departments” as saying that Mr. Arar
had provided information to the Syrians about al-Qaeda, the Muslim
Brotherhood, and cells operating in Canada.7 Mr. Arar was alleged to have implicated other Canadians in extremist activities.8 Again, the indirect suggestion was
that Mr. Arar himself had been involved in extremist terrorist activities.
As noted in an Ottawa Citizen article published on October 25, 2003,9 the
leaks about what Mr. Arar might or might not have said to his Syrian interrogators were “particularly worrisome” and potentially very dangerous, not only for
the Arar family, but also for the individuals allegedly named by Mr. Arar and still
in detention abroad in countries known to practice torture. The allegation that
he had denounced others would also have been harmful for Mr. Arar psychologically. As noted by Dr. Donald Payne, a member of the Board of Directors of
the Canadian Centre for Victims of Torture, “it would be difficult for anyone to
be pointed out as a betrayer of people, to be falsely pointed out as a betrayer
of people.”10
�RETURN TO CANADA
Even Mr. Arar’s first meeting with DFAIT officials in Ottawa on October 29,
2003 did not remain confidential despite an understanding before the meeting
that what Mr. Arar said would not be disclosed until he chose to divulge it. On
October 30, CBC Newsworld reported that Mr. Arar had met with Minister
Graham and had told DFAIT officials that he had been tortured while detained
in Syria.11 Although this disclosure appears to have breached a confidence, it
obviously did not discredit Mr. Arar, as several others did.
In the press conference held in Ottawa on November 4, 2003, Mr. Arar told
his story at length and described the torture he had suffered in Syria. He strenuously denied all allegations that he was implicated in terrorism or associated
with people involved in terrorist activities. He also called for a public inquiry into
his case.
Four days after the press conference, on November 8, 2003, the most notorious of the Arar leaks occurred. Information from classified documents was
published in the Ottawa Citizen, in a lengthy article by Juliet O’Neill entitled
“Canada’s dossier on Maher Arar: The existence of a group of Ottawa men with
alleged ties to al-Qaeda is at the root of why the government opposes an inquiry
into this case.”12
The front-page article contained an unprecedented amount of previously
confidential information, including a detailed description of the RCMP Integrated
National Security Enforcement Team (INSET) office in Ottawa, a place not accessible to the public, and specific reference to the “main target” of investigation,
Abdullah Almalki. It indicated that “one of the leaked documents” contained
information about what Mr. Arar had allegedly told the Syrian Military
Intelligence during the first few weeks of his incarceration and then went on to
describe this information in detail.
The article moreover referred to some aspects of the RCMP’s investigation
of Mr. Arar and cited a “security source” for the proposition that a suspected
Ottawa-based al-Qaeda cell was at the root of opposition by the Canadian government to a full public inquiry into Mr. Arar’s case. Ms. O’Neill reported that
the RCMP had “caught Mr. Arar in their sights” while investigating members of
an alleged al-Qaeda logistical support group in Ottawa.
The article shed light on the motivation behind the leaks by security
officials:
…it was in defence of their investigative work — against suggestions that the RCMP
and the Canadian Security Intelligence Service had either bungled Mr. Arar’s case
or, worse, purposefully sent an innocent man to be tortured in Syria — that security
officials leaked allegations against him in the weeks leading to his return to Canada.
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ANALYSIS AND RECOMMENDATONS
This implies that leaking classified information is justified if it suits the interests of the investigators. Based on this reasoning, since the public does not have
access to classified information, leakors can pick and choose what is released
to suit their purposes.
During the Inquiry, government officials frequently made the point that
unauthorized release of information received from foreign governments would
be injurious to Canada’s national security interests. Suffice it to say that, if the
information in the O’Neill article was in fact received from Syrian officials, such
information would be subject to a claim by the government that it could not be
released because of national security confidentiality concerns.
A few more leaks followed, including a December 30, 2003 article, the
headline of which provocatively proclaimed, “U.S., Canada ‘100% sure’ Arar
trained with al-Qaeda.” The article quoted a “senior Canadian intelligence
source” as saying, with regard to Mr. Arar, “this guy is not a virgin….There is
more than meets the eye here.”13 The source said that the United States had
made an error in deporting Mr. Arar instead of allowing the RCMP to monitor
his activities upon his return from Tunisia. The source added that the United
States had an extensive dossier on Mr. Arar and that “if the Americans were
ever to declassify the stuff, there would be some hair standing on end.” By the
time this leak occurred, the public pressure to call a public inquiry was intensifying. The headline was clearly wrong. The comments attributed to the “senior
Canadian intelligence source” were obviously intended to sway public opinion
against Mr. Arar.
On January 28, 2004, the Deputy Prime Minister announced the
Government of Canada’s decision to call a public inquiry into the actions of
Canadian officials in relation to Mr. Arar.
There was at least one further leak during the course of the Inquiry. On
June 9, 2005, previously unpublished material was reported in an article in the
Toronto Star.14 The article indicated that the Canadian Security Intelligence
Agency (CSIS) had travelled to Syria to sign an information-sharing agreement
between Canada and Syria. The article also referred to positions taken during the
in camera hearings for the Inquiry. There was nothing in this disclosure that
harmed Mr. Arar’s reputation or affected the Inquiry process. What is interesting about it, however, is that one or more government officials with access to
the in camera evidence did not feel bound to keep the information confidential.
�RETURN TO CANADA
5.3
SOURCES
To date, none of the sources of any of the leaks has been identified. Government
agencies including the RCMP, CSIS, the Privy Council Office and Foreign Affairs
have carried out investigations into some of them, to no avail.15 The only investigation not yet completed is the ongoing criminal investigation into the Juliet
O’Neill article, which has been delayed because of litigation. That investigation
is now close to two years old.
During the Inquiry, witnesses involved in the Arar file and who had access
to classified information were asked if they knew of anyone responsible for any
of the leaks. All those asked responded, under oath, that they knew nothing
and could not shed any light on who might have been involved. The sources of
the leaks are a complete mystery to everyone.
As I indicate above, a full factual investigation into the sources of the leaks
would be a monumental task for the Inquiry and it is not sufficiently connected
to my mandate to be warranted. The prospects of determining who was responsible for the leaks about Mr. Arar are very uncertain at best. This is a disheartening state of affairs. Given that the leakors are likely officials within agencies
that boast highly skilled investigators, one would have hoped that those investigating the leaks would have had more success in finding the perpetrators.
Everyone asked about the leaks decried the fact that government officials would
leak classified or confidential information to the media, but no one seems able
to do anything about it.
The obvious implication of the failure to identify the source of leaks is that
there is no deterrent to others who may be inclined to leak classified or confidential information in the future. If no one ever gets caught, those who are prepared to leak this type of protected information for purposes that suit their own
interests will probably continue to do so.
Finally, I observe that, over time, leaks could also have an adverse effect
on the willingness of our allies to share vital information with Canada. As the
Supreme Court of Canada has noted, Canada is a net importer of intelligence
and, for that reason, national security confidentiality must be protected.16 If some
Canadian officials cannot be trusted to protect classified or confidential information, those providing the information may be more circumspect about what
they provide.
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ANALYSIS AND RECOMMENDATONS
5.4
EFFECTS ON MR. ARAR
Quite predictably, the leaks had deleterious effects on Mr. Arar’s reputation,
psychological state, and ability to find employment. The impact on an individual’s reputation of being called a terrorist in the national media is obviously
severe. As I have said elsewhere in this report, labels, even inaccurate ones,
have an unfortunate tendency to stick.
While the Inquiry did not hear from Mr. Arar directly about the personal
impact of the leaks, Dr. Donald Payne testified that, generally, such leaks would
have a traumatic psychological effect on someone in Mr. Arar’s position and
would carry a likelihood of re-traumatization.17
In addition, Professor Toope, the fact-finder I appointed to report on
Mr. Arar’s treatment in Syria, made specific findings on the impact of the leaks.
Professor Toope reported that the leaks had caused further psychological damage to Mr. Arar:
[Mr. Arar] was particularly disturbed by certain “leaks” from sources allegedly inside
the Canadian Government that cast him in a negative light. These events compounded his sense of injustice dating from his detention and torture in Syria. All his
advisers that I interviewed emphasised that Mr Arar was “devastated” by these leaks.
Some described him as “hysterical.” He simply could not control his emotions, and
it took many hours of constant conversation to calm him down each time new information surfaced in the press that he thought to be misleading and unfair.18
Professor Toope also linked the leaks to Mr. Arar’s feeling of social isolation from the Muslim community:
[Mr. Arar] told me that he is disappointed with the reaction of many Muslims to
him and his story. Whereas other Canadians sometimes come up to him on the
street to share a sense of solidarity, most Muslims stay far away from him. Mr. Arar
thought that this distancing was exacerbated after the press “leaks” mentioned
previously.19
Finally, Professor Toope described the economic effect of Mr. Arar’s ordeal
on the Arar family as “close to catastrophic.”20 Inasmuch as the leaks have
painted Mr. Arar as a terrorist, it is reasonable to infer that they have contributed
to his ongoing difficulty in finding gainful employment in his field.
Lastly, I note that Mr. Arar’s time in Syria deprived him of something most
Canadians take for granted: “control over the truth about oneself.”21 The fact
�RETURN TO CANADA
that this deprivation continued after Mr. Arar’s return to Canada — this time
because of leaks of confidential information by government officials — is both
unfortunate and deeply unfair.
5.5
FINAL COMMENT
Unlike many other actions of Canadian officials that I describe in this report,
leaking information is a deliberate act. Moreover, some of the leaks relating to
Mr. Arar were purposefully misleading in a way that was intended to do him
harm.
It is disturbing that there are officials in the Canadian public service who
see fit to breach the public trust for their own purposes in this way. It is disappointing that, to date, no one has been held accountable.
6.
INCOMPLETE BRIEFING
When briefing the Privy Council Office and senior government officials about the
investigation relating to Mr. Arar, the RCMP omitted certain key facts that could
have reflected adversely on the RCMP.
On November 5, 2003, the day after Mr. Arar’s press conference, RCMP
Deputy Commissioner Garry Loeppky had a meeting at the Privy Council Office
to discuss Mr. Arar’s case. The attendees were very senior officials, including the
National Security Advisor, Rob Wright, the Director of CSIS, Ward Elcock, the
Deputy Minister of Foreign Affairs, Peter Harder, and the Deputy Solicitor
General, Nicole Jauvin. They discussed the review process then underway and
the desirability of calling a public inquiry.
In order to assist decision making regarding the best way to proceed,
Mr. Wright asked that each department involved in the Arar case prepare a
detailed timeline including, among other things, a description of all interactions
with U.S. authorities concerning Mr. Arar, what information had been shared
and by whom, and any other issues that related to Mr. Arar and the U.S. The purpose of the request was obviously to obtain a complete briefing on what had
occurred, including any problems that had arisen, in order to assist the
Government of Canada in deciding how to proceed.22
On November 14, 2003, the RCMP forwarded a timeline, as requested.23
Unfortunately, that timeline omitted several very important facts that might have
supported an argument in favour of calling a public inquiry. The timeline failed
to mention that, in April 2002, the RCMP had taken the unprecedented step of
supplying its entire Supertext database relating to the relevant investigation to
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the American agencies, and that it had done so without complying with RCMP
policy requiring the screening of information and use of caveats. It also omitted
the fact that, each time the RCMP had supplied information related to the pertinent investigation to American agencies prior to Mr. Arar’s detention in
New York, it had done so without attaching caveats as required by RCMP policy. While the timeline specifically mentioned that the RCMP had asked U.S.
Customs to check if it had any information on a group of individuals that
included Mr. Arar and his wife, Monia Mazigh, it did not reveal that the RCMP
had requested border lookouts for each of them or that, in doing so, the RCMP
had described them as Islamic extremists suspected of having ties to al-Qaeda.
The timeline also failed to describe the close contact between the RCMP’s
Project A-O Canada and the American agencies in regard to the relevant investigation. In particular, it did not mention the fact that, in February 2002, the FBI
had visited the RCMP’s office to review its investigative file.
During the time Mr. Arar was detained in New York, the RCMP had a number of contacts with American authorities that were relevant to the issues covered in the timeline. The timeline failed to mention two conversations that
Corporal Flewelling of the RCMP’s CID had had with an American agent on
October 4 and 5, 2002, the second one being unusual in that the American agent
had called the corporal at home on a Saturday night. Given the purpose of the
timeline, these omissions were serious. Those who were involved in deciding
how the Canadian government should proceed had asked for a complete briefing on matters relevant to the decision. They should have received one.
In his testimony, Deputy Commissioner Loeppky acknowledged that there
were gaps in the timeline, but said that it had been put together under significant time pressure and that both the RCMP’s “A” Division and Headquarters had
been involved.
It was very important that the RCMP accurately brief the government about
what had occurred so that the government could make an informed decision on
how to proceed. The omission of information in the RCMP’s timeline had the
effect of minimizing potential problems with the RCMP investigation. That was
clearly wrong. Given that the RCMP had, in effect, been asked to report on itself,
there was a heightened obligation to be complete and forthcoming. I would
expect that, in future, briefings such as that provided through the timeline would
be accurate and balanced.
�RETURN TO CANADA
7.
RCMP REVIEW OF PROJECT A-O CANADA INVESTIGATION
After Mr. Arar’s release, there were at least two reviews of the Project’s investigation as it related to Mr. Arar. From October to December 2003,
Chief Superintendent Dan Killam from RCMP Headquarters conducted a review
and prepared a report. In essence, he concluded that Project A-O Canada had
acted appropriately throughout.
In the latter half of October 2003, the Commission for Public Complaints
Against the RCMP (CPC) launched an investigation into the Arar matter. The initial investigation in this process was conducted by Superintendent Brian Garvie
of the RCMP. I have set out the conclusions of the Garvie Report in Chapter V
of the Factual Background.
Notes
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
The full details of the leaks are set out in Chapter IV of the Factual Background.
I discuss only those media stories presented in evidence before me.
Exhibit P-80, pp. 1–2. Robert Fife, “Terror threats in Ottawa: Two kinds of fear: Report says
Syrian intelligence helped U.S. to foil al-Qaeda plot on target in Ottawa,” Ottawa Citizen
(July 24, 2003), A1.
Ibid., pp. 7–8. Robert Fife, “U.S., Canada ‘100% sure’ Arar trained with al-Qaeda: Family spokeswoman accuses intelligence officers of anonymous smear campaign,” Ottawa Citizen
(December 30, 2003), A1.
Exhibit P-116, Graham Fraser, “U.S. urged Canada to hold Arar; Canada refused to make arrest
– Americans sent him to Syria,” Toronto Star (October 9, 2003), A1.
Exhibit P-247, Jeff Sallot, “Arar was not tortured, officials say; Engineer held in ‘very bad’ conditions in Syria, suffered psychological stress,” Globe and Mail (October 10, 2003), A4.
Exhibit P-39, “The case of Maher Arar takes more twists and turns,” CTV (October 23, 2003);
Exhibit C-29, CTV Newsnet Morning (October 24, 2003). See also Exhibit P-117, Tab 47, p. 2,
Daniel Leblanc, “Officials allege Arar gave data on al-Qaeda, report says,” Globe and Mail
(October 24, 2003), A4.
The report was detailed, saying that Mr. Arar had provided information to the Syrians about
four other Canadians: “Arwad al Bushi, Abdullah al Malki, Ahmed Abu al Maati and Mohamed
Harkat.”
Exhibit P-80, p. 4, Norma Greenaway, “Supporters say Arar target of smear campaign,” Ottawa
Citizen (October 25, 2003), A3.
[P] Payne testimony (June 8, 2005), pp. 6102–6103.
See [P] Fry testimony (June 13, 2005), p. 6559.
Exhibit P-80, pp. 5–6.
Exhibit P-80, pp. 7–8.
See motion by Lorne Waldman, June 13, 2005, pp. 6363–6366. The article was by
James Travers.
See Factual Background, Chapter IV, Section 9.4, “Government of Canada Investigations of the
Leaks.”
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ANALYSIS AND RECOMMENDATONS
16
17
18
19
20
21
22
23
Ruby v. Canada, [2002] 4 S.C.R. 3, 2002 SCC 75.
[P] Payne testimony (June 8, 2005), pp. 6103–6106.
Report of Professor Stephen J. Toope, Fact Finder (Appendix 7), p. 816.
Ibid., p. 818.
Ibid.
Ibid., p. 809.
[P] Loeppky testimony (July 27, 2005), pp.8645-8646.
Exhibit P-85, Vol. 5, Tab 9.
�VII
Abdullah Almalki and Ahmad El Maati
1.
INTRODUCTION
Abdullah Almalki and Ahmad El Maati are Muslim Canadians who were targets
of the Project A-O Canada investigation in which Mr. Arar was a “person of
interest.” Indeed, the Project’s interest in Maher Arar stemmed from his association with Mr. Almalki and, to a lesser extent, Mr. El Maati. Both of these men
were imprisoned and interrogated in the Middle East in approximately the same
time period as Mr. Arar — Mr. Almalki in Syria from May 2002 to March 2004,
and Mr. El Maati in Syria and Egypt from November 2001 to January 2004.
All of the intervenors at the Inquiry made a joint closing submission raising the question of “whether what happened to Mr. Maher Arar can in any way
be linked to a pre-existing policy, practice, or established investigative procedure1 that led to the detention and interrogation by Syrian and Egyptian intelligence agencies of other Canadian Muslim men.”2 The other men in question are
Messrs. Almalki and El Maati and one other person, Muayyed Nureddin.3 My
analysis of this pre-existing policy issue, solely as it relates to what happened
to Mr. Arar, follows in this chapter.
2.
BACKGROUND
Since the investigation of Mr. Arar was connected with his associations with
these two men, it was necessary to hear evidence during the Inquiry that
described the basis of the Project A-O Canada investigation as it related to those
associations. I discuss some of that evidence at different points in the Report.
Inevitably, I also heard evidence about some of the information collected and
investigative steps taken with regard to Messrs. Almalki and El Maati. However,
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ANALYSIS AND RECOMMENDATONS
the mandate for the Factual Inquiry directs me to investigate and report on the
actions of Canadian officials in respect of Mr. Arar and no one else. Accordingly,
I did not conduct a full review of all of the information that pertained to
Messrs. Almalki and El Maati or of the actions of Canadian officials that might
have affected them. In fact, the evidence I did hear about each of their cases was
restricted to what I considered would be helpful in determining what actions had
been taken in respect of Mr. Arar. To have investigated the Almalki and El Maati
cases more fully would have been an enormously time-consuming task and
beyond my mandate.
Nonetheless, there is one issue pertaining to the evidence relating to
Messrs. Almalki and El Maati that warrants further comment. In their closing
submission, the intervenors at the Inquiry argued that, given the many similarities in what happened to Mr. Arar and what happened to the others — a repeating pattern, so to speak — there is reason to believe that Canadian officials had
a pre-existing policy governing some of their actions and that policy played a
part in Mr. Arar’s removal from the United States and his imprisonment and torture in Syria.
Before addressing the submission of the intervenors, I wish to make four
points by way of introduction.
•
•
•
Although Messrs. Almalki and El Maati were targets of the Project
A-O Canada investigation, they have never been charged with any
offence in Canada. Moreover, despite their lengthy imprisonment, in
Syria in the case of Mr. Almalki, and in Syria and Egypt in the case of
Mr. El Maati, neither man was ever convicted of any offence there.
Thus, they are presumed to be innocent of any offence and what I say
about their cases should not be interpreted as indicating otherwise.
In accordance with my mandate, I examined all of the actions of
Canadian officials as they related to Mr. Arar. In this connection, I
reviewed literally thousands of documents and heard from over 80 witnesses. I am satisfied that I have received all of the relevant information about what Canadian officials did as it related to him.
In reaching conclusions about what happened in relation to Mr. Arar,
I also considered information pertaining to the cases of Messrs. Almalki
and El Maati in order to determine whether what had happened to
them provided any additional insight into the actions taken in regard
to Mr. Arar. In this respect, I focussed on the intervenors’ question as
to whether, based on the information before me concerning the
Almalki and El Maati cases, there was reason to believe that there was
�ABDULLAH ALMALKI AND AHMAD EL MAATI
•
a pre-existing policy pursuant to which Canadian officials had acted in
relation to Mr. Arar.
The fourth preliminary matter has to do with the sources of information about the Almalki and El Maati cases. As I said above, I did not
conduct anything even approaching a full review of those cases. I
heard evidence concerning the basic facts about when they had been
detained in Syria and Egypt and when they had been released. I also
heard evidence about some investigative steps taken with respect to
each of them. However, my review of their files was far from comprehensive.
In addition to the evidence I heard from Canadian officials about the
Almalki and El Maati cases, chronologies of the more significant events were
filed by Messrs. Almalki and El Maati, who suggested they would be relevant
to examining Mr. Arar’s case. Since those chronologies were not entered into
evidence through sworn testimony or subjected to cross-examination, they cannot be used as a basis for any findings of misconduct against Canadian officials.
Nevertheless, they are of some assistance to me in addressing the question raised
by the intervenors. I approach the intervenors’ question by assuming that the
facts set out in the chronologies are true. In addition, I had the benefit of information contained in both men’s applications for standing and the information
about their cases contained in the report of Professor Toope, the fact-finder for
the Inquiry. Like the information in the chronologies, however, this information
is not evidence and cannot be used as a basis for any findings of misconduct.
There are a number of similarities in the cases of Messrs. Arar, Almalki and
El Maati. All three are Muslim Canadian men and all were linked in some way
with the Project A-O Canada investigation. All three ended up being imprisoned in Syria by the Syrian Military Intelligence (SMI) at its Palestine Branch at
a time when they were being investigated by Project A-O Canada. Professor
Toope concluded that all three had been interrogated and tortured while in Syria
and that the interrogations had been based on information that had originated
in Canada. In each case, it was contended that the RCMP and CSIS had sought
to advance their investigations through communication with the SMI. All three
men said that the RCMP and CSIS had impeded efforts to obtain their release.
Finally, each of them maintained that he had been the subject of improper leaks
of information to the media.
The question, then, becomes whether the evidence relating to the Almalki
and El Maati cases and the other information I received about their cases cause
me to reach my different conclusions about the actions of Canadian officials in
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relation to Mr. Arar. In particular, do they lead me to conclude that actions by
Canadian officials in relation to Mr. Arar were taken pursuant to a pre-existing
policy?
I have organized my analysis of the intervenors’ question into four subject
areas, each of which the intervenors have suggested may have been the result
of a pre-existing policy:
•
•
•
•
Mr. Arar’s removal to Syria;
cooperation between Canadian investigators and the SMI;
efforts to obtain Mr. Arar’s release; and
leaks.
3.
MR. ARAR’S REMOVAL TO SYRIA
In Chapter IV of this report, I conclude that Canadian officials did not participate or acquiesce in the American decision to remove Mr. Arar to Syria.
However, I do find that it is very likely that the American authorities relied upon
information provided by the RCMP in making the decision to remove Mr. Arar.
In chapters III and IV, I review the circumstances under which the RCMP provided the information about Mr. Arar to American agencies. While I have found
that there were several problems, some of them serious, with the way the information was provided, I am satisfied that the RCMP did not provide any of it
with the intent that Mr. Arar would be sent to Syria or even with the knowledge
that that would be the case. There is nothing in the evidence to suggest that the
American actions in sending Mr. Arar to Syria were connected with a pre-existing Canadian policy directed at achieving that result.
I have considered the circumstances surrounding what happened in relation to Messrs. Almalki and El Maati, including what is set out in their chronologies, with a view to determining whether those circumstances would affect a
conclusion based on the evidence with respect to Mr. Arar’s removal to Syria.
Even assuming that everything in the chronologies is factually accurate, my conclusions would be the same. I say that for two reasons.
First, I have thoroughly considered all of the evidence of those involved in
Mr. Arar’s case. There is nothing in either the public or in camera evidence to
support a conclusion that Canadian officials participated or acquiesced in the
American decision to send Mr. Arar in Syria. There is evidence that some officials were aware that Mr. Arar had been told he would be sent to Syria before
he was removed from the United States. However, those officials, reasonably I
conclude, did not consider the threat of Syria to be imminent or even likely.
�ABDULLAH ALMALKI AND AHMAD EL MAATI
The decision was made by the American authorities alone. Indeed, the actions
of American authorities in removing a Canadian from the United States to Syria,
a country with a questionable human rights record, came as a complete surprise to Canadian officials. They were not aware that the United States had taken
similar steps previously. Indeed, some officials testified that, while American
authorities had “rendered” individuals to countries such as Syria on occasion in
the past, such renderings had always been from other countries, not the United
States. Thus, there is no evidence that there was a Canadian policy that would
have supported the removal of Mr. Arar from the United States to Syria.
The second reason the circumstances surrounding the Almalki and El Maati
cases would not affect my decision in this regard is that the facts in those two
cases differ from those in Mr. Arar’s. Unlike Mr. Arar, both Messrs. Almalki and
El Maati were arrested while in Syria. Both travelled to Syria voluntarily and
were arrested at the Damascus airport on arrival. Even if one were to accept that
Canadian officials were somehow complicit in those arrests, that would not
change my conclusion, based on the evidence at the Inquiry, that Canadian officials did not participate or acquiesce in the American decision to send Mr. Arar
to Syria from the United States.
Thus, while I have concluded that there were several problems with what
Canadian officials did in relation to Mr. Arar, I do not find that the actions of
Canadian officials prior to Mr. Arar’s removal to Syria were the result of a preexisting policy,4 that is, an institutionally authorized course of action, rather than
a series of unacceptable practices by officials. I discuss the subject of operational or investigative practices below.
4.
CO-OPERATION BETWEEN CANADIAN INVESTIGATORS
AND THE SMI
In general terms, co-operation between Canadian investigators and the SMI
might take two forms: the Canadians might provide information or questions to
the Syrians in connection with a detainee, or they might receive information
from the Syrians about a detainee. I am satisfied that Canadian officials did not
provide any information about Mr. Arar to the Syrian authorities or give them
questions to be posed to him.
There is evidence that, after Project A-O Canada learned that Mr. Arar was
in Syria, the Project asked DFAIT to advise the Syrians that it was prepared to
share information about Mr. Arar with the Syrian authorities. However, that never
happened.
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ANALYSIS AND RECOMMENDATONS
Mr. Arar arrived in Syria around October 9, 2002. He was held incommunicado for about 12 days. During that period, he was interrogated and tortured.
For purposes of this discussion, I accept that he was questioned on the basis of
information that originated in Canada. In both his public statements and his
statement to Professor Toope, Mr. Arar indicated that he had not been questioned or beaten after the initial 12-day period.
The evidence is clear that Canadian officials were unable to confirm that
Mr. Arar was in Syria until October 21, after the period of interrogation. Prior to
that time, Syrian officials denied that he was in Syria. There is nothing in the evidence to suggest that any Canadian officials discussed Mr. Arar’s case with the
SMI, which was interrogating Mr. Arar, until after the interrogation was complete. I am therefore satisfied that Canadian officials did not provide the SMI with
information to be used to question Mr. Arar. While Syrian authorities might have
used information that originated in Canada to question him, that information
must have been supplied by the American authorities, who were responsible for
sending Mr. Arar to Syria. The American authorities had a great deal of information derived from the Canadian investigation, which they had received from
the RCMP over the course of the preceding year without caveats restricting dissemination to third parties, such as the Syrians. However, none of that information had been provided with the thought that it would eventually find its way
to Syria. Moreover, there is no evidence to suggest that the Canadians authorized American authorities to provide the Syrians with the “Canadian
information.”
Even if, as they allege, Messrs. Almalki and El Maati were interrogated by
Syrian authorities based on information that originated in Canada, that fact would
not alter my conclusion, based on the evidence in Mr. Arar’s case, that Canadian
officials did not supply the SMI with information for use in Mr. Arar’s
interrogation.
I do note that the RCMP provided the SMI with questions for Mr. Almalki
on January 15, 2003, and that one of the questions referred to Mr. Arar.
Moreover, the covering letter enclosing the questions mentioned the RCMP’s
investigation of terrorist cells in Canada. It is possible that the SMI would have
interpreted this correspondence as indicating that Mr. Arar was suspected of
being a member of a terrorist cell. In that sense, this correspondence would
have provided information about him to the SMI. I discuss the possible impact
of this communication on Mr. Arar’s release in Chapter V.
With regard to the issue of receiving information from the SMI, in Chapter
V I discuss the fact that, on November 3, 2002, General Khalil of the SMI provided the Canadian ambassador, Franco Pillarella, with a bout de papier, or
�ABDULLAH ALMALKI AND AHMAD EL MAATI
informal written communication, containing a summary of Mr. Arar’s alleged
confession. The bout de papier was distributed to Canadian investigators. I also
describe a visit to Syria by CSIS officials in late November 2002, during which
the officials met with SMI officials and received “some information” about
Mr. Arar. I am satisfied that, other than in these two instances, Canadian investigators did not receive anything more than negligible information about Mr. Arar
from the Syrians. Indeed, after the CSIS visit, the Syrian authorities became
increasingly less forthcoming about Mr. Arar’s circumstances. They would not
disclose any of the details of their case against him. At one stage, they alleged
he was a member of the Muslim Brotherhood; on another occasion, they said
he was a member of al-Qaeda. However, they gave no details and provided no
information to support the allegations. In the end, they released Mr. Arar without disclosing what charges, if any, he had faced.
Thus, even if it were shown that the Syrian authorities provided information about the Almalki and El Maati cases to Canadian officials, my conclusion
about what information they gave Canadian officials with respect to Mr. Arar
would not change.
In summary, on the basis of the evidence I have heard about Mr. Arar’s
case, I do not believe that information about co-operation between Canadian
officials and the SMI in the Almalki and El Maati cases would alter my conclusions concerning what occurred in Mr. Arar’s case. That said, I wish to make it
clear that I am not suggesting that what occurred in those other cases was
acceptable. Indeed, there are significant indications to the contrary, such as the
fact that the RCMP provided the SMI with questions to be posed to Mr. Almalki
in January 2003. In Chapter IX, I recommend a process to manage these types
of issues when Canadians are detained abroad in terrorism-related cases.
5.
EFFORTS TO OBTAIN MR. ARAR’S RELEASE
I analyze the evidence relating to Canada’s efforts to obtain Mr. Arar’s release
in Chapter V. In brief, I conclude that the RCMP and CSIS did not support the
release efforts, but that, in the end, I am unable to say whether their failure to
cooperate made any difference in terms of when Mr. Arar was released.
I do not have sufficient information about Canadian efforts to obtain the
release of Messrs. Almalki and El Maati to comment on whether what happened
in their cases would shed any additional light on what Canadian officials did in
regard to Mr. Arar’s release. Had I explored the evidence about the actions of
Canadian officials in regard to the release of Messrs. Almalki or El Maati, it is
possible that I would have reached a different conclusion. However, I have no
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way of knowing that and, given the complexity that would have been involved
in examining those issues and the tangential relevancy to the Inquiry, I did not
investigate these areas of evidence. It strikes me, however, that the institutional
concerns expressed by CSIS concerning the release of Mr. Arar would apply
equally, if not more so, to Messrs. El Maati and Almalki.
6.
LEAKS
In Chapter VI, I discuss the leaks of information about Mr. Arar to the media.
Unquestionably, the leaks came from government sources with access to classified information. According to the information in the chronologies supplied by
Messrs. Almalki and El Maati, both of them were also subjected to leaks from
time to time.
The practice of leaking confidential information is wrong and inexcusable.
Unfortunately, leakors never seem to get caught. Administrative and internal
investigations into the leaks relating to Mr. Arar have not determined who is
responsible. While there is an ongoing criminal investigation into one of the
leaks, none of the sources of the leaks in this case has so far been identified. I
have not heard that any of the sources of leaks relating to Messrs. Almalki and
El Maati have been identified either.
Without knowing who is responsible for the leaks, it is not possible to say
at what level they originated or to what extent they were authorized, either formally or informally. The fact that there have been leaks in other cases, such as
those of Messrs. Almalki and El Maati, suggests at least a “practice.” Whether
it is a practice that has tacit approval within the leaking organizations, I am
unable to say. However, it is unlikely that additional evidence about the leaks
in the Almalki and El Maati cases would have shed more light on who was
responsible for the leaks relating to Mr. Arar or whether they were the result of
an institutional practice.
7.
PATTERN OF INVESTIGATIVE PRACTICES
In reaching my conclusions about the relevance of the Almalki and El Maati
cases, I am not suggesting that there was not a pattern of operational or investigative practices common to some or all of the investigations. In fact, although
I have not reviewed all of the files of Messrs. Almalki and El Maati, I note that
there appears to have been a pattern of investigative practices whereby
Canadian agencies interacted with foreign agencies in respect of Canadians held
abroad in connection with suspected terrorist activities.
�ABDULLAH ALMALKI AND AHMAD EL MAATI
I am unable to disclose much of the evidence I heard relating to Messrs.
Almalki and El Maati for reasons of national security confidentiality and relevance to my mandate. As a result, I can only describe the pattern of investigative practices in general terms. It is nonetheless important to disclose them, even
if only in general terms, as they point to systemic problems that go beyond
Mr. Arar’s case — problems that should be addressed by the relevant agencies
through policies or guidelines.
The first investigative practice is that of sharing with foreign agencies information that may be used by a foreign agency to detain or arrest a Canadian. As
I repeat several times in this report, sharing information is important and should
be encouraged. However, it must be done properly, in accordance with established policies or protocols. This systemic issue is discussed in Chapter IX, in the
context of protocols for the sharing of information with foreign agencies and that
of arrangements or relationships with nations with poor human rights records.
Another practice involves sharing with a foreign agency information concerning Canadians being detained by the foreign agency. This information may
be used in the interrogation of a Canadian or in legal proceedings brought
against a Canadian. This issue is also discussed in Chapter IX, in the contexts
referred to in the preceding paragraph.
A common issue in all investigations involves Canadian investigative agencies’ pursuit of their investigative interests in Canadians being detained abroad,
sometimes in conflict with or to the prejudice of diplomatic efforts to have those
Canadians released to Canada. Practices include submitting questions to be
asked of a Canadian by the foreign agency, conducting interviews abroad, or
sharing information that could be used as the basis of questioning by the foreign agency. In Chapter IX, I discuss the need for the Government of Canada
to follow a more coordinated approach in attempting to obtain the release of
Canadians detained abroad.
A practice by Canadian agencies seen in all the investigations was that of
accepting and relying upon information that might be the product of torture
without conducting an adequate reliability assessment to determine whether or
not torture had been involved. Canadian officials appeared to be dismissive of
allegations of torture (or did not take them seriously). In Chapter IX, I make
recommendations concerning how such information should be processed, used
and distributed by Canadian agencies.
Finally, a common investigative practice involved notification of American
agencies whenever a Canadian suspected of terrorism-related activities departed
Canada for any reason, as well as provision of the Canadian’s intended
destination. In light of American practice at the time, it is reasonable to assume
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ANALYSIS AND RECOMMENDATONS
that the country of destination was informed by the American authorities of the
Canadian’s travel to that country.
In one internal communication, an RCMP official stated that his agency
would have notified the Middle Eastern country of destination of the departure
from Canada of a Canadian suspected of terrorist activity if he had not been
confident that the Americans would notify that country of the departure. The
RCMP had given the American authorities the information concerning the departure of the Canadian.
The justification given for this information sharing was that Canada has
international obligations in relation to the movement of known terrorists. Upon
his arrival in the Middle Eastern country, the Canadian was detained and
tortured.
While these investigative practices may not have been the result of specific
pre-existing policies, they were nonetheless practices that were common to all
investigations and, as a result, show that Canadian officials’ treatment of Mr. Arar
was not unique. They are indicative of systemic problems that should be
addressed by the relevant agencies. In Chapter IX, I provide suggestions in this
regard.
8.
MUAYYED NUREDDIN
Muayyed Nureddin is another Muslim Canadian who was imprisoned in Syria.
Professor Toope concluded that he, too, had been tortured. However, his case
has significantly fewer links to Mr. Arar’s than those of Messrs. Almalki and
El Maati. The information gathered by Project A-O Canada did not link Mr. Arar
with Mr. Nureddin. Moreover, Mr. Nureddin was not imprisoned in Syria until
December 2003, two months after Mr. Arar was released from Syrian custody,
and he was held for only about one month. Thus, drawing parallels between
what happened to Mr. Arar and Mr. Nureddin is more difficult.
In any event, I have reviewed the circumstances surrounding
Mr. Nureddin’s case to the extent that I have them, and those circumstances do
not add to what I have already said about the Almalki and El Maati cases.
9.
RECOMMENDATIONS
I accept the premise underlying the intervenors’ submission. The cases of each
of the other three men — Messrs. Almalki, El Maati and Nureddin — raise troubling questions about what role Canadian officials may have played in the events
that befell them.
�ABDULLAH ALMALKI AND AHMAD EL MAATI
Although the intervenors could file complaints with the appropriate
review bodies, that is, the Commission for Public Complaints (CPC) in the case
of the RCMP and the Security Intelligence Review Committee (SIRC) in the case
of CSIS, there is a concern that those review bodies would not be able to
adequately carry out a review of the three cases because of the need to review
the activities of more than one agency at a time. There might have been involvement by both the RCMP and CSIS, as well as officials from DFAIT and perhaps
other government departments or agencies. The CPC and SIRC, however, have
jurisdiction only with respect to their underlying agencies. Currently, there is no
provision for integrated review of operations by the RCMP and CSIS. Moreover,
there may be concerns about the sufficiency of the investigative powers of the
CPC.
I note that, prior to the establishment of the Inquiry, reviews in the Arar case
were conducted by the SIRC and also by the RCMP under the CPC legislation.
In its report, the SIRC observed that its mandate did not extend beyond CSIS and
it was therefore limited in the review it could conduct. Similarly, the CPC cannot investigate CSIS, and it may not have the power to compel production of all
of the documents it considers relevant. The creation of the Inquiry solved the
integration problem in the Arar case. I was directed to investigate and report on
the actions of Canadian officials generally, without concern for which department or agency employed them.
In the Policy Review report, I make recommendations for an independent
arm’s-length review mechanism for RCMP national security activities. I also make
recommendations for addressing review problems arising from integrated
operations.
That said, I do not know whether the Canadian government will implement the recommendations set out in the Policy Review and, if so, how long it
will take to do so. I can understand a concern that the practical result of awaiting implementation of those recommendations may leave the complaints
unaddressed.
One of the options put forward by the intervenors was that the three cases
be considered through a public inquiry — possibly a second stage of this
Inquiry. I would not recommend adopting that approach. My experience in this
Inquiry indicates that conducting a public inquiry in cases such as these can be
a tortuous, time-consuming and expensive exercise. Quite properly, the public
inquiry process brings with it many procedural requirements for openness and
fairness. In Chapter VIII, I describe some of the difficulties encountered in this
Inquiry and how I addressed them. Rather than repeat those descriptions here,
I will simply say that there are more appropriate ways than a full-scale public
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inquiry to investigate and report on cases where national security confidentiality must play such a prominent role. These types of cases are likely to occur from
time to time, and it is not practical or realistic to respond by calling a public
inquiry each time.
That said, I have heard enough evidence about the cases of Messrs. Almalki,
El Maati and Nureddin to observe that these cases should be reviewed and that
the reviews should be done through an independent and credible process that
is able to address the integrated nature of the underlying investigations. The
process that will result from my Policy Review recommendations, if implemented, is one approach that, in my view, would be acceptable. However, there
may be delays. Another possibility would be the type of process recommended
by Bob Rae, Independent Advisor to the Minister of Public Safety and Emergency
Preparedness on questions relating to the bombing of Air India Flight 182, for
reviewing the investigations in the Air India case. Whatever process is adopted,
it should be one that is able to investigate the matters fully and, in the end,
inspire public confidence in the outcome.
I hasten to add that, in making these comments, I am not suggesting that
this Inquiry was not worthwhile. On the contrary, I think that it has turned out
to be beneficial for a number of reasons. In the end, it has shone light on investigations and practices about which there was a great deal of public concern. The
Inquiry has also provided the platform for making many operational recommendations about the conduct of national security investigations and the treatment of Canadians detained abroad in connection with terrorism-related matters,
as well as providing very useful information for making recommendations in
the Policy Review.
Notes
1
2
3
4
For ease of reference, I will refer to this as a “pre-existing policy.”
Closing submissions – Joint Intervenors’ Submission to the Commission of Inquiry into the
Actions of Canadian Officials in Relation to Maher Arar (September 10, 2005), p. 1.
I deal with Mr. Nureddin’s case separately from the other two.
In reaching this conclusion, I cannot exclude entirely the possibility that, were I to hear all of
the evidence about the actions of Canadian officials in relation to Mr. Almalki or Mr. El Maati,
there might not be some evidence to show a pre-existing policy. However, given the evidence
I heard, I think that it is most unlikely.
�VIII
Factual Inquiry Process
1.
INTRODUCTION
The process for a public inquiry needs to be flexible so that it can be adjusted
as circumstances require. This was certainly the case with the Factual Inquiry,
which presented a unique and difficult challenge: conducting a public inquiry
involving a significant amount of information that could not be disclosed publicly because of national security confidentiality (NSC) concerns.1
This chapter outlines the process for the Factual Inquiry and discusses a
number of special features arising from NSC considerations.
When the Inquiry began, Commission counsel and I had little appreciation
of how much information would be subject to NSC claims or how the
Government2 would respond to my decisions about what could be disclosed
publicly. We learned as we went. The process developed at the outset evolved
and at one point, in April 2005, it became necessary for me to direct major
changes in the way the Inquiry would proceed.
Numerous procedural challenges arose from the tension among three different, sometimes competing requirements: making as much information as possible public, protecting legitimate claims of NSC, and ensuring procedural
fairness to institutions and individuals who might be affected by the proceedings.
These procedural challenges greatly extended the time and resources
needed to complete the Inquiry. The extra work included reviewing and processing thousands of documents that were subject to NSC claims, ensuring that
NSC information was handled in the appropriate manner, addressing what
seemed like a constant stream of procedural issues relating to NSC claims, hearing evidence in camera and then some of it again in public, and attempting to
provide a public summary of in camera evidence. Although it is impossible to
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be precise, I venture that dealing with NSC issues made the Inquiry process
50 percent longer.
Despite the fact that procedural issues were difficult and time consuming,
I believe that, by and large, the process we followed worked well. Interestingly,
while the challenges underlying this process were unique for a public inquiry,
an increasing number of judicial and administrative proceedings have had to
address the same or similar issues in recent years. I refer to proceedings in which
the decisions are based, in whole or in part, on evidence that cannot be disclosed publicly or to the parties who will be affected by them.3 As a result, the
parties cannot participate fully in the proceedings. In this chapter, I describe
how we addressed these types of issues.
Over the course of the Inquiry, I made a number of rulings pertaining to
the process. These rulings set out my reasons for adopting various process features. I review the more significant aspects of those rulings in this chapter as
well.
2.
MANDATE
By Order in Council dated February 5, 2004,4 I was appointed Commissioner to
conduct an inquiry under Part I of the Inquiries Act.5 There are two parts to my
mandate. The first is referred to as the “Factual Inquiry,” in which I am directed:
(a) to investigate and report on the actions of Canadian officials in relation
to Maher Arar, including with regard to
(i) the detention of Mr. Arar in the United States,
(ii) the deportation of Mr. Arar to Syria via Jordan,
(iii) the imprisonment and treatment of Mr. Arar in Syria,
(iv) the return of Mr. Arar to Canada, and
(v) any other circumstance directly related to Mr. Arar that the
Commissioner considers relevant to fulfilling this mandate.
The second part of the mandate, referred to as the “Policy Review,” instructs me
as follows:
(b) to make any recommendations that he considers advisable on an independent, arm’s length review mechanism for the activities of the Royal
Canadian Mounted Police with respect to national security based on
(i) an examination of models, both domestic and international, for
that review mechanism, and
�FACTUAL INQUIRY PROCESS
(ii)
an assessment of how the review mechanism would interact with
existing review mechanisms.
The two parts of the mandate are very different. As the name suggests, the
Factual Inquiry involves adjudicative fact-finding — determining what Canadian
officials did with respect to Mr. Arar. The Policy Review, on the other hand,
requires examination of a wide range of policy-related issues, practices and
experiences, both domestic and international, in relation to the review of
national security investigations. While the Factual Inquiry would serve as one
example of a national security investigation, the Policy Review’s mandate
extends far beyond what Canadian officials did or did not do with respect to
Mr. Arar and others involved in that investigation. Fulfilling the two parts of the
mandate therefore required two different procedural models.
The Factual Inquiry was conducted by way of evidentiary hearings, some
held in camera and others, in public. The proceedings had many trial-like features. For example, lawyers played an important role, and witnesses were examined and cross-examined under oath or affirmation. In contrast, the Policy
Review process was a research-based consultative study of issues relating to a
review mechanism for a law enforcement agency’s national security activities. I
describe the latter process in more detail in a separate report for the Policy
Review.
Some intervenors suggested that I should not complete the Policy Review
until after the Government of Canada had released my report on the Factual
Inquiry to the public. Their argument was that those making submissions to the
Policy Review would benefit from having my conclusions on what Canadian
officials did with respect to Mr. Arar. I decided against this approach and proceeded with both parts of the mandate simultaneously. However, I considered
the facts relating to Mr. Arar’s case when deliberating about the Policy Review
and I received helpful submissions from Mr. Arar relating the facts of his case
to the Policy Review. I shall be submitting the Policy Review report to the government shortly after I submit this report.
There were two reasons I adopted this simultaneous approach. First, the
parties making submissions within the framework of the Policy Review had the
benefit of the public evidence in the Factual Inquiry, and I did not consider that
my conclusions or any additional information made public in my report would
further assist them in making submissions. Second, there is a public interest in
having the issues in the Policy Review process addressed in an expeditious manner. Since it seemed possible that the public release of the Factual Inquiry report
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would be delayed because of NSC issues, I decided it was best to proceed with
the Policy Review process, so as not to delay the delivery of that report.
3.
FACTUAL INQUIRY PROCESS
3.1
PRINCIPLES
In Part I of my report relating to the Walkerton water tragedy, I set out the four
principles that guided the conduct of that Inquiry: thoroughness, expeditiousness, openness to the public, and fairness. The process for the Factual Inquiry
here was designed with these same principles in mind. I adopt here what I said
about the importance of each of these principles in the Walkerton report.6
In view of the purpose of an inquiry, “[i]t is crucial,” as Mr. Justice Cory has
said, “that an inquiry…be and appear to be independent and impartial in order
to satisfy the public desire to learn the truth.”7 To realize this duty of independence and impartiality, an inquiry must be thorough and examine all relevant issues with care and exactitude, to leave no doubt that all questions raised
by its mandate were answered and explored. In order to be effective, a public
inquiry must also be expeditious. Expeditiousness in the conduct of a public
inquiry makes it more likely that members of the public will be engaged by the
process and will feel confident that the issues are being appropriately addressed.
This is a public inquiry. It was therefore essential that the proceedings be
as transparent, accessible and open to the public as possible. The principles discussed above all stem from the public’s interest in an inquiry. It is important to
remember, however, that inquiries can have a serious impact on those implicated in the process. Thus, an inquiry must balance the interests of the public
in finding out what happened with the rights of those involved to be treated with
fairness.
As I indicate above, two additional factors came into play in this iinquiry,
namely, the need to protect NSC and the resulting concern for fairness to individuals and institutions potentially affected by my findings.
�FACTUAL INQUIRY PROCESS
3.2
NSC MANDATE
The Order in Council establishing the Inquiry set out directions for dealing with
information that was subject to NSC. It provided that:
(k) the Commissioner be directed, in conducting the inquiry, to take all
steps necessary to prevent disclosure of information that, if it were disclosed to the public, would, in the opinion of the Commissioner, be
injurious to international relations, national defence or national security and, where applicable, to conduct the proceedings in accordance
with the following procedures, namely,
(i) on the request of the Attorney General of Canada, the
Commissioner shall receive information in camera and in the
absence of any party and their counsel if, in the opinion of the
Commissioner, the disclosure of that information would be injurious to international relations, national defence or nationalsecurity,
(ii) in order to maximize disclosure to the public of relevant information, the Commissioner may release a part or a summary of the
information received in camera and shall provide the Attorney
General of Canada with an opportunity to comment prior to its
release, and
(iii) if the Commissioner is of the opinion that the release of a part or
a summary of the information received in camera would provide insufficient disclosure to the public, he may advise the
Attorney General of Canada, which advice shall constitute notice
under section 38.01 of the Canada Evidence Act.
Further, paragraph (m) of the Order in Council provided that nothing in the
order was to be construed as limiting the application of the provisions of the
Canada Evidence Act.8
The language in the mandate directing that I prevent disclosure of information that, if disclosed, would “be injurious to international relations, national
defence or national security” is similar to language in section 38 of the Canada
Evidence Act, which prohibits disclosure of this type of information. There are
many types of information that fall within this prohibition. For example, confidential sources of information (informers) and details of ongoing national security investigations that might compromise those investigations may not be
disclosed publicly. Similarly, information received from foreign governments,
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particularly when provided in confidence, often may not be revealed.
Information sharing among governments is crucial to conducting national security investigations,9 and respecting the confidence of those who provide information is essential.
On the other hand, a good deal of information relating to national security
investigations may be disclosed without causing injury. For example, there will
often be no harm in divulging information about a completed investigation, particularly if the fact of and circumstances relating to it are already in the public
domain. Moreover, many of the investigative steps taken by a law enforcement
agency such as the RCMP in a national security investigation may safely be
revealed. Unquestionably, there are borderline areas where judgments must be
made. It is important to note that both the Canada Evidence Act and the Order
in Council establishing the Inquiry provide for a means whereby information that
may potentially be injurious to NSC may be disclosed if the public interest in disclosure outweighs the potential injury.
The scheme for addressing NSC claims set out in the Order in Council is
complicated, and I do not discuss it in detail here. I reviewed a number of
aspects of the process in rulings, which are appended to Volume II of the
Factual Background. However, when the NSC mandate is stripped to the essentials, there are two points that are critical: on the one hand, the mandate required
me to form opinions about what information could or should be disclosed to the
public; on the other hand, my decisions in this respect were subject to challenge by the Attorney General of Canada in the Federal Court, under the legislative scheme in section 38.01 of the Canada Evidence Act. Thus, my authority
with respect to NSC was seriously attenuated.
It is not my intention to criticize the mandate. Indeed, while there were a
number of possible approaches to addressing NSC issues, the one taken in the
Order in Council was, in my view, reasonable. I draw attention to these points
solely to make it clear that my role in deciding what could be made public was
limited, and my decisions were always subject to review and challenge by the
Government. Indeed, as I describe below, that reality led me to significantly
alter the process for the Inquiry after the Government instituted a court challenge
to my ruling about the disclosure of information in a summary of in camera
evidence.
3.3
RULES OF PROCEDURE AND PRACTICE
In April 2004, the Inquiry developed and published a set of draft Rules, which
were to some extent modeled on those of other inquiries, but tailored to the
�FACTUAL INQUIRY PROCESS
particular circumstances of this inquiry as I viewed them at the time. Once parties were granted standing, they were given an opportunity to comment on
them. I subsequently incorporated the substance of some of their comments
into the Rules.10
As described above, the Inquiry was divided into two parts. The Rules for
the Factual Inquiry outlined the basis on which parties would be granted standing, their rights during the hearings, and the rights of witnesses. They also set
out the role of Commission counsel, the manner in which evidence would be
called, and the order in which witnesses would be examined.
Further, the Rules addressed in detail the process for receiving evidence
subject to NSC claims.11 They provided that I would convene in camera hearings to hear evidence over which the Government asserted an NSC claim. They
recognized that some parties with standing would not have a security clearance
giving them access to information subject to NSC claims and would therefore not
be able to participate in the in camera hearings. The Rules also stated that, after
hearing evidence in camera, I would periodically make rulings on the validity
of the NSC claims asserted by the Government.
In addition, the Rules specified that, from time to time, I would prepare
summaries of in camera evidence that, in my opinion, could be disclosed publicly. The intent behind this was to keep the public informed to some extent and
in a timely way of what was being heard in camera. Further, it was anticipated
that these summaries of in camera evidence would be useful to parties who
would be participating only in the public hearings that were scheduled to follow the in camera hearings, in particular Mr. Arar.
3.4
STANDING AND FUNDING
The Commission12 published a Notice of Hearing inviting persons interested in
the Factual Inquiry to apply for standing and funding. I received 24 applications, some involving several individuals and organizations. I heard the applications on April 29 and 30, 2004 and granted standing to a number of individuals
and organizations.13
In my ruling, I created three separate categories through which persons or
groups could participate in the Factual Inquiry: a) party standing, for those with
a substantial and direct interest in all or part of the subject matter of the Factual
Inquiry; b) intervenor standing, for those who did not have a substantial and
direct interest, but had a demonstrated concern in the issues raised in the mandate and a perspective and/or expertise that I considered would be of assistance
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to me in carrying out the mandate; and c) witnesses, for those who would be
entitled to representation by counsel when giving evidence.14
The primary difference between party and intervenor standing was that
those with party standing could be involved in all aspects of the hearings, including development of the evidence and examination of the witnesses. Those with
intervenor standing had opportunities to participate by making opening and
closing submissions and submissions on specific issues, such as the principles
relating to NSC and the rules of process and procedure. However, they did not
have the right to examine witnesses unless leave was granted to do so. In passing, I note that intervenors also had the opportunity to participate in the Policy
Review process.
The Attorney General of Canada was granted full standing for all parts of
the Inquiry. The Office of the Attorney General represented all government
departments and agencies connected with the issues, as well as many of the
government officials who testified at the Inquiry.
Maher Arar was granted standing to participate throughout the Inquiry
except, significantly, in the in camera hearings. Mr. Arar did not have the security clearance required for access to the information over which the Government
claimed NSC, and it was not reasonable, in the circumstances, to expect the
Canadian government to provide such clearance. Mr. Arar’s counsel did not seek
clearance to allow their participation in the in camera hearings, and I think this
was a reasonable decision. Had they obtained clearance, they would not have
been able to discuss information that was subject to NSC claims with their client
and would not have been able to obtain informed instructions on how to proceed on many issues. In this regard, I agree with the comments of Iacobucci and
Arbour J.J. in the Vancouver Sun case, where they expressed concern about
counsel’s role in a similar situation, noting that it was “difficult…to understand
how the public good is better served by the qualified participation of professionals who cannot discharge fully their publicly entrusted mandate. In any
event, these issues can be left for another day, and should be debated amongst
the professional bodies involved so that court-imposed conditions can properly
consider ethical standards and best practices in the professions involved.”15
The Ontario Provincial Police (OPP) and Ottawa Police Service (OPS) were
granted standing limited to the areas of the evidence that directly engaged their
interests.
I granted intervenor standing to 16 organizations. In general terms, these
organizations could be divided into three groups, representing the following
interests: Arab and Muslim/Islamic interests, civil liberty and Canadian democracy/sovereignty interests, and international human rights interests.
�FACTUAL INQUIRY PROCESS
For the reasons set out in my ruling, I declined to grant standing to Ahmad
El Maati, Abdullah Almalki and Muayyed Nureddin, three other Canadians who
had been detained by Syrian authorities. That said, I heard some evidence relating to Messrs. El Maati and Almalki, and their counsel appeared periodically at
the public hearings and were granted limited standing to address evidence
affecting their clients’ reputational interests.
With regard to funding, the Order in Council provided that:
(h) the Commissioner be authorized to recommend funding, in accordance
with approved guidelines respecting rates of remuneration and reimbursement and the assessment of accounts, to a party who has been granted
standing at the factual inquiry, to the extent of the party’s interest, where
in the Commissioner’s view the party would not otherwise be able to participate in that inquiry.
In my ruling, I recommended funding for Mr. Arar to obtain the services of
two senior and two junior counsel, to be paid in accordance with Government
of Canada guidelines. Counsel undertook that they would do their best to avoid
duplication and overlap, and I observe here that they were faithful to their
undertaking. From time to time during the Inquiry, Mr. Arar’s counsel requested
funding for additional matters not specifically covered by the guidelines or contemplated in my initial ruling. I accordingly made some supplementary funding
recommendations to the Government of Canada for Mr. Arar’s counsel.
In my ruling, I also made recommendations for limited funding for those
organizations granted intervenor standing. In January 2005, the intervenor
groups formed what was, in effect, a single coalition to monitor the progress of
the Inquiry. This was a sensible and positive step, and I subsequently recommended some additional funding to assist with this coordinated approach.
I am pleased to note that the Canadian government accepted all of my recommendations with respect to funding.
3.5
THE ISSUE OF CAUSATION
In Chapter I, I described the argument of Government counsel and counsel for
certain RCMP officers that I should not make any negative or critical findings
with respect to their clients unless I am able to find as a fact that the actions of
their clients “caused or contributed to” what happened to Mr. Arar. In support
of this argument, they have referred to the decision of the Supreme Court of
Canada in the Blood Inquiry case.16
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ANALYSIS AND RECOMMENDATONS
As I noted earlier, I do not accept this reasoning. The “causation argument”
in my view depends on an unduly narrow reading of what the Supreme Court
said about the scope of public inquiries in the Blood Inquiry case. In that case,
the Supreme Court made it clear that a public inquiry commissioner could make
evaluative comments, even if critical of individuals, if they were necessary to
fully report on the matters raised by the mandate or if they were helpful in making recommendations.
For example, in this Report I have pointed out that some information provided to American agencies by the RCMP was inaccurate and unfair to Mr. Arar
and that the RCMP did not follow its established information-sharing policies. In
order to properly report on these actions, I have set out how and why they took
place and, importantly, why they were unacceptable, creating unfair risks for
Mr. Arar. It is important, in my view, to report fully on these actions and the
problems that could arise if similar actions are taken in the future.
In addition, Chapter IX contains recommendations that stem directly from
the actions of Canadian officials in relation to Mr. Arar. As I point out in that
chapter, I have limited my recommendations to matters that flowed from the
evidence in the Factual Inquiry. In many instances, the discussion that follows
a particular recommendation relies specifically on findings in the Report. No
doubt some of those findings could be viewed as being critical or negative.
However, they were necessary in order to formulate the recommendations
and develop the reasons for them. I think Mr. Justice Cory put it aptly in the
Blood Inquiry case when he said “. . . it is clear that commissioners must have
the authority to make those findings of fact which are relevant to explain
and support the recommendations even though they reflect adversely upon
individuals.”17
I have two further remarks about the “causation argument.” First, as I have
already stated, I do not read into the mandate the requirement that I report only
on actions that caused Mr. Arar’s fate. In several places in the Report, I comment
on the actions of Canadian officials that created or increased a risk that Mr. Arar
would be subjected to unacceptable treatment. While creating or increasing an
unacceptable risk may sometimes fall short of establishing causation as that term
is used in a strictly legal sense, creating an unacceptable risk is still something
that should be avoided. In my view, reporting on the creation of unacceptable
risks falls within the mandate set out in the Order in Council and is something
that the Canadian public would expect me to do. It is worth repeating that I am
not making any findings of civil or criminal liability that might require the proof
of causation. Rather, I am reporting on “the actions of Canadian officials in relation to Maher Arar,” and nothing more.
�FACTUAL INQUIRY PROCESS
Finally, I must point out that much of the “causation argument” was directed
at the American decisions to detain Mr. Arar in New York and remove him to
Syria. Those making this argument contended that I should not comment critically on the actions of Canadian officials unless it can be shown that the actions
of their clients “caused or contributed to” the American decisions. In this report,
I have concluded that information supplied by the RCMP very likely played a
role in the American decisions to detain and remove Mr. Arar to Syria. In that
sense, those actions did “cause or contribute to” Mr. Arar’s fate. That conclusion,
it seems to me, provides another answer to the “causation argument,” at least
as it applies to the American decisions.
3.6
SECTION 13 NOTICES
The Inquiries Act provides special protection to persons who may be found by
an inquiry to have engaged in misconduct. Specifically, section 13 of the Act
provides:
No report shall be made against any person until reasonable notice has been given
to the person of the charge of misconduct alleged against him and the person has
been allowed full opportunity to be heard in person or by counsel.18
The Commission issued notices of alleged misconduct pursuant to section 13, also known as “Section 13 notices,”19 to a number of persons and institutions. Recipients of such notices were provided procedural rights to ensure that
they would be made aware of, and could respond to, any allegation of misconduct. They had the right to be represented by counsel and were entitled to
receive all documents relating to issues affecting their interests.
All of the individuals who received Section 13 notices were officials with
federal government departments or agencies. Obviously, Mr. Arar was not issued
a Section 13 notice. The purpose of the Inquiry was to examine the actions of
Canadian officials in relation to Maher Arar, not to consider the conduct of
Mr. Arar.
All recipients of Section 13 notices and counsel representing them had existing security clearances or were able to obtain them. As a result, they were able
to participate in the in camera hearings. It was therefore not necessary to
address the issue of whether the “reasonable notice” required by section 13 of
the Inquiries Act would have been provided if, for security reasons, one of the
recipients of a Section 13 notice had been unable to access information affecting his or her interest.
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ANALYSIS AND RECOMMENDATONS
In addition, recipients of the Section 13 notices were entitled to participate
in the hearings to the extent necessary to respond to allegations of misconduct,
and to call evidence and cross-examine witnesses on relevant issues. They were
also entitled to make closing submissions.
A number of individuals who received Section 13 notices moved to quash
them. Because the arguments in support of those motions relied in part on information over which the Government claimed NSC, the motions were heard in
camera. The grounds put forward in support of the motions included: late delivery of the notice; lack of detail or of standards in the notice; the potential that
I would make findings of criminal or civil liability; and an assertion that matters
in the notice exceeded the mandate. In a ruling dated August 17, 2005, I dismissed all of the motions20.
3.7
COLLECTION OF DOCUMENTS
In March 2004, the Commission issued the first of what would be numerous
requests for documents from the various government departments and agencies
connected with the Inquiry’s mandate.21 Over time, the government responded
to all of the Commission’s requests and produced the documents that
Commission counsel and I considered to be relevant to the mandate.22 In total,
the Commission received more than 21,500 government documents, some of
which were lengthy.
The Government and Commission set up a secure network that included an
electronic document management system called Ringtail. As the documents
were received, they were electronically uploaded to this system, allowing the
Commission to efficiently and effectively review and organize them. The
Commission also created a secure document management facility, approved
according to federal government security standards, for storing and managing
hard copies of government documents.
The Commission received the full text of all government documents, before
any redaction23 was done to take account of the Government’s NSC claims (subject in a few cases to claims of solicitor-client privilege or cabinet confidence).
Government counsel indicated which documents or parts of documents were
subject to its NSC claims through a colour coding system, in which the parts of
the documents in question were highlighted in different colours, each colour
representing the type of claim being asserted.
All Commission counsel and staff with access to government information
were cleared for handling top-secret information. In preparation for the in camera and public hearings, Commission counsel reviewed the documents to
�FACTUAL INQUIRY PROCESS
determine which should be entered into evidence. In total, over 6,500 government documents were entered as exhibits during the Inquiry. In advance of
each hearing, Commission staff prepared binders containing hard copies of the
documents that would become exhibits. These binders were made available to
parties and witnesses who would be appearing at the hearings.
Commission counsel and staff did a remarkable job of managing the huge
amount of material received, as well as organizing, preparing and distributing
the documents to be entered into evidence.
3.8
COMMISSION COUNSEL
Commission counsel played a critically important role throughout the Inquiry.
While I had overall responsibility for what areas of evidence should be explored, Commission counsel reviewed the thousands of government documents
received, interviewed potential witnesses, and called the evidence at the
hearings.
The Factual Inquiry presented an unusual challenge for Commission counsel in calling evidence. A good deal of the evidence, all from Government witnesses, was heard in camera. The only parties other than the Government who
participated in the in camera hearings were persons who had received
Section 13 notices and, occasionally, the OPP and OPS. For the most part, everyone appearing had interests that were identical or similar to the Government’s.
Indeed, it was obvious to me that counsel for recipients of Section 13 notices
often coordinated their approach to the evidence with Government counsel.
This situation was exacerbated by the fact that the Government chose to
have one set of counsel represent all the government departments and agencies
with a connection to the Arar matter. As a result, when departments or agencies
had differences in position, those differences were not explored by Government
counsel.
Given these circumstances, I instructed Commission counsel to test the in
camera evidence by means of cross-examination, when necessary. Thus, as one
of the steps in preparing to examine witnesses in camera, Commission counsel
met periodically with counsel for Mr. Arar and for the intervenors to receive
suggestions about areas for cross-examination. In the in camera hearings, if
Commission counsel thought it necessary, witnesses called by the Commission
were cross-examined, whether the Government agreed or not. Commission
counsel cross-examined many of the witnesses, sometimes vigorously, and did
so with considerable effectiveness.
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In my view, it was appropriate and necessary for them to perform this function. Frequently in public inquiries, the Commissioner is assisted by counsel for
the parties who are granted standing, who represent different interests and perspectives. Although the public inquiry is not, strictly speaking, an adversarial
process, the Commission has the advantage of hearing evidence tested through
cross-examination by those with competing points of view. However, when parties affected by the proceedings are not present to perform the cross-examination role, it is extremely helpful and even essential that there be an independent
person able to do so. Having Commission counsel incorporate into witness
examinations the perspectives of those who had an interest, but could not take
part in the proceedings, helped to address the substantial shortcoming in the
process resulting from the exclusion of those parties.
When I reflect on the nature of the issues raised by the mandate for the
Inquiry and the type of evidence I heard, I recognize that I could not have
reported with confidence if the witnesses heard in camera had not been crossexamined. I think Professor Wigmore’s comments about the value of cross-examination are particularly apt:
For two centuries past, the policy of the Anglo-American system of evidence has
been to regard the necessity of testing by cross-examination as a vital feature of the
law. The belief that no safeguard for testing the value of human statements is comparable to that furnished by cross-examination, and the conviction that no statement (unless by special exception) should be used as testimony until it has been
probed and sublimated by that test, has found increasing strength in lengthening
experience….
…Nevertheless, it is beyond any doubt the greatest legal engine ever invented
for the discovery of truth. However difficult it may be for the layman, the scientist,
or the foreign jurist to appreciate this its wonderful power, there has probably never
been a moment’s doubt upon this point in the mind of a lawyer of experience….
The fact of this unique and irresistible power remains, and is the reason for our
faith in its merits. If we omit political considerations of broader range, then crossexamination, not trial by jury, is the great and permanent contribution of the AngloAmerican system of law to improved methods of trial procedure.24
It is often said that Commission counsel’s role in a public inquiry is to lead
the evidence in an independent and fair manner, and that Commission counsel
should neither advocate a particular position nor set out to “prove a case.” I
agree with this description. The fact that Commission counsel may, in some circumstances, be required to cross-examine witnesses need not compromise the
independence or fairness of their position. Cross-examinations, even challenging
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ones, can be carried out fairly and even-handedly, and need not result in
Commission counsel adopting an adversarial or prosecutorial role.
Having independent counsel assist when a tribunal hears evidence in the
absence of those affected by the proceedings may also assist in addressing
understandable concerns about the in camera decision-making process among
affected parties and members of the public. Use of independent counsel thus
makes a good deal of sense when all or a portion of proceedings are conducted
in camera.
I would add that, if independent counsel, such as the Commission counsel
in the Inquiry, are to effectively test evidence and cross-examine witnesses, they
must have the resources to do so properly. They must also have access to all relevant documents and must be given the time and facilities to properly prepare.
3.9
AMICI CURIAE
The Rules of Practice and Procedure provided for the appointment of an independent legal counsel to act as amicus curiae to test the Government’s NSC
claims.25 The idea was to appoint a person, independent of the Government,
with extensive expertise in national security matters, to assist me in ensuring
that the Government’s claims were subjected to rigorous examination. I
appointed Ron Atkey, P.C., Q.C., to be amicus curiae. Mr. Atkey has a distinguished background and is recognized as having significant expertise in the
area. In addition to having served as federal Minister of Employment and
Immigration, he served for five years as the first Chair of the Security Intelligence
Review Committee (SIRC), where he was exposed to issues relating to NSC.
In December 2004, Mr. Atkey appointed Gordon Cameron to assist him in
his role as amicus curiae. Mr. Cameron also has considerable experience in
matters involving NSC, having served for ten years as outside counsel for the
SIRC.
Messrs. Atkey and Cameron both made significant and valuable contributions when issues arose with respect to NSC. They had access to all of the documents received by the Commission, as well as to the transcripts of the entire
in camera evidence. In some instances, they made submissions about the substance of the Government’s NSC claims. When appropriate, they also commented on the process for receiving evidence subject to NSC claims.
In a ruling dated May 9, 2005,26 I elaborated on the role of the amicus
curiae. At the request of Mr. Arar, and with Mr. Atkey’s concurrence, I asked that
either Mr. Atkey or Mr. Cameron attend the public hearing held from May
through August 2005. At the time of closing submissions, they outlined the issues
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they thought should be addressed in the Commission’s report, without taking
any positions themselves. Finally, I asked Messrs. Atkey and Cameron to make
submissions regarding which parts of this report could be disclosed to the public. I describe the process relating to the publication of this report in section 3.16
below.
I wish to thank Messrs. Atkey and Cameron for the exemplary manner in
which they fulfilled their duties. Throughout, they were responsible, careful and
very thorough, bringing their obvious expertise to bear on difficult issues. The
process for the Inquiry was enhanced by their involvement, and I am indebted
to them for their assistance.
3.10
HEARINGS
In late June 2004, I held five days of public hearings to receive background and
contextual evidence. Witnesses from CSIS, the RCMP and DFAIT described how
these institutions are organized and how they function in areas relevant to the
Inquiry.
The question arose as to the order in which the in camera and public hearings should be held in order to receive the factual evidence. After hearing submissions from the parties, I ruled that I would begin by hearing all of the CSIS
and RCMP factual evidence in camera.27 At the time, the Government was
claiming NSC over much of this evidence and I thought it important to hear it
in its entirety in one uninterrupted sequence, rather than shifting back and forth
between in camera and public hearings.
In making this ruling, I provided for two procedural steps, which eventually had to be abandoned. First, after hearing all the in camera evidence, I
would make an omnibus ruling with respect to the Government’s NSC claims,
thereby providing a means for disclosing, in advance of the public hearings, the
part of the evidence that I considered could be made public.
Second, I indicated my intention to produce a summary of the in camera
evidence, indicating what evidence the Government claimed was subject to NSC.
I left open the possibility of NSC rulings and summaries of the in camera evidence prior to completion of the in camera hearings.
The Inquiry heard in camera evidence between September 13, 2004 and
April 27, 2005. Forty-nine witnesses testified, primarily officials from CSIS, the
RCMP and Canada Customs. I heard an additional seven days of in camera evidence in August 2005, and a further two days in November 2005.
�FACTUAL INQUIRY PROCESS
The public hearings began on May 11, 2005 and were completed on
August 31, 2005. In October and November 2005, I heard an additional three
days of public evidence.
In total, I heard from 83 witnesses28 over the course of 75 days of in camera and 45 days of public testimony.
3.11
CSIS SUMMARY
Nine witnesses from CSIS testified from September 13 to September 29, 2004.
Their testimony made up the greater part of the evidence relating to the involvement of CSIS in the events covered by the mandate. By the time this evidence
was complete, it was apparent that the in camera hearings, particularly the
RCMP evidence, would be lengthy. Since I considered it important to make
available to the public as much information as possible about the proceedings
in a timely manner, I decided to prepare a summary of the in camera evidence
from CSIS that, in my view, could be disclosed publicly. Over the next month,
Commission counsel met often with Government counsel to try and reach agreement on the content of that summary. The Government took a more restrictive
view of what could be disclosed than did Commission counsel. Mr. Atkey was
involved in this process in the role of amicus curiae and agreed with
Commission counsel’s position.
On October 29, 2004, I held an in camera hearing on the Government’s
evidence and submissions regarding its NSC claims over the disputed material
in the summary. On December 20, 2004, I released a ruling29 concerning what
portions of the summary could be disclosed and giving my reasons, including
my reasons for rejecting certain of the Government’s NSC claims.
The Government responded by instituting proceedings in the Federal Court
challenging the disclosure of some information that I considered could be made
public under section 38 of the Canada Evidence Act.
3.12
REVISED PROCESS
The Government’s challenge to my ruling on the summary of in camera evidence from CSIS caused me to re-think parts of the process I had established for
the Factual Inquiry. The nature of the disagreements over what could be disclosed was such that I believed that trying to resolve them, most likely through
litigation, would result in considerable delay and might seriously impair the
Inquiry’s work, if not bring it to a complete halt. With this in mind, I called for
submissions from the parties about how I should proceed.
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In a ruling dated April 7, 2005,30 I amended the process for the Factual
Inquiry, discontinuing the approach of producing summaries of the in camera
evidence. I also decided to defer further rulings on the Government’s NSC claims
until I had finished hearing both the in camera and public portions of the evidence. After hearing the evidence, I would issue a report with my conclusions,
indicating what parts of the Report I considered could be made public. If there
were to be disagreements with the Government about its NSC claims, I thought
it best to address these in the context of a report, rather than in a series of protracted and costly interlocutory proceedings. This new approach meant that the
public hearings would proceed on the basis that there would be no public disclosure of any information over which the Government claimed NSC, even when
I disagreed with the claims.
I also indicated that I would no longer be seeking to publish the summary
of in camera evidence from CSIS that I considered could be disclosed publicly,
even though I continued to believe its disclosure was appropriate. The
Government withdrew its litigation and the Inquiry proceeded.
3.13
TRANSITION TO PUBLIC HEARINGS
Moving from in camera proceedings to public hearings raised a number of
process issues, some of which I addressed in rulings released on May 9 and 12,
2005.31 I discuss three of the more important issues below.
3.13.1
Mr. Arar’s Testimony
The question arose as to whether or not Mr. Arar should testify at the Inquiry.
My mandate directs me to examine the actions of Canadian officials in relation
to Mr. Arar. Having examined all of the evidence, I am satisfied that it was not
necessary for Mr. Arar to testify in order for me to answer the questions raised
by the mandate. That said, Mr. Arar has a strong reputational interest that is
affected by the Inquiry. However, he has not had access to many of the documents or to a good deal of the in camera evidence relating to matters about
which he could testify. Consequently, I have directed that Mr. Arar’s decision as
to whether or not he wishes to testify be deferred until after public disclosure
of this report, the idea being that he will then likely have as much information
as he is ever going to have about the matters on which he might testify. If
Mr. Arar wishes to testify, he may bring a motion and, if I consider it appropriate, I will hear his evidence.
�FACTUAL INQUIRY PROCESS
3.13.2
Fact-Finder
Having deferred the point in time at which Mr. Arar would decide if he wished
to testify, I was still interested in knowing about Mr. Arar’s treatment in Jordan
and Syria. I heard a considerable amount of evidence about how he had been
mistreated. While there was little, if any, dispute about the mistreatment suffered by Mr. Arar, I considered that the record of the Inquiry would benefit
from having an account of those experiences directly from Mr. Arar.
Accordingly, I appointed a fact-finder.
I asked Professor Stephen Toope, who has international experience in
investigating claims of torture, to look into Mr. Arar’s allegations of mistreatment and issue a report that would become part of the record. I also asked
Professor Toope to interview three other Canadians, Messrs. Almalki, El Maati
and Nureddin, who alleged mistreatment in Syrian custody at around the same
time as Mr. Arar. I made it clear that the fact-finder’s report would be used for
the sole purpose of describing Mr. Arar’s mistreatment in Jordan and Syria. In
particular, I directed that it would not form the basis for factual findings about
the actions of Canadian officials. It would not be fair to use Professor Toope’s
report as the basis for such findings since the Canadian officials would not have
an opportunity to cross-examine Professor Toope or Messrs. Arar, Almalki,
El Maati and Nureddin.
Professor Toope delivered his report on October 27, 2005. I found it comprehensive and highly informative. I summarize its findings in Chapter II. I wish
to thank Professor Toope for the thorough and expeditious manner in which he
completed this sensitive and difficult task.
3.13.3
RCMP Evidence
Both the Government and Superintendent Michel Cabana, the senior officer with
the RCMP’s Project A-O Canada, submitted that no RCMP evidence should be
called during the public hearings because of concerns about fairness to the
RCMP and RCMP officers. They argued that the Government’s NSC claims would
prevent witnesses from telling the full story and the public evidence would
therefore be incomplete. They also suggested that the evidence of RCMP witnesses could be misleading to the public.
I did not accept these arguments. The RCMP played a critical role in the
events giving rise to the Inquiry, and witnesses from the RCMP were essential
if the public hearings were to be meaningful. There was a substantial amount
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of RCMP evidence that could be called, even accepting the Government’s NSC
claims. I ruled that, if a particular line of questioning could not be answered
fairly because of the NSC claims, then that line of questioning would not be
pursued.
Five RCMP witnesses testified over the course of 10 days of public hearings.
While some areas could not be examined because of the Government’s NSC
claims, I believe the process generally worked well. The potential for unfairness to witnesses or misleading of the public did not materialize.
3.14
PUBLIC HEARINGS
As I indicate above, public hearings were held from May 11, 2005 to August 31,
2005, with a few additional days of testimony in October and November 2005.
Mr. Arar, with the assistance of counsel, participated throughout.
Periodically, some of the intervenor groups attended; although they did not
examine witnesses, they made suggestions to counsel for Mr. Arar and
Commission counsel regarding potential questions. They also made submissions
on a number of procedural issues. As I indicate above, Government counsel
represented all of the government departments and agencies affected by the
proceedings, as well as many of the government officials who were called to testify. Some of the witnesses retained their own counsel, who attended the hearings and were given the opportunity to examine witnesses when the testimony
affected their clients’ interests. Counsel for Messrs. Almalki and El Maati applied
for and received limited standing that entitled them to participate in the evidentiary process for the purpose of protecting their client’s reputational interests.
Commission staff prepared binders of all the documents, redacted to take
account of the Government’s NSC claims, that would be entered into evidence.
Copies of the binders were made available, as appropriate, to the parties, intervenors and counsel for individuals. All those who reviewed documents gave
signed undertakings regarding confidentiality.32 Commission counsel also prepared and distributed witness statements in advance of witnesses’ testimony.
I have a number of observations to make about the public hearings. First,
this was a process that had the potential to go badly awry. Holding public hearings about matters that cannot be fully disclosed can be problematic in terms of
both presenting a coherent picture and ensuring fairness to those affected by the
evidence. There was also the prospect of endless objections and arguments
about what could and could not be referred to and about the fairness of questioning. I am pleased to say that counsel for all the parties cooperated to make
the public hearing process as useful as it could be in the circumstances. The
�FACTUAL INQUIRY PROCESS
proceedings were not disrupted by objections or posturing. Counsel acted in a
professional manner, to the benefit of the Inquiry and the public.
It is important to note that, over the course of the public hearings, the
Government gradually relaxed its position over many of its NSC claims. As I
point out above, the Government and I disagreed about what information could
or should be disclosed publicly. Before the public hearings began, the
Government submitted thousands of documents to the Commission. Although
the Commission saw the full text of each, subject to legal privilege and cabinet
confidence claims, the Government redacted those portions of the documents
over which it claimed NSC. Only the redacted documents could be made public and entered into evidence in the public hearings.
In June 2005, after the public hearings had begun, the Government began
to re-redact many of the documents, in some cases significantly reducing matters over which it claimed NSC. As a result, the public hearing process was
improved.
That is not to suggest that the Government’s more liberal approach to NSC
claims went far enough. The Government continued to assert NSC claims over
some areas of evidence that, in my view, could be disclosed publicly. Below, I
discuss the process I followed to address the areas that remained in dispute
after the public hearings were over.
Finally, I note that, during the public hearings, I heard evidence from a
number of expert witnesses, including specialists in the areas of dual nationality, U.S. immigration law, the practices of rendition and extraordinary rendition,
Canada’s obligations under international legal instruments, the effects of torture
on victims, and false confessions. I also heard about the impact of the events of
September 11, 2001 and their aftermath on Canada’s Muslim and Arab communities, and how those events were perceived by members of those communities.
Internationally and nationally recognized in their fields, these experts provided
the Inquiry with a great deal of useful information.
3.15
CERTIFICATES OF PRODUCTION
Commission counsel were thorough and persistent in seeking to ensure that all
relevant documents were obtained from the different government departments
and agencies connected with the Factual Inquiry. Ultimately, however, the
Inquiry had to accept the assurances of those departments and agencies that all
of the relevant documents had been produced. In this regard, the Commission
obtained a certificate of production from the Attorney General of Canada on
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behalf of each department or agency stating, among other things, that all documents relevant to the subject matter of the Inquiry had been produced.
3.16
CLOSING SUBMISSIONS
I heard oral closing submissions in public on September 12 and 13, 2005 and in
camera on September 14, 2005.33 During the public hearings, counsel for
Mr. Arar, the Government, the amici curiae, six of the intervenors, and the OPS
made submissions. Only the Government also made closing submissions in
camera.
The recipients of Section 13 notices chose to make written, rather than oral,
submissions. Once they had been redacted by the Government for NSC claims,
the portions of these submissions based on public evidence were published on
the Commission’s website. Counsel for recipients of the Section 13 notices and
for Mr. Arar were given the opportunity to comment on fairness concerns relating to the publication of these submissions. All parties were given an opportunity to respond in writing to the closing submissions made by the others.
Towards the end of the evidentiary hearings, counsel for Ambassador
Franco Pillarella, who was retained after his client had given evidence in the
public hearings, requested an opportunity to cross-examine one witness who
had testified previously and to call two witnesses to address issues that had
arisen during his client’s testimony. At the time this request was received, the
schedule for closing arguments had been set. However, since I believed the
request to be reasonable, I reserved October 24 and November 8 and 9, 2005
to deal with the additional evidence. After this evidence was heard, Ambassador
Pillarella was given the opportunity to make closing submissions, and others
were given the opportunity to respond to those submissions.
3.17
REPORTS
As I indicate above, I am in the process of preparing a separate report for the
Policy Review part of my mandate.
With respect to the Factual Inquiry, I have prepared a comprehensive report
summarizing all the facts, without regard to NSC concerns, as well as a separate,
shorter factual summary (the Factual Background) based on the comprehensive
report, but omitting information that, in my opinion, may not be disclosed publicly, in accordance with paragraph (k) of the terms of reference. I have also prepared this separate volume containing my analysis of the issues, my conclusions
and my recommendations arising from the Factual Inquiry. I have taken care to
�FACTUAL INQUIRY PROCESS
avoid any reference to information subject to NSC in this volume. Thus, in my
view, this volume should be disclosed to the public in its entirety.
I relied on a variety of factors in deciding what information could be disclosed publicly in my report. First, I took into consideration all of the evidence
called by the Government to address the basis on which it asserted NSC claims.
In this regard, I heard from a number of witnesses in camera about the reasons
for claims of NSC over specific pieces of information. In addition, I benefited
from the assistance provided by the amici curiae throughout the Inquiry.
Further, I retained Reid Morden as an expert advisor and witness to assist
me with the disclosure decisions. Mr. Morden has extensive experience relating
to issues of NSC as the former Director of CSIS and Deputy Minister of the
Department of Foreign Affairs.
Mr. Morden reviewed the information over which the Government claimed
NSC, as well as its reasons. Extensive discussions between Commission counsel
and the Government took place regarding NSC issues. During these discussions,
Commission counsel was advised by Mr. Morden. Drafts of some sections of the
Report were provided to Government counsel for the sole purpose of addressing and resolving NSC issues. During the discussions, Commission counsel did
not press for disclosure of certain information over which there remained a dispute about the government’s NSC claims. This occurred when the information
was considered not to be significant to the public and was not necessary for a
fair recitation of the facts in my report.
After discussions between counsel, I then convened two in camera hearings to deal with issues that had not been resolved. Mr. Morden gave expert evidence about the areas of potential disagreement, and was cross-examined by
Government counsel. In addition, the Government called evidence regarding
some of the issues. The amici curiae also made submissions at the hearings
about what information, in their view, could be disclosed.
Following the in camera hearings, I formed my opinion as to what information could be disclosed and included in my public report. I have issued two
rulings setting out my reasons. Mr. Morden’s evidence at the in camera hearing
supported the disclosure of the information set out in my public report, as did
the submissions of Messrs. Atkey and Cameron as amici curiae.34
3.18
CONCLUDING OBSERVATIONS
As I look back at the Inquiry process, I am satisfied that it worked as well as
could be expected, given the extent and nature of the NSC claims asserted by
the Government. However, the public hearing part of the Inquiry could have
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been more comprehensive than it turned out to be, if the Government had not,
for over a year, asserted NSC claims over a good deal of information that eventually was made public, either as a result of the Government’s decision to reredact certain documents beginning in June 2005, or through this report.
Throughout the in camera hearings that ended in April 2005 and during the
first month of the public hearings in May 2005, the Government continued to
claim NSC over information that it has since recognized may be disclosed publicly. This “overclaiming” occurred despite the Government’s assurance at the
outset of the Inquiry that its initial NSC claims would reflect its “considered”
position and would be directed at maximizing public disclosure. The
Government’s initial NSC claims were not supposed to be an opening bargaining position.
In fairness to the government officials involved, the process required for the
Inquiry presented a daunting task. Many thousands of documents had to be
reviewed and screened. Moreover, there was no precedent for screening documents in the context of a public inquiry. It is perhaps understandable that, initially, officials chose to err on the side of caution in making NSC claims.
However, in time, the implications of that overclaiming for the Inquiry became
clear. I raise this issue to highlight the fact that overclaiming exacerbates the
transparency and procedural fairness problems that inevitably accompany any
proceeding that can not be fully open because of NSC concerns. It also promotes public suspicion and cynicism about legitimate claims by the Government
of national security confidentiality. It is very important that, at the outset of proceedings of this kind, every possible effort be made to avoid overclaiming.
As I discuss above, the Government instituted a court challenge to my first
ruling on information I considered should be disclosed publicly as part of the
ongoing inquiry process. The prospect of litigation at that point in the Inquiry
was very troubling. It seemed evident that litigating the Government’s NSC
claims on a piecemeal basis, ruling by ruling, was a course that would at best
lead to enormous delays and could actually bring the Inquiry to a complete and
final halt. It would not have been in the public interest for an inquiry into the
government’s national security activities to be derailed because of disputes about
national security confidentiality.
I consequently made changes to the Inquiry process, the practical result of
which was that the public hearings dealt only with evidence over which the
Government did not assert an NSC claim. However, I indicated that, after the
hearings were completed, I would prepare a report containing the information
I considered could be released to the public. Disagreements about what could
�FACTUAL INQUIRY PROCESS
be made public would be resolved in the context of a report instead of a series
of interlocutory rulings.
The Government has relaxed its NSC claims to a significant degree since
June 2005, when it began re-redacting documents.35 I think two examples will
serve to illustrate.
The first involves the Government’s position that information relating to
Project A-O Canada’s request for border lookouts for Mr. Arar and Dr. Mazigh
in Canada and the United States could not be disclosed publicly. The information in question included the request letters that contained the highly inflammatory and unfounded description of Mr. Arar and his wife as Islamic extremists.
The Government did not withdraw its claim in this respect until the public hearings were virtually complete.36
The second example relates to the fact that the RCMP, through the Canadian
ambassador to Syria, sent a letter to the Syrian Military Intelligence (SMI) offering to share information about its investigation, which obviously involved
Mr. Arar. The letter enclosed questions to be asked of Mr. Almalki, who, like
Mr. Arar, was in the custody of the SMI at the time. This information was relevant for understanding the relationship between Canadian officials and Syrian
authorities at a critical point when Canada was seeking Mr. Arar’s release. Given
the Syrian record for torturing detainees being interrogated, these events are
very troubling. The Government only withdrew its position that this information
was subject to a claim of NSC after the hearings were completed.37
I cite these examples to make the point that the public hearing process
should have covered these and other areas over which the Government no
longer claims NSC. I recognize that some claims of NSC were withdrawn in the
course of the public hearings and, when that occurred, the information in question was dealt with in public testimony. However, several important areas that
have now been disclosed in this report, without Government challenge, were
not addressed during the public hearings.
I commend the Government for its efforts in reconsidering its positions over
time, however, it would have been preferable if all of the information that is now
being made public had been disclosed prior to the public hearings. To the extent
that this did not happen, the public hearing process suffered. While I am satisfied the undisclosed areas were properly canvassed by Commission counsel
during the in camera hearings, one of the purposes of a public inquiry is to air
evidence publicly. Moreover, it was important that Mr. Arar, as a person affected
by the Inquiry, be able to participate as fully as possible. That could only happen in the public hearings.
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The Inquiry is now complete and I am comfortable that, in the end, I was
able to get to the bottom of the issues raised by the mandate, as I had access to
all of the relevant material, regardless of any NSC claims. In this report I have
disclosed additional information that was not available for the public hearings.
However, it is not practical at this point to go back and re-open the hearings.
The Inquiry has already taken longer than it need have.
I am raising the issue of the Government’s overly broad NSC claims in the
hope that the experience in this inquiry may provide some guidance for other
proceedings. In legal and administrative proceedings where the Government
makes NSC claims over some information, the single most important factor in trying to ensure public accountability and fairness is for the Government to limit,
from the outset, the breadth of those claims to what is truly necessary. Litigating
questionable NSC claims is in nobody’s interest. Although government agencies
may be tempted to make NSC claims to shield certain information from public
scrutiny and avoid potential embarrassment, that temptation should always be
resisted.38
In this chapter, I have described a number of steps taken in the Inquiry to
address difficulties arising from a process in which some information could not
be made public, the most important being the use of independent counsel during the in camera hearings. However, I do not suggest that steps such as these
are an adequate substitute for public hearings, in which the public can scrutinize the evidence first-hand and affected parties are able to participate. If it is
possible to hold a public hearing, this should always be the first option.
Openness and transparency are hallmarks of legal proceedings in our system of justice. Exposure to public scrutiny is unquestionably the most effective
tool in achieving accountability for those whose actions are being examined
and in building public confidence in the process and resulting decision. As Fish
J. aptly put it in the Toronto Star case, “In any constitutional climate, the administration of justice thrives on exposure to light — and withers under a cloud of
secrecy.” 39
4.
PROCESS AHEAD
In the past, I have on occasion referred to this Report as an “interim report.” I
have done so for two reasons.
First, as mentioned above, I have left open the possibility that Mr. Arar may
wish to testify in the Inquiry. I repeat that I do not think it is necessary that he
do so in order for me to fulfill my mandate, as I have been able to reach conclusions on the actions of government officials without his testimony. In
�FACTUAL INQUIRY PROCESS
addition, I have Professor Toope’s report about Mr. Arar’s mistreatment while
in Jordan and Syria. However, as I said above, if Mr. Arar wishes to testify, he
may bring a motion and, if I consider it appropriate, I will hear his evidence and
issue a supplementary report dealing with that evidence.
The second reason I have referred to this as an interim report relates to the
Government’s NSC claims. This Report can only be released by the Government,
which has asserted NSC claims over some parts of this public version. In this
regard, the Government directed that those parts of this public Report over
which it claims NSC be deleted and that they be replaced by asterisks. I arranged
that this Report to be released to the public be printed as directed. There is a
possibility that litigation may ensue over the outstanding NSC issues. That being
the case, the report that will finally be released could be different, to some
extent, from this public Report as I have prepared it.
5.
APPEARANCES OF COUNSEL
Commission counsel
Paul J.J. Cavalluzzo
Marc David
Brian Gover
Danielle Barot
Veena Verma
Adela Mall
Lara Tessaro
Amici curiae
Ronald G. Atkey, P.C., Q.C.
Gordon Cameron
Counsel for Maher Arar
Marlys Edwardh
Lorne Waldman
Breese Davies
Brena Parnes
Counsel for
Attorney General of Canada
Barbara A. McIsaac, Q.C.
Simon Fothergill
Colin Baxter
Gregory S. Tzemenakis
Helen J. Gray
Counsel for
Ministry of the Attorney General
Ontario Provincial Police
Leslie McIntosh
Darrell Kloeze
Counsel for Ottawa Police Service
Vincent Westwick
Counsel for Michel Cabana
Donald B. Bayne
Norman Boxall
Counsel for Jack Hooper
Leonard Shore
Counsel for Ambassador Franco
Pillarella
Michel Décary, Q.C.
Counsel for Léo Martel
Michel Décary, Q.C.
Counsel for Maureen Girvan
Sylvie Roussel
Counsel for Dawson Hovey
Richard Bell
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ANALYSIS AND RECOMMENDATONS
Counsel for Kevin Corcoran
Allan R. O’Brien
Counsel for Amnesty International
Alex Neve
Counsel for Pat Callaghan
James O’Grady
Counsel for International Coalition
Against Torture
David Matas
Counsel for Antoine Couture
W. Mark Wallace
Counsel for Garry Clement
Bernard F. O’Brien
Counsel for Ahmad Abou El Maati
and Muayyed Nureddin
Barbara Jackman
Counsel for Abdullah Almalki
Paul Copeland
Counsel for House of Commons
Catherine Beagan Flood
Counsel for Canadian Council on
American-Islamic Relations
Riad Saloojee
Khalid I. Baksh
Counsel for Canadian Islamic
Congress
Faisal Joseph
Counsel for National Council on
Canada-Arab Relations
Marie Henein
Counsel for Muslim Canadian
Congress
Amina Sherazee
Counsel for Canadian Arab
Federation
Mel Green
Counsel for
Muslim Community Council
of Ottawa-Gatineau
Michel W. Drapeau
Counsel for Redress Trust,
Association for the
Prevention of Torture and
World Organization Against
Torture
Kevin Woodall
David Crossin
Counsel for Canadian Labour
Congress
David Onyalo
Counsel for Council of Canadians
and Polaris Institute
Steven Shrybman
Counsel for Minority Advocacy
and Rights Council
Emilio Binavince
Counsel for British Columbia
Civil Liberties Association
Joseph Arvay
Counsel for Law Union of Ontario
Irina Ceric
Counsel for International Civil
Liberties Monitoring Group
Denis Barrette
Counsel for Centre for
Constitutional Rights
Barbara Olshansky
�FACTUAL INQUIRY PROCESS
6.
ACKNOWLEDGMENTS
The Factual Inquiry turned out to be very difficult for everyone involved. It was
far more complicated and demanded much more work that anyone had anticipated at the outset. It presented challenges, particularly procedural ones, that
had not been encountered in other public inquiries. As a result, it took much
longer to complete than would normally have been the case.
The Inquiry owes its completion to the concerted efforts of a very dedicated
group of people, some of whom devoted more than two years to the process.
I owe an enormous debt of gratitude to everyone who was involved in
helping to bring the Inquiry to this stage. Here, I want to formally recognize
those who were most deeply involved in the hearings and the preparation of this
report.40 I start with Commission counsel: Paul J.J. Cavalluzzo, Marc David (now
Mr. Justice Marc David), Danielle Barot, Brian Gover, Veena Verma, Adela Mall
and Lara Tessaro. They were outstanding. They performed their duties with great
skill, professionalism and, importantly, the balance that is essential to the role
of Commission counsel in a public inquiry. They worked long hours and made
great personal sacrifices. I am deeply grateful.
In addition, I want to thank a talented team of lawyers who worked closely
with me in addressing legal issues that arose during the Inquiry and/or in preparing the Report: Gus Van Harten, Tanya Bowes, Nigel Marshman and Alexandra
Dosman. They showed great commitment and dedication.
I am also grateful to those who were involved in the administration of the
Inquiry. Nicole Viau-Cheney, Director, Finance and Administration, did an outstanding job in managing the complexities of the organization and proved to be
a cheerful and wise advisor. She was ably assisted by Céline Lalonde, Deputy
Director, Finance and Administration. My thanks also to the office staff who,
among other things, had to manage an enormous number of top-secret documents. I would like to acknowledge the exceptional support of Isabelle Dumas,
Gisèle Malette, Gilles Desjardins and Daniel Carroll. They did a wonderful job,
often under considerable pressure. Mary O’Farrell was my personal assistant
and a great help in the preparation of my report. The quality of her work and
her cheerful patience were an enormous help to me.
I must recognize the Privy Council Office for its advice and support on
security, information technology, administration and finance matters, as well as
the Department of Justice for its assistance in the use of a specialized electronic
database system.
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ANALYSIS AND RECOMMENDATONS
The Inquiry presented special challenges for media relations. Francine
Bastien, the communications consultant, was invaluable in arranging the public
hearings and facilitating media involvement. Gilles Brisson, the Inquiry registrar,
performed his duties carefully and efficiently, keeping track of hundreds of
exhibits and ensuring that the “train ran on time.”
I wish to thank Ron Atkey and Gordon Cameron, amici curiae, who performed their roles with skill and balance. I also wish to recognize the contribution of the fact-finder for the Inquiry, Professor Stephen Toope, who delivered
an excellent report. My thanks also to Harry Swain, who, in the later stages of
the Inquiry, provided wise counsel based on his considerable experience.
I was assisted in shaping the final version of this Report by a skilled
group of editors led by Brian Cameron (English), and Alphonse Morissette and
Danielle Bérubé (French). A dedicated team of translators completed the French
translation under tight deadlines. I extend my sincere thanks to all of the editors and translators, who are named in Appendix 8.
I would also like to extend my appreciation to the various experts who testified on behalf of the Commission during the Factual Inquiry: Reid Morden,
Craig Forcese, Maurice Copithorne, Stephen Yale-Loehr, Julia Hall, Peter Burns,
Dr. Donald Payne, Richard Ofshe, Dr. Sheema Khan, Rachad Antonius and
Reem Bahdi.
I also wish to thank the staff at the law firm of Cavalluzzo Hayes Shilton
McIntyre and Cornish LLP for the help they provided in Toronto when I was
working on the Report.
Finally, I wish to thank all the lawyers who appeared throughout the
Inquiry, whose names are listed above. I single out two groups. The
Government lawyers led by Barbara McIsaac and Simon Fothergill worked long
hours and did a very thorough and competent job. Theirs was a difficult brief
and, although certain problematic issues arose between the Government and
the Inquiry, in the end matters were resolved and the Inquiry was completed.
Mr. Arar’s lawyers, led by Marlys Edwardh and Lorne Waldman, also had
a difficult brief, and they represented Mr. Arar’s interest and the public interest
with skill and dedication. I appreciate the assistance they gave me and the professional and responsible way in which they fulfilled their role throughout the
Inquiry. The work of the Commission was enhanced by their involvement.
�FACTUAL INQUIRY PROCESS
Notes
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Information could not be disclosed publicly if the injury it would do to international relations,
national defence or national security outweighed the public interest in its disclosure.
I use the terms “Government” and “Attorney General” interchangeably.
The best known of such proceedings are the security certificate proceedings under the
Immigration and Refugee Protection Act (S.C. 2001, c. 27), but other proceedings in which
evidence may not be disclosed to the affected parties include those addressing the listing of
terrorist groups and the deprivation of charitable status under the Anti-terrorism Act (S.C.
2001, c. 41).
Order in Council P.C. 2004–48, Appendix 1(A).
R.S.C. 1985, c. I-11.
Ontario, Report of the Walkerton Inquiry, Part One (Toronto: Queen’s Printer for Ontario,
2002), pp. 472–474 (Commissioner: The Honourable Dennis R. O’Connor).
Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R.
97 at para. 175.
R.S.C. 1985, c. C-5.
See, for example, United Nations. Security Council Resolution 1373 1373, UN SCOR, 56th Sess.,
4385th mtg., UN Doc. S/RES/1373 (2001), [online].
http://daccessdds.un.org/doc/UNDOC/GEN/N01/557/43/PDF/N0155743.pdf?OpenElement.
The Rules in their final form were published in June 2004. See Appendix 2(A) in Volume II of
the Factual Background.
See paragraphs 43 to 56 of the Rules.
In this report, I have used the terms “Inquiry” and “Commission” interchangeably.
The Notice of Hearing, my Rulings on Standing and Funding, and a list of the parties and
intervenors granted standing are included in Appendix 3 in Volume II of the Factual
Background.
In addition, individuals or institutions given notices under section 13 of the Inquiries Act were
entitled to participate in the Inquiry inasmuch as the evidence might affect their interests.
Vancouver Sun (Re), [2004] 2 S.C.R. 332, 2004 SCC 43 at para. 49.
Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System), [1997]
3 S.C.R. 440.
Ibid.
R.S.C., c. I-11, s. 13.
See Appendix 5(A) for a sample Section 13 notice.
See Appendices 5(B) and 5(C) for this ruling.
See Appendix 6(A) for the initial document request directed to the government.
The government did not produce some documents I considered to be relevant until after the
completion of the scheduled hearings. This late production necessitated holding additional in
camera hearings in November 2005.
“Redaction” in the current context refers to the process of removing information subject to NSC
claims prior to public disclosure of a document.
John Henry Wigmore, Evidence in Trials at Common Law, vol. 5, James H. Chadbourn rev.
(Boston: Little, Brown and Co., 1974), 1367 at 32.
I use the term amicus curiae to describe the independent legal counsel’s role. However, given
that this Inquiry was not a court, and that the role of the amicus curiae was not only to make
submissions, but also to incorporate his expertise in national security matters into those submissions, a better appellation might be “independent counsel with respect to national security confidentiality.”
309
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ANALYSIS AND RECOMMENDATONS
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
See Appendix 6(I).
See Appendix 6(D) for the ruling.
See Appendix 4 for a list of the witnesses at the public hearings.
See Appendix 6(F).
See Appendix 6(H).
The rulings are attached as appendices 6(I) and 6(J) respectively.
See Appendix 6(B) for sample undertakings regarding confidentiality.
See Appendix 6(L) for my directions regarding closing submissions.
Other rulings not specifically cited in this chapter, but made during the course of the Inquiry,
are also attached to this Report as appendices.
Some redactions resulted from the inadvertent disclosure of a document over which the
Government claimed NSC. However, many others resulted from the Government’s reassessment of its original positions.
I should point out that the reason that the border lookout requests were not disclosed at the
time the Government withdrew its NSC claim in September 2005 was primarily because of concerns about procedural fairness to an RCMP witness who had testified in camera and was to
testify in the public hearings. However, the fact remains that the Government asserted an NSC
claim over these vitally important and potentially embarrassing documents for a year. Had the
government not asserted that claim, which it eventually withdrew, the issue of procedural fairness could have been considered and likely addressed at an earlier stage of the Inquiry.
The Government argued throughout that the issues relating to questions for Mr. Almalki were
not relevant to my mandate. For the reasons set out above, I disagree. What is significant,
however, is that the reason the information about the Almalki questions was not disclosed publicly was not because of the argument about relevance but because of the Government’s claim
of NSC – a claim it eventually withdrew.
The RCMP’s Administration Manual, Chapter XI.I, Organizational and Administrative Security
(Exhibit P-12, Tab 26, J.5), specifically provides that “a security classification/designation may
not be used to . . . prevent embarrassment to a person, department, agency or organization .
. . .”
Toronto Star Newspapers Ltd. v. Ontario, [2005] 2 S.C.R. 188, 2005 SCC 41, at para. 1.
A list of Commission staff and advisors is included in Appendix 8.
�IX
Recommendations
This chapter contains my recommendations arising from the evidence I heard
during the Factual Inquiry. The recommendations are operational in nature and
are intended to complement those made in the Policy Review report, which are
directed at providing a robust independent, arm’s-length mechanism for the
review of the RCMP’s national security activities. Such a mechanism is essential
for ensuring that those activities remain consistent with Canadian values and
principles.1 The Factual Inquiry recommendations will, if adopted, provide standards against which the RCMP’s national security activities may be measured by
the independent review body.
In this report, I make 23 recommendations, grouped by subject matter:
I.
II.
III.
IV.
the RCMP’s national security activities (recommendations 1 through 10);
information-sharing practices of other agencies (11);
breach of caveats (12);
investigative interaction with countries with questionable human rights
records (13 through 15);
V. Canadians detained in other countries (16 through 18);
VI. profiling (19 and 20);
VII. the use of border lookouts (21); and
VIII. Maher Arar (22 and 23).
The reader will note that the majority of my recommendations are focused
on the RCMP. That is because the evidence in the Factual Inquiry related to a
very large extent to an RCMP investigation, and the recommendations flow from
that evidence.
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ANALYSIS AND RECOMMENDATONS
I.
THE RCMP’S NATIONAL SECURITY ACTIVITIES
Recommendation 1
The RCMP should ensure that its activities in matters relating to national security
are properly within its mandate as a law enforcement agency.
A) RCMP MANDATE
The RCMP should take active steps to ensure that it stays within its mandate
as a police force to perform the duties of peace officers in preventing and
prosecuting crime. It should ensure that it respects the distinct role of CSIS
in collecting and analyzing information and intelligence relating to threats to
the security of Canada.
This recommendation is aimed at reinforcing the division of functions between
the RCMP and CSIS set out in the second report of the Commission of Inquiry
Concerning Certain Activities of the Royal Canadian Mounted Police (McDonald
Commission report).2 The basic principles that underlay that report continue to
apply today, even though the need for co-operation and information sharing
between the two agencies has increased since the events of September 11, 2001.
Some have suggested that Canada’s response to the events of September 11,
2001, including the enactment of the Anti-terrorism Act and implementation of
new forms of intelligence-led and integrated policing, has blurred the distinction
between the roles of the RCMP and CSIS. If so, it is my firm view that the distinction between policing and security intelligence should be restored, respected
and preserved. I am convinced that Canadians will be best served if the RCMP
and CSIS both operate within their distinct mandates and expertise, while sharing information when appropriate and working together in a co-operative and
integrated manner.
In his John Tait Memorial Lecture in 2003, Ward Elcock, then Director of
CSIS, reflected on the differences between law enforcement and security
intelligence:
Law enforcement is generally reactive; it essentially takes place after the commission of a distinct criminal offence. Police officers are results-oriented, in the sense
that they seek prosecution of wrong doers. They work on a “closed” system of limits defined by the Criminal Code, other statutes and the courts. Within that framework, they often tend to operate in a highly decentralized mode. Police construct
a chain of evidence that is gathered and used to support criminal convictions in trials
�RECOMMENDATIONS
where witnesses are legally obliged to testify. Trials are public events that receive
considerable publicity.
Security intelligence work is, by contrast, preventive and information-oriented.
At its best, it occurs before violent events occur, in order to equip police and other
authorities to deal with them. Information is gathered from people who are not
compelled by law to divulge it. Intelligence officers have a much less clearly defined
role, which works best in a highly centralized management structure. They are interested in the linkages and associations of people who may never commit a criminal
act – people who consort with others who may be a direct threat to the interests of
the state . . . .3
I agree with Mr. Elcock’s analysis, although I would add that the RCMP also
has a prevention mandate, which I discuss below.
The mandate of the RCMP under section 18 of the Royal Canadian
Mounted Police Act (RCMP Act) is to preserve the peace, prevent crimes and
offences under the laws of Canada, and perform the duties of peace officers.4
In fulfilling its law enforcement mandate, the RCMP collects evidence and exercises special powers, many of which are intrusive, such as powers of search
and arrest. It is because of those intrusive powers, which are necessary for a law
enforcement agency, that it is important that the RCMP confine its activities to
those that warrant their use. The trigger for many law enforcement powers is the
actual or anticipated breach of a law. Thus, the RCMP’s mandate is directed at
the prevention and prosecution of criminal or other offences, including the many
new crimes created by the Anti-terrorism Act. Unless there is a link to illegal or
criminal activity, a law enforcement agency such as the RCMP should not
become involved in an investigation.
It would be wrong, however, to conclude that respecting its institutional
mandate requires the RCMP to wait until an act of terrorism has occurred before
taking action. The RCMP’s mandate includes preventing crime, not just investigating it after the fact. Moreover, many crimes related to terrorism are committed long before a terrorist act causes actual harm. The RCMP’s mandate has
always involved investigating conspiracies, attempts and counselling of serious
crimes. Since the enactment of the Anti-terrorism Act, it has also entailed investigating a broad range of acts related to potential terrorist activities, such as the
financing and counselling of terrorism, participation in terrorist groups, and
related attempts, conspiracies, and threats.
The mandate of the RCMP can be better understood by comparing it to that
of CSIS. CSIS is an intelligence agency. It is directed to collect and analyze information and report to government, in order to assist government in developing
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ANALYSIS AND RECOMMENDATONS
policy relating to Canada’s national security. CSIS may be asked by the Minister
of National Defence and the Minister of Foreign Affairs to collect information and
intelligence in relation to national defence and the conduct of Canada’s international affairs,5 and it is subject to the special requirement that its director and
an inspector general regularly report to the responsible minister on the “operational activities of the Service.”6 Thus, Parliament intended that CSIS provide
services to government that are essentially directed at gathering and analyzing
information. Unlike RCMP officers, CSIS personnel are not peace officers and do
not exercise law enforcement powers to collect evidence and make arrests.
Moreover, the relationship between the responsible minister and CSIS is not
coloured by special concerns about protecting police independence, as is the
case with the RCMP.7
Some might argue that having to ensure that the RCMP’s national security
activities, including the gathering of information and intelligence, always relate
to its policing and crime-based mandate might place national security at risk.
Given the magnitude of the harms of terrorism, as reflected in tragedies such as
the bombing of Air India Flight 182 and the 9/11 attacks, they may say that the
RCMP can no longer restrict itself to law enforcement concerns. I reject this argument, both on principle and for practical reasons.
At stake are the principle of respect for the rule of law and lengthy democratic tradition. All agencies of government must act within their statutory mandates. The current statutory framework appropriately confers on the RCMP the
powers associated with and necessary for the enforcement of laws. While the
Anti-terrorism Act has expanded both offences and the powers available to the
RCMP, it also imposes a variety of special safeguards, such as prior approvals
by attorneys general and the courts. And the fact remains that, as has long been
the tradition, police in a democracy should be concerned primarily with law
enforcement, even in the national security context. They should respect these
constraints on their powers and expect that the legality of their actions will be
reviewed.
Legal obligations aside, adherence by the RCMP and CSIS to their distinct
mandates also makes practical sense. CSIS has special expertise and capacity to
collect information and to apply analytical skills to that information to produce
the intelligence necessary to inform government about threats to Canada’s
national security. This involves a very different expertise and a different relationship with government than that required by the RCMP for its law
enforcement activities. Although both investigate and collect information, the
context within which they do so, the purpose for collecting the information and
the use to which the information is put are very different.
�RECOMMENDATIONS
If the RCMP is not receiving adequate intelligence about threats to the security of Canada from CSIS, the answer lies in improving relations between the
RCMP and CSIS, not in reformulating their respective mandates or going back
to the days before CSIS was created and developing an intelligence capacity
within the RCMP that is not related to its crime-based mandate and expertise.
B) INTELLIGENCE-LED POLICING
The RCMP should continue to develop its capacity for intelligence-led policing while ensuring that it remains within its law enforcement mandate.
In recent years, the RCMP has increased its capacity for and use of intelligence-led policing significantly. This has been an important and valuable
response to the increasingly complex and sophisticated criminal activities that it
is required to investigate. Ensuring that the RCMP remains within its law enforcement mandate need not interfere with the use of intelligence-led policing.
From the RCMP’s standpoint, intelligence can be understood as information
developed to direct police action. In this sense, it is not the same as the work
product of CSIS or other intelligence collectors. Rather, it is the strategic, tactical and background information that any large organization requires in order to
direct its actions and limited resources in an intelligent and focussed manner.
The Criminal Intelligence Program Implementation Guide issued by the
RCMP in June 1991 recognized that “the failure to develop a sophisticated strategic as well as tactical intelligence capability within the RCMP has seriously hindered the Force’s ability to accurately measure and prevent crime having an
organized, serious or national security dimension in Canada, or internationally
as it affects Canada.”8 At the same time, the Guide appropriately warned, “it is
important that any information collected by the RCMP . . . be pursuant to its
law enforcement mandate.”9
The RCMP’s Criminal Intelligence Program Guide issued in May 2001 contemplates collection of criminal intelligence in relation to threat assessment, target selection and target tracking. The focus with respect to individual targets is
on investigation “to the point of either confirming or disproving the involvement of criminal activity.”10 This focus on criminal activity properly reflects the
RCMP’s crime-based mandate.
The RCMP’s new orientation to “intelligence-led policing” does not mean
that the Force’s functions extend or should extend beyond its law enforcement
mandate. Any information collected by the RCMP should be used to direct legitimate police action related to preservation of the peace, prevention of crime, and
investigation and prosecution of crime.
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ANALYSIS AND RECOMMENDATONS
C) INTERNAL CONTROLS
The RCMP should establish internal controls for all national security investigations to ensure that, when commencing and carrying out investigations
and collecting information, it is properly within its law enforcement mandate to prevent, investigate and prosecute crimes.
The following internal controls will help to ensure the RCMP stays within its
mandate during national security investigations.
To begin with, the RCMP should take steps to ensure that information about
persons that is received from CSIS and other sources falls within its law enforcement mandate and is properly classified.
Further, the RCMP should ensure that individuals being investigated come
within its crime-based mandate. In the early stages of a national security investigation, it is sometimes difficult to determine if an individual’s activities are criminal in nature, but the RCMP must reach a conclusion nonetheless. If it concludes
that a crime-based mandate is lacking, but has concerns about a connection
between the person and threats to the security of Canada, the RCMP should
provide CSIS with the relevant information so that CSIS may carry out its own
investigation. The RCMP should not be reluctant to transfer or return investigations not within its crime-based mandate to CSIS.11
The RCMP should also review investigations periodically to be certain that
both the investigation and the targets of the investigation remain within its crimebased mandate. Controls designed to ensure that RCMP activities are properly
within its law enforcement mandate are necessary to guarantee respect for the
rule of law and the proper institutional division of functions between the RCMP
and intelligence agencies such as CSIS. In the Policy Review report, I recommend that the review body responsible for reviewing RCMP national security
activities specifically focus on ensuring that those activities come within the
Force’s mandate as a law enforcement agency.
Recommendation 2
The RCMP should continue to engage in integrated and co-operative operations
in national security investigations, but agreements or arrangements in this respect
should be reduced to writing.
A) CO-OPERATION WITH OTHER CANADIAN POLICE FORCES
The RCMP’s integrated policing initiatives with other Canadian police forces
are necessary and beneficial and should continue.
�RECOMMENDATIONS
Integrated policing12 is a legitimate and understandable response to the complexity of crime today. In its Factual Inquiry submissions, the Ottawa Police
Service rightly stressed the dangers of “investigative ‘silos’”13 that can be created
when police forces operate independently. It noted that both Justice Fred
Kaufman’s report on the Guy Paul Morin case and Justice Archie Campbell’s
review of the Bernardo investigations revealed the dangers inherent in police
forces not working together or sharing information. Paul Kennedy, Chair of the
Commission for Public Complaints Against the RCMP, also commented in the
Policy Review hearings that there is “an obvious need for police to combine
resources, both human and financial, and to maximize unique skillsets.”14 I agree
and have designed my recommendations both in this chapter and in the Policy
Review report with a view to enabling the RCMP to respect and maintain its
healthy degree of integration with other Canadian police forces.
Although integrated policing is an important component of all Canadian
policing, it is particularly important in the context of national security. While
the Security Offences Act gives the RCMP primary responsibility for investigating and preventing offences that constitute a threat to the security of Canada,
other police forces also have a role to play in national security investigations.
One example of the important contribution other forces can make is in the
area of knowledge of the local community. As the Ottawa Police Service has
stated, “no one knows its community like the police of local jurisdiction. . . .
This day-to-day working relationship builds the mutual trust and confidence,
drawn upon by both the police and the community in circumstances such as a
national security investigation.”15 This view is also reflected in the testimony of
former RCMP Deputy Commissioner Garry Loeppky, who commented that
“municipal and provincial police . . . have touch-points . . . within the communities that we certainly don’t have here because we are not the front-line
police service.”16
Through its Integrated National Security Enforcement Teams (INSETs) in
Vancouver, Toronto, Ottawa and Montreal, the RCMP conducts national security investigations in an integrated fashion by involving police forces from those
four cities, the Ontario and Quebec provincial police forces, CSIS and other federal agencies. This type of integration is sensible. Although it does present
certain challenges for review purposes, they are not insurmountable. I explore
them in my Policy Review report.
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ANALYSIS AND RECOMMENDATONS
B) CO-OPERATION BETWEEN RCMP AND CSIS
While respecting their different mandates, the RCMP and CSIS should continue to co-operate with one another and expand upon the ways in which
they do so.
When CSIS was created in 1984 and given a mandate to collect and analyze
information respecting threats to the security of Canada, the RCMP was given
primary responsibility for investigating criminal offences relating to conduct that
fell within the definition of such threats.17 From the start, it was expected that
CSIS and the RCMP would work co-operatively on national security matters. The
two agencies entered into a memorandum of understanding (MOU) to provide
the framework for a co-operative approach to fulfilling their respective mandates. In the post-9/11 era, co-operation between the two agencies is of even
greater importance.
The Canadian Security Intelligence Service Act (CSIS Act) does not contemplate a wall or watertight compartments to separate CSIS and the RCMP.
CSIS may disclose to the RCMP and other police forces information that “may
be used in the investigation or prosecution of an alleged contravention of any
law of Canada or a province.”18 This would include information about possible
conspiracies, counselling and attempts to commit acts of terrorism and violations of other laws relating to national security, such as violations of the Security
of Information Act. Today, it would also include information about a broad
range of terrorist crimes relating to the preparation and financing of terrorism,
under the Anti-terrorism Act. The expansion of criminal law in relation to terrorism, combined with the urgency of the police’s preventive mandate with
respect to terrorism may actually require CSIS to provide more information to the
RCMP than was the case in the past.
In his recent report, Bob Rae, Independent Advisor to the Minister of Public
Safety and Emergency Preparedness on questions relating to the terrorist bombing of Air India Flight 182, noted that, at the time of the bombing in 1985, an
MOU between the RCMP and CSIS provided that the agencies would “consult
and co-operate with each other with respect to the conduct of security investigations” and that, in 1984, Solicitor General Robert Kaplan had informed both
the Commissioner of the RCMP and the Director of CSIS that “neither organization can fully, or effectively, achieve its national security related goals without
the co-operation and assistance of the other.”19 Areas that Mr. Rae suggested for
further review included whether there had been problems in the relationship
between CSIS and the RCMP that had played a role in the failure to prevent the
Air India bombing and whether “further changes in practice and/or legislation
�RECOMMENDATIONS
[were] required to ensure an effective co-operation”20 between the RCMP and
CSIS.
The events of 9/11 further underlined the need for information sharing and
integration between the RCMP and CSIS. The RCMP’s institutional response to
that development was to take the very important step of setting up Integrated
National Security Enforcement Teams (INSETs), with CSIS representation. The
RCMP and CSIS should explore other ways to increase the level of co-operation
between them. The difference in mandates and, indeed, cultures, need not be
a barrier to integrated operations. The report of the U.S. National Commission
on Terrorist Attacks upon the United States (9/11 Commission) and the events
of the Air India tragedy highlight the importance of institutional co-operation
between intelligence and law enforcement investigators. The lessons learned
from those experiences must be taken to heart.
During the Inquiry, I had the advantage of hearing testimony from a variety of RCMP and CSIS witnesses, a good deal of which related to the interaction
between the two agencies. Although valuable steps have been and continue to
be taken, especially at the leadership level, to ensure greater co-operation and
understanding between the two agencies, integration is made difficult by the
different organizational cultures. Those differences are largely a legitimate,
understandable reflection of the different mandates of the two institutions.
However, it is imperative that a special effort be made by all personnel in each
institution to develop a better understanding and appreciation of the mandate
and role of the other. The MOU between the RCMP and CSIS is currently under
review. Secondments and joint training and information programs would be
ways of promoting better understanding and co-operation.
The framework ultimately developed for the relationship between the two
agencies should clearly set out their different mandates and provide for specific
ways to promote co-operation. The two agencies should then conduct periodic
reviews, to ensure that the objectives of the MOU are being achieved.
C) CO-OPERATION WITH OTHER GOVERNMENT AGENCIES AND
DEPARTMENTS
The RCMP should continue to adhere to and refine its policy of co-operating
with other federal agencies or departments involved in national security
investigations.
Since 9/11, there has been increasing integration of different parts of government
involved in national security affairs, both in Canada and elsewhere. The RCMP’s
integration initiatives with respect to national security matters are not limited to
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other police forces, but extend to a wide range of other federal departments
and agencies. For example, INSETs include representatives of agencies such as
the Canada Border Services Agency (CBSA), CSIS, Citizenship and Immigration
Canada (CIC) and the Canada Revenue Agency. Moreover, there has been an
increased amount of information sharing among a broad range of federal
departments and agencies in relation to these types of investigations. Such integration makes sense given the complexity of national security activities and the
involvement of many parts of government in the national security mandate.
Agencies such as CSIS and the Financial Transactions and Reports Analysis
Centre of Canada (FINTRAC) have explicit statutory mandates to provide the
RCMP with information that is relevant to its crime prevention and investigation
mandate.
The increased level of integrated activity makes it essential that there be a
clearly articulated framework within which the activity is carried out. I have not
heard enough evidence to consider the details of such a framework. However,
it is clear that RCMP officers and officials in other agencies should have specific
direction about each aspect of their interaction. There should be clear procedures in regard to the sharing of information and the creation of a paper trail to
document interaction.21 In that way, integrated activity can be monitored and
reviewed against pre-established norms. The paper trail need not be overly elaborate or legalistic. In some cases, exchanges of letters may suffice, but the
ground rules for necessary integration should be clear.
D) CO-OPERATION WITH FOREIGN AGENCIES
The RCMP should continue to work co-operatively with foreign agencies in
pursuing its law enforcement mandate in national security investigations.
Co-operation with foreign agencies is essential in the post-9/11 environment.
Quite properly, there has been a significant increase in the interaction between
the RCMP’s national security investigators and their counterparts in other
countries. For example, Integrated Border Enforcement Teams (IBETs) have
been established to enable officials from the RCMP, Canada Border Services,
and Citizenship and Immigration Canada, as well as U.S. Customs and Border
Protection, the U.S. Coast Guard and U.S. Immigration and Customs Enforcement
to work together. Another example is the investigation discussed in this report.
Much of the evidence heard in the Factual Inquiry concerned a joint investigation between the RCMP and American agencies.
Co-operative investigations between domestic and foreign agencies are an
understandable response to international terrorism and other transnational crime.
�RECOMMENDATIONS
At the same time, it is even more important than in the purely domestic context
that the ground rules for co-operation with foreign agencies in national security
investigations be made as clear as possible beforehand and, where practical,
reduced to writing. Once information is in foreign hands, it will be used in accordance with the laws of the foreign jurisdiction, which may not be the same as
Canadian law.22 Reducing arrangements to writing, even if only in an exchange
of letters, greatly assists in ensuring accountability in decision making and in
reviewing integrated activities, including information sharing.
Arrangements with foreign agencies should also be subject to periodic
review. Co-operative arrangements may have to be re-visited and clarified in
the event of problems, such as those examined in the Inquiry.
As I make clear in my analysis of the RCMP’s Project A-O Canada investigation and the Project’s sharing of information with American agencies, it can
be dangerous to rely on implicit or verbal understandings when dealing with foreign agencies because there is often more unpredictability and a lesser degree
of accountability in such circumstances than when interacting with domestic
agencies. As I discuss below, respect for human rights cannot always be taken
for granted. Caveats are thus particularly important to limit the use and dissemination of information shared with foreign agencies.
E) WRITTEN AGREEMENTS
The RCMP’s agreements or arrangements with other entities in regard to
integrated national security operations should be reduced to writing.
On April 5, 2002, the Solicitor General issued a ministerial directive with respect
to agreements entered into by the RCMP to provide information and assistance
to, or receive them from, “other departments, agencies and institutions,” whether
domestic or foreign.23 The directive appropriately recognized the increase in the
RCMP’s integration with other federal, domestic and foreign agencies in the
post-9/11 environment and attempted to provide some policy guidance and
procedures to govern such agreements.
The directive provided that all agreements were to be in written form and
supported by legal and, in the case of agreements with foreign entities, foreign
affairs advice. Each agreement was to contain a statement of its objectives and
the obligations of each party to the agreement, and was to identify the
individuals or positions responsible for the discharge of those obligations.
Agreements were defined broadly in the directive “to include the terms
‘arrangement’, ‘understanding’, or any other similar term, and to exclude commercial or other contracts . . . .”24 The directive also recognized the dynamic
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nature of such agreements by providing for their review, audit, evaluation, modification and cancellation. It required that the RCMP keep an inventory of the
agreements, including correspondence, audit reports and amendments. Further,
it provided that the Commissioner of the RCMP was to consult with the Minister
with respect to some agreements, including when there was a possibility that an
agreement might receive attention in Parliament or from the media. I share the
view that all agreements or arrangements regarding integrated operations should
be reduced to writing.
In his public testimony, RCMP Deputy Commissioner Loeppky stated that
the above directive did not apply to “day-to-day information, case-by-case police
exchanges of criminal law enforcement information,” but “focused on entering
into agreements that would bind the Government of Canada to an obligation,
thus the need for legal advice and those types of things.”25 He was of the opinion that the reference to exchanges of information referred “to databanks, to
information exchanges that are outside of the day-to-day operational police contacts that take place on a daily basis along the 5,000 mile border.”26
In my view, a broader reading of the directive is preferable, especially given
its definition of agreements as extending to arrangements and understandings
and the need to establish clear ground rules for information sharing and other
forms of integration. If the 2002 directive had been applied to Project AO Canada’s arrangements and understandings with foreign agencies, legal and
foreign affairs advice would have been obtained and that advice might well
have had a beneficial effect.27 The overarching agreement or understanding
could have been set down in writing and the obligations of each party articulated. Such a process might well have increased sensitivity to obligations such
as respecting caveats and to the human rights implications of information sharing. That said, I do not think that the approach to written agreements contemplated in the April 2002 ministerial directive need be unduly formal or lengthy,
or apply to each exchange of information. Rather, written agreements should set
out a general approach within which “day-to-day” exchanges may take place.
The underlying rationale is that there is an advantage to reducing understandings to writing. I agree. This is exactly the type of instruction that is properly the
subject of a ministerial directive. Indeed, the April 2002 directive contemplates
that agreements “may take any written form, including an exchange of letters.”28
�RECOMMENDATIONS
Recommendation 3
The RCMP should ensure that those involved in national security investigations
are properly trained in the particular features of such investigations.
A) NEED FOR ADDITIONAL TRAINING
Investigators in the national security field require all of the skills and expertise of investigators in other criminal investigations, but they should also be
given training relating specifically to national security aspects.
National security investigations involve subject matter not within the expertise
or experience of normal criminal investigators. Officers must not only be familiar with the complex body of law regarding national security, including the
Security Offences Act, Anti-terrorism Act and Security of Information Act, but
also understand the broader national security context both in Canada and
abroad. This context includes individuals, organizations and nations that present a threat to the security of Canada, the history of different countries, regions
and political movements that may produce threats to the security of Canada and
Canadians abroad, and the approaches used by other countries with respect to
national security matters. National security investigators must also understand the
subject matter of global terrorism, the nature of and distinctions between tactical and strategic intelligence, the processes for information sharing and the need
to be alive to human rights concerns when dealing with governments with questionable human rights records. CSIS may have relevant expertise and a particular role to play in helping those RCMP officers involved in national security
matters to develop an awareness of the broader context of national security
investigations both in Canada and abroad.
As I point out in Chapter III, some of the problems with the Project
A-O Canada investigation resulted from a lack of expertise and training in
national security investigations on the part of the investigators in the field. I recognize that significant pressures were placed on the RCMP in the immediate
aftermath of 9/11. It would have been difficult to engage in intensive training in
the highly volatile legal, political and policy environment that existed at the
time. All the same, training should not be put off indefinitely. Time and resources
devoted to proper training can yield many dividends in preventing problems
before they arise and producing skilled and expert investigators. Since fewer
than 300 officers in the RCMP are currently assigned on a full-time basis to
national security investigations, it should be possible to ensure that every investigator has adequate training at an early stage.
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As I discuss in greater depth in the Policy Review report, national security
investigations can threaten individual liberties and human rights in ways that
most other criminal investigations do not. For example, such investigations may
involve the collection of larger amounts of personal information in connection
with possible threats and the RCMP’s mandate to prevent crime. This may affect
privacy and other values in a manner that will not ordinarily be subject to adversarial challenge or independent adjudication in court because of the secrecy of
national security activities and the fact that prosecutions are relatively rare in this
area.
Given the tendency thus far of focusing national security investigations on
members of the Arab and Muslim communities, the potential for infringement
on the human rights of innocent Canadians within these groups is higher. An
expert investigator must therefore also be sensitive to these human rights
concerns.
B) ANALYSIS OF INFORMATION
The RCMP should ensure that the specific types of information at the basis
of national security investigations are analyzed with accuracy, precision and
a sophisticated understanding of the context from which the information
originates, with a view to developing intelligence that can lead to successful
prevention and prosecution of a crime.
Although the RCMP can rely on information and analysis provided by CSIS and
other intelligence agencies, it should also ensure that members involved in
national security investigations have the training and expertise to conduct their
own analysis of information in light of the RCMP’s law enforcement mandate.
The RCMP’s 2001 Criminal Intelligence Program Guide appropriately
stresses that “information must be accurate, have integrity, be complete and be
up-to-date” and that “information/ intelligence must undergo a review for relevance and an evaluation for source reliability and information validity prior to
filing”29 in data banks such as the Secure Criminal Information System (SCIS), a
central RCMP data bank for national security intelligence. To this end, there is
a requirement in the Guide that both sources and information be graded according to the following categories: reliable, believed reliable, unknown reliability or
doubtful reliability. National security investigators therefore must be able to
assess the accuracy and reliability of information, including information from
foreign sources, in the national security context.
In Chapter III, I call attention to several instances where RCMP investigators provided inaccurate information about Maher Arar to American agencies
�RECOMMENDATIONS
and senior RCMP officers. It is important that RCMP training enable officers to
understand the need for accuracy and appreciate the potential consequences of
analyzing and presenting information in a way that paints a misleading picture.
Inaccurate analysis of information and unwarranted assumptions must be
avoided, as they may trigger unforeseen chains of events and cause grave damage. Incorrectly analyzing information may lead someone to overlook information that, if properly analyzed, could help prevent crimes that would threaten
national security.
An important distinction is appropriately drawn in the RCMP’s Criminal
Intelligence Program Guide between information, described as unprocessed data
of every description, and intelligence, defined as the end product of information.
Intelligence is further subdivided into tactical intelligence, an “investigative tool”
that can be applied to active operations to produce “better prioritization of cases
for maximum enforcement effectiveness against criminal activities as well as the
most efficient utilization of investigative resources,” and strategic intelligence,
“largely a management tool” that complements tactical intelligence by taking “a
longer, broader view” of matters.30 RCMP officers involved in national security
investigations should be trained and become highly skilled in applying these
important distinctions. For example, the fact that an investigation is guided by
strategic intelligence about al-Qaeda or another threat to national security does
not necessarily mean that every person of interest to that investigation must be
associated with al-Qaeda or terrorism.
C) CURRICULUM AND REVIEW
The RCMP’s National Security Enforcement Course curriculum should be
reviewed in the light of the findings and recommendations of the Inquiry. In
future, training curricula should be reviewed periodically by the RCMP and
by the proposed independent review body.
I have considered material submitted by the RCMP about the National Security
Enforcement Course, designed to be a 10-day course involving both direct
instruction and problem-based learning in groups.31 Although the course does
appear to review the basics of criminal intelligence, including the distinctions
between information and intelligence and between tactical and strategic
intelligence, I note that it does not contain sections on important topics such as
information sharing with domestic and foreign agencies, including the use of
caveats, and the need for great care when providing or receiving information
from foreign sources. It also does not appear to include training on human rights
or on interaction with foreign countries with poor human rights records in the
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context of terrorism investigations. Training in human rights issues both at home
and abroad is particularly important in view of the fact that so many of the
RCMP’s national security activities are conducted in secret and not subject to
judicial review.
I also recommend that the course curriculum be periodically reviewed by
the RCMP, perhaps in consultation with CSIS and other national security partners and interested community groups. In particular, the material that is taught
in this and related courses about specific ethno-cultural groups should be open
to review by interested community groups and by the RCMP’s ethno-cultural
advisory group. In this sensitive area, there is always a risk that some forms of
training may do more harm than good.32 Periodic review and evaluation of the
training curriculum may be helpful in this regard.
Although some case studies in the national security curriculum may be classified, the RCMP should generally be open about the training it provides to its
national security investigators. When appropriate, it should involve individuals
with expertise from outside the RCMP in the review and delivery of the training.
I also recommend that the independent review body recommended in my
Policy Review report periodically assess the adequacy of the training of RCMP
national security investigators in the light of the reviews and complaints it has
considered. In doing so, it should focus not only on the content of the training,
but also on its delivery.
Independent review of the RCMP’s national security activities can play an
important role in identifying potential problems, but proper training of national
security investigators in the first place should head off most problems before
they occur.
D) TRAINING ON INFORMATION SHARING
Training for national security investigators should include a specific focus
on practices for information sharing with the wide range of agencies and
countries that may become involved in national security investigations.
As I discuss under Recommendation 2, a particular feature of national security
investigations is the large amount of information that is received from and given
to other agencies, whether they be domestic, foreign or international. It is
important that RCMP officers involved in national security investigations be
familiar with best practices for assessing the reliability and relevance of information they receive. This is key for determining what information may be
received and shared and what forms of restrictions and caveats apply. I discuss
the substance of these issues in recommendations 6 through 10.
�RECOMMENDATIONS
E) SOCIAL CONTEXT
The RCMP should continue and expand upon its social context training,
which is necessary to be able to conduct efficient investigations while ensuring fairness to individuals and communities.
In the post-9/11 environment, much of the strategic focus has been on suspected terrorist threats that could come from within Canada’s large and diverse
Muslim community and from Canadians and others with connections to Arab
and Muslim countries. It is important that national security investigators be provided with social context training in respect of the communities that receive
attention as a result of suspected threats. Enhanced understanding of the community will allow investigators to more effectively evaluate information and
determine what is important and what is not, as well as the significance of
actions and associations. Investigators will be better placed to avoid relying on
stereotypes about race, religion or ethnicity in investigations. As a result, they
will be able to distinguish between those who pose a threat in terms of committing crimes and those who are merely sympathetic to political or religious
views or ideological goals. In this way, resources can be focused on real threats
to the security of Canada.
One practical example involves distinguishing between someone having
spent time in Afghanistan in the early 1990s, when many young Muslims from
around the world travelled to that country because of the fallout from the conflict with the Soviet Union, and someone having spent time in Afghanistan later
in the decade, after al-Qaeda had returned there.
Social context education can also have the practical advantage of making
it easier for investigators to conduct interviews, gain information within various
minority communities and obtain co-operation and support. Engaging in a more
effective dialogue with those in the community who can assist the RCMP in its
investigations can facilitate efforts in fulfilling its national security mandate.
I discuss why social context training is also important as a way to ensure
fairness to individuals and communities in recommendation 20.
Recommendation 4
The RCMP should maintain its current approach to centralized oversight of
national security investigations.
As I describe in the Policy Review report, important steps have been taken in
recent years by both the RCMP and the Solicitor General, the minister responsible for the RCMP, to provide for greater centralization and oversight of RCMP
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national security investigations. I use the term oversight here deliberately
because it denotes involvement in investigations as they are being conducted,
as opposed to the independent review that is the subject of the Policy Review
report.
Oversight implies being informed and having powers of co-ordination
and, where appropriate, control and direction that a review body will not have.
Those with the power of oversight also become accountable for the decisions
made by the people they oversee. Indeed, centralized oversight of national security investigations is designed in large part to heighten the responsibility and
accountability of the Commissioner and the Minister for national security
investigations.
The foundations for centralized oversight of national security investigations
are found in ministerial directions issued in November 2003. One of those directions provides that it is the responsibility of the Commissioner to ensure that all
national security investigations are centrally coordinated at RCMP Headquarters
in order to “enhance the Commissioner’s operational accountability” and in turn
“enhance ministerial accountability, by facilitating the Commissioner’s reporting
to the Minister,” especially with respect to “high profile RCMP investigations or
those that give rise to controversy.”33 Another ministerial direction requires the
person at the apex of RCMP national security investigations, the Assistant
Commissioner of the Criminal Intelligence Directorate at RCMP Headquarters, to
approve all RCMP investigations of sensitive sectors such as academia, politics,
religion, the media and trade unions.34
The latter direction appropriately recognizes that, in a large organization
such as the RCMP or Department of Public Safety and Emergency Preparedness,
centralization is key to ensuring effective accountability.
Although much of the investigative work on national security matters is
done at the divisional level through the National Security Investigation Sections
(NSISs) or through the Integrated National Security Enforcement Teams (INSETs)
in Montreal, Ottawa, Toronto and Vancouver, all of this work is coordinated at
RCMP Headquarters as a result of requirements to report to the National Security
Operations Branch (NSOB) and National Security Intelligence Branch (NSIB).
As discussed in greater detail in the Policy Review report, the NSOB is responsible for providing Headquarters approval of all national security investigations
undertaken at the divisional level by the INSETs or NSISs. The NSOB also has
the vital function of ensuring that investigations are consistent with the RCMP’s
crime-based mandate. In the event that a case does not fall within that mandate,
it has the power to refer the case to CSIS. In addition, the NSOB oversees the
exchange of information with other police forces, while the NSIB approves infor-
�RECOMMENDATIONS
mation exchanges with foreign intelligence agencies. The power of oversight
with respect to information sharing should also include authority to ensure information is exchanged properly, in accordance with RCMP policy, and to take
corrective action should improper exchanges of information occur.
Since 2003, all of these Headquarters operations have been overseen by
the Director General, National Security, who reports to the Assistant
Commissioner of the Criminal Intelligence Directorate. I note that it will assist
the work of the independent review body discussed in the Policy Review report
for it to be able to interact with someone at the level of director general who
has overall responsibility for the RCMP’s national security activities. As mentioned above, centralization should facilitate effective independent review. And
the combination of centralization within the RCMP and independent review
should help to improve national security policing.
The type of centralized oversight contemplated here is valuable in ensuring both the effectiveness and the propriety of national security investigations.
In terms of effectiveness, centralized oversight allows Headquarters to co-ordinate investigations, ensure that relevant information is shared internally, discern
trends and, as provided for in the November 2003 ministerial direction discussed
above, inform the responsible minister of high profile investigations or those
that give rise to controversy. As regards propriety, centralized oversight allows
Headquarters to ensure that investigations do not stray from the RCMP’s crimebased mandate, threats to individual liberties are monitored, information is
always shared in an appropriate manner and RCMP policies are followed.
Centralization should also facilitate the task of independent review of the propriety of investigative actions.
Recommendation 5
The minister responsible for the RCMP should continue to issue ministerial
directives to provide policy guidance to the RCMP in national security investigations, given the potential implications of such investigations.
Ministerial directives and directions (hereinafter referred to collectively as “directives”) are written policies issued to the RCMP by the Solicitor General, the minister responsible for the Force. A 1984 document on the directive system
accurately notes that “the Directive procedure is one of the most important
means by which the Minister exercises his responsibility over the Royal Canadian
Mounted Police”35 pursuant to section 5 of the RCMP Act, which provides that
the Commissioner of the RCMP is subject to the direction of the Minister.
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As I state above, national security investigations have several features that
are different from other criminal investigations. There is a greater need for integration with other agencies, both domestic and foreign; there is more
information sharing, often involving sensitive material; there is a greater need for
centralized oversight with the RCMP; and there are increased concerns about
individual liberties. Ministerial directives are a useful tool in ensuring that the
way the RCMP manages its national security investigations is consistent with
ministerial accountability.
Since 2002, the Minister has issued directives relevant to the RCMP’s national
security activities, a positive sign of increasing ministerial responsibility for such
activities. Transparency and accountability can be improved by more frequent
issuance and review of such directives.
Appropriate use of such directives does not interfere with the independence
of the RCMP as a law enforcement agency, as the purpose of the directives is
solely to provide policy guidance with respect to the overall operation of the
RCMP. There is no attempt to encroach on the making of law enforcement
decisions in individual cases, which comes within the legitimate ambit of police
independence.
I also believe that ministerial directives should be readily accessible to the
public, subject to valid national security confidentiality concerns. For example,
the November 2003 ministerial direction concerning the need for care and prior
high-level approval before investigations may be conducted in regard to sensitive sectors such as academia, religion, politics or trade unions is a matter of public interest. In fact, public awareness about this ministerial direction could inspire
greater public confidence in RCMP investigations potentially involving these sensitive areas.
In view of the important role of ministerial directives with respect to
national security investigations and the need for agreements to govern how the
RCMP relates with foreign and domestic agencies dealing with national security
matters, I expect that monitoring compliance with such directives and, when
appropriate, recommending improvements and updates will be an important
task for the independent review body recommended in the Policy Review report.
�RECOMMENDATIONS
Recommendation 6
The RCMP should maintain its policy of sharing information obtained in the
course of national security investigations with other agencies and police departments, both domestic and foreign, in accordance with the principles discussed in
these recommendations.
It is clear that information about threats to national security must be shared with
other agencies and police departments, both domestic and foreign.
I agree with the Ottawa Police Service which, in its submission to the
Inquiry, stated that “information sharing amongst police is critical to the success
of any major police investigation, including a national security investigation”
and, “in order to provide prevention and protection to their communities, law
enforcement agencies must communicate, cooperate and collaborate, including
[by] exchang[ing] and sharing information.”36
Two recent reports have stressed the importance of information sharing.
Bob Rae’s report on the terrorist bombing of Air India Flight 182 and the U.S.
9/11 Commission’s report both speak of the need for all agencies involved in
national security investigations to co-operate and share information with one
another.
Information sharing is vital, but it must take place in a reliable and responsible fashion. The need for information sharing does not mean that information
should be shared without controls, particularly without the use of caveats. Nor
does it mean exchanging information without regard to its relevance, reliability
or accuracy, or without regard to laws protecting personal information or human
rights. I say more about the need for certain controls farther on, but I note here
that controls are meant to facilitate and promote the orderly flow of information,
not impede or stop it.
As I discuss below, the RCMP’s current policies with respect to information
sharing are essentially sound. It is important, however, that those policies be followed and that officers involved in information sharing understand not only the
policies, but also the reasons behind them. An understanding of the rationale
behind policies is the best assurance that officers will comply with them.
I note and welcome the fact that the RCMP is preparing a template for sharing criminal information. I recommend that the template be specifically adapted
to some of the circumstances unique to national security investigations. For
instance, national security investigations can involve sharing information with
agencies that are not law enforcement agencies and, in some cases, with countries with poor human rights records. They may also entail sharing information
that requires an evaluation of an individual’s level of involvement or association
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with others, or an assessment of the seriousness or imminence of a threat.
Security intelligence not consistent with the law enforcement mandate of the
RCMP may be received or, conversely, information may be passed on to security intelligence agencies that have a different and, in some respects, broader
mandate than the RCMP. The RCMP should identify the unique aspects of
national security investigations and incorporate them into the template.
An RCMP information-sharing template should also affirm the importance
of using caveats when sharing information with other agencies and address concerns about the reliability, relevance and accuracy of information and the relevance of laws affecting personal information and human rights.
Recommendation 7
The RCMP’s Criminal Intelligence Directorate (CID) or another centralized unit
with expertise in national security investigations should have responsibility for
oversight of information sharing related to national security with other domestic
and foreign departments and agencies.
An important part of centralized oversight of RCMP national security investigations will be oversight of practices pertaining to information sharing, including
both the provision and receipt of information. As I set out in Chapter III,
Project A-O Canada shared information with American agencies without adequate oversight or control by Headquarters.
In my Policy Review report, I discuss administrative steps taken by the
RCMP to ensure greater oversight by CID over information sharing in relation to
national security investigations, especially the provision of information by the
RCMP to other agencies. The NSOB in CID is responsible for oversight of information sharing with domestic police agencies, while the NSIB is responsible for
responding to inquiries from other domestic and foreign agencies. The integrated nature of policing means that some information exchanges take place at
the field level. When this happens, RCMP practice is for the NSOB to be
informed of such exchanges.
In this age of instantaneous electronic communication, centralization need
not restrict or slow information sharing or compromise operational independence. It does, however, require that the appropriate unit at Headquarters be
informed of the information that is to be shared. I was impressed by evidence
that CSIS National Headquarters exercises close control over information sharing. Centralized control over information sharing can help ensure that RCMP
policies respecting screening and the use of caveats are followed and provide
an appropriate level of accountability, thereby facilitating review. In addition,
�RECOMMENDATIONS
centralization of information-sharing decisions should assist in addressing subsequent requests from recipients of information for amendments to caveats.
In the Policy Review report, I note that information sharing between the
RCMP and other domestic and foreign agencies is often governed by informal
arrangements that are not reduced to writing. This is somewhat surprising, given
that the RCMP has over a thousand MOUs with other agencies respecting various matters. Moreover, an April 2002 ministerial directive discussed earlier
appears to require that agreements and arrangements with other agencies for
integrated activities be reduced to writing. Written agreements, even relatively
simple framework agreements, or an exchange of letters can facilitate best practices in information sharing.
Centralized oversight of information sharing within CID can also serve as a
useful management tool, allowing for co-ordination of investigations and ensuring consistency in the information to be shared. It obviously makes sense to
share information with other agencies and departments in a principled and consistent manner. This does not mean that the same information must be given to
all agencies, but rather that the principles applicable to information sharing
should be consistent from one investigation to the next. Centralization can
smooth out potential differences in practice from one division to another or
even within a given division.
Centralized oversight of information sharing can also ensure valuable
screening of information relating to national security investigations received from
foreign agencies. Acquiring information from foreign agencies is a vital part of
national security investigations, but information sharing is of necessity done in
secret and may compromise the rights and freedoms of individuals. For this reason, it is important that CID or some other central unit within the RCMP be
aware of what information is received from foreign agencies and ensure that it
is properly assessed for reliability and that concerns about the manner in which
it was obtained are duly considered.
Centralized control over information sharing should also increase accountability within the RCMP for information-sharing practices. The independent
review body I recommend in the Policy Review report will be greatly assisted
in fulfilling its role if it is able to examine information sharing through the
responsible branch at Headquarters rather than investigating practices on a
project-by-project basis.
Centralization of the information-sharing aspect of national security investigations will only be effective if the RCMP has adequate resources to properly
staff and carry out this responsibility. In national security investigations, prompt
provision of information to other agencies is often essential. The additional step
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of flowing information through Headquarters should not be permitted to stand
in the way of timely information sharing. If more resources are required to
exercise this important function, those resources should be made available.
Recommendation 8
The RCMP should ensure that, whenever it provides information to other
departments and agencies, whether foreign and domestic, it does so in accordance with clearly established policies respecting screening for relevance, reliability and accuracy and with relevant laws respecting personal information and
human rights.
A) SCREENING FOR RELEVANCE
The RCMP should maintain its policy of screening information for relevance
before sharing it.
Screening can take place at either the operational or the central level, depending on the information that is being shared. The screening process should
be coordinated so that information can be screened efficiently and without
duplication.
The 9/11 Commission in the United States concluded that, after 9/11, the
largest impediment to “a greater likelihood of connecting the dots . . . is the
human or systemic resistance to sharing information” and criticized the “needto-know” principle on the basis that it
assumes it is possible to know, in advance, who will need to use the information.
Such a system implicitly assumes that the risk of inadvertent disclosure outweighs
the benefits of wider sharing. Those Cold War assumptions are no longer appropriate. . . . Agencies uphold a ‘need-to-know’ culture of information protection
rather than promoting a ‘need-to-share’ culture of integration.37
In his recent report on the bombing of Air India Flight 182, Bob Rae also
commented on the dangers of using Cold War assumptions about the “need-toknow” principle.38 I agree that the “need-to-know” principle can be abused. I
also note that, in 1981, the McDonald Commission effectively criticized the dangers of overly broad applications of the principle with regard to both integration and review of national security activities.39
Since the Inquiry has focused on one case only, I have not heard sufficient
evidence about whether the “need-to-share” concept should replace the “needto-know” concept to come to a definitive conclusion in this regard. I note, however, that sound solutions to difficult issues that arise with respect to information
�RECOMMENDATIONS
sharing are not likely to be found by mechanically invoking either. Indeed, there
could be a tendency to use the latter as a conclusion for denying access to information and the former, as a conclusion for automatically sharing all information,
irrespective of its relevance. What is required is one clear policy about appropriate information sharing and application of that policy on a case-by-case basis.
The emphasis should be on the reasons for sharing or not sharing information,
rather than on conclusions.
I will say that files should not simply be opened wholesale to other agencies, as occurred in the Project A-O Canada investigation. There must be an
examination to determine “need.” The current RCMP policy sets out a standard
of relevance that, in my view, is the proper criterion. “Relevance” in this context is not used in the evidentiary sense, to indicate what may be admissible in
a legal proceeding. Rather, it means that there must be some connection
between the information being provided and an ongoing investigation. Those
screening information should be satisfied that the information to be provided has
some connection to the investigation of the recipient agency and to the use to
which the information will be put. In addition, in some instances, information
may be considered relevant if it is to be provided to another agency to seek
assistance from that agency with an RCMP investigation.
That said, I do not think that the relevance criteria need establish a high
threshold, provided the other guidelines I recommend concerning reliability,
accuracy, privacy, human rights and appropriate use of caveats are followed.
I suggest that the current RCMP policy with respect to screening for relevance be elaborated upon in the light of these recommendations, to provide
greater guidance to those called upon to implement it.
B) SCREENING FOR RELIABILITY AND ACCURACY
The RCMP should ensure that information provided to other countries is reliable and accurate and should amend its operational manual accordingly.
Sharing unreliable or inaccurate information does not provide a sound foundation for identifying and thwarting real and dangerous threats to national security and can cause irreparable harm to individuals.
Reliability relates primarily to the source of the information. As I discuss earlier, the RCMP’s 2001 Criminal Intelligence Program Guide provides that sources
and information must be graded as reliable, believed reliable, of unknown reliability or of doubtful reliability. The Guide, appropriately in my view, leans
toward classifying material as of doubtful reliability. It states that the highest category should be assigned only if every effort has been made to validate the
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information and there “is a combination of proven accuracy of information and
proven dependability as a person,” while the lowest category applies “if there
is a doubt about the source or the information.”40
The RCMP, like all agencies involved in sharing information, must be vigilant about accuracy and precision when sharing information that describes facts
or events or that contains an assessment or evaluation of an individual or the
individual’s status in an investigation.
In Chapter III, I discuss how the RCMP provided U.S. agencies with inaccurate information about Mr. Arar on several occasions. For example, it did not
always carefully observe the distinction between a “suspect” and a “person of
interest” in its descriptions of Mr. Arar. As a result of this lack of precision, it
sometimes overstated Mr. Arar’s status in the investigation, which was unfortunate. Although the requirement for accuracy and precision is obvious, it is not
set out in existing policy relating to information sharing. The Criminal
Intelligence Program Guide indicates that information entered into RCMP data
banks must be accurate, have integrity, be complete and be up-to-date. The relevant RCMP operational manual dealing with information sharing should be
amended to specify that accuracy and precision are essential when classifying
information and individuals in an investigation. To promote precision in language used, I also suggest that the revised manual provide definitions of at least
two terms commonly used in national security investigations: “suspect” and
“person of interest.”
References to a “suspect” should be to a person who is a “target” or “a subject of a national security investigation.” This would normally be a person who
is suspected of involvement in terrorist offences or offences that would constitute threats to the security of Canada, as defined in section 2 of the CSIS Act.41
Suspects should always be distinguished from “persons of interest,” who
may have information relevant to an investigation or may be associates of suspects. Available information relating to “persons of interest” falls short of creating a suspicion that the individual has committed an offence or constitutes a
threat in terms of doing so. Associates of suspects should not automatically
become suspects themselves. The danger of guilt by association is particularly
great in national security investigations, as the police often have a legitimate
interest in collecting information about anyone associating with a suspect.
The determination of whether or not a person is a suspect must be made
by relating the person’s conduct to an offence under Canada’s laws, not on the
basis of potentially innocuous associations. There should be careful thought
before a person is elevated from the “person of interest” category to the
“suspect” category.
�RECOMMENDATIONS
Caution is also necessary with respect to the use of potentially emotive or
inflammatory phrases. To say that someone is an “Islamic extremist” or a
“jihadist” can open the door to a slipshod and casual process in which guilt is
assigned by association. Such emotive labels can also blur the distinction
between a suspect and a person of interest. Investigators must make every effort
to be precise and accurate at all times. The use of loose or imprecise language
about an individual or an event can have serious and unintended consequences.
Labels, even inaccurate ones, have a way of sticking.
The importance of using accurate and precise labels is magnified when
information is shared outside the RCMP. In such cases, it is essential not only
that information be screened for accuracy and precision, but also that consideration be given to how the recipient agency may interpret the assessment or
label attached by the RCMP. Even a “person of interest” classification may have
a more serious connotation in the eyes of others than intended. For example,
the United States adopted the labels “high interest,” “of interest” or “of undetermined interest” to identify aliens who could be arrested on immigration charges
in connection with the U.S. government’s investigation of the 9/11 attacks.42 In
April 2003, the Office of the Inspector General of the U.S. Department of Justice
concluded that there was little consistency or precision to the classification
process and that the FBI should have exercised more care in the process, given
the significant ramifications on detainees’ freedom of movement and rights.43
As one knowledgeable commentator recently stated:
An inordinately high price is paid when less than accurate intelligence is relied
upon by state agencies, whether the field in question is that of security intelligence
or law enforcement. Lives and security may be unreasonably or negligently placed
at risk and, equally, lives may be ruined and reputations decimated by the ill-advised
disclosure of or reliance upon erroneous or misleading personal information.44
C) SCREENING FOR PRIVACY CONCERNS
Information should also be screened by the RCMP for compliance with the
applicable law concerning personal information before it is shared.
Current RCMP policy provides that the disclosure of personal information must
be made in accordance with the Privacy Act, which forbids disclosure of personal information without the consent of the person to whom the information
relates, subject to certain exceptions. The different exceptions to this rule include
consistent use disclosure, disclosure for law enforcement purposes, and public
interest disclosure.45
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The consistent use exception set out in paragraph 8(2)(a) of the Privacy Act
provides for disclosure of personal information “for the purpose for which the
information was obtained or compiled by the institution or for a use consistent
with that purpose.”46 Although this is one of the more frequently relied upon
exceptions in the Privacy Act,
the Privacy Act does not define the term “consistent use” nor does the case law. For
guidance, government institutions have regard to the Treasury Board Manual on
Privacy and Data Protection [sic] which states that a “consistent use must have a reasonable and direct connection to the original purposes for which the information
was obtained or compiled.”47
Jurisprudence under section 8 of the Charter may also provide guidance
regarding the scope of the consistent use policy.48
Paragraph 8(2)(e) of the Privacy Act sets out the law enforcement exception. It provides for disclosure “to an investigative body specified in the regulations, on the written request of the body, for the purpose of enforcing any law
of Canada or a province or carrying out a lawful investigation, if the request
specifies the purpose and describes the information to be disclosed.”49 The fact
that this exception requires a written request should promote accountability.50
In addition, the fact that the request must describe the information to be disclosed should help to ensure that only relevant information is released and that
due regard is paid to privacy and other human rights considerations.
Finally, for our purposes, there is an exception relating to public interest disclosure in paragraph 8(2)(m) of the Act. Under the RCMP policy, public interest
disclosure requires prior approval by the commanding officer and notification
of the Privacy Commissioner. Members of the Force are also directed in appropriate detail to consider a long list of factors, including various negative impacts
on the individual of the release of personal information, and to minimize the
detail being disclosed.
The RCMP policy also warns that “it is not an obligation to release personal
information under this provision: disclosures should be restricted to only that
part of a record actually required, and the information condensed to a synopsis
whenever possible.”51 This policy makes it clear that release of information
under this section is discretionary and should be informed by concerns about
relevance and minimizing invasions of privacy and human rights. I repeat that
any synopsis should also be accurate and precise.
There are a number of human rights implications other than privacy that
must be considered when releasing information. I discuss them in recommendations 12 to 14 below.
�RECOMMENDATIONS
Recommendation 9
The RCMP should never share information in a national security investigation
without attaching written caveats in accordance with existing policy. The RCMP
should review existing caveats to ensure that each precisely states which institutions are entitled to have access to the information subject to the caveat and
what use the institution may make of that information. Caveats should also generally set out an efficient procedure for recipients to seek any changes to the permitted distribution and use of the information.
A) IMPORTANCE OF CAVEATS
The RCMP’s current policy of requiring caveats on all documents being provided to other agencies is sound and should be strictly followed.
One of the significant flaws in Project A-O Canada’s investigation was the
Project’s failure to place caveats on information that it shared with American
agencies. Failure to attach caveats is unacceptable because it increases the risk
that information will be distributed by the recipient to unanticipated institutions
and that it will be used for unintended and possibly unacceptable purposes.
Attaching proper caveats is a routine administrative matter that is vital for ensuring that, when information is shared in national security investigations, it is for
specific purposes and with specific institutions. Caveats ensure responsible and
accountable information sharing.
It is wrong to think that caveats must “be down,” to use the expression of
several witnesses at the Inquiry, in order for information to be shared effectively
and efficiently. Caveats should not be seen as a barrier to information sharing,
especially information sharing beyond that contemplated on their face. They
can easily provide a clear procedure for seeking amendments or the relaxation
of restrictions on the use and further dissemination of information in appropriate cases. This procedure need not be time-consuming or complicated. With the
benefit of modern communications and centralized oversight of information
sharing within the RCMP, requests from recipients should be able to be
addressed in an expeditious and efficient manner.
Existing RCMP policy on caveats does not allow for exceptions or deviations
to the policy in either routine or national security investigations. In my view, the
absolute nature of the RCMP’s caveat policy is appropriate. Caveats should be
used in all cases. While attaching them does not guarantee that a recipient will
not use the information for unauthorized purposes, it reduces the risk. Caveats
may not be legally binding in most cases, but setting out restrictions on use in
writing certainly increases the moral obligation, if nothing else, to respect those
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restrictions. Moreover, as I discuss under Recommendation 12, breaches of
caveats require prompt remedial action.
B) WORDING OF EXISTING CAVEATS
The RCMP should review the language of its existing caveats to ensure that
it clearly communicates the desired restrictions on the use of information
being shared. Caveats should clearly state who may use the information,
what restrictions apply to that use, and whom to contact should the recipient party wish to modify those terms.
Although existing RCMP policy appropriately requires the use of caveats in all
cases where information is shared, I have some concerns about the clarity, scope
and precision of the standard caveats contained in existing RCMP policy guidelines. In general, caveats should be as clear as possible about what institutions
may access information provided by the RCMP and to what purposes. The need
for clarity has grown since 9/11, as a result of the expansion of institutions concerned with national security and the increased uses to which information is
being put, including uses inconsistent with human rights considerations.
The standard caveat for the exchange of designated information52 by the
RCMP provides:
This document is the property of the Government of Canada. It is loaned to your
agency on the understanding that it is not to be further disseminated without the
consent of the originator. Distribution within your agency is to be done on a needto-know basis. The document is to be protected in accordance with normal safeguards for law enforcement information.53
The RCMP policy respecting the provision of classified information54 to
domestic and foreign law enforcement agencies/departments provides for the
following caveats:
This document is the property of the RCMP. It is loaned to your agency/department
in confidence and it is not to be reclassified or further disseminated without the
consent of the originator.
This document is the property of the Government of Canada. It is provided on condition that it is for use solely by the intelligence community of the receiving government and that it not be declassified without the express permission of the
Government of Canada.55
�RECOMMENDATIONS
The RCMP policy for national security investigations also requires caveats
with identical wording to the above for information being sent to domestic and
foreign law enforcement agencies/departments.56
I heard evidence that there is general consensus among police and security intelligence agencies as to the meaning of caveats: without authority from
the provider, the recipient agency will not disseminate the information to any
other agency and the information will not be used in any legal proceedings.
Although there is some comfort in the suggestion that the purpose and meaning of caveats are well understood by both Canadian and foreign agencies, it is
very important, in my view, that caveats clearly spell out the understanding that
most witnesses at the Inquiry seemed to have.
Thus, I make three specific recommendations concerning the wording of
caveats.
First, caveats should be as clear as possible about which institutions are
entitled to access the information. References to a recipient government’s “intelligence community” are vague. Within the framework of the Policy Review
process, the Government of Canada has indicated that more than 20 different
agencies or departments in Canada are involved with national security. The
expansion of the intelligence community both in Canada and elsewhere reflects
changes in security and intelligence in many countries since 9/11. Reference in
a Canadian caveat to the sharing of information with a foreign government’s
“intelligence community” could be interpreted as permitting dissemination of
the information to agencies beyond those intended by the RCMP when providing the information. In general, a caveat should restrict the use of the information to the particular agency that receives the information. If further distribution
is warranted in specific cases, broader wording may be used or the caveat may
be amended.
Second, caveats should be equally clear about the use to which the information may be put. In general, information that is shared should be used for
intelligence purposes only, and caveats should contain specific restrictions on
the use of information in any legal proceedings. Traditionally, the concern was
to restrict the use of information in subsequent criminal proceedings. Before
information could be used in criminal proceedings, it was necessary to go
through the Mutual Legal Assistance Treaty (MLAT) process, if applicable.
However, increased emphasis on international terrorism since 9/11 makes it necessary for caveats to clearly prohibit the use of information without consent in
other legal proceedings, such as immigration or extradition proceedings. The
Supreme Court of Canada noted the practical importance of these alternative
proceedings when it ruled that restrictions on the use of information compelled
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in investigative hearings should be extended to subsequent immigration and
extradition proceedings.57 RCMP caveats should clearly prohibit the use of information in all legal proceedings without the consent of the RCMP. In that way,
the RCMP can exercise control over the information it provides to ensure it is
not used for purposes of which it does not approve.
Mr. Arar’s case highlights the importance of restricting the use of information in all types of legal proceedings. As I discuss in Chapter IV, it is likely that
information provided by the RCMP was used in the U.S. immigration proceedings against Mr. Arar that led to his removal to Syria. Much of the information
had been provided without caveats. Caveats should have been used, and those
caveats should have clearly specified that the information was not to be used in
any legal proceedings. If such caveats had been attached to the information, the
American agencies would have had to contact the RCMP for permission to use
the information in immigration proceedings. I assume that, if asked for permission to use its information in proceedings that might have sent Mr. Arar to Syria,
the RCMP would have refused on the basis of Syria’s human rights record, as
well as the summary nature of expedited removal proceedings under American
immigration law.58 Caveats are not a guarantee that a recipient will not use the
information without first seeking approval, but they are the best means available
to reduce the risk of misuse.
Third, caveats should indicate whom the information recipient should contact to request consent to further disseminate the information or to use it for
purposes other than those permitted by the caveat. A caveat can serve to establish proper channels for clear communication about the use and distribution of
the information subject to the caveat. To this end, it should generally specify
who or what position has authority to modify it. General references to the
Government of Canada are not particularly helpful in allowing another agency
to request an amendment of a caveat or in ensuring accountability for any decision to amend a caveat.
Recommendation 10
The RCMP’s information-sharing practices and arrangements should be subject to
review by an independent, arms-length review body.
I make this same recommendation in the Policy Review report.
The McDonald Commission recommended that the security intelligence
agency’s relationship with foreign agencies “be subject to continuing review by
the independent review body.”59 It also stated that the agency should “review
intelligence sharing activities with foreign agencies to ensure that they satisfy the
�RECOMMENDATIONS
standards set out in guidelines established by the government.”60 The CSIS Act
implemented its recommendation, giving the Security Intelligence Review Board
(SIRC) broad powers of review, with a specific provision that SIRC be provided
with copies of various arrangements between CSIS and foreign governments
and international organizations.61 The reasoning that led the McDonald
Commission to make its recommendation still applies today in respect of the
RCMP’s national security activities.
Both the April 2002 ministerial directive and November 2003 ministerial
directions provide important guidelines with respect to agreements about information sharing and other services between the RCMP and other entities, including domestic and foreign police forces. One of the November 2003 directions62
gives special attention to written and oral arrangements with foreign security
and intelligence agencies. An important function of an independent review body
will be to report to the Minister and, through the Minister, to Parliament and the
Canadian public on problems with the RCMP’s information sharing, particularly
in regard to the interpretation of and compliance with ministerial directives and
directions.
II.
INFORMATION-SHARING PRACTICES
OF OTHER AGENCIES
Recommendation 11
Canadian agencies other than the RCMP that share information relating to national
security should review recommendations 6 to 10 above to ensure that their information-sharing policies conform, to the appropriate extent, with the approaches
I am recommending for the RCMP.
I did not hear sufficient evidence in the Factual Inquiry to make specific recommendations about the information-sharing policies and practices of other
Canadian agencies involved in national security activities. However, in most
cases, the reasoning behind recommendations 6 to 10 pertaining to the RCMP
is applicable to other agencies.
Thus, I recommend that those agencies review their policies to ensure conformity with the rationale underlying the above recommendations.
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III.
BREACH OF CAVEATS
Recommendation 12
Where Canadian agencies become aware that foreign agencies have made
improper use of information provided by a Canadian agency, a formal objection
should be made to the foreign agency and the foreign minister of the recipient
country.
Although there is no guarantee that caveats will be respected or that Canadian
agencies will even know about breaches of caveats by foreign agencies, it is
very important that Canadian agencies raise an objection when they do learn of
a breach of a Canadian caveat. Where appropriate, objections should be sent not
only to the foreign agency, but to the foreign minister responsible for that
agency. Such objections are necessary to prevail upon foreign agencies to comply with caveats.
Objections to breaches of caveats also provide Canadian agencies with an
opportunity to inquire about the use made of information by foreign agencies
and to correct any misunderstandings about the relevance, reliability, and accuracy of information provided by Canada. There may also be occasion to object
to uses of information that would violate human rights.
Objections to breaches of caveats may prompt productive discussions about
misunderstandings concerning information-sharing agreements with foreign
agencies and the scope of caveats. They may lead to constructive remedial measures to make caveats and information-sharing agreements clearer and more
effective.
IV.
INVESTIGATIVE INTERACTION WITH COUNTRIES
WITH QUESTIONABLE HUMAN RIGHTS RECORDS
Recommendation 13
The Department of Foreign Affairs and International Trade (DFAIT) should provide its annual reports assessing the human rights records of various countries to
the RCMP, CSIS and other Canadian government departments or agencies that
may interact with such countries in connection with investigations.
�RECOMMENDATIONS
Each year, DFAIT prepares an assessment of the human rights records of countries with which the RCMP, CSIS and possibly other investigative agencies of
the Canadian government may interact. Some of those countries may have poor
or questionable human rights records. Unlike the U.S. State Department, DFAIT
treats its reports as confidential and, in the past, has not even made them available to other agencies of the Canadian government.
Leaving aside the issue of whether the reports should be made public, it is
important, as a minimum, that DFAIT provide Canadian investigative agencies
with the reports, in order to establish a common and hopefully accurate basis
upon which those agencies may make decisions about the types of relationships, if any, to be developed with these countries.
If there is a need for such reports to be kept confidential, appropriate measures can be taken to maintain secrecy.
I understand that, on occasion, CSIS now produces similar assessments, at
least for some countries. To the extent that this is the case, there should be coordination between DFAIT and CSIS so that, in the end, there is a single
authoritative Canadian assessment of the human rights record of countries with
which Canadian investigative agencies may interact.
Recommendation 14
The RCMP and CSIS should review their policies governing the circumstances in
which they supply information to foreign governments with questionable human
rights records. Information should never be provided to a foreign country where
there is a credible risk that it will cause or contribute to the use of torture. Policies
should include specific directions aimed at eliminating any possible Canadian
complicity in torture, avoiding the risk of other human rights abuses and ensuring accountability.
The current RCMP policy is inadequate. A policy entitled “Enquiries from Foreign
Governments that Violate Human Rights”63 appears to set out two bases for
determining when information may be shared. It provides that the RCMP will not
become involved or appear to become involved in any activity that might be
considered a violation of the rights of an individual unless there is a need to
comply with one of five specified international conventions that Canada has
signed in relation to various forms of terrorism. In addition, the policy states:
The disclosure of information to an agency of a foreign government that does not
share Canada’s respect for democratic or human rights may be considered if it:
1. is justified because of Canadian security or law-enforcement interests,
2. can be controlled by specific terms and conditions, and
3. does not have a negative human rights connotation.64
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This policy appropriately signals that caution is required in disclosing information to countries with poor human rights records and states that information
should not be exchanged if it will have a “negative human rights connotation.”
Nevertheless, I have serious reservations about its adequacy, especially since it
seems to suggest that the need to comply with certain international terrorism
conventions is in itself sufficient reason for the RCMP to participate in activities
that violate individual rights.
The need to investigate terrorism and the need to comply with international
conventions relating to terrorism do not in themselves justify the violation of
human rights. The international conventions cited in the RCMP policy, which I
note has only a partial, out-of-date listing of conventions Canada has signed, do
not authorize departures from human rights standards protected under various
other international instruments Canada has agreed to abide by, such as the
International Covenant on Civil and Political Rights and the United Nations
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment (Convention against Torture).
Article 2, paragraph (2) of the Convention against Torture65 provides that
“no exceptional circumstances whatsoever, whether a state of war or a threat of
war, internal political instability or any other public emergency, may be invoked
as a justification of torture.” Article 4, paragraph (1) moreover requires that a
state party to the Convention “ensure that all acts of torture are offences under
its criminal law” and that the same apply to any “attempt to commit torture” or
any “act by any person which constitutes complicity or participation in torture.”
Finally, under Article 3, paragraph (1), no state party shall send a person to a
country where there are “substantial grounds for believing that he would be in
danger of being subjected to torture.” Clearly, the prohibition against torture in
the Convention against Torture is absolute. Canada should not inflict torture,
nor should it be complicit in the infliction of torture by others.
The existing RCMP policy applies only to requests from “foreign governments that violate human rights,”66 seeming to require actual knowledge of
human rights violations.
Most governments that violate human rights by, for example, engaging in
torture, do not admit to such practices. Further, not all RCMP officers may have
access to classified sources of information that reveal human rights violations,
although, as I recommend above, the annual assessments produced by DFAIT
should be made available to the RCMP. In any event, the application of guidelines should not depend on whether officers have actual knowledge of human
rights abuses in a particular country. Whenever there is a reasonable basis for
questioning a country’s human rights record, officers should err on the side of
�RECOMMENDATIONS
caution. According to Article 3, paragraph (2) of the Convention against Torture,
relevant considerations for determining whether there are grounds for believing
in a danger of torture include the existence of a “pattern of gross, flagrant or
mass violations of human rights.”67 Reliable public reports of patterns of human
rights violations in a country must be considered when assessing whether there
is or was a credible risk of torture. Canadian officials should not wait for
“verification” or unequivocal evidence of torture in a specific case before arriving at a conclusion of a likelihood of torture.
When providing information to a country with a questionable human rights
record, Canadian officials should always consider whether co-operation is truly
justified on the basis of Canada’s law enforcement and security interests.
In every case, including those involving terrorism-related investigations,
Canadian authorities should consider the justifications for and proportionality of
any potential involvement with foreign governments that may result in human
rights violations. There should be no blanket exception for terrorism-related
investigations.
Even where it is decided that co-operation with a country with a questionable human rights record is justified, Canadian officials should weigh the risk of
violations of human rights and consider ways of mitigating such risk, including
placing conditions on the provision of information to the other country. They
should also strive to monitor the use made of such information.
Any decision to share information with a country with a questionable
human rights record should be made in a way that is fully accountable within
the Canadian agency providing the information, and should be supported by a
written record setting out the basis of the decision. Moreover, the minister
responsible for the agency should be informed when appropriate. Centralization
of the decision-making process within Canadian agencies providing information should provide the appropriate mechanism for accountability.
I note that the current RCMP policy appears to apply to “enquiries” only.
This is too restrictive. It should apply to any and all dealings with such
governments.
I did not hear enough evidence about CSIS policies and practices in the
Factual Inquiry to determine whether improvements are needed in this area.
However, CSIS should review its policies and practices to ensure they conform
to the approach suggested herein. It is important that the practices of the RCMP
and CSIS in this respect be based on the same fundamental principles. Moreover,
as I suggest above, they should be guided by the same assessment of a country’s human rights record.
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Recommendation 15
Canadian agencies should accept information from countries with questionable
human rights records only after proper consideration of human rights implications. Information received from countries with questionable human rights
records should be identified as such and proper steps should be taken to assess
its reliability.
Canadian agencies must exercise care in agreeing to receive information from
countries with questionable human rights records. It is important that, in doing
so, they not appear to encourage or in any way condone abuse of human rights
or the use of torture.
There are cases where it is necessary and helpful to receive information
from countries with questionable human rights records, in the interest of national
security. An assessment must therefore be made of the importance of receiving
such information and the implications of doing so for Canada’s human rights
obligations. Such assessments will, in practice, be made on a case-by-case basis,
but should always be made in an informed, principled and accountable manner.
In terms of accountability, it is important that the decision-making process
be clearly described in writing and that those responsible for making the decisions be identified. Furthermore, decisions to receive information from countries
with questionable human rights records should be reviewed by the appropriate
review body — SIRC for CSIS and the review body I am proposing for the RCMP.
It is essential that there be a proper and professional assessment of the reliability of information relating to national security received by Canadian agencies
from countries with questionable human rights records.
All Canadian agencies must develop a policy governing the receipt of information from countries with questionable human rights records, with a special
focus on the reliability and accuracy of such information. It will be necessary to
assess this type of information against all that is known within government about
the human rights record of the country in question, the conditions of confinement and interrogation of detainees, if appropriate, and the risk that the country may provide misinformation or false confessions induced by torture, violence
or threats thereof. Based on the test set out in the Convention against Torture,
the assessment should include consideration of the general patterns of conduct
of the country and not be limited to first-hand evidence of torture in specific
instances. Maher Arar’s case underlines the need to ensure a proper and professional assessment of the reliability of such information.
Consultation among government entities with relevant information, including the RCMP, CSIS and DFAIT, will also help ensure a consistent reliability
�RECOMMENDATIONS
assessment of the information for all Canadian agencies. The requirement that
Canadian agencies involved in national security activities share information to
properly address terrorist threats speaks to the importance of consistent analysis and assessment. It makes no sense to have different agencies operating on
different assessments of information received from a foreign government.
Moreover, once information has been assessed, new information may become
available and may alter or upgrade the existing assessment. Updated assessments should be shared in a timely manner.
If information received from a foreign government is shared with agencies
in other countries, it is important that Canadian agencies share the information
in an appropriate manner. Obviously, the caveats of the country that provided
the information must be respected and, when a foreign government agrees to
further dissemination of its information, the Canadian agency should attach its
own evaluation of the reliability and accuracy of the information and point out
any concerns about human rights abuses that could affect the reliability of the
shared information.
Finally, I note that the fact that Canadian agencies receive information from
other countries for intelligence purposes does not necessarily mean that the
information will be admissible in legal proceedings for evidentiary purposes.
V.
CANADIANS DETAINED IN OTHER COUNTRIES
Recommendation 16
The Government of Canada should develop a protocol to provide for coordination and coherence across government in addressing issues that arise when a
Canadian is detained in another country in connection with terrorism-related
activity. Essential features of this protocol should include consultation among relevant Canadian agencies, a coherent and unified approach in addressing the
issues, and political accountability for the course of action adopted.
The case of Maher Arar is an excellent example of why a coordinated and
coherent approach by Canadian officials is required when Canadians are
detained in other countries in connection with terrorism-related activities.
Consular officials point out that “terrorism” cases often involve special challenges. Depending on the country involved, detainees in such cases are more
likely to be subjected to different and harsher treatment. Intrusions on individual liberties and human rights are more frequent when Canadians are detained
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abroad in connection with a terrorism-related investigation, as opposed to most
other criminal investigations.
In such instances, particularly when the country detaining them has a poor
human rights record, there is a potential for disagreement among Canadian agencies about what steps should or even may be taken. Investigative agencies may
wish to follow one course of action and consular officials, another. For example, investigative agencies may want to forward information about a detainee or
questions for that person to the country in question, or may want to question
the detainee or learn the results of interrogations by officials in the detaining
country. In countries where mistreatment or torture is a real possibility, contacts
between Canadian investigators and officials in the detaining country may hamper efforts by consular officials to obtain access to the detainee, ensure the individual is receiving proper treatment, or obtain the person’s release.
Apart from the rule against contributing to or condoning torture, it is not
possible to formulate absolute rules about what should or should not be permitted. Situations will vary widely, depending on the practices of the detaining
country, its relationship with Canada, the nature of the investigation, and the
detainee’s circumstances.
Nevertheless, there are three essentials to the way Canada should respond
to the detention of a Canadian abroad in connection with a terrorism-related
investigation: 1) timely and open consultation among Canadian agencies that
have any involvement in the matter; 2) a coherent and unified approach in
addressing the matter, with DFAIT acting as the lead agency; and 3) accountability for the course of action adopted, with any disagreements between the
Minister of Foreign Affairs and the Minister of Public Safety ultimately being
resolved by the Prime Minister.
When a Canadian agency determines that a Canadian is being detained in
another country in connection with a terrorism-related investigation, it should
immediately notify DFAIT, which should take the lead in ascertaining what other
Canadian agencies, including investigative agencies, are or have been involved
in the case. The agencies involved should then share, on a confidential basis,
the information necessary to ensure that there is a co-ordinated approach to all
Canadian activities in relation to the detainee throughout the period of detention. Information should be shared in a manner that recognizes the different
mandates and responsibilities of the agencies contributing information, particularly the distinctions between law enforcement and security intelligence mandates discussed earlier in this chapter.
Designating DFAIT as the lead agency for cases involving Canadians
detained abroad in connection with terrorism-related activities should also
�RECOMMENDATIONS
help ensure that Canada’s obligations to provide consular services and defend
the human rights of such persons are given due attention and are not eclipsed
by the investigative mandates of either security intelligence or law enforcement
agencies. That said, both security intelligence and law enforcement agencies
have independent obligations to take care when dealing with countries with
questionable human rights records, as discussed in recommendations 13 and 14.
As I envision it, this process would address the types of concerns I raise
with respect to the manner in which Canadian officials responded to Mr. Arar’s
situation while he was imprisoned in Syria. For example, a decision to send
questions for a detainee such as Abdullah Almalki or to share consular reports
with investigative agencies would be made only after appropriate consultation
carried out in a politically accountable manner, as would decisions about contacts between investigative agencies and government authorities in the detaining country and about media strategies.
Conflicts between the investigative interests of Canada and the need to
respect the consular and human rights of Canadians held abroad must be
resolved on a case-by-case basis, but I would think that officials would strive to
ensure the greatest possible respect for human rights and that they would bear
in mind the doubtful reliability of any statements made by a Canadian held in a
country with a record of human rights abuses and torture.
In Mr. Arar’s case, a process similar to that envisioned in this recommendation was engaged when Mr. Pardy attempted to obtain a joint statement from
the Minister of Foreign Affairs and the Solicitor General. The dispute about the
language to be included in a letter was ultimately resolved with the Prime
Minister’s intervention. However, when the RCMP and CSIS informed their minister of the inadvisability of signing a joint letter, these agencies did not raise with
him the doubtful reliability of information received from Syria about Mr. Arar or
the human rights violations Mr. Arar was facing or at risk of facing.
It will be necessary to properly brief those responsible for decisions on the
investigative and diplomatic aspects of cases involving Canadians detained
abroad in connection with terrorism-related activity. Such briefings should obviously be accurate and balanced. Further, to ensure an approach that is coherent and promotes accountability, it should always be clear which officials are
responsible.
Given the importance of such matters, senior officials and, if necessary,
responsible ministers should be involved. Such high-level involvement should
promote coherence, coordination and accountability. As discussed above, a
November 2003 ministerial direction indicates that the minister responsible for
the RCMP should be informed of high-profile national security investigations.
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Similar principles should be applied in other agencies with respect to any
Canadians detained outside Canada in connection with terrorism-related activity. If there are disagreements that cannot be resolved at the ministerial level, it
may be necessary for the Prime Minister to make the ultimate decision about
what is and is not permitted.
I heard evidence that the Canadian ambassador to a country detaining a
Canadian is the representative of all Canadian departments and agencies in relation to that country. That role may well put the ambassador in a difficult position of conflict. I recommend that, when a Canadian is detained in a
terrorism-related matter, the ambassador refer any questions about what should
be done with respect to the detainee to the consultation process described in
this section. In that way, decisions can be made after receiving the views of all
interested departments and agencies, in a manner that provides for accountability at an appropriate level. At the same time, the fact of having DFAIT take
the lead in such circumstances should facilitate prompt communications
between DFAIT and the ambassador and lessen any conflicts the ambassador
may face. It should also ensure that the ambassador and his or her staff can
promptly and adequately represent the interests of Canada and of Canadians
held abroad.
As I note above, a process similar to that described here was more or less
engaged in the case of Mr. Arar. The purpose of this recommendation is to
ensure that the process is formalized and becomes systematic in all cases involving Canadians detained abroad for alleged terrorism-related activities.
Recommendation 17
The Canadian government should develop specific policies and training to
address the situation of Canadians detained in countries where there is a credible
risk of torture or harsh treatment.
A) TRAINING
Consular officials posted to countries that have a reputation for abusing
human rights should receive training on conducting interviews in prison settings in order to be able to make the best possible determination of whether
torture or harsh treatment has occurred.
In some countries, consular officials are not permitted private visits with
Canadian detainees. That was the case with Mr. Arar when he was imprisoned
in Syria. The fact that a detaining country permits consular officials to visit a
detainee only in the presence of its officials in itself raises concerns about the
�RECOMMENDATIONS
treatment to which the detainee may have been subjected. Because the detainee
may not be able to speak freely, it is important that consular officials responsible for managing a detainee’s case know how to detect signs of abuse or torture, to the extent possible.
Even when torture or harsh treatment has occurred, there may not be any
physical signs. I heard evidence that countries such as Syria have ways of inflicting serious pain without leaving any physical marks, or at least none that are visible when the detainee is clothed. Indeed, it is unlikely that a country that inflicts
torture or harsh treatment would permit consular access when physical signs of
abuse could be observed.
In Mr. Arar’s case, the Canadian consul did not have any training in detecting the signs of torture or abuse. I understand that DFAIT has implemented
or is considering implementing a training program. I think that is an important
initiative.
Moreover, once it is determined that there is a credible risk that torture is
being or has been inflicted on a Canadian detainee, it is essential that Canadian
investigators be alerted and that they be properly directed as to what interaction,
if any, may take place with the detaining country. Information about a credible
risk of torture should also be considered by law enforcement or security intelligence agencies when assessing the reliability of statements made or purported
to have been made by the detainee. The threshold for determining a credible
risk of torture is discussed under recommendations 14 and 15.
B) MINISTER OF FOREIGN AFFAIRS
If there is credible information that a Canadian detained abroad is being or
has been tortured, the Minister of Foreign Affairs should be informed and
involved in decisions relating to the Canadian response.
Torture is a grave abuse of human rights. Decisions on how to address serious
concerns about a Canadian being tortured must be made in a manner that will
ensure as much transparency and political accountability as possible. The
Minister of Foreign Affairs is, in my view, the appropriate person to inform in
all cases where there is credible information that a Canadian detained abroad is
being or has been tortured.
I note that, after the first consular visit with Mr. Arar in Syria, DFAIT officials did not inform Minister Graham that it was likely that Mr. Arar had been
tortured. Nor did they inform him in August 2002 that Ahmad El Maati had
alleged that he had been tortured while in Syrian custody. Once it has been
determined that torture has likely occurred, a number of decisions must be
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made. To begin with, it must be decided whether to raise concerns with the
detaining country. To my mind, barring any exceptional circumstances, the
Minister should register Canada’s concerns about the possible mistreatment of
the detainee and violations of internationally protected human rights. I accept
that there are considerations both for and against such action and that each case
must be decided on its own merits. However, in most cases, when there is serious concern that torture or other grave abuse has occurred, such conduct should
not be allowed to go unchallenged.
C) CONSULAR RIGHTS
Canadian officials should normally insist on respect of all of a detainee’s consular rights.
Consular officials should request private visits with detainees in foreign countries and should be directed to insist on respect of detainees’ full range of rights,
including access to medical care and legal counsel.
There is an advantage to making such requests and demands even if they
are likely to be denied, as they generally send a signal that Canada disapproves
of any failure to fully respect detainees’ rights. While judgment always comes
into play and there may be exceptional cases where doing so would actually be
detrimental to the detainee, those cases are likely to be few and far between.
Recommendation 18
Consular officials should clearly advise detainees in foreign countries of the circumstances under which information obtained from the detainees may be shared
with others outside the Consular Affairs Bureau, before any such information is
obtained.
DFAIT publishes a booklet entitled A Guide for Canadians Imprisoned Abroad.
Under the heading “Protection, Advice and Assistance,” the Guide assures
detainees that if they choose to talk to Canadian officials, any information given
will remain confidential, subject to the provisions of Canada’s Privacy Act. The
Privacy Act prohibits the disclosure without consent of personal information
under the control of government, except as authorized in specified circumstances. The exceptions permit disclosure for purposes consistent with the use
for which the information was being held, law enforcement purposes, and purposes that are in the public interest.
In Mr. Arar’s case, consular officials disclosed information obtained from
Mr. Arar to the RCMP and CSIS based in part on perceived consent and in part
on one of the exceptions to the prohibition against disclosure in the Privacy
�RECOMMENDATIONS
Act. I discuss the disclosures in Chapter V. The point for present purposes is that
Mr. Arar’s personal information was disclosed without his consent or even his
knowledge that disclosure would take place. That is obviously an unacceptable
situation.
If consular officials are contemplating disclosing information to others with
the detainee’s consent, the detainee should be fully informed of exactly what is
going to occur. Moreover, if it is contemplated that information may be disclosed under exceptions in the Privacy Act, those exceptions should be
explained to the detainee. While the current Guide does make reference to the
Privacy Act, that reference is somewhat oblique and few detainees will have
any idea that the reference is intended to permit the disclosure of information
rather than to protect its confidentiality. However, I note that, if the detainee is
being detained in circumstances that violate his or her human rights, it may be
difficult to conclude that there has been voluntary consent to the release to
investigative agencies of information obtained by consular officials.
Moreover, I recommend that, when consular officials have information that
may assist a detainee with a defence or response in legal proceedings being
taken in the detaining country, they discuss that information with the detainee,
if possible, and, if directed, provide it to counsel for the detainee. If it is not possible to discuss the information with the detainee because of the circumstances
of detention, consular officials should consider whether there is any reason such
information should not be made available to counsel for the detainee. In making this recommendation, I appreciate that it is possible, although not probable,
that consular officials will have information that cannot be disclosed because of
the need to safeguard national security or international relations.
VI.
PROFILING
Recommendation 19
Canadian agencies conducting national security investigations, including CSIS,
the RCMP and the CBSA, should have clear written policies stating that such investigations must not be based on racial, religious or ethnic profiling.
Although the RCMP has a policy of bias-free policing, concerns about racial profiling were raised by many of the intervenors in the Inquiry. Several senior officers of the RCMP who testified at the Inquiry made it clear that racial, ethnic or
religious profiling is not permitted. This recommendation adopts that approach.
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In material submitted to the Inquiry, the RCMP outlined a comprehensive
approach to bias-free policing, which is defined in different ways. One definition is “any police action that is not based on race, nationality or ethnic origin,
colour, religion, sex or sexual orientation, marital status, age, mental or physical disability. Rather, the police action is based on behaviour or information that
leads the police to a conclusion that a particular individual, group or organization is, has been or may be engaged in unlawful activity.”68 Another, referred to
in the material as a “possible definition” for bias-free policing, is “a commitment
to provide quality policing services to all people in a respectful, professional, fair
and impartial manner without discrimination based on race, national or ethnic
origin, socio-economic status, colour, religion, sex, age, or mental or physical
disability.”69
There is much of value in the RCMP’s policy regarding bias-free policing
and I accept that the RCMP has an unwritten policy against racial, religious or
ethnic profiling. However, there is an advantage to clearly spelling out what
constitutes racial, religious and ethnic profiling and affirming that it is prohibited. Certainly, the existence of a written policy that defines and prohibits such
profiling should go some distance in alleviating the concerns of those who,
rightly or wrongly, perceive that discriminatory profiling has occurred in some
instances. A clearly articulated policy is more likely to be respected than an
unwritten understanding. Working in consultation with others, including those
in Canada’s Muslim and Arab communities, the RCMP should develop a precise
definition of the racial, religious and ethnic profiling that it prohibits. Moreover,
its policy in this regard should be widely distributed within the Force, as well
as to the independent review body and the public.
I did not hear sufficient evidence in the Inquiry about the policies of other
agencies in regard to profiling to make specific recommendations. Nevertheless,
I recommend that all agencies involved in national security investigations review
their existing policies to ensure conformity with this recommendation.
Although this may change in the future, anti-terrorism investigations at present focus largely on members of the Muslim and Arab communities. There is
therefore an increased risk of racial, religious or ethnic profiling, in the sense that
the race, religion or ethnicity of individuals may expose them to investigation.
Profiling in this sense would be at odds with the need for equal application of
the law without discrimination and with Canada’s embrace of multiculturalism.
Profiling that relies on stereotypes is also contrary to the need discussed above
for relevant, reliable, accurate and precise information in national security investigations. Profiling based on race, religion or ethnicity is the antithesis of good
policing or security intelligence work.
�RECOMMENDATIONS
Because terrorism investigations today are focused on specific communities,
there is an understandable concern that individuals and groups as a whole may
feel unfairly targeted. Perceptions are important. Indeed, experience tells us that
perceptions of unfair treatment, whether founded or not, can have a serious
impact on the level of co-operation members of communities give investigators.
Obviously, co-operation from those with knowledge of individuals or activities
being investigated is important. Clear written policies against racial, religious
and ethnic profiling that are made publicly available could correct any misperceptions and perhaps enhance co-operation between the RCMP and specific
communities.
Recommendation 20
Canadian agencies involved in anti-terrorism investigations, particularly the
RCMP, CSIS and the CBSA, should continue and expand on the training given to
members and staff on issues of racial, religious and ethnic profiling and on interaction with Canada’s Muslim and Arab communities.
In recommendation 3(e), I point out the practical reasons why national security
investigators need to understand the norms, practices and values of communities they may need to investigate. It is also very important that investigators have
a sound grasp of these communities in order to avoid offending individuals and
even unintentionally causing people to view them with suspicion or distrust.
There is a wide scope for involving members of Canada’s Arab and Muslim
communities in training programs aimed at informing investigators of their culture, values and history. Some intervenors in the Inquiry suggested that a coherent training program could be developed in partnership with Canadian Muslim
and Arab communities.
Materials produced by interested community groups may be helpful in this
respect. For example, a pamphlet prepared by the Canadian Council on
American-Islamic Relations, Islam and Muslims: What Police Officers Need to
Know, explains how terms like jihad and fatwa are commonly misunderstood
and may have innocent meanings not tied in any way to criminal conduct. The
pamphlet also notes that “if eye contact is not made with a police officer, it can
be a sign of respect, rather than one of guilty behaviour.”70 Such background
information can be relevant in determining the reliability and relevance of
information.
Other outreach initiatives may be helpful as well. In material submitted to
the Inquiry, the RCMP outlined a number of specific outreach initiatives carried
out with Canada’s Arab and Muslim communities. These include the RCMP
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Commissioner’s delivery of the keynote address at a “Reviving the Islamic Spirit”
conference in January 2004, Montreal INSET’s acquisition of a full-time community relations officer, and Vancouver INSET’s establishment of a liaison with
the B.C. Muslim Association.71 Senior officials from the RCMP and CSIS should
continue to meet with community leaders to seek their assistance and listen to
their concerns about how investigations are affecting the communities and, of
importance, how they are perceived in those communities.
CSIS and the RCMP should consider whether it would be helpful to create
a database of available and reliable resources within the Canadian Muslim and
Arab communities for questions that might arise during investigations about
Islam or about Arab or Muslim culture. Members of the communities concerned
should be consulted about this initiative.
CSIS and the RCMP should continue their recruiting efforts in the Canadian
Arab and Muslim communities with a view to improving diversity among their
personnel. Moreover, they should promote greater sensitivity and awareness in
their national security policies and operations.
I accept that the RCMP and CSIS are taking steps to enhance their interaction with Canada’s large and diverse Muslim and Arab communities. Increased
efforts in this respect can and should be made, to ensure that discrimination
does not occur and to improve relations with and co-operation from these
communities.
VII.
USE OF BORDER LOOKOUTS
Recommendation 21
Canadian agencies should have clear policies about the use of border lookouts.
A) REQUESTS
The RCMP and CSIS should develop guidelines governing the circumstances
in which border lookouts may be requested both in Canada and in other
countries.
Border lookouts can be a useful investigative tool and may be very helpful in
national security investigations. They are not the most intrusive type of investigative technique; however, since they do involve some invasion of an individual’s privacy, they should only be requested when there is some basis for
believing that information that may be obtained will advance an investigation.
�RECOMMENDATIONS
Accordingly, there should be reason to believe that there is a connection
between the person targeted by the lookout and the activity or individual being
investigated.
The facts in the Arar case provide one example of the point I am making.
Mr. Arar was properly a person of interest in the relevant RCMP investigation,
as he was associated with suspects who were being investigated. Although the
RCMP did not consider Mr. Arar a suspect, they had a legitimate interest in
knowing more about him because of those associations. However, there was no
information linking Mr. Arar’s wife, Monia Mazigh, to any suspect or activities
being investigated. Thus, there was no basis to request a lookout for her.
In addition, when a border lookout is requested in another country, it is
important to consider the implications of such a request for the liberty and rights
of the individual targeted. It should not be assumed that all other countries will
treat a lookout request as merely an information-gathering exercise. In the post9/11 environment, with the increased concern about threats of terrorism, some
other countries may react to information connected with terrorist investigations
in a far more aggressive manner than Canadian authorities might intend. For
example, I heard evidence in the Factual Inquiry about one country that refused
to remove the name of an individual from a lookout list even after Canadian officials indicated that there was an error in certain information Canada had provided to that country. The need for careful consideration of the possible
implications of making foreign lookout requests in terrorist investigations has
been greatly heightened since 9/11. It is important that officials with the appropriate experience and understanding of processes and cultures of other countries be involved in decisions to request foreign lookouts.
Finally, it is essential in making a lookout request that care be taken to
ensure that any information conveyed in the request is accurate and precise and
that, if the request contains information about an individual, it is accompanied
by appropriate caveats. My comments about information sharing generally apply
equally to lookout requests.
B) ISSUING LOOKOUTS
The CBSA should establish clear, written criteria for placing individuals on a
lookout list.
For reasons of national security confidentiality, I am unable to discuss the nature
of lookouts or some of the criteria that may be applied in making decisions in
their regard. There is an obvious advantage to having the criteria clearly spelled
out, to provide those responsible for making decisions with as much guidance
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as possible. That said, it is not possible to be prescriptive, as all possible circumstances cannot be envisioned. A criterion of “reasonableness” for issuing
lookouts makes sense, but further detail would be helpful, as would specific
examples of what does or does not constitute a “reasonable” basis.
The facts in the Arar case provide an example of where I would draw the
line in terms of what should be considered “reasonable.” I have not heard evidence dealing with the wide range of circumstances that must be considered
when a lookout is requested. Thus, I can go no further in making specific
suggestions.
C) EXAMINING DOCUMENTS
The CBSA should establish clear policies or guidelines concerning criteria
for examining and photocopying documents and retrieving information from
computers and electronic devices when individuals are seeking entry into
Canada.
Existing policies or guidelines relating to these matters are poorly drafted and
very confusing. In some situations, it would be very difficult for Canadian frontline officials to determine what is authorized. Clear direction is essential.
In preparing policy directives, the CBSA should ensure that border examinations are not unnecessarily intrusive. Directives should spell out the types of
examinations that are permitted and those that are not, and give specific examples of each. Such directives should be set out in clear, simple language, in a
single document with readily understandable headings.
D) DR. MAZIGH
Canada Customs should purge the information about Dr. Mazigh and her
children from the Intelligence Management System.
The information concerning Dr. Mazigh and her children should not have been
uploaded in the first place. It should be removed from the System if this has not
already been done,
�RECOMMENDATIONS
VIII.
MAHER ARAR
Recommendation 22
The Government of Canada should register a formal objection with the governments of the United States and Syria concerning their treatment of Mr. Arar and
Canadian officials involved with his case.
The American authorities who handled Mr. Arar’s case treated Mr. Arar in a most
regrettable fashion. They removed him to Syria against his wishes and in the face
of his statements that he would be tortured if sent there. Moreover, they dealt
with Canadian officials involved with Mr. Arar’s case in a less than forthcoming
manner. They were not candid, either with the RCMP officers with whom they
had been working jointly on the investigation that involved Mr. Arar, or with
Canadian consular officials seeking to assist Mr. Arar, about their intentions or
about the process that led to Mr. Arar’s removal.
Canada should formally register an objection about both what happened to
Mr. Arar and how American officials treated Canadian officials.
The fact of objecting is more symbolic than anything else. Unquestionably,
Canada should continue to co-operate fully with American authorities in the
global fight against terror. Co-operation between the two countries is vitally
important. However, Canada is entitled to expect that American authorities will
treat Canada and Canadian citizens in a way that is consistent with our co-operative efforts. That did not happen in the case of Mr. Arar.
With regard to Mr. Arar’s detention in the United States, I note that, under
the Vienna Convention on Consular Relations, a contracting state has an obligation to inform a foreign national of his or her right to contact consular officials and to facilitate such contact without delay. On October 3, 2002, Mr. Arar
told Canadian consul Maureen Girvan that, while in custody at John F. Kennedy
International Airport in New York, he had asked to see someone from the
Canadian Consulate. American officials failed to contact the Consulate General
in New York and Mr. Arar was held in U.S. custody for four days without access
to a lawyer or his family. Essentially, no one knew where he was.
Breaches to the Vienna Convention should not be allowed to pass without
objection. At one point, Canadian officials considered sending a diplomatic note
to the United States in regard to its failure to provide Canadian consular officials
with timely notification of Mr. Arar’s detention. In my view, such a course of
action is appropriate under the circumstances.
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Moreover, the RCMP should inform American authorities with whom it
shared information about Mr. Arar that all such information was or should have
been subject to caveats restricting its dissemination to other agencies as well as
its use, particularly in legal proceedings such as the immigration proceedings
held with respect to Mr. Arar during his time in New York. In addition, the
RCMP should correct any inaccurate information about Mr. Arar that was provided to American agencies. Mr. Arar, for one, has serious concerns about what
will happen to him should he find himself in the United States again. He told
the independent fact-finder that he fears flying even within Canada because of
the possibility that a flight will be diverted to an American airport.72 We have no
way of knowing what information American officials have concerning Mr. Arar,
but Canada has an obligation to correct any inaccurate information about him
that it may have provided to American authorities. It is important that the record
be set straight. In this report, I discuss at length the problems that can arise from
providing inaccurate information and from sharing information without caveats.
That discussion need not be repeated here. However, I repeat that inaccuracies
should be corrected and caveats attached.
With regard to Syria, I conclude that the Syrian authorities tortured Mr. Arar
when interrogating him and held him in inhumane and degrading conditions for
about a year. Moreover, I conclude that they misled Canadian officials about
Mr. Arar’s presence in Syria after he first arrived there. If Canada has not already
done so, it should send a formal objection to the Syrians.
Recommendation 23
The Government of Canada should assess Mr. Arar’s claim for compensation in the
light of the findings in this report and respond accordingly.
I have been asked to recommend that the Government of Canada compensate
Mr. Arar for damages for his ordeal. However, I am specifically precluded from
making any findings (or even assessments) as to whether the Government of
Canada would be civilly liable to Mr. Arar. Moreover, the actions of others —
the United States and Syria — played significant roles in what happened to
Mr. Arar. I have been informed that Mr. Arar is suing the Canadian government,
as well as the governments of the United States, Syria and Jordan, both here
and in the United States. Those cases are before the courts, which can properly
explore issues of civil liability, although an American court recently ruled that
Mr. Arar could not sue the American government in relation to his rendition to
Syria because of national security and foreign policy issues.73 Even if this holding
�RECOMMENDATIONS
is appealed, it appears that Mr. Arar will face serious roadblocks in his litigation
against the United States and the other foreign governments.
I wish to make two comments about Mr. Arar’s claim for compensation.
First, in addressing the issue of compensation, the Government of Canada
should avoid applying a strictly legal assessment to its potential liability. It should
recognize the suffering that Mr. Arar has experienced, even since his return to
Canada. Among other things, after his return, he was subjected to several very
improper and unfair leaks of information that damaged his reputation, caused
him enormous personal suffering and may have contributed to the difficulties
this well-educated Canadian man has experienced in finding employment in his
chosen field of computer engineering. Mr. Arar’s inability to obtain employment
has had a devastating economic and psychological impact on both him and his
family.74 In addition, as the Inquiry has proceeded, some of the mental suffering that Mr. Arar experienced in Syria has re-surfaced. Based on the assumption
that holding a public inquiry has served the public interest, Mr. Arar’s role in it
and the additional suffering he has experienced because of it should be recognized as a relevant factor in deciding whether compensation is warranted.
The only other observation that I wish to make is that, if the Government
of Canada chooses to negotiate with Mr. Arar, negotiated arrangements can be
more creative than a mere damage award. A compensation agreement could
involve anything from an apology to an offer of employment or assistance in
obtaining employment.
Finally, I have been asked to recommend that appropriate disciplinary proceedings be instituted with respect to Canadian officials involved in Mr. Arar’s
case. However, I have not assessed the evidence with that in mind. Those
responsible for discipline will have my report. They can take my findings and
decide what steps, if any, need to be taken.
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Summary List of Recommendations
Arising from Factual Inquiry
Recommendation 1
The RCMP should ensure that its activities in matters relating to national security are properly within its mandate as a law enforcement agency.
(a) The RCMP should take active steps to ensure that it stays within its
mandate as a police force to perform the duties of peace officers in
preventing and prosecuting crime. It should ensure that it respects the
distinct role of CSIS in collecting and analyzing information and intelligence relating to threats to the security of Canada.
(b) The RCMP should continue to develop its capacity for intelligence-led
policing while ensuring that it remains within its law enforcement
mandate.
(c) The RCMP should establish internal controls for all national security
investigations to ensure that, when commencing and carrying out
investigations and collecting information, it is properly within its law
enforcement mandate to prevent, investigate and prosecute crimes.
Recommendation 2
The RCMP should continue to engage in integrated and co-operative operations
in national security investigations, but agreements or arrangements in this respect
should be reduced to writing.
(a) The RCMP’s integrated policing initiatives with other Canadian police
forces are necessary and beneficial and should continue.
(b) While respecting their different mandates, the RCMP and CSIS should
continue to co-operate with one another and expand upon the ways
in which they do so.
(c) The RCMP should continue to adhere to and refine its policy of cooperating with other federal agencies or departments involved in
national security investigations.
�RECOMMENDATIONS
(d) The RCMP should continue to work co-operatively with foreign
agencies in pursuing its law enforcement mandate in national security
investigations.
(e) The RCMP’s agreements or arrangements with other entities in regard
to integrated national security operations should be reduced to writing.
Recommendation 3
The RCMP should ensure that those involved in national security investigations
are properly trained in the particular features of such investigations.
(a) Investigators in the national security field require all of the skills and
expertise of investigators in other criminal investigations, but they
should also be given training relating specifically to national security
aspects.
(b) The RCMP should ensure that the specific types of information at the
basis of national security investigations are analyzed with accuracy,
precision and a sophisticated understanding of the context from which
the information originates, with a view to developing intelligence that
can lead to successful prevention and prosecution of a crime.
(c) The RCMP’s National Security Enforcement Course curriculum should
be reviewed in the light of the findings and recommendations of the
Inquiry. In future, training curricula should be reviewed periodically by
the RCMP and by the proposed independent review body.
(d) Training for national security investigators should include a specific
focus on practices for information sharing with the wide range of agencies and countries that may become involved in national security
investigations.
(e) The RCMP should continue and expand upon its social context training, which is necessary to be able to conduct efficient investigations
while ensuring fairness to individuals and communities.
Recommendation 4
The RCMP should maintain its current approach to centralized oversight of
national security investigations.
365
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ANALYSIS AND RECOMMENDATONS
Recommendation 5
The minister responsible for the RCMP should continue to issue ministerial directives to provide policy guidance to the RCMP in national security investigations,
given the potential implications of such investigations.
Recommendation 6
The RCMP should maintain its policy of sharing information obtained in the
course of national security investigations with other agencies and police departments, both domestic and foreign, in accordance with the principles discussed
in these recommendations.
Recommendation 7
The RCMP’s Criminal Intelligence Directorate (CID) or another centralized unit
with expertise in national security investigations should have responsibility for
oversight of information sharing related to national security with other domestic and foreign departments and agencies.
Recommendation 8
The RCMP should ensure that, whenever it provides information to other departments and agencies, whether foreign and domestic, it does so in accordance
with clearly established policies respecting screening for relevance, reliability
and accuracy and with relevant laws respecting personal information and human
rights.
(a) The RCMP should maintain its policy of screening information for relevance before sharing it.
(b) The RCMP should ensure that information provided to other countries
is reliable and accurate and should amend its operational manual
accordingly.
(c) Information should also be screened by the RCMP for compliance with
the applicable law concerning personal information before it is shared.
Recommendation 9
The RCMP should never share information in a national security investigation
without attaching written caveats in accordance with existing policy. The RCMP
should review existing caveats to ensure that each precisely states which institutions are entitled to have access to the information subject to the caveat and
what use the institution may make of that information. Caveats should also
�RECOMMENDATIONS
generally set out an efficient procedure for recipients to seek any changes to the
permitted distribution and use of the information.
(a) The RCMP’s current policy of requiring caveats on all documents being
provided to other agencies is sound and should be strictly followed.
(b) The RCMP should review the language of its existing caveats to ensure
that it clearly communicates the desired restrictions on the use of information being shared. Caveats should clearly state who may use the
information, what restrictions apply to that use, and whom to contact
should the recipient party wish to modify those terms.
Recommendation 10
The RCMP’s information-sharing practices and arrangements should be subject
to review by an independent, arms-length review body.
Recommendation 11
Canadian agencies other than the RCMP that share information relating to
national security should review recommendations 6 to 10 above to ensure that
their information-sharing policies conform, to the appropriate extent, with the
approaches I am recommending for the RCMP.
Recommendation 12
Where Canadian agencies become aware that foreign agencies have made
improper use of information provided by a Canadian agency, a formal objection
should be made to the foreign agency and the foreign minister of the recipient
country.
Recommendation 13
The Department of Foreign Affairs and International Trade (DFAIT) should provide its annual reports assessing the human rights records of various countries
to the RCMP, CSIS and other Canadian government departments or agencies
that may interact with such countries in connection with investigations.
Recommendation 14
The RCMP and CSIS should review their policies governing the circumstances
in which they supply information to foreign governments with questionable
human rights records. Information should never be provided to a foreign country where there is a credible risk that it will cause or contribute to the use of torture. Policies should include specific directions aimed at eliminating any possible
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ANALYSIS AND RECOMMENDATONS
Canadian complicity in torture, avoiding the risk of other human rights abuses
and ensuring accountability.
Recommendation 15
Canadian agencies should accept information from countries with questionable
human rights records only after proper consideration of human rights implications. Information received from countries with questionable human rights
records should be identified as such and proper steps should be taken to assess
its reliability.
Recommendation 16
The Government of Canada should develop a protocol to provide for coordination and coherence across government in addressing issues that arise when a
Canadian is detained in another country in connection with terrorism-related
activity. Essential features of this protocol should include consultation among relevant Canadian agencies, a coherent and unified approach in addressing the
issues, and political accountability for the course of action adopted.
Recommendation 17
The Canadian government should develop specific policies and training to
address the situation of Canadians detained in countries where there is a credible risk of torture or harsh treatment.
(a) Consular officials posted to countries that have a reputation for abusing human rights should receive training on conducting interviews in
prison settings in order to be able to make the best possible determination of whether torture or harsh treatment has occurred.
(b) If there is credible information that a Canadian detained abroad is
being or has been tortured, the Minister of Foreign Affairs should be
informed and involved in decisions relating to the Canadian response.
(c) Canadian officials should normally insist on respect of all of a
detainee’s consular rights.
Recommendation 18
Consular officials should clearly advise detainees in foreign countries of the circumstances under which information obtained from the detainees may be shared
with others outside the Consular Affairs Bureau, before any such information is
obtained.
�RECOMMENDATIONS
Recommendation 19
Canadian agencies conducting national security investigations, including CSIS,
the RCMP and the Canada Border Services Agency (CBSA), should have clear
written policies stating that such investigations must not be based on racial, religious or ethnic profiling.
Recommendation 20
Canadian agencies involved in anti-terrorism investigations, particularly the
RCMP, CSIS and the CBSA, should continue and expand on the training given
to members and staff on issues of racial, religious and ethnic profiling and on
interaction with Canada’s Muslim and Arab communities.
Recommendation 21
Canadian agencies should have clear policies about the use of border lookouts.
(a) The RCMP and CSIS should develop guidelines governing the circumstances in which border lookouts may be requested both in Canada
and in other countries.
(b) The CBSA should establish clear, written criteria for placing individuals on a lookout list.
(c) The CBSA should establish clear policies or guidelines concerning criteria for examining and photocopying documents and retrieving information from computers and electronic devices when individuals are
seeking entry into Canada.
(d) Canada Customs should purge the information about Dr. Mazigh and
her children from the Intelligence Management System.
Recommendation 22
The Government of Canada should register a formal objection with the governments of the United States and Syria concerning their treatment of Mr. Arar and
Canadian officials involved with his case.
Recommendation 23
The Government of Canada should assess Mr. Arar’s claim for compensation in
the light of the findings in this report and respond accordingly.
369
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ANALYSIS AND RECOMMENDATONS
Notes
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
In the report on the Policy Review, I also discuss ways in which the RCMP review mechanism
may interact with the mechanisms of other accountability bodies to ensure coherent and comprehensive review.
Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police,
Freedom and Security under the Law, Second Report (Ottawa: Supply and Services Canada,
1981) (Chair: D.C. Macdonald) [McDonald Commission report].
CASIS Conference, October 16–18, 2003, Vancouver, B.C. [online] http://www.csis-scrs.gc.ca/
en/newsroom/speeches/speech17102003.asp [accessed February 8, 2006].
R.S.C. 1985, c. R-10. Section 18 of the Act reads:
It is the duty of members who are peace officers, subject to the orders of the
Commissioner,
(a) to perform all duties that are assigned to peace officers in relation to the preservation of the peace, the prevention of crime and of offences against the laws of Canada
and the laws in force in any province in which they may be employed, and the apprehension of criminals and offenders and others who may be lawfully taken into custody;
(b) to execute all warrants, and perform all duties and services in relation thereto, that
may, under this Act or the laws of Canada or the laws in force in any province, be lawfully executed and performed by peace officers;
(c) to perform all duties that may be lawfully performed by peace officers in relation to
the escort and conveyance of convicts and other persons in custody to or from any
courts, places of punishment or confinement, asylums or other places; and
(d) to perform such other duties and functions as are prescribed by the Governor in
Council or the Commissioner.
[P] Hooper testimony (June 22, 2004), p. 415.
Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23, s. 33 [CSIS Act].
[IC] Hooper testimony (September 23, 2004), pp.1923–1924.
Exhibit P-12, Tab 42, p.1.
Ibid., p.5.
Ibid., Tab 44, p.19.
For a discussion of the differences between “sharing up” from law enforcement agencies to
security intelligence agencies and “sharing down” from security intelligence agencies to law
enforcement agencies, see Stanley A. Cohen, Privacy, Crime and Terror: Legal Rights and
Security in a Time of Peril (Toronto: LexisNexis Butterworths, 2005), pp. 396–407 [Privacy,
Crime and Terror].
Integration refers to the full range of co-operative activities, including formal integration
(as in the case of Integrated National Security Enforcement Teams, or INSETs), joint operations,
and information exchange.
[P] Submissions by the Ottawa Police Service (September 8, 2005), para 15.
[P] Policy Review hearing transcript (November 17, 2005), p. 333 (submissions).
[P] Submissions by the Ottawa Police Service (September 8, 2005), para 5.
[P] Loeppky testimony (July 28, 2005), p. 8891.
Security Offences Act, R.S.C. 1985, c. S-7, s. 6(1).
CSIS Act, s. 19(2)(a).
The Honourable Bob Rae, Lessons to be Learned (Ottawa: Air India Review Secretariat, 2005),
p. 13 [Lessons to Be Learned].
Ibid., p. 22.
�RECOMMENDATIONS
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
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38
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43
With regard to the advantages of a paper-trail approach, see Commission of Inquiry into the
Sponsorship Program and Advertising Activities, Restoring Accountability – Phase 2 Report
(Ottawa: Supply and Services, 2006), pp. 127-128, which calls for mandatory record-keeping
requirements.
R. v.Terry, [1996] 2 S.C.R. 207 at 216.
Exhibit P-12, Tab 23.
Ibid.
[P] Loeppky testimony (June 30, 2004), p. 894.
Ibid., p. 896.
I note that Project A-O Canada did obtain legal advice from time to time, but that advice did
not give rise to a written agreement or arrangement governing the flow of information.
Exhibit P-12, Tab 23.
Exhibit P-12, Tab 44, p. 7.
Ibid., p. 1.
Ibid., Tab 45, pp. 9–14. The course outline contains the following headings: Overview of the
National Security Program; Criminal Intelligence and the Threat Assessment Process; AntiGlobalization / Criminal Protests Movements; The Psychology of Terrorism; Cultures: Middle
East and Islamic Perspectives; The Roots of Terrorism; Terrorist Threats; National CounterTerrorism Plan; Terrorist Funding; FBI Case Studies; Cyber-Terrorism; Relationship with
Operations; Immigration and Document Examination; Terrorist Use of Chemical, Biological,
Nuclear Materials; and Human Source Development.
Human Sector Resources, Challenge, Choice and Change: A Report on Evidence-based Practice
in the Provision of Policing Services to Aboriginal Peoples, pp. 12–13 [online] www.ipperwashinquiry.ca/policy-part/policing/pdf/Human_Sector_Resources_Report.pdf.
Exhibit P-12, Tab 24, “Ministerial Direction – National Security Responsibility and
Accountability,” pp. 2-3.
Ibid., “Ministerial Direction – National Security Investigations in Sensitive Sectors.”
Ibid., Tab 21.
[P] Submissions by the Ottawa Police Service (September 8, 2005), paras. 12 and 16 (emphasis in original).
National Commission on Terrorist Attacks upon the United States, The 9/11 Commission Report,
s. 13.3 [online] http://www.9-11commission.gov/report/911Report.pdf.
Lessons to Be Learned, supra note 19, pp. 22–23.
McDonald Commission report, supra note 2, pp. 745–746. The McDonald Commission noted
the dangers of overclassification and how “need to know” can hamper teamwork and cooperation between different agencies, reduce the quality of training and development in an
agency, lessen the quality of decisions and frustrate effective oversight and inspection.
Exhibit P-12, Tab 44, p. 7.
R.S.C. 1985, c. C-23.
Exhibit P-64, U.S. Department of Justice, Office of the Inspector General, The September 11
Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection
with the Investigation of the September 11 Attacks (April 2003), p. 111.
The Inquiry also heard expert testimony from Julia Hall of Human Rights Watch in which she
described the immediate post-9/11 “round-up” of hundreds of individuals who were categorized as “persons of interest” or “persons of high interest” and arrested on various immigration violations. See [P] Hall testimony (June 7, 2005), pp. 5578–5579 and 5826.
Exhibit P-64, p. 158. The Office of the Inspector General (OIG) found that the FBI’s initial
assessment of its level of interest in specific 9/11 detainees directly affected the detainees conditions of confinement within the institution and their access to telephone, legal counsel and
371
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ANALYSIS AND RECOMMENDATONS
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their families (p. 111). As a threshold matter, the OIG questioned the criteria — or lack thereof
— used by the FBI to make its initial designation of the potential danger posed by 9/11
detainees. The arresting FBI agent usually made this assessment without any guidance, based
on the initial detainee information available at the time of arrest (p. 158). The OIG recognized
the uncertainties and confusion surrounding the initial policies and treatment relating to the
9/11 detainees. The FBI loosely applied an assessment of these detainees as “of interest” to
the terrorism investigation (p. 159).
Stanley A. Cohen, Privacy, Crime and Terror, supra note 11, p. 116.
Exhibit P-12, Tab 27, Operational Manual, I.3 Assistance, L. Release of Information.
R.S.C. 1985, c. P-21.
Privacy, Crime and Terror, supra note 11, p. 149, citing the Treasury Board Manual, Chapter 2,
“Use and Disclosure of Personal Information” (December 1, 1993), para. 5 [online]
http://www.tbs-sct.gc.ca/pubs_pol/gospubs/TBM_128/CHAP2_4-2_e.asp#cons.
See, for example, R. v. Arp, [1998] 3 S.C.R. 339; R. v. D’Amour, (2002) 4 C.R. (6th) 275 (ON C.A.);
R. v. Dore, (2002) 4 C.R. (6th) 81 (ON C.A.).
R.S.C. 1985, c. P-21.
Treasury Board guidelines for this provision read: “Disclosures under this provision are to be
made in accordance with a formal, written agreement or arrangement” and are to be appropriately documented. Treasury Board Manual, Chapter 2, “Use and Disclosure of Personal
Information” (December 1, 1993), s. 6.6 [online] http://www.tbs-sct.gc.ca/pubs_pol/
gospubs/TBM_128/CHAP2_4-2_e.asp#cons.
Exhibit P-12, Tab 27, Operational Manual, I.3 Assistance, L. Release of Information.
“Designated” information is information with value or importance that warrants safeguarding.
Exhibit P-12, Tab 26, Administration Manual, XI.1 Organizational and Administrative Security,
p. 4 of 11.
Ibid., App. XI-1-5.
“Classified” information is information deemed to be sensitive in the national interest. Ibid.,
p. 3 of 11.
Ibid., App. XI-1-5.
Ibid., Tab 27, Operational Manual, I.3 Assistance, App.1-3-8.
Application under Section 83.28 of the Criminal Code (Re), [2004] 2 S.C.R. 248, 2004 SCC 42
at paras. 74–79.
Exhibit P-120, Tab 4, Stephen Yale-Loehr and Jeffrey O’Neill, “The Legality of Maher Arar’s
Treatment Under U.S. Immigration Law” (May 16, 2005).
McDonald Commission report, supra note 2, p. 1081.
Ibid., p. 888.
CSIS Act, s. 17(2).
Exhibit P-12, Tab 24, “Ministerial Direction – National Security Related Arrangements and
Co-operation.”
Exhibit P-12, Tab 31, s. M.3
Ibid., s. M.3.b.
United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment [online] http://www.ohchr.org/english/law/cat.htm.
Exhibit P-12, Tab 31, s. M.3.
Ibid.
Exhibit P-130, “Cultural Diversity Training in the RCMP,” Tab B, App. B.
Ibid., Tab B, App. A.
Exhibit P-12, Tab 47.
Exhibit P-130, Tab J, pp.48–52.
�RECOMMENDATIONS
72
73
74
Report of Professor Stephen J. Toope, Fact Finder, October 14, 2005, Appendix 7, pp. 815–816.
Arar v. Ashcroft et al., [2006] U.S. Dist. LEXIS 5803.
Ibid., pp. 21–23.
373
��
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PDF Text
Text
Report of the Events
Relating to Maher Arar
Factual Background
volume i
Commission
of Inquiry into
the Actions
of Canadian
Officials
in Relation
to Maher Arar
�The Report of the Commission of Inquiry into the Actions of Canadian Officials in
Relation to Maher Arar as originally submitted to the Governor in Council included
some material which in this published version has been omitted in the interests of
national security, national defence or international relations (indicated by [***] in the
text). The decision to omit this material is made by the Government of Canada, and
does not represent the views of the Commission of Inquiry.
©
Her Majesty the Queen in Right of Canada,
represented by the Minister of Public Works
and Government Services, 2006
Cat. No: CP32-88/1-2006E
ISBN 0-660-19648-4
Available through your local bookseller or through
Publishing and Depository Services
Public Works and Government Services Canada
Ottawa, Ontario
KIA OS5
Telephone: (613) 941-5995
Orders only: 1 800 635-7943
Fax: (613) 954-5779 or 1 800 565-7757
Internet: http://publications.gc.ca
Printed by: Gilmore Print Group
Ce document est également publié en français sous le titre
Rapport sur les événements concernant Maher Arar
www.ararcommission.ca
�Commission of Inquiry into the
Actions of Canadian Officials
in Relation to Maher Arar
The Honourable Dennis O’Connor
Commissioner
Commission d’enquête sur les
actions des responsables canadiens
relativement à Maher Arar
L’honorable Dennis O’Connor
Commissaire
September, 2006
To Her Excellency
The Governor General in Council
May it please Your Excellency:
Pursuant to an Order in Council dated February 5, 2004, I have inquired into the actions of
Canadian officials in relation to Maher Arar. With this letter I respectfully submit my report.
Dennis R. O’Connor
Commissioner
PO Box / CP 507, Station B / Succursale B
Ottawa, Canada K1P 5P6
613 996-4741
Fax / télécopieur 613 992-2366
www.ararcommission.ca / www.commissionarar.ca
��REPORT OF THE EVENTS RELATING TO MAHER ARAR
Factual Background
VOLUME I*
Contents
INTRODUCTION
11
I
EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
13
1.
Canada’s Response to 9/11
1.1 Project Shock
1.2 Communications from the United States
1.3 CSIS Transfer of Investigations to the RCMP
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14
2.
Formation of Project A-O Canada
2.1 Mandate
2.2 Composition
2.3 Training
2.4 Reporting Structure and Information Management
2.4.1 Relationship with CROPS
2.4.2 Relationship with RCMP Headquarters
2.4.3 Relationship with Project O Canada
2.4.4 Information Management and Storage
2.4.4.1 Supertext
2.4.4.2 E&R III
2.4.4.3 SCIS
2.4.5 Relationship with CSIS
2.4.6 Relevant RCMP Policies
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* Because of its length, this Factual Background is published in two volumes, the first containing
Chapters I to III, and the second Chapters IV and V, as well as the Annexes and Appendices.
�4
FACTUAL BACKGROUND: VOLUME I
3.
Project A-O Canada Investigation — October 5, 2001 to
January 22, 2002
3.1 Information Sharing — The Original Arrangement
3.1.1 RCMP Policies
3.1.1.1 Caveats
3.1.1.2 Third-Party Caveats
3.1.1.3. Reliability Ratings
3.1.1.4 Personal Information
3.1.1.5. The “Need-to-Know” Principle
3.1.1.6 Sharing Information with Foreign Agencies
3.1.1.7 Reporting on the Sharing of Information
3.1.2 The CSIS-RCMP Memorandum of Understanding
3.1.3 The Environment After 9/11
3.1.3.1 The Imminent Threat
3.1.3.2 The Need to Cooperate with Other Agencies
3.1.4 Views on the Information-Sharing Arrangement
3.1.4.1 Overview
3.1.4.2 RCMP — Criminal Intelligence Directorate (CID)
3.1.4.3 CSIS
3.1.4.4 RCMP “A” Division —
Commanding Officer/CROPS
3.1.4.5 Project A-O Canada
3.1.5 The Role of Department of Justice Lawyers
3.2 Abdullah Almalki — The Target
3.2.1 Introduction
3.2.2 Background, Scope and Nature of the
Almalki Investigation
3.3 Meeting at Mango’s Café
3.4 Collecting Information about Mr. Arar
3.4.1 Biographical Data
3.4.2 Surveillance of Mr. Arar and Observation of His House
3.4.3 Review of CSIS Files
3.4.4 The Minto Lease
3.4.5 Financial Investigation
3.4.6 Information about Dr. Mazigh
3.4.7 Other Information
3.5 The Border Lookouts
3.5.1 Canada Customs Lookouts
3.5.1.1 The Canadian Lookouts for Mr. Arar and
Dr. Mazigh
3.5.2 The American TECS Lookouts
3.5.2.1 The TECS Lookouts for Mr. Arar and Dr. Mazigh
3.6 Ahmad El Maati
3.6.1 Background
3.6.2 Departure from Canada and Detention in Syria
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�TABLE OF CONTENTS
3.7 Abdullah Almalki’s Departure
3.8 The Canada Customs Searches of Mr. Arar
3.8.1 November 29, 2001
3.8.2 December 20, 2001
3.8.3 Relevant Law and Policies
3.9 The January 22, 2002 Searches
3.9.1 Applications for Search Warrants
3.9.2 The Searches
3.10 The Attempt to Interview Mr. Arar
4.
Project A-O Canada Investigation — January 23, 2002 to
September 26, 2002
4.1 The Fruits of the Searches
4.1.1 The All-Agency Meeting on January 31, 2002
4.1.2 The Sharing Arrangements — January 31, 2002
4.1.2.1 Project A-O Canada
4.1.2.2 CSIS
4.1.2.3 CROPS
4.1.2.4 CID
4.1.3 The Plan for Analysis
4.2 The Emerging Relationship with the FBI
4.2.1 Access to the Premises and Meetings
4.2.2 The Search Information That Was Shared
4.2.3 The FBI Visit — Late February 2002
4.3 The Supertext Database
4.3.1 The FBI Request
4.3.2 The Contents
4.3.2.1 CSIS Materials
4.3.2.2 Information Related to Mr. Arar
4.3.2.3 Legal Opinions
4.3.2.4 Project A-O Canada Investigators’
Views on What Was Shared
4.3.2.5 RCMP Superiors’ Understanding of What
Was Shared
4.3.3 Delivery to the Americans
4.4 Project A-O Canada Presentations
4.4.1 April 2002 — Canadian Agencies and the Americans
4.4.2 May 24, 2002 — CROPS
4.4.3 May 31, 2002 — American Agencies
4.5 Mr. Arar’s Departure for Tunisia — July 2002
4.6 The Tunisian Inquiries
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�6
FACTUAL BACKGROUND: VOLUME I
4.7 The Proposed Interviews of Messrs. El Maati and Almalki
(January 2002 to September 2002)
4.7.1 Efforts to Interview Mr. El Maati in Syria and Egypt
4.7.1.1 Proposed Interview in Syria
4.7.1.2 Proposed Interview in Egypt
4.7.2 Mr. Almalki — Questions and/or Interviews in Syria
4.8 Project A-O Canada’s Relationship with Other Agencies:
January to September 2002
4.8.1 CSIS
4.8.2 The FBI
4.8.3 American Agencies in General
4.9 Mr. Arar’s Status as of September 26, 2002
4.10 Information on Mr. Arar Provided to American Authorities
Prior to September 26, 2002
4.11 Evidence of an American Investigation of Mr. Arar
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II
DETENTION IN THE UNITED STATES
149
1.
Introduction
149
2.
The RCMP’s Response to Mr. Arar’s Arrival in New York,
September 26, 2002
2.1 The Faxed Questions
2.1.1 Lack of Caveats
2.1.2 RCMP Headquarters
2.1.3 Right to Counsel
149
151
153
154
155
3.
Project A-O Canada’s Involvement — September 27 to October 8
3.1 September 27 to October 2, 2002
3.2 The American Questions — October 3
3.3 The Canadian Response — October 4
3.3.1 Use of the Information
3.3.2 CSIS Information
3.4 Contacts with DFAIT
3.5 Corporal Flewelling’s Telephone Conversations
3.6 The Potential Interview with Mr. Arar
3.7 Contacts with Mr. Arar’s Family
3.8 The Events of October 8
3.8.1 Project A-O Canada
3.8.2 RCMP Headquarters
156
156
157
159
160
162
162
166
171
173
174
174
176
4.
CSIS’ Response to Mr. Arar’s Detention
177
�TABLE OF CONTENTS
5.
DFAIT’s Actions
5.1 The Initial Contacts
5.2 The Seriousness of the Situation
5.3 Diplomatic Options
5.4 The Consular Visit — October 3
5.5 Involvement of Mr. Arar’s New York Lawyer
5.6 Discovery of Mr. Arar’s Removal and Efforts to Locate Him
181
181
184
187
189
196
200
6.
The American Removal Order
6.1 Content
6.2 The Legal Framework
204
204
205
III
IMPRISONMENT AND MISTREATMENT IN SYRIA
1.
Locating Mr. Arar
1.1 Efforts by Embassies and Ambassadors
1.2 The Minister’s Efforts
1.3 DFAIT’s Request for Information from the RCMP
1.4 Briefing of the Prime Minister’s Office by the
Privy Council Office
229
229
229
231
232
234
2.
Syria’s Human Rights Reputation
235
2.1 Sources of Information
235
2.1.1 U.S. State Department and Amnesty International Reports 235
2.1.2 DFAIT’s Assessment
236
2.1.3 CSIS’ Assessment
238
2.2 Canadian Officials’ Knowledge
239
2.2.1 DFAIT Officials
239
2.2.2 CSIS Officials
244
2.2.3 RCMP Officials
246
3.
Early Consular Activities, October–November 2002
3.1 Ambassador Pillarella’s Relationship with General Khalil
3.2 First Meeting With General Khalil Regarding Mr. Arar
3.3 First Consular Visit
3.4 Second Consular Visit
3.5 The November 3 Meeting with General Khalil and
the Bout de Papier
3.5.1 Background Information on the Afghanistan Camps
3.6 Third Consular Visit
3.7 The Ongoing Lookout on Dr. Mazigh
3.8 Activities in Canada
3.8.1 Mr. Edelson Requests a Letter from the RCMP
3.8.2 Minister Graham’s Meeting with Secretary Powell
3.8.3 “Going Back to the Americans” in Prague
3.8.4 Proposed Phone Call from Minister Graham to
Minister Shara’a
250
250
251
256
268
273
279
281
287
289
289
296
301
303
7
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FACTUAL BACKGROUND: VOLUME I
4.
The CSIS Trip to Syria
4.1 CSIS Inquiries into Mr. Arar
4.1.1 [***]
4.2 Discussions of a CSIS Trip to Syria, November 4 and 6
4.2.1 The Reliability of the Bout de Papier
4.3 Purpose of the Trip
4.3.1 Request from DFAIT to Delay the Trip
4.4 The Events of the Trip — November 19–24
4.4.1 CSIS Meets with the Ambassador
4.4.2 CSIS Meets with the SMI
4.4.3 CSIS’ Position on Mr. Arar
4.4.4 CSIS Did Not Debrief Ambassador Pillarella
4.5 CSIS Debriefs DFAIT
4.5.1 The Muslim Brotherhood Allegation
4.5.2 CSIS’ Position on Torture
4.6 Distribution of the Trip Report
4.6.1 Distribution to DFAIT
4.6.2 Advising Minister Graham
4.7 CSIS’ Use of Information from the Trip
307
307
307
308
309
311
312
314
314
315
315
316
316
317
319
320
320
321
322
5.
Consular and Other Activities — November 26, 2002–February 2003
5.1 Consular Visits with Mr. Arar
5.2 Communications with the Family
5.3 Publicity and the Public Campaign
5.4 High-Level Efforts to Obtain Release
322
322
329
330
331
6.
The Possibility of Mixed Signals
6.1 Ambassador Pillarella’s January 15 Meeting
6.2 January 16 Contacts with Syrian Foreign Minister and
Ambassador Arnous
6.3 Questions for Mr. Almalki
6.3.1 Events and Discussions in July and August 2002
6.3.2 September 10 Meeting and Fax to RCMP LO
6.3.3 October Discussions between the RCMP and DFAIT
6.3.4 October 30 Memo on DFAIT’s Concerns
6.3.5 Preparation and Delivery of Questions
6.4 Proposed RCMP Interview of Mr. Arar
333
333
335
336
336
337
339
340
341
347
The MPs’ Trip — April 2003
7.1 Preparation
7.2 The CSIS Memorandum
7.3 The Minister’s Letter
7.4 Briefing with Ambassador Pillarella
7.5 Meeting Syrian Officials
7.6 Meeting with Mr. Arar
7.7 Debriefing
7.8 Distribution of the Report to CSIS and the RCMP
348
348
349
350
351
352
353
354
355
7.
�TABLE OF CONTENTS
8.
9.
The Proposed “One Voice” Letter — May–June 2003
8.1 Overview
8.2 Coordination and Consultation in Consular Cases
Relating to Terrorist Activities
8.2.1 Balancing Different Mandates in the
Government of Canada
8.2.2 The “Deck”
8.2.3 Action Memorandum to the Minister
8.3 The Need to Speak with One Voice
8.4 DFAIT’s Draft Action Memo of May 5
8.5 Meetings of May 8 and 12
8.5.1 Meeting of May 8
8.5.2 CSIS Briefing Note to the Solicitor General
8.5.3 Briefing Note to the RCMP Commissioner:
“The Khadr Effect”
8.5.4 Meeting of May 12
8.6 DFAIT Deputy Minister’s Visit to Syria
8.7 DFAIT’s Draft Action Memo of June 3
8.8 Final DFAIT Action Memo and Draft Letter of June 5
8.9 Mr. Hooper’s Call to Ms. McCallion
8.10 The Minister’s Response — June 17
8.10.1 CSIS’ Position
8.10.2 The Solicitor General’s Position
8.10.3 The RCMP’s Position
8.11 The Outcome
The Prime Minister’s Letter
9.1 The Idea
9.2 July 11 Briefing
9.3 Senator De Bané’s Trip
356
356
356
356
357
358
360
361
363
364
364
365
366
367
368
368
369
373
374
376
377
378
380
380
381
381
10. The August 14 Consular Visit
10.1 The SHRC Report
10.2 Publicity
10.3 Ambassador Pillarella’s Meeting with General Khalil
10.4 The Consular Visit
10.5 The Minister’s Comments to the Media
383
383
384
385
387
392
11. The Proposed Trial in Syria
394
9
�10
FACTUAL BACKGROUND: VOLUME I
�Introduction
This Factual Background summarizes the evidence presented to the Factual
Inquiry into the actions of Canadian officials in relation to Maher Arar. The information it contains was taken from the testimony of over 70 government officials, and some 6,500 government documents that were entered as exhibits.
The Factual Background is organized chronologically around the events
before, during and after Mr. Arar’s detention in New York and his subsequent
removal and imprisonment in Syria. It also explains the organizational and policy contexts of the investigations in which he was considered a person of interest, and the contexts of Canadian officials’ actions in response to his detention
and mistreatment.
There are two versions of this Report. One, which may not be disclosed
publicly, is a summary of all of the evidence, including that which is subject to
national security confidentiality. The public version that you are reading does not
include those parts of the evidence that, in the Commissioner’s opinion, may not
be disclosed publicly for reasons of national security confidentiality.
A good deal of evidence in the Inquiry was heard in closed, or in camera,
hearings, but a significant amount of this in camera evidence can be discussed
publicly without compromising national security confidentiality.1 For that reason,
this Report contains a more extensive summary of the evidence than might
have been the case in a public inquiry in which all of the hearings were open
1
In the footnotes, testimony that was heard in camera is indicated with an [IC] prefix, while public testimony is indicated with a [P]. In some cases, the name of the person who testified in camera has been deleted for reasons of national security confidentiality. In camera exhibits are
indicated with a C prefix before the identifying number (e.g. C-134), and public exhibits with a
P (P-134).
Transcripts of public testimony can be accessed on the Arar Commission website,
www.ararcommission.ca
�12
FACTUAL BACKGROUND: VOLUME I
to the public and all transcripts of evidence are readily available. While some
evidence has been left out to protect national security and international relations interests, the Commissioner is satisfied that this edited account does not
omit any essential details and provides a sound basis for understanding what
happened to Mr. Arar, as far as can be known from official Canadian sources.2
Finally, it should be noted that there are portions of this public version that
have been redacted on the basis of an assertion of national security confidentiality by the Government that the Commissioner does not accept. This dispute
will be finally resolved after the release of this public version. Some or all of this
redacted information may be publicly disclosed in the future after the final resolution of the dispute between the Government and the Commission.
2
The governments of the United States, Jordan and Syria declined to give evidence or otherwise
participate in the hearings. Mr. Arar also did not testify, for reasons that are explained in
Chapter I of the Analysis volume.
�I
Events Prior to Mr. Arar’s
Detention in New York
1.
CANADA’S RESPONSE TO 9/11
1.1
PROJECT SHOCK
The RCMP’s interest in Maher Arar originated in investigative projects that began
in the aftermath of the terrorist attacks in New York, Washington and
Pennsylvania on September 11, 2001. The immediate RCMP response to these
events was an effort by Headquarters to coordinate all of the tips received concerning the terrorist attacks. Called Project Shock, this effort was coordinated by
the National Security Intelligence Branch (NSIB) at RCMP Headquarters. All
tips related to the Ottawa area were investigated by the National Security
Investigations Section (NSIS) of the RCMP’s “A” Division in Ottawa.1
Before 9/11, Ottawa’s “A” Division had a large number of national security
protective responsibilities, including protecting foreign embassies and certain
designated persons. These responsibilities increased significantly after 9/11, putting a strain on “A” Division’s resources as it responded to the many tips from
Project Shock.2
Project Shock had three goals,3 which were first introduced at a video conference held on September 25 or 26, 2001.4 The purpose of the meeting was to
advise all officers working in the Integrated Proceeds of Crime (IPOC) units
across Canada that RCMP Headquarters was establishing a new entity, the
Financial Intelligence Task Force (later known as the Financial Intelligence
Branch), to coordinate research on the financial transactions of suspected terrorist organizations. In order of priority, the goals of the Task Force were to be
prevention, intelligence and prosecution. This marked the first time that IPOC
�14
FACTUAL BACKGROUND: VOLUME I
officers had been directed to conduct their investigations with prevention, rather
than prosecution, as the primary goal.5
At the same meeting, participants agreed that these three goals would also
apply to Project Shock. The Assistant Criminal Operations (CROPS) Officer for
“A” Division, Inspector Garry Clement, testified it was clear to him that these instructions had the approval of RCMP Headquarters, up to and including
Commissioner Giuliano Zaccardelli.6
1.2
COMMUNICATIONS FROM THE UNITED STATES
On September 22, 2001, members of the RCMP, CSIS, the FBI and other law enforcement agencies attended an all-agency meeting at CSIS Headquarters.7 The
purpose of the meeting was to promote a sense of cooperation among the agencies with primary responsibility for anti-terrorism activities in Canada and the
United States.8 Shortly thereafter, the Canadian agencies were asked to investigate certain Canadian individuals who allegedly had ties to persons whom the
Americans suspected to be terrorists. The agencies were to provide further information about these individuals, and if possible, detain them for interviews.
The RCMP did not act on the FBI’s request, as it was not yet prepared to
detain and interview the individuals named.9
1.3
CSIS TRANSFER OF INVESTIGATIONS TO THE RCMP
For some months prior to September 11, 2001, the CSIS office in Toronto had
been investigating the activities of a group of targets10 active in the area who
CSIS believed were connected to al-Qaeda. Following 9/11, Western intelligence
services were preoccupied with the prospect of a second wave of attacks occurring in the United States, and CSIS spent a great deal of time developing intelligence about this potential next wave. Among the Toronto targets were
individuals CSIS believed could have the capability and intent of facilitating an
act of terrorism, if not actually executing it.11
It was in this climate that CSIS put the targets under intensive scrutiny. By
September 22, 2001, CSIS officials in Toronto were exhausted and reaching the
breaking point. They had been working 12-hour days. Jack Hooper, who was
then Director General of the Toronto office, decided to seek assistance from
law enforcement agencies.12
On September 22, 2001 — the same day as the all-agency meeting —
Mr. Hooper chaired a meeting at the CSIS Toronto office involving officials from
CSIS, the RCMP, the Ontario Provincial Police (OPP), the Toronto Police Service
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
(TPS) and the Peel Regional Police, where he briefed them on the investigation
of certain individuals identified as potential threats to Canadian security.
Mr. Hooper’s aim was to elicit their assistance in providing speciality investigators and surveillance teams. As the meeting progressed, however, a consensus
emerged among the police representatives that CSIS might have enough information to support criminal conspiracy charges. They began to consider whether
the case would be better managed as a criminal investigation.13
Before proceeding further, the police requested that Mr. Hooper provide information demonstrating that the activities of these individuals constituted a
crime. Mr. Hooper agreed to provide an advisory letter with data on the targets,
and a profile that would enable the police to compare the targets against what
was known about al-Qaeda activists at that time.14
CSIS subsequently transferred to the RCMP primary responsibility for national security investigations on a number of targets that CSIS believed warranted criminal investigation and possible charges. The transfer was made in
two CSIS advisory letters sent within one month of 9/11.
In one letter, CSIS formally advised the head of the RCMP’s Criminal
Intelligence Directorate (CID), Assistant Commissioner Richard Proulx, of an
“imminent threat to public safety and the security of Canada.” The letter identified individuals from the Toronto area who were targets of the CSIS investigation, and provided detailed information about them from CSIS files. It indicated
that the RCMP could use this information in the event of any prosecutions. The
letter also [***] provided general information about al-Qaeda.15
According to Mr. Hooper, the September 26 letter constituted an extraordinary disclosure of information to law enforcement agencies.16
This letter led to the formation of an RCMP-coordinated investigation project, based at RCMP “O” Division in Toronto and involving other agencies, including the OPP and TPS. Named Project O Canada, it was similar to Project
Shock in that its primary goal was prevention, with intelligence and prosecution
as its secondary and tertiary goals, respectively.
At the RCMP’s request, CSIS sent a second advisory letter to Assistant
Commissioner Proulx, transferring primary responsibility for investigating another individual to the RCMP.
At the time, Maher Arar’s name was not mentioned in either of the CSIS advisory letters to the RCMP.
It would appear that Mr. Hooper’s decision to shift primary responsibility
for investigations of certain CSIS targets was intended to address a threat to
American security. In his testimony, Mr. Hooper clarified that CSIS is permitted
15
�16
FACTUAL BACKGROUND: VOLUME I
to investigate the activities of persons who, on a reasonable suspicion, may be
threatening to the security of Canada. CSIS has historically viewed activities in
support of terrorist incidents as threats to Canadian security, regardless of
whether those activities are being planned for Canada or elsewhere.17
One CSIS witness said that this was the most extensive transfer of investigations ever made at one time by CSIS to the RCMP.18 The transfer allowed CSIS
to focus on security threats that were less apparent, and to investigate new
threats.19
Following the transfer, CSIS took a less aggressive role in the investigations,
but continued to collect information on the targeted individuals.20 CSIS also continued to pass information to the RCMP, including some information about
Mr. Arar that was incidental to ongoing investigations of authorized CSIS
targets.
It should be noted that at no time since this transfer of primary responsibility to the RCMP have any charges been laid against any of the targeted individuals described above.21 When Mr. Hooper was asked whether the decision
to transfer responsibility could be considered premature in light of the lack of
charges, he stated that it must be examined in the context of the environment
immediately after 9/11. CSIS was aware of the principal actors and their links
with each other, and believed that continued surveillance in the context of a security intelligence investigation was unlikely to lead to information that would
advance the case. In short, CSIS had taken the investigations about as far as it
could. In consultation with law enforcement agencies, it was agreed that the
circumstances were better suited to a law enforcement investigation.22
2.
FORMATION OF PROJECT A-O CANADA
2.1
MANDATE
In early October 2001, RCMP “O” Division asked “A” Division for assistance in
investigating the activities of Abdullah Almalki, an Ottawa resident who was believed to be connected to al-Qaeda.23 In response, “A” Division created Project
A-O Canada.24
In a relatively short time, Project A-O Canada’s role evolved from providing assistance to Project O Canada, to conducting its own investigations. Initially,
these investigations focused on Abdullah Almalki, and then on others — including Mr. Arar — who surfaced in the course of its investigations.25
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
From the outset, it was made clear to the members of Project A-O Canada
that the Project had the same three priorities as Project Shock and Project
O Canada: prevention, intelligence and prosecution.
Prevention was the first priority for any investigation after 9/11, whether carried out by an intelligence agency or, as in the case of Project A-O Canada, by
a law enforcement agency. At the time, Canadian authorities believed that the
9/11 attacks were only the first wave and that further attacks might be directed
against other countries, including Canada. According to Inspector Michel
Cabana, who became the Officer in Charge of Project A-O Canada, the RCMP’s
role was “to make sure that nothing nefarious occurred anywhere.”26
Intelligence was the RCMP’s second priority, as CSIS had indicated there
were terrorist cells in Canada about which there was minimal information.27 As
such, it was considered vitally important to collect as much information as possible about threatened terrorist activities.28
Normally the primary focus of RCMP investigations, prosecution now became the third priority.29
Despite the emphasis on prevention, members of Project A-O Canada and
their superiors viewed the Project as primarily a criminal investigation, as well
as an intelligence operation. While the Project’s overarching mandate was to
prevent terrorist attacks anywhere in Canada, it was also responsible for investigating the activities of Abdullah Almalki, and, as the investigation developed,
others who might have been involved in criminal activities. Project A-O Canada
officials conducted these investigations with a view to collecting evidence that
could be used in a prosecution, should there be one.
2.2
COMPOSITION
In early October, once it was determined that “A” Division would be involved
in investigations related to the 9/11 terrorist attacks, the Division’s senior officers reflected on the best way to staff the new investigations. At first, they considered using the National Security Investigation Section (NSIS), the section of
“A” Division that normally conducted this type of investigation. However, NSIS
did not have the capacity for an in- depth investigation, as it was fully employed
in responding to tips from Project Shock. As well, the Ottawa office of NSIS
lacked experience with criminal investigations, particularly those involving the
complex financial transactions that are a key element of terrorist investigations.30
One witness suggested that NSIS officers were more like intelligence officers,31
the implication being that they did not have the same level of criminal investigation experience as those assigned to Project A-O Canada.
17
�18
FACTUAL BACKGROUND: VOLUME I
As mentioned, Project A-O Canada was initially assigned the investigation
of Abdullah Almalki. Because Mr. Almalki was suspected of being involved with
al-Qaeda, officials expected that the investigation would involve analyzing large
amounts of documentary evidence, and would be similar in many ways to a
criminal investigation.32 As a result, senior officers of “A” Division reasoned that
they should draw extensively on the experience of “A” Division’s Integrated
Proceeds of Crime (IPOC) unit.
Another important consideration in selecting officers for Project A-O Canada
was the continuing concern about an imminent terrorist attack. To minimize
risks to the safety and security of Canadians, officials felt that the new Project
should have the best investigators available. With these factors in mind, “A”
Division’s senior officers assembled a new team, separate from NSIS.
Inspector Cabana was appointed Officer in Charge of Project A-O Canada
at its inception in early October 2001, and held that position until February 4,
2003.33 Before his appointment, Inspector Cabana was the Interim Officer in
Charge of the IPOC unit at “A” Division.34 His background in policing focused
on drug enforcement, biker enforcement, and the proceeds of crime. During his
career with the RCMP, Inspector Cabana received training in the proceeds of
crime, criminal intelligence analysis, investigative techniques, and statement analysis. He had not previously been involved in a national security
investigation.35
Inspector Garry Clement, with input from the Officer in Charge of “A”
Division’s CROPS unit, Chief Superintendent Antoine Couture, chose Inspector
Cabana to lead Project A-O Canada because of his excellent background in managing major case files. Having worked with him on another large investigation,
Inspector Clement felt that Inspector Cabana was very capable of providing
leadership and managing the project’s enormous paper burden.36 As well,
Inspector Cabana had earned the respect of RCMP personnel.37
Inspector Clement and Inspector Cabana worked together to determine an
appropriate balance for the Project A-O Canada team,38 while Inspector Cabana
was charged with assigning team roles and responsibilities. In recruiting team
members, Inspectors Clement and Cabana gave preference to officers with criminal investigation expertise for example, writing affidavits, doing covert entries,
developing operational plans, and following a paper trail. They also focused on
creating an integrated team with officers from a number of different police services, as no single agency had sufficient resources to address the complexities involved in Project A-O Canada’s investigation.39
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
As part of the integrated policing approach, officers from the Ontario
Provincial Police (OPP), Ottawa Police Service (OPS), Sûreté du Québec,
Gatineau Police Service and Hull Police Service were added to the team.40
Two officers from outside the RCMP were assigned to serve as assistant
managers. A member of the OPS, Staff Sergeant Patrick Callaghan had worked
with the RCMP in criminal investigations for nine years. He had an aptitude for
major crime investigations, as well as a good grasp of many of the RCMP policy issues that applied to major investigations. Recruited from the OPP, Staff
Sergeant Kevin Corcoran was also experienced in major criminal investigations.
Inspector Cabana had met Staff Sergeant Corcoran while working on another
RCMP project, and was impressed by his understanding of major crime and his
solid reputation in policing. Although Staff Sergeant Corcoran was not familiar
with RCMP policies, procedures and protocols, including those related to national security investigations, Inspectors Cabana and Clement felt that there
would be sufficient oversight in this area.41
Inspector Cabana’s approach to integrated policing called for outside agencies to become full partners and assume management positions. He felt that
Staff Sergeants Callaghan and Corcoran had the necessary experience for their
assignment at Project A-O Canada, noting also that they would be reporting directly to him.42
Most of the key investigators initially recruited for Project A-O Canada came
from the RCMP. Sergeant Randal Walsh was responsible for preparing affidavits
for search warrants.43 Corporal Robert Lemay was the exhibit custodian for materials related to Mr. Arar, and assisted in gathering background information on
Mr. Arar and others.44 Constable Michel Lang came from “A” Division’s Customs
and Excise unit and had experience with the Canadian and U.S. Customs lookout systems.45 The RCMP liaison officer for CSIS (CSIS LO) regularly delivered
Project A-O Canada situation reports to CSIS. An officer on secondment to “A”
Division’s IPOC unit from the Canada Customs and Revenue Agency (as it was
then called) was recruited to join the Project. He was responsible for all Canada
Customs inquiries.46
When Project A-O Canada reached full strength in mid-October 2001, it included approximately 20 officers.47
With few exceptions, none of the regular members of Project A-O Canada
had previous experience in national security investigations or in RCMP policies
relating to national security. However, Corporal Randy Buffam, a senior member of NSIS, who was assigned to the team at the start of the investigation, had
experience with Sunni Islamic extremism.48 His role included liaising with RCMP
Headquarters, NSIS, CSIS and U.S. agencies.49 He also assisted managers and
19
�20
FACTUAL BACKGROUND: VOLUME I
investigators with questions about Islamic extremism and the RCMP’s national
security investigations program. At first, Corporal Buffam maintained his duties
with NSIS, but as time went on, his role with Project A-O Canada became increasingly significant.50
Inspector Clement, who had worked with Inspector Cabana to assemble
the Project A-O Canada team, was asked whether the team had sufficient national security training to carry out the investigation as it was understood in
October 2001. He acknowledged that members of the team, including its managers, had no experience in investigating terrorism, with the exception of
Corporal Buffam. However, Inspector Clement believed that Project A-O Canada
would ultimately be conducting criminal investigations, and that experienced
criminal investigators, like those assigned to Project A-O Canada, had the necessary skills. While it would have been preferable to use people with prior
knowledge of terrorism investigations, there were few such people available.
The same was true for Project O Canada.51 Inspector Clement knew each investigator selected and was satisfied that it was the best team available at
that time.52
Chief Superintendent Couture added that there was an urgency to assembling the team, as the RCMP was scrambling to identify the threat it was facing
and to prevent another terrorist attack. He emphasized that these factors should
be considered when looking at the team’s initial lack of terrorism training.53
National security training was not a requirement; the primary requirement was
the ability to conduct major investigations into very serious crime.54
Neither did Inspector Cabana consider the team’s lack of experience in national security investigations to be a major liability. Although Project A-O Canada
was dealing with issues of national security, Inspector Cabana believed that “[A]
criminal investigation is a criminal investigation. It doesn’t really matter what
the offence is, you are looking at basically developing the file in the same
way.”55 Furthermore, Inspector Cabana felt that the case management of a criminal investigation required certain skills, regardless of the subject matter. In the
case of large investigations like Project A-O Canada, it was important that officers have experience in complex case management techniques, such as assigning many tasks and ensuring those tasks were completed.56
To assist with the national security components of the investigation, Project
A-O Canada sought personnel support from CSIS. In March 2002, CSIS seconded
a transnational organized crime specialist to Project A-O Canada, where he remained until April 2004.57
In addition to having minimal experience with national security investigations, Project A-O Canada investigators, including Corporal Buffam, lacked
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
experience working directly with agencies outside of law enforcement, particularly intelligence agencies. Explaining the structure of NSIS around the time of
9/11, Corporal Buffam testified that NSIS members usually contacted CSIS, the
FBI or foreign intelligence agencies through liaison officers; direct contact was
rare.58 As discussed below, however, Project A-O Canada’s contact with U.S.
agencies increased significantly as the investigation progressed.
2.3
TRAINING
As mentioned, few of the team members assembled for Project A-O Canada had
formal training in national security investigations, nor were they trained in RCMP
policies on national security investigations and sharing information with external agencies.
At the time, the RCMP offered two courses related to national security. The
first was a two-week training course on national security investigations, run by
the RCMP in Regina, Saskatchewan. The second was a three-day workshop on
Bill C-36, Canada’s anti-terrorism legislation.
Prior to 9/11, the RCMP offered a training course in national security investigations entitled “Criminal Extremism and Terrorism.”59 Mandatory for all
members of NSIS,60 the course was not available from the fall of 2001 until the
winter of 2002, due to other priorities in dealing with the aftermath of 9/11.61 The
name was eventually changed to the “National Security Enforcement Course,”
and in July 2003, the course was upgraded. Unlike the pre-9/11 training course,
participants in the new course were introduced to such topics as the national
counter-terrorism plan, terrorist funding, the roots of terrorism, perspectives on
Islam and Middle Eastern communities, the psychology of terrorism, and threat
assessments.62
Other than Corporal Buffam and other NSIS officers who joined the team,
no one in Project A-O Canada ever completed the RCMP’s training course in
national security investigations.
Several Project A-O Canada investigators took the three-day workshop on
Bill C-36, which was offered starting in December 2002.63 Inspector Cabana testified that he did not take this training course because his managerial responsibilities did not allow him the time.64 However, he did review Bill C-36 and had
numerous discussions with the Department of Justice concerning the impact of
Bill C-36.65
Inspector Cabana did not receive training on human rights issues that might
flow from a national security investigation, nor did he receive training on the
21
�22
FACTUAL BACKGROUND: VOLUME I
human rights records of foreign countries that he might have to deal with in the
course of the investigation.
Once Project A-O Canada was underway, the team relied heavily on on-thejob training. One of the Project’s assistant managers described it as a “learn-asyou-go” experience, which he suggested was not unusual in policing. He
acknowledged that there is often a learning curve, whether about the law or
about community issues. While there may be mistakes, officers try to minimize
them.66
As the team’s primary national security expert, Corporal Buffam also served
as a teaching resource. In his testimony, Corporal Buffam expressed doubt about
the value of a two-week training course for members of the team, in light of the
experience he brought to the Project and on-the-job training opportunities. He
did not believe it was necessary for members to have general knowledge about
terrorist groups, as the team was focused on a specific criminal investigation.
According to Corporal Buffam, the basic course on national security investigations was too broad to be particularly useful. Furthermore, he believed that he
could teach the relevant elements of his formal training to other team members.
He testified that he provided background information on some of the terrorist
organizations, such as who they liked and disliked, and who they associated
with, as well as background on some common terminology, such as jihad and
mujahedeen. He also educated team members on the role of CID, CSIS, the CSIS
LO and the foreign liaison system for overseas inquiries. Corporal Buffam felt
that the team’s corporate knowledge grew over time.67
Some Project A-O Canada members testified that there was simply no time
to take courses once the Project was up and running, due to the substantial
workload and the tense environment following 9/11. At the best of times,
Inspector Cabana testified, RCMP officers seldom have the flexibility to send
staff on training courses; this was especially true after 9/11.68 Sergeant Walsh testified that he had not taken any extended training courses since joining the
Project because, as a critical member of the Project team, he could not be released from his duties.69
Significantly, the Project A-O Canada team had little or no training on, or
knowledge about, the RCMP’s policies related to national security investigations,
particularly with respect to the use of caveats and information sharing with domestic and foreign agencies.70
In Inspector Cabana’s view, the RCMP officers who were selected to participate in Project A-O Canada were experienced investigators and would have
received the necessary training on RCMP policies in other courses taken over
their careers.71 As for non-RCMP police officers who were part of the team, he
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
explained that Project A-O Canada was a task force, not a permanent unit. As
such, there was no obligation for career development. Project A-O Canada’s sole
purpose was to conduct an investigation. In this context, Inspector Cabana did
not feel it was appropriate to send members for extended training.72
Chief Superintendent Couture explained the lack of training, suggesting that
the use of caveats was common in police work, especially when exchanging
sensitive information. He did not see the need to provide additional training, assuming that his officers would know if they were confronted with a situation in
which they lacked knowledge.73 One of the skills required was the ability to
manage a large investigation and, in this regard, Inspector Cabana was a seasoned investigator who chose experienced people to work alongside him.
According to Chief Superintendent Couture, if members of Project A-O Canada
had lacked knowledge in a certain area, including RCMP policy, they would
have found a way to bridge the gap.74
2.4
REPORTING STRUCTURE AND INFORMATION MANAGEMENT
2.4.1
Relationship with CROPS
Project A-O Canada approached its investigation of Mr. Almalki as it would a
criminal investigation, adopting a different reporting structure than for a national
security investigation.
Project A-O Canada reported to Criminal Operations (CROPS) 75 at “A”
Division. As part of the chain of command to CROPS, Project A-O Canada assistant managers reported to Inspector Cabana, who in turn reported to the
Assistant CROPS Officer, Inspector Clement. On any given day, Inspector Cabana
and Inspector Clement were in frequent contact with each other.76
Inspector Clement informed the CROPS Officer, Chief Superintendent
Couture, about the investigation’s progress.77 In addition to briefings by
Inspector Clement, Chief Superintendent Couture was also provided with Project
A-O Canada’s situation reports, which were prepared daily and detailed the
progress and challenges encountered during the investigation. From time to
time, he was also given Project A-O Canada briefing notes.78
2.4.2
Relationship with RCMP Headquarters
As indicated above, Project A-O Canada’s reporting structure did not require
that it report to RCMP Headquarters, which contrasted with the reporting
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FACTUAL BACKGROUND: VOLUME I
structure for investigations conducted by “A” Division’s National Security
Investigations Section (NSIS).
NSIS units were required to report to CROPS at the divisional level,79 and
to upload their investigative reports to the Secure Criminal Intelligence System
(SCIS), a databank for national security-related documents. Managed at RCMP
Headquarters, the SCIS databank permitted some central coordination of national security information. Prior to 9/11, uploading documents to SCIS was virtually the extent of the NSIS reporting relationship with Headquarters.80, 81
After 9/11, however, NSIS reporting requirements increased. Superintendent
Wayne Pilgrim, the Officer in Charge of the National Security Investigations
Branch82 (NSIB) at RCMP Headquarters, testified that his office directed NSIS
units in the divisions to notify his office immediately when they initiated a criminal intelligence investigation, and to report on its progress. Members of NSIB
were also told to be in constant contact with field units to ensure that the office
was kept abreast of ongoing investigations.83
In Inspector Cabana’s view, it was appropriate that Project A-O Canada report through CROPS, rather than through RCMP Headquarters. He did not believe that a single agency was able to respond adequately in the aftermath of
9/11, or that the Criminal Intelligence Directorate (CID) was equipped to handle all incoming information. For example, information often took weeks to
reach Project A-O Canada after it arrived at RCMP Headquarters. Inspector
Cabana testified that these delays were normal in the context of a security intelligence investigation, but were unacceptable in a criminal investigation, particularly considering the threat level at the time.84
To circumvent these problems, Project A-O Canada made the decision
not to report through RCMP Headquarters. Instead, officials kept Headquarters
informed by copying CID on the daily situation reports submitted to CROPS.85
RCMP Headquarters also received periodic briefing notes about the
investigation.86
According to Inspector Cabana, this reporting relationship caused tensions
because of CID’s perception that it did not receive full briefings, or have access
to all Project A-O Canada information. He could not explain CID’s perception,
however, as he believed that Project A-O Canada kept CID up to date by submitting daily situation reports.87
Witnesses from RCMP Headquarters took a different view, however.
Superintendent Pilgrim testified that the situation reports kept Headquarters informed to some degree, but he pointed to deficiencies in the process, particularly in regard to reporting timelines.88
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
The Officer in Charge of CID, Assistant Commissioner Proulx, testified that
it was important for RCMP Headquarters to be kept up to date for monitoring
and decision- making reasons. Furthermore, CID needed to be made aware of
developments at the divisional level in order to brief the RCMP Commissioner,
ensure the Solicitor General (now the Minister of Public Safety and Emergency
Preparedness) had accurate and timely information, and provide CID with information for its various strategic meetings with other government departments
(e.g., CSIS, and the departments of Foreign Affairs, National Defence, and
Citizenship and Immigration).89
According to Assistant Commissioner Proulx, NSIS had a culture supporting exchange with CID, but that culture did not exist in Project A-O Canada.
Investigators assigned to Project A-O Canada were accustomed to reporting to
one person only — the CROPS Officer.90
Culture was not the only source of Project A-O Canada’s resistance to a
stronger reporting relationship with CID, in Assistant Commissioner Proulx’s
view. He noted that the Project A-O Canada team had come together very
quickly and investigators were still contending with other ongoing investigations. As well, investigators worked long hours under pressure due to staff shortages and the nature of the threats they were investigating. In this context,
providing daily updates to RCMP Headquarters was not a pressing issue.91
The Commanding Officer of “A” Division, Assistant Commissioner Dawson
Hovey, did not discount the importance of CID being kept informed of all developments in Project A-O Canada’s investigation. His testimony also reinforced
Assistant Commissioner Proulx’s assessment of a cultural barrier. However, in his
view, it was appropriate for Project A-O Canada to have one master, given that
it was conducting a criminal investigation.92
2.4.3
Relationship with Project O Canada
RCMP witnesses testified to an ongoing jurisdictional disagreement between
Project A-O Canada in Ottawa and Project O Canada in Toronto.
From the beginning, the two Projects struggled to agree on who was responsible for investigating Mr. Almalki in Ottawa. On several occasions when
disagreements came up, Inspector Cabana sought a resolution from his superior
officer in CROPS at “A” Division. Although often resolved temporarily, these disagreements would resurface from time to time.93
At a meeting on October 26, 2001, senior RCMP officers decided that
“O” Division and “A” Division would each be responsible for investigating targeted individuals within their respective areas. At the same time, they agreed to
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FACTUAL BACKGROUND: VOLUME I
work together and hold weekly meetings to ensure timely coordination of all
leads. They also committed to assist each other with resource requirements.94
In spite of this arrangement, the jurisdictional disagreement was never completely put to rest, according to Inspector Cabana. There were periodic meetings,
but not many. Instead, investigators in each project were identified to liaise informally on a daily basis.95
2.4.4
Information Management and Storage
Information sharing proved to be another area of contention. Many of these
problems resulted from shortcomings with respect to information management.
Project A-O Canada recorded and stored information in three databanks:
Supertext, E&R III (Evidence and Reports), and SCIS (Secure Criminal
Intelligence System). Each of these systems will be briefly discussed. However,
it should be noted that Supertext is the only database relevant to the issues
raised in this Inquiry.
2.4.4.1
Supertext
Project A-O Canada managed its investigation using a computer system called
Supertext. A significant flaw with Supertext, as far as major investigations were
concerned, was that it lacked case management capabilities, providing only a
document management function. Project A-O Canada used Supertext to store
and manage all documents associated with the Project, including exhibits, statements, memos, reports and, at least to some extent, officers’ notes.96 In theory,
every piece of paper generated or received by Project A-O Canada was to be
scanned into Supertext,97 including situation reports, surveillance reports, and reports from outside agencies.98 Documents were scanned and digitized using
character recognition software and, from that point on, they resided in the database.99 The contents of the Supertext database are discussed in detail later in this
Report.100
At the time, neither Project O Canada nor Project A-O Canada were
equipped with the infrastructure needed to perform major case management
functions involving secret documents.101
2.4.4.2
E&R III
Developed by the RCMP, the E&R III database had only been used in two or
three projects before Project A-O Canada. While “A” Division had access to
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
E&R III because officers had used it in another criminal investigation, some other
divisions, such as “O” Division, did not have access to the system.
Project A-O Canada used the E&R III database as a case management tool
to record the tasks assigned to officers and the flow of work from these tasks.
Officers recorded their progress on a day-to-day basis. This information was
then entered into the E&R III database, creating a daily record of all related
activities.
In the absence of a direct electronic link allowing for real-time information
sharing, or a proper case management system, it was decided to limit communication between the two projects to sharing daily situation reports and uploading documents to the SCIS database.102 According to Inspector Cabana,
however, the practice of sharing Project A-O Canada’s situation reports with
Project O Canada was terminated by the end of November 2001, because Project
O Canada was becoming less active. By this time, Project O Canada had moved
on to other priorities.103
2.4.4.3
SCIS
As noted above, SCIS is the database for national security intelligence.104 It contains information classified as “top secret” that CSIS provides to the RCMP, as
well as sensitive information generated by RCMP national security investigations
across the country. In order to facilitate information exchange, all RCMP officers
with national security information are directed to enter it into this databank.105
An unfriendly system, SCIS does not have case management functions.
RCMP Headquarters manages SCIS, while the divisions are responsible for
providing all relevant information.106
As of September 2001, SCIS was the primary database for NSIS107 units
across the country.108 A stand-alone, secure system, SCIS is accessible on a limited, need-to-know basis, and access is controlled by password.109 Corporal
Buffam was the only Project A-O Canada member with access to SCIS.110
American agencies did not have access to SCIS, nor are American databases
linked to it.111
Starting about October 2001, Project A-O Canada’s entire E&R III database
was periodically uploaded to SCIS. However, this was apparently not the case
for the contents of Supertext.112
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FACTUAL BACKGROUND: VOLUME I
2.4.5
Relationship with CSIS
Once CSIS transferred the investigations of certain targets to the RCMP, it played
less of a direct role in the investigations. Although CSIS officials would continue
to meet occasionally with the RCMP to discuss the investigations, and information was shared between the two groups, CSIS was reluctant to work with
Project A-O Canada.
Again, the RCMP used its situation reports as the principal method of keeping CSIS informed. The reports were delivered to CSIS by the RCMP liaison officer for CSIS (CSIS LO).113 When Project A-O Canada began, the CSIS LO’s office
was located in the NSIS office at “A” Division. The officer would travel from
there to the CSIS offices either on a daily basis, or sometimes several times a
week. In April 2002, when the liaison officer program was changed to a secondment program, the CSIS LO’s office moved to the CSIS Ottawa Regional
Office (CSIS OR). Despite this formal change in the program, however, the officer continued in his capacity as the CSIS LO, and assisted with the exchange
of information between CSIS and the RCMP.114
The process for delivering situation reports remained the same as well.
Reports intended for CSIS were placed in a designated basket in the NSIS office.115 The CSIS LO would retrieve them and deliver them to CSIS OR.116
In the CSIS LO’s opinion, delivering the situation reports was an informal
process.117 To his knowledge, CSIS was satisfied with this arrangement, and did
not suggest a more formal method of staying informed of developments in the
Project A-O Canada investigation.118 In fact, he stated that he had never seen
such a high degree of information sharing with CSIS by an RCMP investigative
team.119
2.4.6
Relevant RCMP Policies
The reporting structure for national security investigations conducted within
NSIS is detailed in the Criminal Intelligence Program Guide (CID Guide) and
in the RCMP Operational Manual (Section IV.10, National Security
Investigations).120 However, Inspector Cabana was clear that since Project
A-O Canada operated outside of “A” Division NSIS, and considered itself to be
conducting a criminal investigation, the formal policy rules for national security
investigations did not apply. Nevertheless, Inspector Cabana believed that the
reporting requirements in the RCMP Operational Manual were followed by the
team as a matter of course.121
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
According to the CID Guide, NSIB is responsible for “the assessment and
monitoring of all criminal investigations relative to National Security.”122 Although
Inspector Cabana did not consider Project A-O Canada to be a national security
investigation, he agreed that the criminal investigation of Mr. Almalki and other
persons of interest — such as Mr. Arar — was related to national security. In
Inspector Cabana’s view, CID was able to fulfill its assessment and monitoring
function by reviewing Project A-O Canada’s situation reports. As well, CID participated in inter-agency meetings and in some investigators’ meetings, and
Project A-O Canada’s assistant managers and some of its investigators often communicated with personnel in CID.123
With respect to reporting on national security investigations, the RCMP
Operational Manual states: “For an effective National Security Investigations
Program, all information concerning real and potential national security threats
must be entered promptly into the SCIS database.”124 According to Inspector
Cabana, the contents of Project A-O Canada’s E&R III database were uploaded
to the SCIS database on a daily basis by a member of NSIS. (Even though Project
A-O Canada included an officer who was seconded from NSIS, responsibility for
the daily uploads remained with NSIS.) Thus, anyone at RCMP Headquarters
with access to the SCIS database would have access to some of Project A-O
Canada’s information.125
The RCMP Operational Manual further states that the CROPS Officer is required to immediately notify the Officer in Charge of the National Security
Offences Branch (NSOB) of 1) potential threats to national security; 2) known
or suspected criminal extremists located in, or traveling to, Canada; and 3) incidents involving national security.126 The CROPS Officer is also required to notify the Officer in Charge of NSOB of any proposed operational plans for
long-term investigations concerning national security; make an initial report
within 14 days; and update ongoing investigations at least monthly by entering
summaries on SCIS.127 Inspector Cabana testified that Project A-O Canada was
not subject to these reporting requirements, even though he believed the team
actually met them all.128
Inspector Cabana acknowledged that concerns about reporting relationships did arise at RCMP Headquarters later on in the project, but suggested that
these concerns were more relevant to Project A-O Canada’s relationship with a
foreign agency than to problems with reporting. While there may have been
perceptions that RCMP Headquarters was not receiving all of Project
A-O Canada’s information, in fact, it was, according to Inspector Cabana.129
Superintendent Pilgrim of NSIB did not share Inspector Cabana’s view. He
testified that Project A-O Canada’s reporting structure, and more specifically,
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FACTUAL BACKGROUND: VOLUME I
how RCMP Headquarters fit into it, was an ongoing issue. Superintendent Pilgrim
would have preferred a reporting system that reflected a national security investigation. However, Project A-O Canada personnel considered themselves responsible only to senior management at “A” Division, and believed that RCMP
Headquarters was kept sufficiently informed through Project A-O Canada’s situation reports.130
3.
PROJECT A-O CANADA INVESTIGATION —
OCTOBER 5, 2001 TO JANUARY 22, 2002
3.1
INFORMATION SHARING — THE ORIGINAL ARRANGEMENT
3.1.1
RCMP Policies
Before Mr. Arar’s detention in New York on September 26, 2002, Project
A-O Canada shared a great deal of information with the American agencies,
some of it relating to Mr. Arar. During this time as well, the RCMP had in place
certain policies governing how information should be shared with domestic and
foreign agencies.
The RCMP has developed a body of policies for criminal investigations. The
Project A-O Canada investigation was a national security investigation, which is
a particular type of criminal investigation. Unless there was direction to the contrary, then, Project A-O Canada’s investigation was subject to RCMP criminal investigation policies and, more specifically, to policies relating to national security
investigations.
What follows is a brief summary of RCMP criminal investigation and national security investigation policies concerning information sharing. These policies are discussed in more detail in the Analysis volume of this Report, with
evaluations of whether the actions of the RCMP did or did not comply with
them.
3.1.1.1
Caveats
All sensitive information collected or received by the RCMP must be either “designated” or “classified.” Information is “designated” when its value is such that
it warrants safeguarding. Information must be “classified” if it is deemed to be
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
sensitive to the national interest. Depending on its level of sensitivity, classified
information may be “confidential,” “secret” or “top secret.”
The RCMP Administrative Manual131 requires that, where information is
designated or classified, caveats must be attached to all outgoing correspondence, messages and documents being passed to other domestic and foreign law
enforcement agencies and departments. For classified information, the caveats
are as follows:
1.
“This document is the property of the RCMP. It is loaned to your agency/department in confidence and it is not to be reclassified or further disseminated
without the consent of the originator.”
2.
“This document is the property of the Government of Canada. It is provided on
condition that it is for use solely by the intelligence community of the receiving government and that it not be declassified without the express permission
of the Government of Canada.”
If necessary, the following statement can be attached as well:
“This intelligence should not be reclassified or disseminated outside the RCMP without prior consent of the originator.”
The caveat required for designated information is similar, and for the purposes of this Report, the difference in language is not significant. In any event,
the large majority, if not all, of the information provided by the RCMP to U.S.
agencies was deemed classified.
Caveats are meant to protect the information in the documents in which
they are found, not merely the documents themselves. Caveats are also intended
to give the RCMP control over how, and for what purposes, the information will
be used. For example, if the receiving agency wished to use the information as
evidence, the RCMP would have to first give its permission.
A number of RCMP witnesses testified about the use of implied caveats, a
circumstance that is not addressed in RCMP policy manuals. This refers to an understanding among law enforcement agencies that when information is exchanged verbally, it will not be disseminated or used without first obtaining the
originator’s consent. In effect, the implied understanding is the same as that expressed in the written caveats.132
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FACTUAL BACKGROUND: VOLUME I
3.1.1.2
Third-Party Caveats
From time to time, the RCMP receives documents from third-party agencies with
caveats attached. The RCMP policy manual provides that these caveats must be
respected. In virtually all cases, this means that the RCMP must seek the consent
of the originating agency before disseminating or using the information in the
documents.133 Although it is not against the law to breach a caveat, there is an
implied trust between the lending and receiving agencies. Failure to respect
these caveats can create tension and make agencies reluctant to share information in the future.134
3.1.1.3.
Reliability Ratings
The RCMP Criminal Intelligence Program Guide135 requires that all sources and
information be assessed and rated for reliability in one of the following
categories: “reliable,” “believed reliable,” “unknown reliability” or “doubtful
reliability.”
The standard practice is to attach a reliability rating when exchanging information with another agency, except when it is first-hand information, i.e., information that an officer has observed personally.136
3.1.1.4
Personal Information
The RCMP Operational Manual137 provides that if the RCMP is releasing personal
information to another agency, disclosure must be made in accordance with the
Privacy Act. The Act forbids disclosure of personal information without the consent of the person to whom the information relates.
However, there are exceptions. The most relevant here is the “consistent
use disclosure” exception. As law enforcement is considered to be a broad consistent use, the RCMP may disclose personal information to other agencies for
law enforcement purposes.
3 .1.1.5.
The “Need-to-Know” Principle
RCMP policy also provides that classified information should only be released
on a “need-to-know” basis.138 In this regard, RCMP officers agreed in testimony
that before sharing information with a third party, such as the FBI, the RCMP
must be satisfied that there is an operational reason to share the information,
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
i.e., it is expected to further an ongoing investigation. The decision to share
should be made on a case-by-case basis, and judgment should be applied to determine whether sharing would be appropriate.139
3.1.1.6
Sharing Information with Foreign Agencies
The normal procedure for a foreign agency seeking information from the RCMP
is to submit a request to RCMP Headquarters, where it is analyzed and
processed, and then sent to the appropriate field unit, if necessary. From there,
the requested information is sent back to Headquarters and forwarded to the liaison officer (LO)140 responsible for the requesting country. For example, if the
FBI asked the RCMP for information, the response would come up from the division, if necessary, to RCMP Headquarters, and on to the RCMP LO in
Washington, D.C., who would then deliver the information to the FBI.141 This
centralized process allows RCMP Headquarters to exercise its oversight function, ensuring both that consistent information is given to the foreign agency,
and that Headquarters is aware of what information is being shared.142
However, prior to 9/11, there were occasions when agencies, like the FBI,
for example, met directly with some of the field units to request information.143
Moreover, if the investigators’ relationship was ongoing, it was acceptable to
have a direct contact and information sharing between the two agencies at that
level, as long as Headquarters was involved in establishing the initial contact.144
In a situation like this, controls would still be in place, in the sense that supervisors would continue to monitor the file and approve the ongoing exchange.
RCMP policy further requires that decisions to share information be made
on a case-by- case basis, and that judgment be applied to determine whether
sharing would violate anyone’s rights, or otherwise be inappropriate.145 This is
outlined in the RCMP Operational Manual in a section dealing with “Enquiries
from Foreign Governments that Violate Human Rights.” However, the policy
does permit disclosure of information to a foreign agency that does not share
Canada’s respect for democratic or human rights, if disclosure is justified
because of Canadian security or law enforcement interests, if it can be controlled
by specific terms and conditions and if it will not result in human rights
violations.146
3.1.1.7
Reporting on the Sharing of Information
The RCMP Operational Manual imposes only limited requirements for divisions
carrying out national security investigations to report to Headquarters. For
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FACTUAL BACKGROUND: VOLUME I
example, immediate notification is required in the case of 1) potential threats to
national security, or to an internationally protected person; 2) known or suspected criminal extremists located in, or travelling to, Canada; and 3) incidents
affecting national security. As soon as practicable and within 14 days, RCMP
Headquarters is to be notified of any “proposed operational plans for long term
investigations.” Following this initial notification, monthly updates are to be provided to Headquarters, but only by way of uploading summaries onto SCIS,147
the RCMP’s database.
There is no specific requirement for reporting on what information is shared
with other agencies. However, as described above, the requirements for the way
information is to be shared would of themselves alert the Criminal Intelligence
Directorate (CID) at RCMP Headquarters that information was being shared.
It is worth noting that Project A-O Canada began to send daily situation reports to CID in the fall of 2001. Typically, these reports would relate the steps
taken in an investigation during that day. If done properly and accurately,
this type of detailed reporting discloses all information being shared with other
agencies.
The nature of Project A-O Canada’s reporting on its information-sharing activities is discussed in the Analysis volume of this Report.
3.1.2
The CSIS-RCMP Memorandum of Understanding
The principles underlying the relationship between CSIS and the RCMP are laid
out in the CSIS-RCMP Memorandum of Understanding (MOU).148 These principles call on the RCMP and CSIS to share with each other intelligence related to
their respective mandates, recognizing that the RCMP relies on CSIS for information relevant to national security offences. The MOU calls on CSIS to provide
the RCMP with intelligence relevant to its security enforcement and protective
security responsibilities on a timely basis, or following a specific request.
However, the MOU recognizes that where CSIS information is being provided
for evidentiary purposes, full account must be taken to balance the public interest in sharing that information with the potential effects of disclosure on CSIS
sources of information, methods of operation, and third-party relations.149 CSIS
and the RCMP undertake to fully protect any caveats imposed by either party,
and to restrict access to national security files according to the “need-to-know”
principle.
The CSIS-RCMP MOU also describes the “Liaison Officer Program,” which
contemplates the exchange of liaison officers (LOs) between the respective national headquarters and, where appropriate, at the divisional/regional level as
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
well. For the purposes of this Report, a regional liaison can be said to have existed between RCMP “A” Division and CSIS Ottawa Region.150 The RCMP LO to
CSIS plays a role in ensuring that the RCMP is kept abreast of information relevant to the RCMP’s security- related responsibilities. However, the LO must seek
authorization before disclosing such information.
Finally, the MOU states that the two organizations will provide mutual assistance and support abroad, particularly when liaising with foreign agencies on
security-related matters. However, there is still an understanding that CSIS has
primary responsibility when it comes to dealing with the CIA. Deputy
Commissioner Loeppky testified that the RCMP had a verbal arrangement with
the CIA for information sharing, but that CSIS had primary responsibility for liaising with the American agency. In fact, correspondence in 1989 between the
CIA and the RCMP explicitly recognizes that exchanges of intelligence information should acknowledge the primary role of CSIS as the CIA liaison.151
3.1.3
The Environment After 9/11
3.1.3.1
The Imminent Threat
Although Project A-O Canada’s investigation concerned Abdullah Almalki’s alleged involvement with al-Qaeda, according to the Project’s assistant managers
the real focus was on preventing another terrorist act.152
Beginning with the CSIS advisory letters shortly after 9/11, Project
A-O Canada was provided with information linking targeted individuals to what
was described as an imminent threat to the security of Canada. Inspector Cabana
testified that intelligence sources indicated that 9/11 was just the first of a number of attacks. Project A-O Canada did not know precisely when the next attacks
would come, what the targets were, or whether they would be in Canada.153
Concerns about an imminent threat gave a sense of urgency to the investigation. Describing the environment at the outset of the Project, Inspector Cabana
commented: “It was a race against the clock to ensure that nothing else
happened.”154
This sense of urgency had a significant impact on members of the Project
team. Despite increased requests from the Americans, in the view of the Project
team, American agencies did not exert pressure on them. While RCMP management put some pressure on its investigators, the most intense pressure came
from investigators themselves. According to Inspector Cabana, “the border” between Canadian and American agencies came down. National priority files that
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FACTUAL BACKGROUND: VOLUME I
were considered urgent prior to 9/11 were put on the shelf, and everyone was
re-directed to address the terrorist crisis. Agencies – both domestic and foreign
– worked together to prevent further attacks from occurring anywhere around
the world.155 At the same time, everyone recognized the need to be extremely
thorough, and Project A-O Canada made it a priority to carefully examine anyone who was brought to their attention in relation to Mr. Almalki.156
Superintendent Wayne Pilgrim, the Officer in Charge of the National
Security Investigations Branch (NSIB) at RCMP Headquarters, had a somewhat
different view of the possible second wave of attacks. He concurred that there
was continuing concern about other attacks after 9/11, and that it was therefore
necessary to maintain a high degree of vigilance for an extended period of time.
In his view, however, the next wave was an imminent threat to the United States,
not to Canada.157
3.1.3.2
The Need to Cooperate with Other Agencies
The Project A-O Canada team was instructed to use every tool possible, within
the bounds of the law, to ensure that 9/11 was not repeated.158 This included
sharing information with other domestic and foreign agencies.159 To Project
A-O Canada, outside cooperation was important for two reasons.
First, members of the Project A-O Canada team lacked in-depth knowledge
of, and experience in, anti-terrorism investigations. Sharing information with
other agencies helped them understand the type of threat they were facing. As
well, without the cooperation of other agencies, it would have been difficult to
assess whether Canadian intelligence information would be useful to American
investigations, or to those being conducted in Europe, Africa or Asia. According
to the Commanding Officer of “A” Division, the only way the RCMP was going
to be successful in the fight against terrorism was to share information.160
Team members recognized that a good deal of the information on their target subjects had been provided by U.S. authorities. Project A-O Canada did not
have the resources to gather all of the information it needed on its own, nor did
it have direct access to information on the targets’ backgrounds, except through
other agencies.161
The second strong incentive for cooperation, according to RCMP witnesses,
was the potential for loss of life if information was withheld. As Inspector
Clement explained, law enforcement officers were dealing with “real-time”
events occurring against the backdrop of an imminent terrorist attack. “One tidbit of information” could be the missing piece of the puzzle in another agency’s
database. “That [information] may have prevented an explosion. We can all
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speculate.”162 Assistant Commissioner Hovey agreed that no one wanted to withhold information that might prevent a catastrophe.163
According to Inspector Cabana, the Project A-O Canada investigation was
more analogous to dealing with an international crisis, than a national one. He
noted that agencies were coming to the table and information was being shared
to an extent unprecedented in his previous 20 years as a police officer; after
9/11, there was no more territorial squabbling, he added.164
3.1.4
Views on the Information-Sharing Arrangement
3.1.4.1
Overview
According to RCMP witnesses, members of the RCMP and its domestic and foreign partner agencies met at RCMP Headquarters on either September 12 or 13,
2001 — immediately following the terrorist attacks — to discuss the threat of another attack, and the need for increased cooperation and coordination among
the agencies, including the need to share relevant information in a timely manner. These discussions were the starting point for the information-sharing
arrangements that ultimately resulted in Project A-O Canada providing American
agencies with information about a number of individuals, including Mr. Arar. As
discussed elsewhere in this Report, some of this information likely played a role
in the American decision to transfer Mr. Arar to Syria. Because it is so significant,
the evidence leading to these transfers will be reviewed in detail. This section
provides an overview of the varying understandings of information sharing described by the different witnesses.
According to RCMP Assistant Commissioner Richard Proulx, it was understood that the agencies would share all information about the terrorist threats in
a prompt manner, so that appropriate preventative or disruptive actions could
be taken. However, this arrangement was not intended to deviate from existing
RCMP policies related to both criminal and national security investigations. In
particular, it was not intended that caveats and the third-party rule would no
longer apply to information shared with the other agencies. Furthermore, parties would continue to share only their own documents, unless the originating
agency gave its consent.
CSIS witnesses who were questioned about the existence of the information-sharing arrangement did not mention the September 2001 meeting, nor
were they under the impression that an arrangement was even agreed to among
the agencies with primary responsibility for anti-terrorism activities in Canada
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FACTUAL BACKGROUND: VOLUME I
and the United States. That said, their understanding of how the information
sharing was to take place with other agencies generally supported Assistant
Commissioner Proulx’s description.
The information-sharing arrangement was never put into writing. Following
the September meeting, Assistant Commissioner Proulx discussed the arrangement with senior RCMP officers in the regions, including those at “A” Division
in Ottawa. In turn, the senior officers at “A” Division related the message to
Project A-O Canada’s managers. Although there are a few notes about these
communications, no formal direction setting out the details of the arrangement
was given by RCMP Headquarters to the senior officers at “A” Division, nor by
these officers to Project A-O Canada personnel. Those involved differ in their
recollections about the substance of the messages passed down to officers implementing the arrangement. In the end, however, Project A-O Canada’s understanding of how information was to be shared differed in several important
respects from that of Assistant Commissioner Proulx.
Members of Project A-O Canada referred to the arrangement as an “openbook investigation” or a “free-flow-of-information agreement,” often referring
to participants in the original discussion as “partners to an agreement.” More
specifically, Project A-O Canada project managers understood the agreement to
include the following key points:
a)
b)
c)
d)
Caveats no longer applied. (“Caveats are down” was the phrase sometimes
used.) Project A-O Canada managers understood it was no longer necessary
to attach caveats or the third-party rule to documentary information being
shared with other partner agencies. However, there was an implicit understanding that the information would be used for intelligence purposes only.
RCMP policies relating to national security investigations did not apply to
their investigation. This was true for a number of reasons, including the
fact that Project A-O Canada was conducting a “criminal,” not an “intelligence” investigation.
The partners could share documents or information received from another
partner without the consent of the originator, even if caveats had been attached by the originator.
All information obtained by Project A-O Canada could be transferred to the
“partners to the agreement.” It was not necessary to scrutinize information
transferred to other agencies for relevance, reliability, “need-to-know” criteria, or for personal information.
Because of this understanding, members of Project A-O Canada provided
information and documents to American agencies in a manner that was very
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different from what Assistant Commissioner Proulx had envisioned at the
September meeting. Project A-O Canada did not attach written caveats or the
third-party rule to most of the documentary information they gave to U.S. agencies. Further, members transferred certain third-party documents, including CSIS
material containing caveats, to U.S. agencies without first obtaining CSIS’ consent. Project A-O Canada also transferred some information to U.S. agencies
without first examining it to assess its relevance or reliability, and whether the
American agencies “needed to know” the personal information it contained.
The evidence relating to the information-sharing arrangement, as described
by those at each level of the RCMP and CSIS hierarchy, is reviewed in detail
below.
3.1.4.2
RCMP — Criminal Intelligence Directorate (CID)
In his testimony about the meeting held on either September 12 or 13, 2001,
Assistant Commissioner Proulx said that he had urged the agencies to share as
much information as possible — and quickly — in order to save lives. The only
limitation was that if information was not to be shared with the entire group, the
agency sharing it should make that clear to the agency receiving it.165
According to Assistant Commissioner Proulx, the message he was delivering was not new. In fact, he had told the agencies the same thing during another
terrorism case two years earlier. In any event, he expected that information
would be shared among the agencies as a matter of course. His main goal in calling the meeting was to emphasize the seriousness of the post-9/11 threat. He
urged the agencies to exchange information “in real time,”166 meaning that it
should be shared immediately and directly with the participating [or partner]
agencies at the same time,167 in order to facilitate discussion among them.168
According to Assistant Commissioner Proulx, at no time during the
September 2001 meeting did participants discuss removing written caveats from
documents.169 Nor did they set an end date for the arrangement.170
Assistant Commissioner Proulx believed that his plan was well received by
the other agencies, and felt that everyone agreed on the need to share as much
information as possible, as quickly as possible.171 In fact, there were no further
meetings on the subject among the participating agencies at a senior level. In
Assistant Commissioner Proulx’s opinion, all of the issues and details pertaining
to the information-sharing arrangement were clear and settled when the meeting ended.172
There are several important points about this arrangement. First, there is no
written record of it.173 Further, the discussions did not result in explicit
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FACTUAL BACKGROUND: VOLUME I
parameters about the type of information to be shared in real time. In fact,
Assistant Commissioner Proulx’s understanding was that, on a practical level,
the new arrangement would not fundamentally change the way the RCMP operated. In particular, he was adamant that the arrangement was not intended to
change RCMP policies, specifically those regarding the use of caveats and the
third-party rule.174 He explained that the arrangement focused on sharing information directly among the participating agencies to ensure that everyone was
simultaneously aware of developments in the investigation. The use of caveats
would continue as before. The new arrangement simply meant that the participating agencies would be able to have an open discussion, in a timely way,
about information that had been shared.175
Assistant Commissioner Proulx also understood that each agency was still
responsible for sharing its own information with other agencies. That said, it
was expected that any information given to one of the agencies should be given
to the others, so it could be discussed freely at meetings.176 He was firm that the
information-sharing arrangement did not allow one agency to share written correspondence with another without the permission of the originating agency.
Each agency was responsible for sharing its own documents, either by passing
them to the other agencies, or by giving permission for them to be passed.177 It
is worth noting that Assistant Commissioner Proulx believed it permissible to verbally discuss the information received from another agency. Apparently, the prohibition against sharing without the originating agency’s consent only applied to
documents to which caveats had been attached.
This information-sharing arrangement did not extend outside of the participating agencies. Assistant Commissioner Proulx testified that the agencies were
not permitted to pass information to an outside organization without first seeking permission from the originating agency.178
Finally, the arrangement did not extend to using the information in court
proceedings. According to Assistant Commissioner Proulx, if one agency wanted
to use information from another agency in court, the caveat still applied and
the permission of the originating agency was required.179
While Assistant Commissioner Proulx was clear in his own mind about the
parameters of “share as much information as possible in real time,” he did not
prepare an internal document explaining the arrangement.180 Neither were structures in place to ensure his message was clearly communicated to the RCMP officers who were ultimately responsible for implementing the arrangement.
According to Assistant Commissioner Proulx, his message about the information-sharing arrangements was communicated verbally, in meetings and video
conferences,181 to the commanding officers and the Officers in Charge of
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
Criminal Operations (CROPS) in the various RCMP divisional offices.182 It was not
delivered in a written communiqué, or by meeting with these senior officers.
Assistant Commissioner Proulx’s message about information sharing was
given to “A” Division during a video conference on September 27, 2001.183 The
purpose of the meeting, which was attended by representatives from various
RCMP divisions and Headquarters, was to discuss Project Shock, as well as other
matters related to post-9/11 crisis management. Assistant Commissioner Proulx
testified that he told participants about his meeting with the other agencies, and
that “[they] agreed to share as much information as possible.”184
Assistant Commissioner Proulx left it to the senior officers of “A” Division
to communicate the information-sharing message to Project A-O Canada’s frontline officers. He accepted, however, that it was his responsibility to ensure the
message was properly understood.185
Following the September 27 video conference, there were other meetings
and video conferences at the operational level during which information sharing may have been discussed. According to Assistant Commissioner Proulx, he
at no time indicated that existing RCMP policies or caveats involving information sharing were suspended. Specifically, he did not recall saying on December
6, 2001 that caveats were down, as Chief Superintendent Couture testified.186
Deputy Commissioner Garry Loeppky, the RCMP’s Chief Operational
Officer, agreed with Assistant Commissioner Proulx’s interpretation of the information-sharing arrangement. That is, it focused on the need to share information fully, in a timely fashion, and within the context of existing RCMP
policies.187
Although Deputy Commissioner Loeppky was not involved in defining the
parameters of what eventually became known as the free-flow-of-information
agreement,188 he was aware of the meeting held shortly after 9/11 between
Assistant Commissioner Proulx and representatives from domestic and U.S. law
enforcement and security intelligence agencies. It was his understanding that
the purpose of the meeting was to provide assurance that the RCMP would go
out of its way to respond to requests in a timely manner, without the usual delays. He did not believe there was any discussion of caveats.189
Deputy Commissioner Loeppky testified that it was management’s responsibility to communicate this general direction to the CROPS officers, who were
then to carry it out. What the CROPS officers were to take from management’s
message was that the RCMP would respond to requests in a timely way so there
would not be the type of delays that took place before 9/11. However, there was
no oral discussion or written document confirming that the instructions “to respond in a timely way” also meant that all RCMP policies still had to be
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FACTUAL BACKGROUND: VOLUME I
followed.190 Deputy Commissioner Loeppky agreed that the instructions to senior officers were very broad.191
He also acknowledged that in the post-9/11 environment, someone might
interpret the information-sharing message more broadly than it was actually intended, thus concluding that information could be shared without caveats.
Immediately after 9/11, there were domestic and international entreaties by political leaders, law enforcement, business and the community for a new level of
cooperation. Although Deputy Commissioner Loeppky expected there would
be full and open sharing of information to the extent that RCMP policies permitted, given the bombardment of messages following 9/11, he could see why
some people might have understood that the arrangement went further.192
A number of officers in NSIB at RCMP Headquarters also testified about
their understanding of the information-sharing arrangement.193 For the most part,
they supported Assistant Commissioner Proulx’s interpretation.
Superintendent Pilgrim, Inspector Rick Reynolds and Corporal
Rick Flewelling, all of whom were at CID for at least part of the time Project
A-O Canada was sharing information with the Americans, believed that
Project A-O Canada was doing so without attaching the appropriate written
caveats. However, they believed the agencies involved understood that any information was to be treated as if it had caveats (regardless of whether or not it
did). This meant the agency receiving the information would have to obtain
permission from the originating agency, if the information was to be used for
anything other than intelligence purposes.194 In this respect, the arrangement
deviated from the RCMP’s policy for national security investigations, which required that written caveats and the third-party rule be attached to all documents
shared with another agency.195
3.1.4.3
CSIS
CSIS witnesses testified that they were not party to, nor were they notified of,
an arrangement whereby the RCMP and its partner agencies were to share information without adhering to established rules for the imposition of and respect for caveats and the third-party rule (either express or implied).196 While
acknowledging that there was a general desire to share information in a timely
and efficient manner, CSIS witnesses said there was no arrangement in place to
suspend the application of CSIS policies.197
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3.1.4.4
RCMP “A” Division — Commanding Officer/CROPS
Three senior officers from “A” Division testified about their understanding of
how Project A-O Canada was to share information with the other participating
agencies. In order of rank, Assistant Commissioner Dawson Hovey was the
Commanding Officer of “A” Division, Chief Superintendent Antoine Couture was
the Officer in Charge of CROPS, and Inspector Garry Clement was the Assistant
CROPS Officer.
Although Assistant Commissioner Hovey was not closely involved in decisions about sharing information among these agencies, he recognized that the
issue assumed a higher priority following 9/11. Like Assistant Commissioner
Proulx, however, he understood that information sharing would continue in accordance with RCMP policies. He did not agree that the RCMP had discretion to
tailor its policies to a particular situation.198
Over time, Assistant Commissioner Hovey became aware that Project
A-O Canada was sharing information with its American colleagues. Although he
supported the approach in general, he was not aware of the details of the
arrangement. He testified that, as Commanding Officer, he was ultimately accountable for the investigations conducted by “A” Division. However, it was
the CROPS Officer who was responsible for providing day-to-day direction
on files.199
Assistant Commissioner Hovey believed that information was being shared
with American agencies in accordance with RCMP policies, including those concerning caveats. Moreover, he was not aware of any issues about the use of
caveats or information sharing more generally during his tenure as Commanding
Officer.200
As the Officer in Charge of CROPS at “A” Division until January 2003, Chief
Superintendent Couture was given general direction from RCMP Headquarters
on how information was to be shared.201 He understood that Project A-O Canada
investigators were to share information in a timely manner because of the imminent threat of another terrorist attack — information was to flow as freely as
possible among the participating agencies.202 Chief Superintendent Couture was
not able to provide details of communications from RCMP Headquarters, other
than to say that the information-sharing message was delivered once or twice
by video conference or telephone conference.203
Three points about Chief Superintendent Couture’s testimony are important to note. First, he would neither confirm nor deny that existing RCMP policies for exchanging information with domestic or foreign agencies were no
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FACTUAL BACKGROUND: VOLUME I
longer applicable on the direction of RCMP Headquarters. He would say only
that members of “A” Division were encouraged to communicate information as
freely as possible to ensure an efficient response to the imminent threat of another attack.204
Second, Chief Superintendent Couture stated it was his general understanding that Project A-O Canada could share information without using caveats,
as the use of caveats and the third-party rule would not be enforced in the fight
against terrorism.205 He made specific reference to a video conference on
December 6, 2001, in which Assistant Commissioner Proulx indicated that
caveats were down. Although Chief Superintendent Couture made a note of this
meeting,206 Assistant Commissioner Proulx did not recall making the comment.
Finally, Chief Superintendent Couture did not believe RCMP Headquarters
had directed that information obtained from another party could be shared without the authority of the originating party. He understood that each party would
pass its own information directly to the other parties.207
Chief Superintendent Couture testified that post-9/11 information sharing by
Project A-O Canada was unique. Never before had he seen information shared
fully with the other agencies, but neither had he been in a situation where the
stakes were as high.208
According to Chief Superintendent Couture, an unstructured approach was
taken in communicating the parameters for information sharing to Project
A-O Canada. This approach was similar to that used by RCMP Headquarters to
communicate instructions to him. The arrangement was never written down in
a clear set of rules for investigators, but was communicated verbally to team
members. It was also communicated implicitly every time “A” Division’s senior
management sanctioned Project A-O Canada’s actions. For instance, Chief
Superintendent Couture implicitly sanctioned the team’s actions by receiving
and reading Project A-O Canada’s situation reports.209
Chief Superintendent Couture’s general directions on information sharing
were to ensure the team got the job done and shared the information necessary
to prevent another terrorist attack. These directions were communicated in conversations with the Assistant CROPS Officer. Chief Superintendent Couture did
not speak directly to investigators about information sharing. In general, he left
officers within “A” Division to control the day-to-day management of files.210
Following a meeting, Chief Superintendent Couture would generally meet
to debrief the officers in charge of the various units at “A” Division. Based on
this, he believed he passed on Assistant Commissioner Proulx’s statement that
caveats were down, which was made at the December 6, 2001 meeting. Chief
Superintendent Couture understood this direction to mean that Project
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
A-O Canada was not to restrict the flow of information, and should ensure that
information reached its destination quickly in order to prevent another terrorist
attack.211
Chief Superintendent Couture was also questioned about testimony by
Project A-O Canada witnesses that they were directed to share information freely
for intelligence purposes, but that permission was required, and very likely an
MLAT (Mutual Legal Assistance Treaty) application, if information was to be
used in a court proceeding. He confirmed that a foreign agency would require
an MLAT to use RCMP information in a legal proceeding.212
Chief Superintendent Couture believed that RCMP Headquarters was aware
of the working relationship between the U.S. agencies and Project A-O Canada,
including how information was being shared. Further, he believed Headquarters
knew of this relationship from the outset of the project.213
Inspector Clement, the Assistant CROPS Officer at “A” Division, communicated the information-sharing arrangement to Project A-O Canada. According to
him, he gave very clear direction as soon as the investigation began that there
would be an open-book arrangement with Project A-O Canada’s partners.
Apparently, Inspector Clement was the first one to use the term “open-book investigation.” Given the potential threat, Inspector Clement believed that the investigation could not progress unless all of the partners were well briefed on a
day-to-day basis.214
Inspector Clement also stressed the open-book approach with each of the
partner agencies, emphasizing the need for an open and frank sharing of information.215 He believed his directive was supported up the chain of command in
“A” Division, from the CROPS Officer, Chief Superintendent Couture, to the
Commanding Officer, Assistant Commissioner Hovey, as well as at RCMP
Headquarters.216
Inspector Clement’s view of an open-book investigation included two elements of note. First, he believed the arrangement extended to sharing information without taking into account RCMP policies about the use of caveats and the
third-party rule. However, he explained this was not the original intent when the
open-book directive was conceived.217 At the time, the arrangement focused on
information shared verbally among the partner agencies at regular meetings,
rather than on physically sharing documents. All of the agencies openly discussed information contained in the documents. Eventually, when Project A-O
Canada investigators became aware that information had been shared verbally,
they began to pass it in documentary form. In doing so, Inspector Clement testified, they were not passing along new information, but information that was
already known.218
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FACTUAL BACKGROUND: VOLUME I
Second, Inspector Clement testified that, in time, it became acceptable for
Project A-O Canada to share information received from another partner agency,
given that all relevant information was being shared verbally among the
partners.219
Inspector Clement further believed that all partner agencies understood that
information could be shared without the formal application of caveats and the
third-party rule. According to him, other partner agencies tacitly approved this
approach because they were present at meetings where it was a topic of
discussion.220
Inspector Clement was adamant that, regardless of other deviations from established RCMP policies, there was an implicit understanding among the partner agencies that the third-party rule applied if information was to be used in a
legal proceeding. This was in line with legal requirements applicable to all criminal investigations.221
Inspector Clement’s rationale for promoting the open-book investigation
was based on two main factors. First, his experience managing major case files
told him that information could not be withheld from a partner agency if an investigation was to be successful. An open-book investigation promoted cooperation and trust.222 Second, the imminent threat of another terrorist attack
demanded that partner agencies foster an environment of openness so that information could be shared quickly and efficiently. As Inspector Clement stated:
“Circumstances sometimes require you to go a step further than you normally
would in a routine-type investigation.”223
The parameters of the open-book concept were not explicitly laid out for
Project A-O Canada investigators. However, Inspector Clement testified that most
members of the team had worked directly with him before and would have
been familiar with how he managed a case. In this instance, he felt the team was
very clear on what he intended. The overriding message was that the partners
were to share everything openly, and that nothing was to be held back if it was
potentially relevant to any one of them.224
Inspector Clement’s interpretation of the information-sharing arrangement
was never put into writing. Neither could he direct the Commission to notes of
a meeting setting out the implicit understanding that partner agencies needed
permission to use another agency’s information.225 According to Inspector
Clement, there was never any discussion of drafting a Memorandum of
Understanding (MOU) or other document to record the specifics of the information-sharing arrangement.226
Inspector Clement was aware that even though senior officers understood
the implied arrangement about the third-party rule, this was not necessarily the
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case at the grassroots level of an investigation. However, he took into account
that the FBI was a reputable agency with policies similar to the RCMP, and that,
at any given time, the RCMP had numerous investigations involving its U.S.
counterparts. As a result, the two agencies had developed a common understanding of what rules must be followed.227
3.1.4.5
Project A-O Canada
Although the testimony of Project A-O Canada officers varied to some extent,
they all agreed that, right from the outset, their instructions were to conduct an
open-book investigation with the other participating agencies.
Inspector Cabana, the Officer in Charge of Project A-O Canada, testified
that discussions about the RCMP’s relationships with other agencies, including
its information-sharing relationships, began immediately after the events of
September 11, 2001, in the context of Project Shock.228
Prior to the start of Project A-O Canada, Inspector Cabana attended the
September 25 or 26, 2001 video conference at RCMP Headquarters, where the
RCMP’s response to the 9/11 attacks was discussed. 229 At that time he was a
member of “A” Division’s Integrated Proceeds of Crime (IPOC) unit. Inspector
Cabana recalled that there was a sense of urgency about ensuring the RMCP
work in partnership with others. He left the meeting with the understanding
that there would be no more protectionism over information, and that everyone
would be sharing information more freely in an effort to prevent further
attacks.230
When Project A-O Canada began, Inspector Clement informed Inspector
Cabana that it was to be conducted as an open-book investigation. According
to Inspector Cabana, Inspector Clement gave him these instructions on October
5, 2001, as part of their discussion about Project A-O Canada taking over the investigation of Mr. Almalki. Inspector Clement told him that Project A-O Canada
would be working with the American agencies, and because of the extraordinary circumstances of 9/11, they had all agreed to share information freely.231
From Inspector Cabana’s understanding, an open-book investigation meant
that caveats normally attached to documents sent to external agencies were
down. Project A-O Canada’s primary mandate was to prevent any further attacks. To do so effectively meant ensuring information flowed freely among all
the agencies.232 As Inspector Cabana observed: “[T]he way it was described to
us, is you are working hand- in-hand with these [agencies] now, and when you
are working in partnership with agencies, caveats don’t apply.”233
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Inspector Cabana understood that they were no longer required to follow
the steps laid out in the RCMP’s existing policy “with respect to the use of
caveats [and] with respect to the requirement to determine the purpose of the
information to be shared.” Instead, information was to be shared immediately,
without delays. Inspector Cabana believed that there was an agreement in place
among the agencies for that purpose.234
Inspector Cabana did not interpret the open-book arrangement to mean
that RCMP policies relating to caveats had necessarily been suspended. He testified that RCMP policies were devised as a guideline on which officers built
their investigations, but were not developed with events like 9/11 in mind. He
was aware that RCMP policy included certain circumstances where information
could be exchanged without a caveat — for example, if there was an MOU, or
something similar, in place. Since obtaining an MOU would take too much time
under the circumstances, the information-sharing arrangement was put in place.
(The applicable RCMP policy referred to a “written” MOU; Inspector Cabana
never saw a written agreement.)235
Neither did Inspector Cabana interpret the arrangement to mean that there
were absolutely no controls over RCMP information once it had been shared
with partner agencies. Everyone understood that information was being shared
for intelligence purposes. If the information was to be used in a legal proceeding, the consent of the originating agency was required, and possibly an MLAT
application. This was an established rule within the law enforcement community, and it did not change on account of 9/11.236 Inspector Cabana also believed that if a partner agency wanted to share the information with a
non-partner agency, permission from the originating agency was required.237
According to Inspector Cabana, both the CROPS Officer and Assistant
CROPS Officer for “A” Division attended a briefing on October 15, 2001. When
instructions were given for sharing information, they did not object; nor did they
suggest that Inspector Cabana had misunderstood the original instructions.238
Staff Sergeants Callaghan and Corcoran testified that they did not recall receiving instructions on the information-sharing arrangement at the October meeting.239 Neither could they recall the exact date when the information-sharing
arrangement was communicated to them.
According to Staff Sergeants Callaghan and Corcoran, the arrangement
evolved as the project progressed, and as the American agencies and CSIS became more involved in the investigation.240 As discussed later in this Report, the
officers eventually came to understand that information could be shared without attaching explicit caveats. Caveats were implied; if the requesting party
wanted to use the information other than for intelligence purposes, approval
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from the RCMP was required. The officers also understood that because of the
open-book arrangement between the participating agencies, the RCMP could
pass along information received from another partner agency.
Staff Sergeant Callaghan’s interpretation of what could be shared came from
the Assistant CROPS Officer, Inspector Clement. He recalled Inspector Clement
using the phrase “open-book investigation” on a number of occasions, and explaining that Project A-O Canada could share information with all of its partners.
According to Staff Sergeant Callaghan, “...[t]here was no ifs, ands or buts about
it, or grey area, as to what we were going to share.”241
Staff Sergeant Corcoran went even further, testifying that “A” Division’s
Commanding Officer, Assistant Commissioner Dawson Hovey, the CROPS
Officers, Chief Superintendent Couture and Inspector Clement, and Project
A-O Canada’s Officer in Charge, Inspector Cabana, communicated the message
to share information openly, right from the beginning. According to Staff
Sergeant Corcoran, the instructions for sharing information with various agencies did not appear to be optional — “We were told to share.”242
He also testified that there was no discussion of caveats at the start of the
investigation, and it only became an issue later on, in the summer of 2002. By
November or December 2001, the hard-and-fast rule was that any information
the RCMP gave to an outside agency was for intelligence purposes. If an external agency wanted to use RCMP information for another purpose, it would have
to obtain the RCMP’s permission.243
Staff Sergeant Corcoran testified that he was never criticized or disciplined
for sharing information in accordance with his understanding of the informationsharing arrangement — specifically, sharing information without caveats. On
the contrary, Project A-O Canada was applauded by other agencies for its efforts.
“It was clear to everyone that times had changed. The situation was grave. We
could not risk not sharing information.”244
Project A-O Canada managers testified there was no single document that
captured the information-sharing arrangement among the partner agencies, including such phrases as “open-book investigation,” “free-flow-of-information”
and “all caveats are down.” Instead, it was more generally included in various
officers’ meeting notes and in Project A-O Canada correspondence.245
The instructions to Project A-O Canada about sharing information did not
have a fixed end date. As Inspector Cabana testified, the original instructions he
received from Inspector Clement were not time-limited, nor were they countermanded before he left the project in February 2003. It was his understanding that
this arrangement would be in place for the duration of the Project.246
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FACTUAL BACKGROUND: VOLUME I
3.1.5
The Role of Department of Justice Lawyers
At least one lawyer — and as many as three — were assigned to Project
A-O Canada from its inception. In early October 2001, the Assistant CROPS
Officer, Inspector Clement, requested that the Department of Justice (DOJ) assign counsel to the Project. Because the department was not in a position to provide the Project with its own counsel at the time, it assigned the lawyers at “A”
Division’s IPOC unit to work at Project A-O Canada as well.247
With offices on the same floor, DOJ lawyers and the Project A-O Canada
team maintained open lines of communication. Many team members, including
the Officer in Charge, had a background in IPOC and a history of dealing with
these same lawyers. Inspector Cabana testified that he had daily interaction with
legal counsel on a number of different issues, including Project A-O Canada.248
Legal counsel played an integral role in developing files for IPOC, and a
similar arrangement was adopted for Project A-O Canada files.249 As a general
rule, Project A-O Canada personnel sought legal advice for all investigative steps.
In addition, counsel for Project A-O Canada regularly attended the investigators’
meetings and joint management team meetings where information sharing was
discussed.250
Inspector Cabana stated he was not aware that his investigators specifically
discussed the issue of caveats with Project A-O Canada’s lawyers, as the lawyers
already knew of the arrangement.251 He testified that Project A-O Canada’s
lawyers would have been aware of RCMP policies because of their experience
with IPOC, which had been conducting international investigations for as long
as the lawyers had been there. He concluded that the lawyers were well versed
in RCMP policy, and did not recall them suggesting that the team was contravening policy. According to Inspector Cabana, the legal advice he received about
the Project was consistent with his original instructions, particularly with regard
to RCMP policy.252
Inspector Cabana did not believe that any of his investigators consulted
Project A-O Canada lawyers about whether the team could go against RCMP
policy, nor did he feel there was any need to do so, as the team’s directions
came from management.253
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
3.2
ABDULLAH ALMALKI — THE TARGET
3.2.1
Introduction
This section and others that follow discuss the investigations of Abdullah Almalki
and Ahmad El Maati.254 These investigations are relevant for two reasons. First,
the substance of the investigation of Mr. Arar emerged from the investigations
of Messrs. Almalki and El Maati. Second, the investigations of all three were carried out contemporaneously, often by the same officials and, at least in broad
terms, as part of the same investigation. That being the case, understanding the
steps taken in the investigations of Messrs. Almalki and El Maati will assist in understanding the actions were taken with respect to Mr. Arar.
The Commission has heard a good deal more evidence relating to the investigations of Messrs. Almalki and El Maati than is set out in this Report. Only
those portions of the evidence that are relevant to the investigation of Mr. Arar
have been included. However, it should be noted that the Commission did not
have access to all of the files of these two individuals.
3.2.2
Background, Scope and Nature of the Almalki Investigation
The investigation of Mr. Almalki, who lived in Ottawa, began as an adjunct to
the main investigation related to al-Qaeda that was being conducted by “O”
Division in Toronto. However, Mr. Almalki would very quickly become a primary target of the Ottawa RCMP and the focal point of Project A-O Canada’s autonomous, extensive and lengthy investigation.255 Mr. Arar did not come to the
attention of Project A-O Canada until an October 12, 2002 meeting between
Mr. Almalki and Mr. Arar at Mango’s Café in Ottawa.256
Mr. Almalki was a very religious man, educated in the Koran, who was
viewed as an elder in the community. As noted above, however, he was believed to be involved in the facilitation of terrorist activities.
As discussed, Project A-O Canada officers regarded their investigation into
Mr. Almalki’s activities as a criminal investigation, rather than a national security investigation. This interpretation of their work was confirmed by the passage
of Bill C-36, which specifically established the facilitation of terrorist activities as
a criminal offence.257
Because the facilitation aspect was an important element of Project
A-O Canada’s investigation, the approach Inspector Cabana adopted was similar
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FACTUAL BACKGROUND: VOLUME I
to what he had previously used as head of the IPOC unit. His investigators were
instructed to try and uncover Mr. Almalki’s business relationships around the
world.258
One aspect of the investigation that merits attention here is the emerging
relationship between Project A-O Canada and American authorities. Team members met and communicated with the FBI on several occasions in the first
months of the investigation, and continued to do so regularly after that.259 The
purpose of these communications varied, from transferring information about
Mr. Almalki, to seeking help with analysing information, and obtaining operational support.
Project A-O Canada dealt with the FBI directly, in many instances sharing
information at meetings without going through RCMP Headquarters, CSIS
Headquarters, or RCMP liaison officers in the United States. However, certain
Project A-O Canada requests for information were directed through the
Washington LO, particularly if regular contacts in the FBI were not able to provide it.260
By late October 2001, senior RCMP officers had decided that Project
A-O Canada and Project O Canada would each be responsible for the investigation of targeted individuals in their own area, with the result that Project
A-O Canada had exclusive jurisdiction over the Almalki investigation. The two
divisions were still to work together, holding weekly meetings to coordinate all
leads, and assisting each other with resource requirements, when necessary.
Inspector Cabana testified that, despite this new arrangement, jurisdictional
disputes between the two projects were never completely laid to rest. There
were periodic meetings, but not many. Instead, investigators were identified
whose task it was to liaise on a daily basis. Situation reports generated by Project
A-O Canada were generally provided to Project O Canada in Toronto, although
this practice was terminated by the end of November 2001 because Project
O Canada was winding down, and officials had moved on to other priorities.
3.3
MEETING AT MANGO’S CAFÉ
At a meeting on October 11, 2001, the Project A-O Canada team identified a
number of individuals connected with Mr. Almalki as targets of its investigation.
Although Mr. Arar was not among them,261 by the next day, he had been brought
to the team’s attention.
Based on certain information that was disclosed in camera, two RCMP surveillance teams (and one Ottawa Police Service surveillance team) covered a
meeting between Messrs. Almalki and Arar on October 12, 2001.262 According to
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
the RCMP’s record, the two men met at four o’clock in the afternoon at an
Ottawa restaurant called Mango’s Café. They then had a 20-minute conversation
outside as they walked in the rain. Messrs. Almalki and Arar then went to a local
house of prayer, where they stayed for approximately 15 minutes. They traveled
together in Mr. Arar’s car to a local shopping mall, where they examined computer equipment, continuing to talk after they exited the store. They appeared
to be taking great pains not to be overheard. The men then returned to the
house of prayer, going their separate ways soon afterwards. Altogether, the
meeting lasted about three hours.263
Following the Mango’s Café meeting, the RCMP began to take a closer look
at Mr. Arar.
At an October 15, 2001 briefing, Project A-O Canada investigators discussed
the Ottawa subjects of their investigation, including Mr. Arar.264 The two chairs
of the meeting testified that Mr. Arar was a “person of interest” at that time, not
a “target.” A person of interest is someone whose role is not clear to the investigation team and about whom more information is required. A target, on the
other hand, is someone about whom the investigation team is trying to uncover
evidence to support criminal charges.265 Project A-O Canada’s manager agreed
that it would be incorrect to refer to Mr. Arar as a target.266
A few days after this meeting, Corporal Robert Lemay and Sergeant Rock
Fillion were assigned to investigate Mr. Arar.267
3.4
COLLECTING INFORMATION ABOUT MR. ARAR
3.4.1
Biographical Data
Soon after the meeting at Mango’s Café, Project A-O Canada began building a
biographical profile of Mr. Arar. Investigators conducted open-source checks
and searched government databases (for example, those at Ontario Works,
Canadian Police Information Centre, “A” Division’s Immigration and Passport
Office, and the Ottawa Police Service).268 Information about Mr. Arar was stored
in binders maintained by Corporal Lemay.269
By the end of October 2001, Project A-O Canada had uncovered the following information about Maher Arar.
•
He was born in Syria and arrived in Canada as a landed immigrant
on September 1, 1987 in Montreal, Quebec. He obtained his Canadian
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FACTUAL BACKGROUND: VOLUME I
•
•
•
•
•
•
•
citizenship on September 28, 1995. He also used the name Abdul Hamid
Maher Arar.
He lived in Montreal at various addresses until he moved to Ottawa in 1998.
He had both a Canadian and an American social insurance number.
He maintained a residence in Ottawa, Ontario, as well as one in
Framingham, Massachusetts.
He held two university degrees, one of which was a graduate degree in
telecommunications. Mr. Arar was employed as a communications engineer with The MathWorks, Inc. in Natick, Massachusetts.
He was married with one child. The investigators had uncovered the name
of Mr. Arar’s father, and further enquiries were being conducted on other
family members.270
He had no criminal record and was not wanted on any charges.
He applied for a firearm acquisition certificate in Montreal in 1992. The certificate expired in 1997. There were no firearms registered to Mr. Arar.
3.4.2
Surveillance of Mr. Arar and Observation of His House
Although Mr. Arar was categorized only as a person of interest, Project A-O
Canada officials considered it necessary to put him under surveillance. They did
so only occasionally. It was not unusual to conduct surveillance on a person of
interest rather than a target, given that Project A-O Canada was investigating an
imminent threat and there were a number of individuals whose role was uncertain at this time.271
Periodically in November 2001, a surveillance team followed Mr. Arar for
approximately seven hours on each occasion. The resulting surveillance reports
confirmed that officials observed nothing unusual.272
In addition, Mr. Arar’s home was put under observation. Late one evening
in November 2001, Corporal Lemay and Sergeant Fillion went to Mr. Arar’s residence. After watching the house for 15 minutes, they returned to the office and
prepared their report.273 Corporal Lemay testified that this visit was not surveillance because it did not involve a specialized team or a post-surveillance debriefing. The purpose of the trip was simply to determine what, if anything, was
happening at Mr. Arar’s residence.274
It does not appear that there was any further surveillance of Mr. Arar to
July 2002,275 after which time Project A-O Canada learned that Mr. Arar had left
the country.
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
3.4.3
Review of CSIS Files
Project A-O Canada did not have access to the CSIS database. Although the CSIS
liaison officer (LO) had privileged access to counter-terrorism information, this
access was limited to hard copies of documents stored on the database, with any
source information blacked out. If the CSIS LO felt that information was germane to an RCMP interest or investigation, the officer could make a request to
a supervisor for formal disclosure to the RCMP.276
On October 6, 2001, members of Project A-O Canada met with CSIS for a
briefing [***]. Neither the RCMP nor CSIS raised Mr. Arar’s name during this visit.
One month later, on November 5, 2001, Project A-O Canada officials
requested that CSIS check Mr. Arar’s name against information in the CSIS
database.277
3.4.4
The Minto Lease
On October 30, 2001, a Project A-O Canada investigator obtained a copy of
Mr. Arar’s rental application and lease agreement, in the hopes of learning more
about his housing arrangements.278 The documents were obtained voluntarily
from the property management company responsible for Mr. Arar’s residence.279
The rental application listed Abdullah Almalki as Mr. Arar’s emergency contact.280
Project A-O Canada witnesses acknowledged they had no grounds to obtain a search warrant for the tenancy documents, as Mr. Arar was not being investigated for any criminal offence. 281 When Inspector Cabana was asked about
the lack of a search warrant, he stated that there was no requirement for one,
and that the property management company was clearly within its rights to provide the documents. According to him, development of a criminal investigation
often started with this type of inquiry — building profiles on the target individual’s closest associates.282 Neither did Inspector Cabana believe that there was
an expectation of privacy, because the purpose of a rental application is to conduct background checks on the applicant.283
Project A-O Canada officials were uncertain if any of Mr. Arar’s family were
living in Ottawa when the rental application was signed in December 1997.
They could only confirm that he had family living in Montreal at the time.284
In early November 2001, the information that Mr. Arar had named
Mr. Almalki as his emergency contact was given to the FBI.285 There is no record
indicating that Project A-O Canada provided copies of the rental application and
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FACTUAL BACKGROUND: VOLUME I
tenancy agreement to American authorities, and no Project A-O Canada members testified to doing so.286
3.4.5
Financial Investigation
In addition to building Mr. Arar’s biographical profile, Project A-O Canada officials were also conducting an extensive investigation into his financial background. Corporal Lemay consulted with an officer in the newly created Financial
Intelligence Task Force about possible avenues to be explored, including corporate records, land registry records, and records of investments and banking
institutions.287 Corporal Lemay also arranged for income tax and credit bureau
checks.288
Significantly, Project A-O Canada was able to confirm that Mr. Arar was
then employed by The MathWorks, Inc. in the United States. The investigation
also uncovered that Mr. Arar had been previously employed with CIM21000
Inc., Nex Link Communications289 and Alcatel Communication.
Mr. Arar was also found to be the sole proprietor of Simcomms Inc., which
he operated from his Ottawa home.290
3.4.6
Information about Dr. Mazigh
At times, the intelligence-gathering exercise directed at Mr. Arar was extended
to include Mr. Arar’s wife, Dr. Mazigh. Project A-O Canada officials did not consider it unusual to conduct background checks of a spouse; in fact, it was fairly
routine to gather information about wives, girlfriends and associates of the main
focus of an investigation.291
Income tax and credit bureau checks were also applied to Dr. Mazigh,292
and investigators inquired at local schools about Mr. Arar’s family.293 An RCMP
officer posted at the Ottawa airport questioned various car rental companies
about both Mr. Arar and Dr. Mazigh.294
3.4.7
Other Information
The investigation of Mr. Arar was not limited to Canadian information sources;
Project A-O Canada also contacted U.S. Customs, U.S. Immigration and
Naturalization Service (INS) and the FBI.
To find out more about Mr. Arar’s travel patterns, Corporal Lemay contacted
Canada Customs on October 24, 2001, and requested an Integrated Customs
Enforcement Service (ICES) check on Mr. Arar.295 The same day, investigators
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
received an ICES report on Mr. Arar, detailing his travel into Canada between
January 1, 2000 and October 24, 2001.296
As well, Project A-O Canada sent a memo to U.S. Customs on October 31,
2001 requesting that a Treasury Enforcement Communications System (TECS)
check be conducted on a number of individuals, including Mr. Arar and
Dr. Mazigh, as well as on their vehicles. A TECS check also provides travel history information.297
The request to U.S. Customs also asked that these same individuals be
placed on a border lookout list. The results of the TECS checks and the implications of including Mr. Arar and Dr. Mazigh on a U.S. border lookout list are
discussed in more detail below.298
Notably, at the same time Project A-O Canada was sending its request to
U.S. Customs, its situation report for October 30, 2001 noted that U.S. Customs
intended to check its records for Mr. Arar and that “it [appeared] he was already
known to them.”299
Around this time, Project A-O Canada officials were also speaking to the FBI
about Mr. Arar’s residence and employment in the United States.300 In a memo
dated November 2, 2001, Corporal Buffam requested that the FBI legal attaché
conduct a check on Mr. Arar in the FBI database in an effort to further the investigation on Mr. Almalki. The memo indicated that Mr. Arar was a “close associate” of Mr. Almalki, and that he had previously listed Mr. Almalki as his
emergency contact.
3.5
THE BORDER LOOKOUTS
As mentioned above, one of the investigative tools available to Project A-O
Canada was the border lookout, an aid used by both Canadian and American
investigators to monitor the movement of persons entering Canada or the United
States and, potentially, to subject these individuals to closer examination.
3.5.1
Canada Customs301 Lookouts
RCMP and CSIS officers do not have the authority to initiate border lookouts
and must request the assistance of an authorized Canada Customs officer (usually the Regional Intelligence Officer [RIO] or a Customs superintendent). An
authorized Canada Customs officer initiates a lookout by entering the relevant
information302 on the traveller, vehicle or cargo, as the case may be, into a computer system called ICES (Integrated Customs Enforcement System).303
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FACTUAL BACKGROUND: VOLUME I
The aim of a lookout is to ensure that the target undergoes both a primary
and a secondary examination when crossing the border into Canada.304 When a
lookout has been issued, ICES alerts the front-line Customs officer when the
subject attempts to enter the country. Swiping a passport or entering other identifying information generates a “hit,” which informs the front-line officer that
this individual must undergo a second, more thorough examination.
At the discretion of the Customs officer, this examination may be only minimally intrusive. For example, the officer may conduct a brief interview and possibly ask to examine more closely a document or article that has been purchased
abroad. At other times, the secondary examination will involve a full search of
the traveller’s baggage.305
Canada Customs has written policies about issuing lookouts. Before accepting a lookout request from another agency, officials weigh the merits of the
particular case. The justification from the requesting agency must satisfy Canada
Customs requirements that there are reasonable grounds for issuing the lookout.306 This means that the agency must supply enough details to a Canada
Customs representative (usually the RIO or a Customs superintendent) to support the action. Otherwise, the lookout will be declined.307 George Webb,
Director of Intelligence for Canada Customs at the time the Arar lookouts were
issued,308 testified that a lookout may be approved simply because the RIO is associated with the investigation and knows generally what the investigators are
doing.
A lookout is classified in different ways, depending on why it is placed.
The various types of lookout include those related to commercial fraud, drugs,
hate propaganda, pornography, warrants, weapons, and terrorism. A terrorism
lookout is used when someone is suspected of being a member, associate or
sympathizer of a known terrorist organization, but no outstanding warrant has
been issued for apprehending the individual.309
A lookout cannot remain in place for more than 90 days unless it is renewed. This requires the issuing officer to verify at least every 90 days that he
or she continues to have justification for monitoring the subject and wishes the
lookout to remain in place.310
Once a lookout is in place, the issuing officer has the flexibility to make
changes by reclassifying the lookout, cancelling or de-activating the lookout,311
or removing or deleting the lookout from ICES.312
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
3.5.1.1
The Canadian Lookouts for Mr. Arar and Dr. Mazigh
In late October 2001, Constable Michel Lang313 requested that Officer Jean-Pierre
Thériault, an RIO with Canada Customs, place a lookout in ICES.314 Officer
Thériault had been assigned to the Project A-O Canada investigation to enhance
coordination with Canada Customs and Project A-O Canada.315 An experienced
RIO, Officer Thériault was knowledgeable about Canada Customs laws, policies and procedures. The subjects of the lookout requested by Constable Lang
were Maher Arar, his wife Monia Mazigh, and other individuals, as well as their
respective vehicles.316
In a letter requesting the lookout, Constable Lang wrote: “We are presently
investigating in Ottawa, a group of Islamic Extremist individuals suspected of
being linked to the Al Qaeda terrorist movement. The following individuals and
or vehicles have been identified.” The letter went on to list the individuals, their
vehicles and related biographical data.317
Project A-O Canada officers testified they were acting out of caution when
they included Dr. Mazigh’s name in the lookout. To RCMP officers, the spouse
of a suspect or person of interest is significant because that person might carry
information valuable to a criminal investigation, and his or her movements could
indicate that an attack or other activity is being planned. In October 2001, the
RCMP did not have any specific information about Dr. Mazigh, other than that
she was Mr. Arar’s spouse.
In early November 2001, Officer Thériault issued a lookout naming all of
the people identified in Constable Lang’s request.318 Officer Thériault understood that he could refuse the lookout request; he had been an RIO since 1994
and had refused to place lookouts in the past.319 He also knew that the lookout
system was not to be used for “fishing expeditions,” and that a request must be
legitimate and stem from a lawful investigation. In this case, Officer Thériault
was satisfied that the request was a valid one. He knew the context of the investigation and had Constable Lang’s request indicating that the individuals and
vehicles named were important to Project A-O Canada’s investigation. Officer
Thériault testified that he had no qualms about using the lookout system to help
the investigation. In fact, he had informed the officers at Project A-O Canada that
this was one of the tools available to them.320
Project A-O Canada officials had decided that Mr. Arar’s documentation
should be examined more closely, and a lookout meant that the subjects of the
lookout, including Mr. Arar and Dr. Mazigh, would be subject to a secondary examination. To at least one of the investigators, this was a way for members of
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FACTUAL BACKGROUND: VOLUME I
Project A-O Canada to view documents for which they would otherwise require
a warrant.321 One Project A-O Canada officer testified that they did not have
much information on Mr. Arar at that time,322 and a lookout was the best way
of obtaining it. Project A-O Canada officers wanted to know more about
Mr. Arar’s relationship with Mr. Almalki, and whether Mr. Arar was assisting with
his facilitation of terrorism.
The lookout issued on November 2, 2001 contained specific instructions
for the front-line officers who would carry out the secondary examination.
Classified as a terrorism lookout related to an RCMP investigation, the lookout
requested that officers conduct a “very thorough” secondary examination and
take photocopies of any documents.323 However, the lookout did not state that
the targets were a group of Islamic extremist individuals suspected to have links
to the al-Qaeda terrorist movement, as the requesting letter had done.
On November 6, 2001, Constable Lang instructed Officer Thériault to ensure
that the lookouts on the subjects and vehicles remain in place for an indeterminate period of time, or if this was not possible, that the lookouts be renewed
until the investigation concluded.324 As mentioned previously, a lookout can be
issued for a maximum of 90 days.325 While it appears that Officer Thériault renewed the lookout in the months to follow,326 it is unclear whether it was in
place on a continuous basis for all of the individuals and vehicles listed.
As discussed in greater detail below, Mr. Arar underwent two secondary
examinations as a result of the lookout, one on November 29, 2001, and the
other on December 20, 2001. However, when Mr. Arar returned to Canada from
Tunisia on January 24 or 25, 2002, he was not subjected to a secondary examination, even though Project A-O Canada officers were aware that he would be
returning on that day, and Constable Lang had contacted Officer Thériault to
place a second lookout on him.327 That Mr. Arar was not subjected to a secondary examination in this instance was apparently the result of human error.
Dr. Mazigh was subjected to a secondary examination in November 2002 when
she returned to Canada from Tunisia.
The reason for placing the second lookout on Mr. Arar is not clear, but according to Officer Thériault, Mr. Arar’s name may have been removed from the
first lookout. The narrative in the second lookout was similar to the first, except
that the second one notes that Mr. Arar was arriving from Tunisia and was
“... suspected of belonging or being connected to a terrorist organization.”328
These two lookouts appear to have remained in place, in one form or another, until Mr. Arar returned to Canada in October 2003, following his detention in Syria. On October 5, 2003, Officer Thériault cancelled the first lookout
on Mr. Arar and Dr. Mazigh, and the lookout on Mr. Arar alone.329 In doing so,
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
Officer Thériault removed Mr. Arar and Dr. Mazigh from ICES. This meant that
front-line officers would not have access to the lookouts, and Officer Thériault
could not monitor Mr. Arar and Dr. Mazigh’s entry into Canada. While it is clear
that the lookouts on Mr. Arar and Dr. Mazigh were de-activated,330 it is not certain whether they were completely deleted from the ICES system.331
3.5.2
The American TECS Lookouts332
In late October 2001, while Project A-O Canada officials were requesting the
Canada Customs lookout, they were also requesting that the U.S. issue a lookout on the same individuals, including Mr. Arar and Dr. Mazigh.
U.S. Customs uses a computer system called TECS (Treasury Enforcement
Communications System), an information and communications system that is
also used by other U.S. agencies, including the Bureau of Alcohol, Tobacco and
Firearms, the Internal Revenue Service, the National Central Bureau of Interpol,
the Drug Enforcement Agency, the State Department, and the Coast Guard.333
This makes TECS accessible to more agencies in the U.S than ICES is in
Canada.334
Professor Stephen Yale-Loehr testified before the Inquiry as an expert in
U.S. immigration laws and procedures (including U.S. immigration watch lists
and inspection procedures). He referred to TECS as the “mother of all databases.”335 A variety of databases feed into TECS, including terrorist watch lists
(apparently, there are more than one), and provide just about any kind of information that is relevant for immigration purposes.336 The front-line U.S.
Customs inspector likely sees some sort of interface with TECS when running a
search on someone coming into the U.S.337
Nineteen U.S. federal agencies provide information for TECS. The RCMP
also provides information, although the exact nature of this information is not
clear. 338 All told, more than 30,000 people have been authorized to input information into TECS. There is no automatic removal process for that information,
unless a specific time limit is attached at the outset.339
As with Canada’s system (ICES), one of the functions of TECS is to provide
lookout information on suspect individuals, businesses, vehicles, aircraft and
vessels.340 In this respect, a distinction should be made between a TECS “check”
and a TECS “lookout.” A TECS check provides U.S. Customs officers with a person’s travel history, i.e., a document detailing past cross-border activity. A TECS
lookout is similar to the Canadian lookouts described above. 341 Organizations
around the world, including Canadian agencies, can submit names requesting
that they be placed on a TECS lookout. The names of individuals who surface
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FACTUAL BACKGROUND: VOLUME I
in Canadian criminal investigations are routinely included in TECS lookouts.342
Although Canadian agencies — including Canada Customs — may request a
TECS lookout, they do not have access to the TECS system.
3.5.2.1
The TECS Lookouts for Mr. Arar and Dr. Mazigh
In late October 2001, Constable Lang sent a written request from Project
A-O Canada to U.S. Customs asking that Mr. Arar, Dr. Mazigh and other individuals, as well as their vehicles, be entered as lookouts in the TECS system.343
Again, the request described them as a “group of Islamic Extremist individuals
suspected of being linked to the Al Qaeda terrorist movement.” 344 In their testimony, Staff Sergeant Callaghan and Corporal Lemay agreed that “Islamic
Extremist” was an improper characterization of Mr. Arar and Dr. Mazigh, given
the limited information Project A-O Canada had about them at the time.
Moreover, Constable Lang testified that when he made the request for a lookout, he had no information to justify this description of Mr. Arar and Dr. Mazigh.
In Inspector Cabana’s view as well, the description was a poor choice of words.
In the lookout request, Constable Lang mentioned entering the “noted information” into the data bank “so as to provide information to U.S. customs line
officers.”345
Project A-O Canada officers testified that Dr. Mazigh was included in the request for a U.S. lookout for the same reasons that she was included in the
Canadian lookout.
The letter to the U.S. Customs Service also requested that TECS checks be
conducted on the subjects and their respective vehicles.346 As mentioned previously, a TECS check provides historical information on the cross-border travels
of the targeted individuals and vehicles, i.e., travel into the United States.347
Shortly after, Constable Lang spoke to a U.S. Customs intelligence officer at
Ogdensburg, New York.348 The officer explained that a Customs agent would be
responsible for placing the lookouts in the TECS system.
It is noteworthy that U.S. authorities had placed Mr. Arar’s vehicle, and possibly Mr. Arar and Dr. Mazigh themselves, in the TECS system before the
Project A-O Canada request was made. However, the exact nature of the TECS
activity prior to October 31, 2001 is not clear. For example, it is not known
whether Mr. Arar’s vehicle, or Mr. Arar and Dr. Mazigh, were the actual subjects
of a TECS lookout or if their names were in the system for other reasons.
Constable Lang testified that individuals travelling to the United States might
have data on themselves or their vehicle entered into the TECS system without
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
being the specific subject of a lookout. This type of data could potentially be
produced on anyone who travels across the U.S. border. 349
On November 6, 2001, the Customs agent relayed information to Constable
Lang that the individuals named in the Canadian lookout request and their respective vehicles had been entered into the TECS system. The confirmation message made no mention that Mr. Arar and Dr. Mazigh were already the subject
of a U.S. lookout. The Customs agent also indicated that further checks were
being conducted on Mr. Arar, as requested by Constable Lang.350 Following these
initial contacts between Project A-O Canada, U.S. Customs and the FBI,
Project A-O Canada received very little information from the FBI about Mr. Arar
and his activities in the United States.
Constable Lang does not recall any amendments, upgrades or changes to
the U.S. lookouts prior to Mr. Arar’s detention in New York on September 26,
2002. Although he expected that the lookout would eventually expire, he was
uncertain how long it would last. He did not ask for a renewal of the U.S. lookout, and testified that he was not sure if it was still in effect in September 2002.
Although the letter requesting the U.S. TECS lookout identified Constable
Lang as the contact person,351 U.S. authorities never contacted him, even though
Mr. Arar travelled to the United States after the lookout was entered into the
TECS system. For example, Mr. Arar was returning from the United States on
November 29, 2001 and December 20, 2001 when he was subjected to secondary examinations by Canadian officials. Although Mr. Arar must have previously
crossed into the United States in order to return to Canada on those dates, U.S.
authorities did not advise Constable Lang of his entry, nor was he contacted
when Mr. Arar attempted to enter the United States on September 26, 2002.352
3.6
AHMAD EL MAATI
3.6.1
Background
Ahmad El Maati is a Canadian who was employed as a truck driver in Toronto
in 2001. He was born in Kuwait in 1964. His mother and father are Canadian citizens, the former originally from Syria and the latter from Egypt. Both parents
live in Toronto.
Mr. El Maati immigrated to Canada in 1981 when he was seventeen. He
became a Canadian citizen in 1986. He was also a citizen of Egypt through his
father.
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He has publicly stated that he was in Afghanistan in the 1990s, where he
received basic infantry training and fought with the “US backed mujahideen” in
their fight against the Russian-supported government. He returned to Canada
in 1998.
In 2001, Mr. El Maati became employed as a long-distance truck driver, and
made several deliveries to the United States without incident. However, he has
publicly stated that on August 16, 2001 he was stopped at the border crossing
at Buffalo, N.Y. His truck was searched, and he states he was asked about a map
of Ottawa which named several government buildings. He has publicly denied
that the map was his.
3.6.2
Departure from Canada and Detention in Syria
In November 2001, Project A-O Canada learned that Ahmad El Maati planned to
fly to Syria, apparently to get married. Prior to his departure from Canada there
was an exchange of information between the RCMP and American authorities.
Mr. El Maati was detained by Syrian authorities upon his arrival in Syria. In
light of American practice at the time, it is reasonable to assume that Syria was
informed of his arrival by American authorities. It is also reasonable to conclude
that Project A-O Canada would have been aware that the Americans had informed the Syrians of Mr. El Maati’s arrival in Syria. In his testimony, Inspector
Cabana agreed that in all likelihood Mr. El Maati was detained as a result of information the Americans gave to the Syrians.
A briefing note was prepared for RCMP Commissioner Zaccardelli regarding the RCMP’s exchange of information with the Americans prior to
Mr. El Maati’s departure from Canada. In this note, dated November 21, 2002
(after Mr. Arar’s detention and removal to Syria), Assistant Commissioner Proulx
states that the RCMP can be considered complicit in Mr. El Maati’s detention in
Syria. However, Mr. Proulx testified that it was the media and public who would
consider the RCMP’s actions to be complicit. He did not personally believe that
the RCMP was complicit, nor was he referring to complicity in the criminal sense.
A few months before, in August 2002, Mr. El Maati publicly disclosed that
he had been tortured in Syria, and that as a result, he had given a false statement to the Syrian authorities. He publicly stated that in this statement he falsely
alleged that he was involved in a plot to detonate an explosive device on
Parliament Hill. In public statements filed with the Commission, Mr. El Maati alleges that he falsely confessed that his brother Amr sent him instructions to
launch a suicide attack using a truck full of explosives, and that the target he
chose was the Parliament Buildings in Ottawa. It should be noted that it is a
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
matter of public record that American authorities consider Amr El Maati to be a
serious terrorist threat.
In his statement before the Inquiry’s fact-finder, Professor Stephen Toope,
Mr. El Maati said that in his interrogation by the Syrians he was asked about the
map of Ottawa which was seized from his truck by U.S. Customs officials in
August 2001. He was asked to “tell us the story of the map.” He also described
to the fact-finder his torture by the Syrians in order to obtain the false confession which he eventually gave.
In response to his family’s request for assistance, the Consular Affairs
Division of DFAIT inquired about Mr. El Maati’s whereabouts for many months
after his detention in Syria in November 2001. Syria refused to confirm his detention until December 29 or 30, 2001 when high-level officials in the Syrian
Ministry of Foreign Affairs contacted Canadian Ambassador Franco Pillarella and
finally acknowledged that Mr. El Maati was in Syrian custody. However, they refused to grant consular access because, in their view, Mr. El Maati was a Syrian
citizen. He remained in Syrian custody until January 25, 2002, when he was
transferred to Egyptian custody without notice to DFAIT. Mr. El Maati remained
in Egyptian custody until January 11, 2004, when he was released. He returned
to Canada on March 30, 2004.
3.7
ABDULLAH ALMALKI’S DEPARTURE
Abdullah Almalki left Canada for Malaysia on November 27, 2001 with a return
ticket, and a scheduled return date of December 25, 2001.353 His family — his
pregnant wife, four children and his parents — all flew to Malaysia the following day.354
The departure of Mr. Almalki and his family came as a surprise to officials
at Project A-O Canada.
On November 30, 2001, Corporal Buffam notified the FBI of Mr. Almalki’s
departure. The RCMP was aware that the FBI would likely relay this information
to the CIA. From Corporal Buffam’s perspective, notifying the FBI was simply
part of the understanding that there was to be an open sharing of information.
At the time, Corporal Buffam was not aware of the American practice of rendition,355 nor did he recall any discussion about the Americans wishing to arrest
Mr. Almalki. 356
Although Mr. Almalki’s plane ticket included a return trip to Canada at
Christmas, he did not come back. Meanwhile, Project A-O Canada was trying to
find him, apparently with no success.357
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FACTUAL BACKGROUND: VOLUME I
3.8
THE CANADA CUSTOMS SEARCHES OF MR. ARAR
3.8.1
November 29, 2001
On November 29, 2001, Mr. Arar was subjected to a secondary examination by
Canada Customs officials at Ottawa’s Macdonald-Cartier Airport as he was returning from Massachusetts. The search was the result of the lookout placed on
Mr. Arar by Project A-O Canada at the beginning of the month, which identified
Mr. Arar as the subject of an RCMP investigation and instructed the official conducting the search to immediately contact the Regional Intelligence Officer (RIO)
— in this case, Customs Officer J.P. Thériault. (An RCMP investigator was listed
as a secondary contact.) The lookout further directed the examining officer to
“Gather all info possible on: travel, business, ID docs, vehicle, financial transactions, travelling companions, etc.” According to the lookout, a very thorough
secondary examination should be conducted, with photocopies of documents
sent to the RIO and a narrative of the interview put into Notepad (a part of the
lookout screen where the examining officer can enter information). Finally, the
lookout instructed the officer not to divulge that RCMP and Canada Customs officials were interested in Mr. Arar.358
During this secondary examination of Mr. Arar, Canada Customs seized and
copied Mr. Arar’s travel documents. The Customs officer recorded Mr. Arar’s
time of arrival in the Notepad, as well as the fact that he had been in
Massachusetts doing a training course, and some other information about his trip
to the United States.359
In addition, Canada Customs copied several documents, including travel
agent itineraries and Mr. Arar’s passport, airline tickets, identity cards, AT&T
Customer Caller Card details360 and membership cards.361
The next morning, Customs Officer Thériault advised Project A-O Canada
that Mr. Arar had returned from the United States, and that afternoon he turned
over copies of the documents obtained from the secondary examination.
Canada Customs attached a third-party caveat to the information provided
to Project A-O Canada.362 The caveat stipulated that if Project A-O Canada ever
wanted to share the information with another agency, it would first have to seek
permission from Canada Customs.
Officer Thériault did not obtain authorization from anyone in Canada
Customs to disclose the documents to Project A-O Canada. He testified that he
was part of the Project A-O Canada investigation and, as Customs liaison, it was
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
his job to pass on this type of information. Following 9/11, he had been instructed to participate in the Project A-O Canada investigation and to provide
whatever help he could.363 Although his superiors had not given him specific instructions about sharing information, he testified that he acted under this general instruction to offer assistance. In any event, Officer Thériault asserted that
information sharing was part of his normal duties as a Canada Customs intelligence officer.364
On November 30, 2001, Officer Thériault sent a message to the front-line
officer who carried out the search,365 requesting more details about the interview,
including information about Mr. Arar’s general demeanour. According to the officer, Mr. Arar fit the profile of a general business traveller and, without the lookout, it was unlikely he would have been detained. In order not to arouse
suspicion, Customs officials did not check Mr. Arar’s laptop.
Project A-O Canada uploaded the information from this search into its
Supertext database.366 As a result, the data was included in the information provided to the Americans in April 2002.367 Some information from the search was
also faxed to the FBI on October 4, 2002, when Mr. Arar was in custody in
New York.368 Specifically, paragraphs one and two of the October 4, 2002 communication refer to calls made by Mr. Arar using a calling card, the details of
which were seized on November 29, 2001.369
3.8.2
December 20, 2001
On December 20, 2001 at approximately 6:20 p.m.,370 Canada Customs subjected
Mr. Arar to another secondary inspection at the Ottawa airport. There is much
more information available about this search than there is about the
November 29 search.
With a lookout in place, Mr. Arar’s referral to secondary examination was
mandatory. Rose Mutombo, a line officer on duty that evening, processed
Mr. Arar and conducted the secondary examination. 371
As in the previous lookout, officials were to “gather all info possible on:
travel, business, ID docs, vehicle, financial transactions, travelling companions,
etc.” Again, the lookout called for a “very thorough secondary,” “photocopies of
documents” and a narrative in Notepad. The officer was not to divulge to
Mr. Arar that he was a person of interest to Canada Customs and the RCMP.372
Before beginning her examination, Ms. Mutombo informed the superintendent on duty, Gordon Gantner. Mr. Gantner was with the Contraband
Detection unit of Canada Customs, a roving unit able to respond more flexibly
than others to various enforcement needs. However, on the night Mr. Arar
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FACTUAL BACKGROUND: VOLUME I
passed through Customs, Mr. Gantner was replacing the regular superintendent,
who was off duty that day. In most cases, it is a superintendent who authorizes
seizures and it was, in fact, Superintendent Gantner who eventually authorized
the seizure of some of Mr. Arar’s goods.
Superintendent Gantner contacted the RIO, Officer Thériault, shortly after
Officer Mutombo started the secondary investigation. Officer Thériault directed
Superintendent Gantner to contact the RCMP, which he did.373
Aiming to gather as much information as possible, Officer Mutombo made
photocopies of Mr. Arar’s teaching materials, a map and directions, a boarding
card, a motel receipt, a receipt from Air Canada and a travel itinerary, as well as
Mr. Arar’s driver’s licence, social insurance card, health card and passport. 374
Superintendent Gantner later testified that, aside from the teaching materials,
the information obtained was relevant to a lookout.375 Officials did not advise
Mr. Arar that his documents were being photocopied, nor was his consent
sought.
In her narrative report,376 Officer Mutombo identifies an IBM laptop computer and a Visor organizer (personal digital assistant — PDA). She also states
that, when questioned, Mr. Arar said he had purchased the computer and PDA
in the United States (apparently on an earlier trip), and that he had not paid duty
or taxes on either item. Superintendent Gantner decided that the items should
be held for appraisal.377
According to Superintendent Gantner, officials requested access to
Mr. Arar’s computer, but permission was denied. Mr. Arar’s attitude was tense
and unhelpful, but not overtly rude. The computer was turned on at some point
during the secondary examination, but as Customs officials did not have the
password, they could not examine the contents.378
Superintendent Gantner’s notes show that the laptop and PDA were seized
for “non-report” (failure to declare the items when they were first brought into
Canada), and that the items were held for appraisal and possible viewing by
NSIS (National Security Investigations Section, RCMP).379 A Macdonald-Cartier
International Airport (MCIA) Daily Operations Report suggested that either the
RCMP or CSIS would examine the documents,380 although Superintendent
Gantner testified that this would have to be done through the RIO.381
The Daily Operations Report for December 20, 2001 stated that there was
“... a note from Gord (Gantner) on the item in the bond room .... Please read
the note, it is very important.*****”382 The item referred to is Mr. Arar’s computer.383 However, none of the Customs officials who testified recalled having
seen the note,384 although Officer Thériault tentatively suggested that there might
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
have been a note on the computer referring to the RCMP’s desire to obtain a
search warrant.
The secondary examination began at 6:22 p.m. and officials completed the
seizure of Mr. Arar’s goods at approximately eight p.m.385 It is unclear whether
Mr. Arar left at this time, or earlier. Before he did, however, officials gave him
a Customs Seizure Receipt for his laptop and PDA.
Between 7:15 a.m. and 7:30 a.m. the next day, December 21, Officer
Thériault went to the Ottawa airport, where he obtained copies of the items
photocopied the night before (for example, Mr. Arar’s passport, identification
cards and course material).386 He subsequently submitted these materials to
Project A-O Canada. With the help of Acting Superintendent Philip Crabbe, who
was on duty that morning, Officer Thériault obtained the laptop and PDA from
the bond room where they had been stored for the night.387 The log book for
the bond room indicates that Superintendent Crabbe and Officer Thériault removed the laptop and the PDA at 7:35 a.m. This entry in the log book was consistent with protocol.
Officer Thériault testified that he spent about an hour with the laptop and
PDA,388 copying down as much information as he could from Mr. Arar’s PDA,
including phone numbers and names.389
Officer Thériault also noted as much information as he could from Mr. Arar’s
computer without having the password,390 including domain names, user name,
serial and registration numbers, warranty expiration date and type of computer.
According to Officer Thériault, all of this information came from stickers on the
computer and from the screen when the computer was turned on.
Apparently, technical staff at Canada Customs have the ability to access the
contents of a laptop without the password. However, Canada Customs witnesses
testified that this was not done in Mr. Arar’s case. That being said, when Mr. Arar
arrived to pick up his laptop the next day (December 21, at about two p.m.),
he examined the laptop and said that Customs officials had been on the system for 25 1⁄2 minutes.391 It is unclear what Mr. Arar meant by this. When
Superintendent Crabbe asked if he wanted to make a formal complaint, Mr. Arar
did not respond and never filed a complaint.392
Canada Customs attributed a value of $500 to the laptop and $200 to the
PDA.393 Mr. Arar paid a penalty of 25 percent, or $175, plus provincial sales tax
of $56, and left with his items.394
While these events were taking place, officers at Project A-O Canada were
considering whether it would be possible to obtain a warrant to copy the information on the laptop and PDA. At a Project A-O Canada team meeting on
December 21, 2001, 395 officials decided they did not have enough grounds for
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FACTUAL BACKGROUND: VOLUME I
a warrant. Inspector Cabana suggested that CSIS might be in a position to assist;396 however, none of the witnesses could confirm whether or not Project
A-O Canada actually approached CSIS.
Officer Thériault submitted to Project A-O Canada all of the information
obtained during the December 20, 2001 secondary examination, and from
Mr. Arar’s computer and PDA. Once again, Canada Customs attached a thirdparty caveat to this information. However, the information was uploaded into
the Supertext database and subsequently became part of the information passed
to the Americans on three CDs.397
Officer Thériault testified that after he reviewed the laptop and PDA, he returned them to the bond room. However, there is no entry in the log book, as
is required by bond room protocol, showing that Mr. Thériault returned the
items. The next entry in the log book about the seized items is at 1.51 p.m.,
when Mr. Arar arrived to pick up his belongings.398
3.8.3
Relevant Law and Policies
Three key policy issues arise with respect to the November 29, 2001 and
December 20, 2001 searches (and also with respect to the later search of
Dr. Mazigh’s on November 14, 2002).399 The first issue concerns the circumstances under which Canada Customs can issue a lookout — in this case, a terrorism lookout. The second deals with the policy related to examining and
photocopying personal documents by Canada Customs agents. The third issue
relates to the policy for disclosing Canada Customs information to other agencies, in this case to the RCMP’s Project A-O Canada investigation.
Issuing Lookouts
The policies for issuing lookouts were discussed earlier in this section. They require that Canada Customs be satisfied there are reasonable grounds to issue a
lookout, although what constitutes reasonable grounds is not defined. A separate policy document indicates that a lookout may be classified as a terrorism
lookout when a person is suspected of being a member, associate or sympathizer of a known terrorist organization.400
Examining and Photocopying Personal Documents
At the time of the November 29, 2001 and December 20, 2001 searches, Canada
Customs policy was that private papers and personal journals should not be examined or photocopied, unless there was reason to believe they contained receipts for goods or referred to the acquisition of goods, or they included
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
evidence of an offence against an Act administered or enforced by Canada
Customs. The existence of unreported or prohibited goods would justify an examination of a person’s purse or wallet for receipts. However, reading personal
diaries and letters found in a purse or wallet would not be permissible, unless
the officer had specific reason to believe they contained evidence of an offence
against an Act administered or enforced by Customs Canada. According to the
policy, documents that did not relate to such an offence were not to be examined or copied.401 This policy applied at the time of the November and
December 2001 searches.402
The policy was amended on May 31, 2002403 and the new policy would
have been in place when Dr. Mazigh was subjected to a secondary examination
on November 14, 2002.404
Disclosure of Customs Information to Third Parties
On November 29, 2001 (the date of the first secondary examination of Mr. Arar),
the law on disclosing customs information was amended. Sections 107 and 108
of the Customs Act governing the disclosure of customs information were replaced by a new s.107.405 However, a new policy to guide Customs officers in
interpreting and applying the amended law was not promulgated until
November 26 and December 5, 2003, two years after the law was changed.406
Under the old legislation and guidelines, the Minister had the authority to
release information to other agencies, once satisfied that the information was required to enforce a federal or provincial law, or to carry out a lawful investigation. Ministerial authority could be delegated to various officials in Canada
Customs, such as the Director of the Intelligence Division at head office, or the
regional managers of Interdiction and Intelligence Divisions. The old legislation
and guidelines did not give this authority to an RIO such as Officer Thériault,
who would have had to seek the authority of specified members of senior management to disclose information.407
The new s. 107, which came into force on November 29, 2001, provides
more scope to Customs officials such as Officer Thériault to release customs information. Section 107(4)(h) permits an official to allow access to customs information, if the information is reasonably regarded by the official to relate to
the national security or defence of Canada.408 Section 107(5)(a) goes on to say
that an official may, under certain circumstances, provide a peace officer with
access to Customs information, providing the peace officer has jurisdiction to investigate an alleged offence under any federal or provincial law that is subject
to prosecution by indictment. In this case, the Customs official must have reasonable grounds to believe that the information relates to the alleged offence,
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FACTUAL BACKGROUND: VOLUME I
and will be used solely for the purpose of investigating or prosecuting the offence.409 An official is defined very broadly in s. 107 of the Customs Act to include all present and former employees of the Canadian government.410
To summarize, the new s. 107 of the Customs Act provides for the release
of customs information if the official 1) reasonably regards the information as relating to the national security or defence of Canada, or 2) believes on reasonable grounds that the information relates to an alleged offence and will be used
solely for the investigation or prosecution of that offence.
3.9
THE JANUARY 22, 2002 SEARCHES
3.9.1
Applications for Search Warrants
By January 2002, domestic leads of Project O Canada had been exhausted. The
Project’s main target, Abdullah Almalki, had departed under what Inspector
Cabana referred to as suspicious circumstances.
At this point, the RCMP decided to conduct searches to determine whether
the original threats were founded, and whether anyone was left who might be
considered a threat.411 On January 22, 2002, Canadian agencies conducted simultaneous searches in Ottawa, Toronto and other Canadian cities, interviewing a number of people as well.
In preparing for the searches, officials considered whether to seek a warrant for Mr. Arar’s residence, but determined they did not have sufficient evidence.412 However, they decided to try and interview Mr. Arar, and hopefully use
him later as a witness against Messrs. Almalki and El Maati.413 Although officials
were uncertain about Mr. Almalki’s whereabouts while they prepared for the
January 22, 2002 searches, they believed, correctly as it turned out,414 that he was
still in Malaysia with his wife.415
On January 21, 2002, seven search warrants and a sealing order were issued. It is not necessary for the purposes of this report to list all of the locations
searched. Suffice it to say, they included the residences of Abdullah Almalki and
his brother, Nazih Almalki, and Ahmad El Maati. As indicated earlier, Mr. Arar’s
residence was not searched.
During the lead-up to the January 22, 2002 searches, Project A-O Canada
officers did not receive any official training on how best to approach members
of the Muslim community. However, Staff Sergeant Callaghan testified there were
discussions about the need to cover your shoes in Muslim houses, to have female officers available when women were at home, to allow people to pray
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
before the search, to bring stuffed animals for the children, and to have the
Koran available if statements were to be taken. Staff Sergeant Callaghan did not
recall any particular discussion about what to do if an officer approached a
house and a Muslim woman opened the door.416 Unfortunately, the Muslim community subsequently expressed serious concerns about the conduct of the RCMP
in executing these search warrants.
3.9.2
The Searches
On January 22, 2002, the RCMP, with the help of other Canadian agencies, executed the seven search warrants, conducting simultaneous searches in all of the
locations identified.417 For example, in the Ottawa area six teams from the RCMP,
the Ottawa Police Service and other agencies ensured dedicated simultaneous
coverage for as many targets as possible.418 A Muslim constable, who had previously been assigned to Project A-O Canada, was re-assigned to assist with the
searches. He was the only Muslim investigator present, at least in the Ottawa
region.419
Search packages containing instructions were prepared for each location.
The instructions for Mr. Almalki’s residence directed officers to look for materials referring to Mr. Arar, along with other individuals.420
Inspector Cabana testified that he did not expect to find a great deal of useful information in the seized material. As it turned out, however, the yield was
much greater than anticipated, and included the following items:
•
26 computer hard drives;
•
approximately 40 VHS videotapes (many in Arabic, including family videos);
•
about 100 different CDs and diskettes;
•
approximately 20,000 pages of documents including photographs, financial
records, and correspondence and books in English and various Arabic dialects;
and
•
two boxes of shredded documents for reassembling — these appeared to be
in both English and Arabic
Some of the computers, CDs and diskettes were hidden, either in walls or
rafters.421
Although Canadian officials also conducted a number of interviews in conjunction with the searches, the only interview relevant to this report was the
one with Youssef Almalki, Abdullah Almalki’s brother. In the interview notes,
Youssef Almalki states that he was “not sure” if his brother had a business relationship with Mr. Arar.422 However, a “statement synopsis” of the interview
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FACTUAL BACKGROUND: VOLUME I
indicates that Youssef Almalki said Mr. Arar had a business relationship with his
brother, but that Youssef did not know the details.423 In any event, the seized
documents showed that Mr. Almalki and Mr. Arar communicated from time
to time, and relied on each other, to some extent, for business information and
advice.424
3.10
THE ATTEMPT TO INTERVIEW MR. ARAR
The following section describes in some detail the RCMP’s attempt to interview
Mr. Arar and, in the end, why the interview did not occur. This account is included because Project A-O Canada officers stated repeatedly in the month that
followed — including in documents provided to American authorities — that
Mr. Arar refused to be interviewed by the RCMP. In fact, this was not the case.
Mr. Arar was one of seven people who were to be interviewed on January
22, 2002. As mentioned, the goal of the interview was to determine his role in
the larger investigation, particularly in relation to Mr. Almalki. From the RCMP’s
perspective, Mr. Arar was to be interviewed as a witness, not as a suspect.425
Prior to the searches, Corporal Lemay prepared questions for Mr. Arar’s interview.426 It appears these were “core questions” that would be asked of all interviewees, with no questions specific to Mr. Arar. For instance, there were no
plans to ask Mr. Arar about his meeting with Mr. Almalki at Mango’s Café.427
Corporal Buffam was assigned to interview Mr. Arar, with the assistance of
Corporal McKinnon of the RCMP’s “A” Division National Security Investigations
Section (NSIS).428
On January 22, 2002, at 7:30 a.m., Corporals Buffam and McKinnon approached the Arar residence. When Mr. Arar’s wife, Monia Mazigh, answered the
door, they identified themselves and asked to speak to Mr. Arar. Dr. Mazigh advised them that he was not at home. When asked where he was, she initially
replied that he was “abroad.” When pressed again, she stated that he was “overseas,” and finally, in response to a further question, that he was in Tunisia. She
told the officials that he had been gone for two to three weeks and would be
back in “maybe three days.” Corporal Buffam gave her his business card429 and
told her it was important for Mr. Arar to contact him as soon as possible.430
Corporal Buffam recalls the whole exchange taking about three to four minutes.
Apparently, Dr. Mazigh did not express any concern about having to deal
with a police officer at 7:30 in the morning. At the time, Corporal Buffam was
not aware of the Muslim community’s concerns about the police, in particular,
about police officers approaching a Muslim home. Nor was he aware of the
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
protocols and customs that should be followed when a man approaches a
Muslim woman.
After speaking to Dr. Mazigh, Corporal Buffam left to help execute the remaining search warrants. At approximately 3:40 p.m. that day, he was informed
that Mr. Arar had contacted the office asking why Corporal Buffam had been to
his home. Mr. Arar was quite perturbed and had left a phone number where he
could be reached in Tunisia. However, when Corporal Buffam called Mr. Arar
later that day, at about eight or nine in the evening, there was no answer, which
he attributed to the time difference. Mr. Arar did not call Corporal Buffam
again.431
On January 24, 2002, Constable Lang contacted Canada Customs and confirmed that Mr. Arar’s name was still in its databanks.432 Project A-O Canada officials wanted to ensure that they would be informed of Mr. Arar’s return, and
that Customs officials would subject him to another secondary examination.
Although Corporal Lang testified that this was not a new lookout request, a new
lookout on Mr. Arar was created at this time.433, 434
When Mr. Arar entered Canada at the Montreal airport on either January 24
or 25, 2002, he was not subjected to a secondary examination, nor did Customs
officials notify Project A-O Canada of his return. Apparently, this was the result
of human error.
On Friday, January 25, 2002, at 10:00 a.m., Corporal Buffam called Mr. Arar’s
residence to find out whether he had contacted his wife, and to ask when he
was scheduled to return from Tunisia.435 Mr. Arar answered the phone, stating
that he had attempted to contact the RCMP from Tunisia. He was somewhat annoyed the RCMP had gone to his home without prior notice while he was away,
and disturbed his pregnant wife. Corporal Buffam explained that the RCMP did
not know he was away at the time, and described his brief conversation with
Dr. Mazigh.
Corporal Buffam requested that Mr. Arar go to RCMP offices in Vanier that
day to be interviewed. When Mr. Arar asked why, and inquired how the RCMP
had obtained his name, Corporal Buffam explained that they did not discuss
ongoing investigations over the telephone. He asked to speak to Mr. Arar in
person to clarify some issues that had surfaced as a result of their inquiries, to
which Mr. Arar replied that he was tired from travelling, and had not seen his
family in several weeks. Although Corporal Buffam urged him to visit RCMP offices that day, Mr. Arar insisted he was too tired, but said he would perhaps go
on the coming Monday. Corporal Buffam advised Mr. Arar to rest, visit with his
family, and contact him the following day, Saturday, January 26, for a proposed
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interview at 3:00 p.m.436 Apparently, Mr. Arar consented to be interviewed at the
time suggested.437
Sometime after the conversation with Corporal Buffam, on January 25,
Mr. Arar attempted to contact Ottawa criminal defence lawyer, Michael
Edelson.438 Although Mr. Edelson tried to return Mr. Arar’s call the next day,
Saturday, January 26, at 10:30 a.m., he was unsuccessful. However, his office
made an appointment for Mr. Arar to meet with Mr. Edelson on January 30.439
As a result, Mr. Arar’s interview with the RCMP did not take place on January 26,
as scheduled with Corporal Buffam.
Mr. Arar first met with Mr. Edelson on January 30, 2002 for about 45 minutes, at which time he gave Mr. Edelson his personal information, and described
how he had been stopped at Canadian Customs in December 2001, and his laptop seized. He also told Mr. Edelson about his trip to Tunisia, and the RCMP’s
attempt to contact him for an interview.440
In addition, Mr. Arar raised an issue that Mr. Edelson assumed had been
posed by national security personnel: namely, whether Mr. Arar knew Safa
Almalki and Abdullah Almalki. Mr. Arar indicated that he knew Safa, but was
“not a direct friend” of Abdullah Almalki. He said he knew Abdullah Almalki’s
brother, Nazih, as well, and that he saw Safa and Nazih at Friday evening
prayers.441
According to Mr. Arar, on the previous Friday at the mosque, Safa Almalki
had told him the RCMP had asked about Mr. Arar and whether he had extreme
views about the United States. Mr. Edelson testified that he vividly recalled
Mr. Arar putting his hands in the air, sort of shaking his head, and saying, “I admire the Americans.” He did not understand why he was being questioned about
his views concerning the United States.442
Mr. Edelson’s overall impression was that Mr. Arar was “totally forthcoming”
during the interview.443
On January 30, 2002, Mr. Edelson contacted Ann Alder, counsel to Project
A-O Canada, to discuss a possible interview with Mr. Arar.444 Mr. Edelson indicated that Mr. Arar would meet with the police, and that this had always been
Mr. Arar’s intent.445 It may have been at this time that Ms. Alder told Mr. Edelson
the RCMP wanted a videotaped statement made under oath. However, Ms. Alder
could not and would not indicate whether Mr. Arar would be interviewed as a
witness or a suspect, nor would she reveal whether the interview related to a
traditional criminal investigation, an intelligence investigation, an anti-terrorist investigation, or something else entirely.446
As a criminal lawyer, Mr. Edelson would normally have advised his client
not to give a statement, but Mr. Arar had indicated he had no objection to
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
speaking to the RCMP. As Mr. Edelson did not know what allegations, if any, had
been made against Mr. Arar, or what the RCMP’s objectives were, he suggested
that certain conditions be attached to the interview. He believed that Mr. Arar’s
life might be in jeopardy, even if the RCMP only wanted a statement that could
be used in court against someone else. In fact, the RCMP might actually regard
Mr. Arar as a suspect, meaning that the information could be used against him
(a situation Mr. Edelson said would typically lead defence counsel to advise
Mr. Arar not to speak at all). Mr. Edelson therefore imposed conditions that
would address both of these concerns.447
The conditions were as follows:
1)
2)
3)
4)
5)
6)
7)
Mr. Edelson would not consent to a videotaped, sworn statement because
he wanted to avoid a situation where the interview would later be admissible as evidence in court — referred to colloquially in criminal practice as
a “KGB.” statement, after a Canadian case involving the admissibility of outof-court statements.448
The statement could be audiotaped.
A transcript could be prepared, if Mr. Arar was given an opportunity to review the transcript to correct anything erroneous or mistaken.
The statement would not be “under caution,” i.e., the typical police caution
indicating that if the interviewee waived the right to remain silent, then
anything said could be taken down and used in evidence.
Mr. Edelson would be present throughout the interview.
If Mr. Edelson objected, certain questions would not be answered.449
Mr. Arar and his counsel would be free to leave at any time.450, 451
Mr. Edelson testified that, in his experience, these conditions were appropriate, given the little information provided by the officers and their counsel
about the nature of the investigation and whether Mr. Arar was regarded as a
witness or a suspect. He said he had dictated similar conditions in dozens of
other criminal investigations where the client was willing to speak to the police.
In Mr. Edelson’s opinion, the conditions did not render the interview useless, as
the RCMP would still be able to use the information for intelligence purposes.452
Inspector Cabana did not agree with Mr. Edelson’s view. In fact, he felt the
conditions were exceptionally stringent, more so than he had seen in his over
20 years’ experience as an investigator. It was not particularly surprising that
the information from the interview could not be used in a future prosecution
against Mr. Arar, but stipulating that it “could not be used in relation to any
prosecution against anybody, anywhere, basically rendered the interview, for
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all intents and purposes, useless.”453 As a result, Inspector Cabana and Staff
Sergeants Corcoran and Callaghan, in conjunction with Ann Alder from the
Department of Justice, decided not to proceed with Mr. Arar’s interview.454
The very fact that Mr. Arar had retained Mr. Edelson raised suspicions
among Project A-O Canada investigators, as Mr. Edelson also represented other
targeted individuals and persons of interest. In Inspector Cabana’s view, it
showed that they were part of a group, as it was common for one lawyer to represent an entire criminal organization.455 At the time, Project A-O Canada officers were not aware that local imams had recommended that Muslims who were
approached by the police retain one of three lawyers, one of whom was
Mr. Edelson.456
4.
PROJECT A-O CANADA INVESTIGATION —
JANUARY 23, 2002 TO SEPTEMBER 26, 2002
4.1
THE FRUITS OF THE SEARCHES
4.1.1
The All-Agency Meeting on January 31, 2002
Following the searches of January 22, 2002, Project A-O Canada had an enormous amount of material to process. The fruits of the searches included 26 computer hard drives, almost 100 CDs and diskettes, approximately 20,000 pages of
documents, about 40 videotapes and two boxes of shredded documents.457 Staff
Sergeant Corcoran testified that Project A-O Canada officials were surprised at
the amount of information obtained from the searches.458
Synthesis and analysis of the seized materials began almost immediately. On
January 28, 2002, the RCMP began reading the hard drives and CDs.459 Shortly
after, on January 30, the preliminary analysis of the electronic information and
documents uncovered information that Project A-O Canada officials felt linked
Mr. Almalki with terrorist groups.
These initial efforts notwithstanding, Project A-O Canada was still faced
with the monumental task of reviewing all of the information from the searches,
and following up on any investigative leads as quickly as possible. Because of
the resources required, it was decided to share all of the seized information with
CSIS, the FBI and the other partner agencies, and to enlist their help with the
analysis. 460 Inspector Cabana also felt it would be useful to share the information
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
more broadly, as similar investigations were underway in other parts of the
world.461
Accordingly, Project A-O Canada scheduled an all-agency meeting for
January 31, 2002.462 Two days before, Inspector Cabana had sent an internal
message to Chief Superintendent Couture at RCMP Criminal Operations
(CROPS), recommending that all available information be shared with CSIS and
its American counterparts. A list of the seized materials was attached.463
The January 31, 2002 all-agency meeting was attended by representatives
of Project A-O Canada, CSIS, the FBI, RCMP Headquarters (National Security),
Criminal Operations (CROPS), Ontario Provincial Police (OPP), Ottawa Police
Service (OPS), Gatineau Police Force, Sûreté du Québec, Montreal Police Force,
RCMP “C” Division, and other partner agencies.464 Project “O” Canada was not
represented at the meeting as that project was already finished.465
The purpose of the meeting was to update all outside agencies on the investigation’s progress, and to request their assistance in providing additional
personnel and resources.466 Speaking notes from the meeting indicate that Chief
Superintendent Couture delivered the initial welcome, followed by comments
from Superintendent Clement. Assistant Commissioner Hovey left after making
some preliminary remarks.467 Inspector Cabana oversaw the meeting once it was
underway.468
Members of Project A-O Canada made a presentation, similar to those given
on other occasions, summarizing their investigation to date.469 According to
speaking notes from the meeting, the presentation was divided among three
people: Inspector Cabana, who reviewed Project A-O Canada’s history, Staff
Sergeant Callaghan, who addressed the current status of the investigation — including the material seized during the recent searches — and Staff Sergeant
Corcoran, who outlined the plan for analysing the search materials and the need
for additional resources.470
During the search, the RCMP had seized Arabic documents (about five percent of the total), 40 to 50 Arabic videos, and vast amounts of electronic data
that might contain Arabic material. By Project A-O Canada’s estimation, at least
two translators would be required. As well, there was evidence of hundreds of
financial transactions involving Abdullah Almalki and his companies, some of
these involving large amounts of money. One investigator had already arrived
from Canada Customs and Revenue Agency (CCRA), but two more would be required. The team also needed expert assistance in reassembling the shredded
documents.
All told, Project A-O Canada officials estimated they would need a minimum
of seven additional police investigators, two translators, two accountants and
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five analysts, as well as continued support from the High Tech Crime Section of
RCMP “A” Division, and various background inquiries from other sections of the
RCMP.471
Project A-O Canada offered to share copies of the seized data with CSIS and
some of the other partner agencies in return for their assistance.472, 473
Almost everyone agreed to help. For example, the FBI offered to provide
a translator and a Computer Analyst Response Team (CART). The Sûreté du
Québec agreed to provide an analyst, investigators and an accountant,474 as well
as two Arabic-speaking constables to help with translation.475 RCMP
Headquarters contributed the use of its Financial Intelligence Unit.476 The OPP
offered investigators,477 although it is unclear whether these were ever forthcoming. For its part, the OPS committed to keeping its members involved in the
investigation.478
CSIS did not offer any assistance,479 explaining that its post-9/11 resources
were already stretched. As discussed below, however, CSIS would soon provide a full-time analyst to assist in the Project A-O Canada investigation.480
According to Inspector Clement, the January 31 meeting was a good one,
allowing investigators to put the information into context, based on the collaborative efforts of everybody at the table.481
4.1.2
The Sharing Arrangements — January 31, 2002
It is clear that information sharing was discussed at the January 31, 2002 meeting. Less clear is the precise scope of the sharing arrangements that were agreed
on, or even if there was agreement in this respect. Following is a summary of
the testimony by those present at the meeting.
4.1.2.1
Project A-O Canada
Inspector Cabana testified that CSIS and the other partner agencies were offered
access not only to the seized data, but also to the “sum of the investigation” beyond the fruits of the searches. At the same time, he acknowledged that the
focus was on the new information acquired,482 and conceded that the scope of
the sharing arrangements was unprecedented. However, according to Inspector
Cabana, the broad scope of these arrangements was consistent with Project
A-O Canada’s mandate to work in partnership with outside agencies to prevent
further terrorist attacks.483
Inspector Cabana was certain that this degree of information sharing was
sanctioned at the highest level, that is, by CROPS and RCMP Headquarters,484 as
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
neither had objected to the extensive disclosure arrangements discussed at the
meeting.
CSIS did not object to the level of sharing either, or to the possibility that
CSIS information would be shared. Inspector Cabana testified that Project
A-O Canada had already disclosed CSIS information to the American agencies
in meetings at which CSIS was present.485 In fact, all of Project A-O Canada’s
pre-search information had been disclosed to the partner agencies at previous
meetings.486
Inspector Cabana was questioned specifically about whether CSIS, CROPS
and RCMP Headquarters knew as a result of the January 31, 2002 meeting that
the entire Supertext database would be shared with the Americans. He reiterated
that although the focus of the meeting was on sharing the fruits of the searches,
it was made clear that all available information would be shared.487 In later testimony, Inspector Cabana went even further, stating that Project A-O Canada
had offered a copy of the Supertext database to anyone who was interested.
Given that CROPS and RCMP Headquarters were both present at the meeting,
he concluded they would have been aware of this.488
Inspector Cabana pointed to a January 29, 2002 internal memo from Project
A-O Canada to CROPS as further evidence of the sharing arrangements, and that
CROPS was aware all information would be shared with the partner agencies.
Although the memo recommended that “all available information” be shared
with these agencies, it went on to state that “[s]imilar investigations are being
conducted in other areas of the world and it would be beneficial to compared
[sic] all seized information to establish links.” [Emphasis added.] Despite the
memo’s qualifier, Inspector Cabana testified that it was meant to include not
only seized information, but all information that was available. In his opinion,
the seized information could not be analyzed in isolation.489 Even though the
memo suggested that Inspector Cabana wanted to share only the fruits of the
searches with Project A-O Canada’s partners, other discussions were taking place
at the time the memo was forwarded to CROPS. According to Inspector Cabana,
those discussions, together with the memo, meant that CROPS (specifically, Chief
Superintendent Couture and Inspector Clement) would have been aware that
Project A-O Canada intended to share everything with the Americans, beyond
the fruits of the searches, and including the entire Supertext database.490
Staff Sergeant Corcoran confirmed Inspector Cabana’s assessment, testifying
it was also his understanding the January 29, 2002 memo intended that all Project
A-O Canada intelligence would be shared, including everything in Supertext.491
He could not remember if any ground rules for sharing information were discussed at the meeting, although he maintained it was made clear there would
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be full and open sharing.492 Staff Sergeant Callaghan could not recall a specific
discussion about sharing everything on the Supertext database, as the focus of
the meeting was on sharing the hard drives and the seized documents.493
As an aside, the Project A-O Canada team sought legal advice on whether
they could disclose the materials from the January 22, 2002 searches to CSIS and
other partner agencies.494 However, because the Government claimed solicitorclient privilege, the nature of this advice was not disclosed to the Commission.
4.1.2.2
CSIS
A CSIS employee did not recall being informed, at any time, that the RCMP
planned to share more than the product of the January 22, 2002 searches with
the American partner agencies. She was present at the January 31, 2002 meeting, and understood that the meeting dealt with how to analyze and process the
vast amount of information seized. She also understood that the RCMP would
need to share information in order to receive help from others.495
Although he did not attend the meeting, another CSIS headquarters employee agreed that it would have to be a routine matter to share the material
with the American agencies if they were going to help analyze the search product. It appears that he, too, was referring to the material seized during the
searches.496
4.1.2.3
CROPS
Chief Superintendent Couture’s general understanding of sharing arrangements
following the January 31 meeting was that Project A-O Canada would share the
search results with its partner agencies, but would not share the entire contents
of the Supertext file.497 As discussed in Section 4.3, when Chief Superintendent
Couture learned that the three CDs containing the entire Project A-O Canada
Supertext database had been given to the American agencies in April 2002, he
generally disapproved that the sharing had exceeded the fruits of the searches.
He did not recall authorizing such extensive disclosure,498 nor did he believe that
the original free-flow-of-information agreement was modified on January 31,
2002, or any time after that.499
According to Chief Superintendent Couture, the January 29 internal memo
recommending that all available information be shared with CSIS and the
American agencies500 simply confirmed that the pre-search information-sharing
arrangement would remain in place if Project A-O Canada received significant
new information.501
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
Superintendent Clement testified that he gave general direction at the
January 31 meeting for members of Project A-O Canada to continue working
with other agencies, and to share everything in pursuit of their common goal.502
Like Chief Superintendent Couture, he did not think that the agreement extended to Project A-O Canada’s entire Supertext database. However, he suggested that his original direction for it to be an open-book investigation might
have given the impression it was acceptable to share absolutely everything. He
took full responsibility for the fact that Project A-O Canada members might have
understood that more than the fruits of the searches could be shared.503
4.1.2.4
CID
Superintendent Pilgrim, who represented RCMP Headquarters at the all-agency
meeting, recalled only that it was agreed the U.S. agencies would help retrieve
and analyze information from the searches.504 Other than that, sharing the seized
information was not a significant part of the discussion, although it was generally agreed that the U.S. agencies would have access to it.505 He did not recall
any specific discussions about sharing other information beyond the fruits of
the searches.506
Although Assistant Commissioner Proulx was not present at the meeting, he
was later made aware of the decision to seek assistance from the American agencies to analyze the seized hard drives. To his mind, this was acceptable, given
that this information might help to prevent another attack.507 However, he was
not asked for his consent to release the information, nor would it normally have
been required, as this was an operational decision generally left to the investigator or officer in charge.508
4.1.3
The Plan for Analysis
Even before the January 31 meeting, Project A-O Canada had begun planning
how to analyze the search materials. Staff Sergeants Callaghan and Corcoran
consulted with a number of people, including members of “A” Division’s High
Tech Crime Unit and CSIS.
The 26 hard drives contained approximately 150 gigabytes of potential data
storage space, including e-mails, correspondence, and Internet search sites, all
of which needed to be analyzed carefully using tech-strings to identify key
words and phrases. Many of the 40 videotapes seized were in Arabic, and their
content had not been established. Family videos had been seized because they
showed unidentified individuals whose role in the investigation had yet to be
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determined. The 20,000 paper documents seized included photographs, financial records, correspondence and books, in English and various Arabic dialects.
By all appearances, the two boxes of shredded documents could be reassembled. As well, based on an initial assessment, the officers concluded that further
interviews and some follow-up investigation would be required.509
On February 6, 2002, a delegation from the American Embassy arrived to
discuss a strategy for analyzing the search materials. Inspector Cabana was present, along with representatives from the American agencies. That same day,
members from the Sûreté du Québec, including two civilian analysts, two police officers and two Arabic translators/police officers, arrived and were briefed
on the investigation. Three members of the Montreal RCMP came as well, and
were assigned the task of analyzing documentary evidence from the various
search sites.510
Analysis of the hard drives began in early February. Sergeant Walsh examined them and appears to have largely completed this task by February 5 or 6,
2002.511 At the same time, Project A-O Canada officials were working on a more
effective way of scanning the large number of documents.512 Around this time
as well, Project A-O Canada decided to scan all the seized documents to disk
and provide them to the partner agencies.513
Despite its initial reluctance to commit resources at the January 31, 2002
meeting, CSIS agreed at a meeting on February 18, 2002 to provide analysts to
the Project on a part-time basis. This help never materialized; instead they sent
a CSIS employee who is an expert in transnational organized crime to participate in the investigation full time.514 He was seconded to Project A-O Canada in
March 2002.515
According to Staff Sergeant Corcoran, Project A-O Canada paid little attention to Mr. Arar in the months after the January 22 searches, as investigators focused on analyzing the seized materials.516
4.2
THE EMERGING RELATIONSHIP WITH THE FBI
4.2.1
Access to the Premises and Meetings
Project A-O Canada now had a substantial amount of information to work with,
and the investigation was starting to come alive.517 During the post-search period, there was also a marked increase in information sharing and meetings between Project A-O Canada and the American agencies.518
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
Prior to the January 2002 searches, Staff Sergeants Callaghan and Corcoran
met occasionally with the U.S. agencies, but senior command staff was usually
present.519 Project A-O Canada’s direct relationship with the FBI began in late
October 2001, when Project A-O Canada officials began meeting with an FBI
agent, primarily about the Almalki investigation. A working relationship
developed from there in which the agent would occasionally drop off
information to Project A-O Canada. The relationship intensified somewhat when
Mr. Arar’s computer was seized by Canada Customs in December 2001. [***].
After 9/11, the CIA assumed a more operational role in the U.S.-led “war on
terror.”520
Following the searches, Staff Sergeants Callaghan and Corcoran began dealing directly with the American agencies on a regular basis, and Corporals Lemay
and Buffam did so occasionally as well. Not only did contact with these agencies become more frequent, it also became less formal. Inspector Clement testified that he considered the new informality to be acceptable.521
While one or two FBI officers had building passes to RCMP Headquarters,
none were allowed unescorted access to the “A” Division building that housed
Project A-O Canada. To enter the building, American officials had to be signed
in and escorted by a Project A-O Canada investigator.522 As they did not have
access to investigators’ work stations, they would have gone directly to the office shared by Staff Sergeants Callaghan and Corcoran.523 In essence, then, the
access afforded the American agencies was no different than that permitted to
any approved outsider.524 Either Inspector Cabana or Inspector Clement, or both,
were aware when American agents were on Project A-O Canada premises.525
Inspector Cabana testified that the American agents did not have open access
to Project A-O Canada databases, but if they had requested information, the request would have been granted. 526
In February 2002, Project A-O Canada officials met four times with the
FBI,527 and periodically with other American agencies.528 Following is a brief description of these meetings and the topics addressed.529
On February 5, Inspector Cabana and Staff Sergeants Callaghan and
Corcoran met with the American agents. The American authorities wanted to
examine the seized hard drives and prepare copies for themselves. The protocol for sharing information was discussed, as was the process for obtaining
copies of the search information. Staff Sergeant Corcoran specifically recalled the
message being conveyed that information sharing was for intelligence purposes
only; if the Americans wished to use it in court, they would have to make an
MLAT (Mutual Legal Assistance Treaty) request.530 The discussion also touched
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on other topics related to the investigation, including Mr. El Maati.531 However,
no specific information was shared at this meeting.
On February 6, Staff Sergeant Corcoran met with members of the American
agencies to discuss progress on the overall investigation, including manpower
requirements and how the information would be analyzed.
While FBI officials were present on site as of early February, the agency’s
presence increased in late February, when a team of FBI special agents arrived
at Project A-O Canada offices. The team included two agents who had expressed
an interest in Mr. Arar and other Project A-O Canada targets, a Washington financial analyst with an interest in the financial records seized from the searches,
and an investigative analyst exploring potential links to al-Qaeda. The situation
report for February 19 indicated that Project A-O Canada was to exchange information with the FBI over the next several days, with the understanding that
a request for documentation would be formalized by a memorandum.532
On February 7, Inspector Cabana held a meeting with Staff Sergeants
Corcoran and Callaghan to discuss a process for controlling information related
to the Project. Inspector Cabana requested that all partners be advised that his
approval was required before any information was disclosed. This was not an
attempt to modify the agencies’ information-sharing arrangement, but simply an
attempt to avoid the circular flow of information.533
4.2.2
The Search Information That Was Shared
Following is a timeline and description of the information shared with the
American agencies in the period following the January 22, 2002 searches. The
seized hard drives were fairly easy to share. Scanning paper documents was
more time consuming; however they too were provided to the Americans in
time.534
A situation report for February 6, 2002 indicates that informal information
sharing began at this time with a “general exchange of information” and a discussion of manpower requirements.535 It is clear that the fruits of the searches
were already being shared with the Americans.
The first evidence of a direct transfer of search information to the Americans
appears on February 8, when Staff Sergeant Corcoran provided American analysts with analytical charts. However, it is unclear what this information related
to, and to which agency it was given.536
No caveats were attached to the information that U.S. agencies were given
during this period. In Inspector Cabana’s opinion, this was acceptable for a number of reasons. First, the order had been given that caveats no longer applied
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
and, as the Inspector pointed out, they were unnecessary in any event. Caveats
are used to protect sources, prevent further dissemination, and ensure that information is used for the purpose intended. According to Inspector Cabana,
everyone knew that the information was being shared to prevent further terrorist attacks. Moreover, much of the information in question had already been
discussed in open meetings involving the RCMP and its partner agencies.537
Project A-O Canada’s view of the sharing arrangements as established at
the January 31, 2002 meeting was that, at the very least, everything from the
searches would be shared with the Americans. Staff Sergeant Corcoran confirmed this understanding with Inspector Cabana on February 13, 2002, and confirmed with the Americans that none of the information would be released more
widely without Project A-O Canada authorization.538
With this understanding, Project A-O Canada provided the Americans with
CDs containing approximately 50 megabytes of data, on or about February 14,
2002. Inspector Cabana testified that the CDs contained digital copies of paper
documents seized from the search, which Project A-O Canada had been scanning continuously since the searches. He did not believe that all such documents had been scanned by February 14, and could not say when digital copies
of all the seized paper documents were provided. It is apparent from officers’
notes that the plan was to provide the scanned paper documents to the
Americans on a piecemeal basis, as the scanning process continued.539
It is not clear when Project A-O Canada transferred to the Americans copies
of the hard drives obtained in the January 22 searches. Staff Sergeant Corcoran
could not recall the exact date, but he thought it was done by February 8,
2002.540 In any event, Inspector Cabana’s notes reflect that, by February 21, 2002,
the Americans had the hard-drive information in their possession.541
It appears that the Americans had not yet received the search videotapes as
of February 15, 2002. An entry in Staff Sergeant Corcoran’s notes for that day indicates that the Americans would “love” to have access to them.542 Similarly, it
is unclear whether the shredded documents were ever turned over to the
Americans for analysis. Instead, it appears that this information was analyzed by
the RCMP in Edmonton.543
One more piece of information shared with the Americans is worth mentioning. On February 8, 2002, the Information to Obtain (ITO) for the January
22 searches was given to the Americans for review.544 Sergeant Walsh stated that
this was done to provide American agents with a roadmap for their investigation, and to help them analyze the information gathered during the searches.545
In his view, the Americans needed the ITO for law enforcement purposes, and
he trusted that the U.S. agencies would maintain its confidentiality.546 Inspector
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Clement also testified that an ITO was commonly used to update investigators
in this fashion.547
The ITO was subject to a sealing order, which was issued on January 21,
2002.548 Sergeant Walsh testified that he did not believe a variation of the sealing order was required before making the ITO available to American authorities;
in fact, no one obtained a variation before allowing the Americans to read it. As
far as Sergeant Walsh understood, the purpose of the sealing order was to prevent public disclosure of the information used to obtain the search warrant. In
this case, U.S. authorities were part of the investigation, not members of the
general public. Although the U.S. authorities were not given access to the sealed
package, Sergeant Walsh testified that using the ITO was essential to advancing
the Project A-O Canada investigation,549 as sharing intelligence with the
Americans was an integral part of the investigation.
To summarize, by February 21, 2002 the Americans had received a portion
of the paper documents from the searches, as well as imaged copies of the
seized hard drives and a summary of the ITO for the searches.
It should be noted that, after 9/11, the relationship between the CIA and the
FBI changed as a result of a Presidential Direction which required the two agencies to work more closely together and share information. Any information
shared by Project A-O Canada with U.S. agencies could have been provided to
the CIA. This was understood by Project A-O Canada’s managers and senior
members of CID.
4.2.3
The FBI Visit — Late February 2002
In late February 2002,550 members of the Project A-O Canada team met with five
FBI personnel. FBI agents had expressed an interest in Mr. Arar, as well as other
Project A-O Canada targets. The situation report for that day (which was sent to
RCMP Headquarters and CSIS551) indicates that an “exchange of information with
the FBI will take place over the next several days with the understanding that a
request for documentation will be formalized by memorandum.”552 During the
visit, the FBI sought and received access to Project A-O Canada files.553
The presence of the FBI agents was a surprise to Project A-O Canada officials.554 Inspector Cabana did not recall inviting them to take part in the February
19, 2002 meeting, and Inspector Clement concurred that the agents were there
without a formal request. Out of courtesy, they were allowed to view materials,
strictly on an intelligence basis, until a formalized request arrived.555
The agents expressed an interest in Mr. Arar, but did not provide any details. They merely asked to review the information on Mr. Arar and others
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
(including Mr. Almalki). When Corporal Lemay mentioned that the RCMP had
requested information on Mr. Arar from the FBI almost three months ago, and
still had not heard anything, the agents promised to follow up on the issue.556
Inspector Cabana testified that he was aware of an FBI investigation underway, but did not recall asking for specifics.557
According to Staff Sergeant Corcoran, the Americans’ interest in Mr. Arar
piqued his own. Although he asked the FBI to share what they knew about
Mr. Arar, he was never given a satisfactory response. To this day, Project A-O
Canada has not been able to obtain a full understanding of the FBI interest in
Mr. Arar.
In any event, members of the FBI were at the Project A-O Canada offices
reviewing documents and analyzing information in three days in February
2002.558 The visit began with a 1:30 p.m. meeting on February 19 concerning
how to retrieve and analyze the seized documents. Project A-O Canada agreed
to provide the FBI with the information for intelligence purposes only, making
it clear that an MLAT would be required if the FBI used the information in a
prosecution.559
That same day, Staff Sergeants Corcoran and Callaghan met with Inspector
Cabana to discuss the FBI presence, and the protocol for sharing information.560
Staff Sergeant Corcoran testified that he wanted to discuss the sharing arrangements to ensure everyone at Project A-O Canada was “on the same page.”
Inspector Cabana told the officers to ask the FBI for a formal letter of request
for the documents being shared.561
During the FBI visit, Project A-O Canada personnel gave FBI agents significant access to the fruits of the searches, as well as to materials from the Project
A-O Canada investigation in general. However, it is not clear if a direct transfer
of documents or material occurred at this time. At a minimum, the FBI spent
three days engaged in a rigorous review of Project A-O Canada information, including material from the January 22 searches and other material contained in
the files.
Also during this time, the FBI agents met with Corporal Lemay and reviewed two binders of information on Mr. Arar.562 These binders contained the
rental application and lease that may have been shown to Mr. Arar when he was
detained in the United States.563 The binders also included the following material: a profile of Mr. Arar; a photo of Mr. Arar and his home; immigration photos of Mr. Arar and his wife; police reports; past employment information; NSIS
inquiries on Mr. Arar; a surveillance report from October 12, 2001; the results of
the November 29, 2001 secondary examination of Mr. Arar; and other investigative materials on, or related to, Mr. Arar.564
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Staff Sergeant Corcoran instructed Corporal Lemay to allow the FBI agents
to copy anything they wanted, as long as he was made aware of it and a comprehensive inventory was kept.565
Again, it is unclear whether the FBI agents actually received copies of the
binders. Staff Sergeant Corcoran testified that he was initially under the impression that the FBI made copies of some of the documents, and were given a
copy of the rental application and lease. Certainly, if they had wanted copies
they would have received them.566 However, Staff Sergeant Corcoran’s contention that the FBI received copies of documents in the Arar binders was later
contradicted. (In the fall of 2003, the FBI was asked about receiving a copy of
the rental application and lease during their February visit.567) Staff Sergeant
Corcoran said that he would later learn the FBI made notes, and did not take
actual documents.568
In his testimony, Corporal Lemay denied passing the rental application and
lease to the agents, although he agreed that these documents were in the binders
the agents reviewed.569 The agents took notes while viewing the binders, but
Corporal Lemay did not give them photocopies, nor was he aware that they had
requested any.570
According to Staff Sergeant Callaghan’s notes, on February 20 the FBI spent
some time reviewing documents and videos from the January 22 searches. He
was with them while they conducted this review, and testified that they only
looked at a couple of the videos.571
According to the Project A-O Canada situation report for February 21, the
FBI also reviewed CSIS advisory letters that contained caveats requiring CSIS’
consent to share the information with agencies other than the RCMP. Although
Inspector Cabana was not aware if this consent was sought before the letters
were shown to the visiting FBI agents, he testified that the letters had been the
subject of extensive discussions in numerous meetings involving all agencies, including the American agencies, CSIS and RCMP Headquarters. In these circumstances, testified Inspector Cabana, the chances were “remote” that anyone had
gone to CSIS to obtain consent. Moreover, the February 21 situation report was
given to CSIS, and no one from there had contacted “A” Division to object to this
information being shared with the FBI. Inspector Cabana testified that this was
consistent with the post-9/11 agreement between the partner agencies, which
called for them to share information freely.572
The February 21 situation report also indicates that when the Americans
reviewed the E&R III database,573 they realized that information they had forwarded to CSIS might not have been provided to the RCMP as well.
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Consequently, the FBI reviewed the information provided to CSIS during the
previous two years, and compiled a report for Project A-O Canada.574
Both Inspector Cabana and Staff Sergeant Corcoran testified that the situation report wrongly indicated that the FBI had access to the E&R III database;
apparently, not even CSIS had access to it. Furthermore, the Americans did not
have the training necessary to use the database. A more likely event was that FBI
agents were shown a report from the E&R III database.575
4.3
THE SUPERTEXT DATABASE
In late March or early April 2002, Project A-O Canada prepared CDs containing
the entire Supertext database and provided them to the American agencies. The
database contained all documents pertaining to the Project A-O Canada investigation, including the documents seized during the January 22, 2002 searches,
and a considerable amount of information about Mr. Arar.
4.3.1
The FBI Request
By the time the FBI visited Project A-O Canada offices in late February 2002,
Project A-O Canada had already shared information with the Americans, and
had indicated its intention to share even more.576 To Inspector Cabana’ mind, this
practice of sharing documents with the U.S. agencies was an important feature
of the Project A-O Canada investigation.577
Clearly, the Americans had an interest in acquiring as much information as
possible. However, such a request was not formally made until the February
2002 visit, when it was agreed that the FBI would do so.578 Project A-O Canada
would not receive a formal written request from another U.S. partner until April
2002.579
On February 22, 2002, immediately after visiting the Project A-O Canada offices, the FBI sent a letter addressed to Commissioner Zaccardelli,580 to the attention of Superintendent Pilgrim at National Security Investigations Branch
(NSIB).
The letter was a formal request for materials obtained in the January 22
searches. The letter acknowledged that an MLAT request would be required if
the materials were to be used in any U.S. criminal proceeding. Referring to items
seized in the searches, the letter requested copies of documents, both paper
and electronic, hard drives, media storage devices including CD-ROMs and
floppy disks, audio and video recorded materials, together with investigative
and analytical reports and translations produced by Project A-O Canada in
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relation to the seized materials. The letter also requested other material relevant
to the Project A-O Canada investigation. Finally, the letter also mentioned the
partner agencies’ shared interest in a number of individuals, including Mr. Arar.
RCMP Headquarters forwarded the letter to Project A-O Canada, without
any directions as to how Project A-O Canada should respond.
On the face of it, the FBI request refers only to the material obtained from
the searches. However, RCMP officers interpreted it as encompassing more than
just the product of the searches.
In Inspector Cabana’s opinion, the FBI letter reflected discussions among
the participating agencies at the January 31, 2002, all-agency meeting. On this
basis, it was not surprising that Headquarters did not prohibit release of the
information, or require that caveats be attached. Nor was it surprising that
Headquarters did not ask to see the information before it was released to
the FBI.581
Inspector Cabana further testified that it was agreed at the January 31, 2002
meeting that all available information would be shared, not only the seized documents.582 This is an important distinction, as will become clear, because Project
A-O Canada investigators eventually shared with the Americans much more than
just the documents seized during the searches.
According to Staff Sergeant Corcoran, the FBI letter appeared to request
not only the fruits of the searches, but everything in the Supertext database.583
In making this determination, he relied on the letter’s request for other material
relevant to the investigation.584 Assistant Commissioner Proulx concurred that
the request went well beyond what was obtained in the searches.585 In contrast,
Inspector Reynolds — the only RCMP officer to offer a different interpretation
— understood the request to be for other relevant material and, as such, it did
not include everything related to the investigation.586 Notably, none of the officers attached significance to the fact that the materials requested by the FBI
were referred to as items seized in the searches.587
It is not entirely clear from the testimony whether Headquarters approved
the FBI request. Although it appears that no one actually considered the request
and formally approved it, there were grounds for Project A-O Canada officials
to conclude that approval had been given. First, the copy of the letter sent to
Project A-O Canada had been initialled by two Headquarters officers, both of
whom reviewed operations investigations for Assistant Commissioner Proulx.
However, according to Assistant Commissioner Proulx, the initials did not necessarily indicate approval of the content, merely approval that the correspondence be sent to the divisions. That said, he agreed that Project A-O Canada
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
officials might interpret the initials to mean that Headquarters had approved of
the letter’s request.588
Project A-O Canada’s copy of the letter also contained a hand-written request to “please process.”589 Again, according to Assistant Commissioner Proulx,
this did not necessarily indicate approval from Headquarters. It was possible
that someone had written the note, then sent the document to the two officers.590 Alternatively, he suggested that the note might have meant “process,” in
the sense of uploading the document onto a database.591
Despite the difficulty in determining whether Headquarters approved the
FBI request, Assistant Commissioner Proulx agreed that, in the circumstances,
Project A-O Canada officers might have believed they were authorized to proceed with the letter’s request for information. Moreover, Assistant Commissioner
Proulx’s understanding was that the FBI request referred to the entire Supertext
database.592
Inspector Clement, who was Inspector Cabana’s senior at “A” Division, saw
the February 22 request from the FBI, reviewed it, and authorized disclosure of
the information,593 knowing that the request went well beyond the fruits of the
January 22 searches. In his view, Headquarters had approved the request and
the subsequent release of information.594
Several other issues about Project A-O Canada’s transfer of the CDs are relevant here. Project A-O Canada did not attach caveats or the third-party rule to
the three CDs, or to any correspondence accompanying them. Moreover, before
delivering the CDs, Project A-O Canada did not review them for relevance, based
on the “need-to-know” principle, or for personal information. Nor did officials
seek the consent of third parties whose documents were included, even where
caveats and third-party rules were attached.595 Finally, Project A-O Canada transferred the three CDs to the American agencies directly.
The contents of the CDs are described below. This is followed by the testimony of the officers involved in the transfer, including their understanding of
what occurred and whether it was acceptable practice.
4.3.2
The Contents
Clearly, there was confusion within Project A-O Canada and the RCMP generally about what precisely was contained on the three CDs. By way of example,
the Project A-O Canada situation report for April 9, 2002 (signed by Inspector
Cabana and Staff Sergeant Corcoran) indicated that the Americans were given
scanned documents from the January 22 searches, but made no mention of the
balance of the Supertext database.596 Apparently, Staff Sergeant Corcoran drafted
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this report believing that Project A-O Canada was providing only the results of
the searches, even though it was his understanding that all of the documents on
Supertext would ultimately be shared with the Americans.597
Inspector Cabana testified that 99 percent of what was contained on the
Supertext database — and therefore on the three CDs — would have been the
scanned paper documents seized from the January 22, 2002 searches.598 While
this might have been true in terms of volume, in fact the CDs contained much
more information than this. Furthermore, given that situation reports599 (such as
the inaccurate report drafted on April 9, 2002) were the means Headquarters
used to monitor Project A-O Canada’s activities, the fact that additional material
was exchanged likely went unnoticed by Headquarters.600
Project A-O Canada used the Supertext database to store and manage all
documents originating from the Project, including exhibits, statements, memos
and reports, as well as situation reports, surveillance reports, and reports from
outside agencies.601 Theoretically, every piece of paper Project A-O Canada generated or received was scanned and stored in the Supertext database.602
During testimony heard in camera, RCMP officials provided detailed descriptions of the information contained in Supertext when the three CDs were
given to the Americans.603 The following sections describe the information that
can be disclosed in this public Report.
4.3.2.1
CSIS Materials
Many of the CSIS documents given to the Americans as part of the Supertext
database were either disclosure letters or advisory letters containing a CSIS thirdparty caveat. Also included in the database was a CSIS study, as well as reports,
threat assessments, an interview summary, photographs, an RCMP memo, various RCMP letters, faxes and briefing notes, and RCMP situation reports. Most of
these documents contained a CSIS third-party caveat as well.604
Project A-O Canada did not obtain CSIS’ consent to transfer any of this material to the American agencies. According to Project A-O Canada managers, it
was not necessary to do so because of the free-flow-of-information agreement.
However, as discussed elsewhere in this Report, CSIS officials did not concur that
an agreement was in place permitting the RCMP to transfer CSIS material subject to a third-party caveat, without CSIS consent.
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
4.3.2.2
Information Related to Mr. Arar
The RCMP’s summary stated that a total of 120 files on the CDs contained a reference to Mr. Arar.605 These files can be broken down into two main categories:
documents seized during the searches; and documents gathered from third parties, or other documents related to the RCMP’s investigation. In broad terms, the
non-search material on Mr. Arar included the following:606
•
•
•
•
Detailed biographical material.
Various Canada Customs materials, including material obtained from
the November 29, 2001 and December 20, 2001 secondary examinations at
the Canadian border. These materials were subject to explicit caveats, and
they were shared with the American agencies without Canada Customs’
consent.607
The Project A-O Canada letter to U.S. Customs, requesting TECS checks and
lookouts on Mr. Arar, Dr. Mazigh and others. (The request described
Mr. Arar, Dr. Mazigh and the others as “a group of Islamic Extremist individuals suspected of being linked to the Al Qaeda terrorist movement.”)608
Various Project A-O Canada and Project O Canada materials, including
chronologies, an information request to the FBI, situation reports, faxes, investigative plans mentioning Mr. Arar, analytical material, operational plans,
interview notes, surveillance reports, Canadian Police Information Centre
(CPIC) person queries, photos and investigators’ notes.
The search-related material on Mr. Arar included faxes, business materials,
address books, phone lists, an agenda and hard-drive data.
Because of the on-going information sharing, the Americans would already
have had much of the extensive biographical and other information on Mr. Arar
in their possession. However, the CDs did contain some new information, as
well as several references to Mr. Arar as a “suspect,” “principal subject,” or important figure. These references may well have served to increase American interest in Mr. Arar.609
For instance, the CDs contained the following information about Mr. Arar,
some of which was misleading:
•
Mr. Arar’s immigrant visa and record of landing, a client history, and a request for the record of landing.
Information that Abdullah Almalki was listed as Mr. Arar’s emergency contact on a “lease” dated December 27, 1998.610 (The actual Minto rental application and lease were not included on the CDs.)611
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•
•
•
•
•
•
Information that Mr. Arar applied for a gun permit in 1992 (which Corporal
Lemay referred to as a “strange thing.”)612
Speculation that Mr. Arar might be President of The MathWorks, Inc. (to be
confirmed).613 (This turned out to be incorrect.)
The erroneous notes taken by RCMP officers during Youssef Almalki’s interview on January 22, 2002. (As discussed, the RCMP officer incorrectly
noted that Youssef Almalki said Mr. Arar had a business relationship with
his brother Abdullah Almalki, but that he did not know the details. What
Youssef Almalki actually said was that he was “not sure” if his brother had
a business relationship with Mr. Arar.)614
A situation report from “O” Division mentioning the Mango’s Café meeting,
which erroneously states that Mr. Arar travelled from Quebec to meet Mr.
Almalki. (Mr. Arar was living in Ottawa at the time.)615
Information on Project A-O Canada’s failed attempt to interview Mr. Arar on
January 22, 2002 (not including the details of negotiations with Mr. Arar’s
lawyer concerning an interview).616
An analysis of the names found on Mr. Arar’s PDA, seized by Canada
Customs on December 20, 2001. The analyst speculated that few of the
people named might have had links to extremist activity.617
All told, the CDs gave the Americans access to virtually all of the material
that Project A-O Canada had accumulated on Mr. Arar up to that point.
4.3.2.3
Legal Opinions
Two of the documents copied onto the CDs were legal opinions provided by
the Ontario Ministry of the Attorney General to managers of Project O Canada.
These opinions were sent to the Americans, despite the fact that they were subject to solicitor-client privilege.
4.3.2.4
Project A-O Canada Investigators’ Views on What Was Shared
In his testimony, Inspector Cabana stated that no one had ever questioned his
authority to give the American agencies the entire contents of the Supertext
database. In fact, he was asked to ensure that all relevant information was
shared, a practice he viewed as consistent with the free-flow-of-information
agreement. Moreover, Inspector Cabana testified that his superior officers in “A”
Division and at RCMP Headquarters were well aware that the entire Supertext
database was being shared. While he agreed that, under normal circumstances,
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
a foreign agency would not be given complete access to the files of an RCMP
investigation, the circumstances at the time were quite different, given the post9/11 information-sharing agreement.618
Staff Sergeant Corcoran testified that he never received instruction from his
superiors not to share the entire contents of the Supertext database.619 Further,
while the day-to-day free-flow arrangement was limited to information originating with the partner agencies, he had directions to share everything on the
Supertext database and the three CDs.620 That said, Staff Sergeant Corcoran was
not able to point to specific authorization for sharing information from agencies
that were not party to the free-flow-of-information arrangement. In his view,
there was an overarching direction from senior management (more senior than
Inspector Cabana) to share everything, including the entire Supertext database.
Because of the free-flow-of-information agreement, neither Inspector Cabana
nor Staff Sergeant Corcoran considered it necessary to attach caveats to the
shared information. Similarly, they did not consider it necessary to obtain CSIS’
consent to share its information, because CSIS was party to the agreement.621
4.3.2.5
RCMP Superiors’ Understanding of What Was Shared
Officers at RCMP Headquarters and Inspector Cabana’s superiors at “A” Division
were not aware that Project A-O Canada was sharing its entire database with the
Americans. However, Inspector Clement — who was the Assistant CROPS
Officer and Inspector Cabana’s immediate superior — took responsibility for
the extent of the disclosure.
Although Inspector Clement was aware that CDs containing Supertext information were going to the Americans, he was not consulted about their content.622 However, he did approve the FBI’s February 22, 2002 request, and
appears, after the fact, to accept that the request’s wording went beyond the
fruits of the January 22 searches.623 Inspector Clement took full responsibility for
what was divulged and for his officers doing so, stating that his original direction for everything to be “open book” resulted in the investigators revealing as
much as they did.
In retrospect, Inspector Clement testified that certain documents, such as
legal opinions, should not have been released.624 He also accepted that some of
the documents were apparently released in violation of the third-party rule, but
suggested that they might actually have been investigative leads. However, he
did not specify which documents fell into the category of “investigative leads.”625
With respect to CSIS information, Inspector Clement confirmed that this
would have been discussed at earlier meetings at which CSIS and the American
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agencies were present. In his view, the CDs did not provide the Americans with
any new information from CSIS.626 Moreover, CSIS would have been aware that
this information was already being shared at the frequent round table meetings
involving these agencies. According to Inspector Clement, the CSIS information
had already been provided to the Americans, just not in CD form.627
Chief Superintendent Couture of “A” Division had the impression that only
the results of the searches were being shared, and was not aware that the contents of the Supertext file were to be given to the Americans.628 He agreed that
this information went beyond the terms of the free-flow-of-information agreement;629 in particular, it should have been left to CSIS to share its own information with the Americans, should they so choose. That said, turning over
documents from other police forces, if they were given to the RCMP for the purposes of the investigation, might be viewed as a consistent use of that information.630 Likewise, the transfer of RCMP briefing notes, faxes, letters, reports and
situation reports to the Americans would not have breached the free-flow-of-information agreement if they concerned the investigation. However, it would
have constituted a breach if the information concerned unrelated matters under
discussion with other government agencies.631
Chief Superintendent Couture did not know who at “A” Division had authorized sharing the contents of the CDs.632 However, he received an internal
message from Inspector Cabana on January 29, 2002 stating it was Project
A-O Canada’s recommendation that “all available information be shared with
CSIS and our American counterparts for their analysis.”633 He recalls sanctioning
this letter and the sharing of information,634 but understood this approval to
apply only to the fruits of the searches, not to the entire Supertext database.
It was only after the fact that Assistant Commissioner Hovey became aware
the CDs had been given to the Americans,635 and that more than the results of
the searches had been shared.636 He accepted that it was appropriate for members of Project A-O Canada to share this information if caveats were down.
However, if information was being passed to agencies that were not partners to
the agreement, the documents should have been examined more closely.637 In
Assistant Commissioner Hovey’s opinion as well, sharing legal documents was
inappropriate.638
The contents of the shared CDs exceeded Assistant Commissioner Proulx’s
understanding of the information-sharing agreement among the partner agencies.639 In particular, he pointed to third-party information from agencies such
as the Canadian International Development Agency (CIDA), the federal departments of Citizenship and Immigration and Foreign Affairs, and RCMP Legal
Services, as outside the agreement’s scope.640
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According to Assistant Commissioner Proulx, RCMP Headquarters was
aware from the outset that the fruits of the January 22 searches would be shared
with the Americans. However, he was not asked to give his consent, nor would
his consent have been required.641
Superintendent Pilgrim, the Officer in Charge of what is now the National
Security Investigations Branch (NSIB),642 did not become aware that the entire
Supertext file had been transferred to the American agencies until preparing for
this Inquiry.643 According to him, some of the information could rightly have
been shared, depending on three factors: whether the information would be
useful to the Americans in their investigation; whether the Americans needed to
know the information; and whether the RCMP knew how the Americans were
going to use the information. In his opinion, some sort of a caveat or restriction
should have been attached.644 If the information came from an external agency,
such as CSIS or Canada Customs, and it contained caveats, RCMP policy required that the external agency give its consent before the information was
shared.
Superintendent Pilgrim could understand that some information was being
given to the Americans. For instance, the Americans might well have needed
pre-search information to provide context for their analysis.645 Even so,
Superintendent Pilgrim thought it necessary to hand over only relevant information, and to do so in an appropriate manner.646
From Corporal Flewelling’s perspective working at NSOS (National Security
Offences Section) in NSIB, the CD exchange did not comply with RCMP policy.647 In his view, the information should have been scrutinized by CID before
being released to the Americans.648 As well, the third-party agencies whose information was being shared should have been consulted.649 Inserting caveats
was “just good practice” as a reminder that the documents were for intelligence
purposes only, and that recipients required authorization before using it for another purpose.650 Corporal Flewelling did acknowledge that even without explicit caveats, the implied caveats on the documents should have had the same
effect.651
According to Corporal Flewelling, it would still have been prudent for the
shared information to go through CID despite the post-9/11 environment;652 the
Directorate had a broader view of implications to national security and to the
Government of Canada.653 If information like this had come to him, he would
have added the normal caveats, and scrutinized the documents to ensure other
agencies were informed that their information was being shared.654
Inspector Reynolds, the Officer in Charge of the Financial Intelligence
Branch at RCMP Headquarters, reported to Assistant Commissioner Proulx.655
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Eventually, Inspector Reynolds would become Officer in Charge at NSIB. In
2003, when he became aware that the entire Supertext database had been
shared, he was surprised at what he regarded as an unusual practice. 656
According to him, it was normal to look at the documents before they were sent
to other agencies, regardless of what the sharing agreements were. Moreover,
one did not necessarily share all of the information in any circumstance.657 If he
had known what Project A-O Canada intended to share, he would have cautioned against it before first determining where the documents came from, and
what they contained.658
Although Inspector Reynolds agreed that sharing the CDs fell within the information- sharing agreement, he did not think it was necessary to share information that was not valuable to a partner and that did not move the investigation
forward.659 Further, he found it abnormal to share an entire database.660
However, he agreed that sharing essentially irrelevant documents might not do
any harm, unless they were protected by solicitor-client privilege, or contained
criticisms of partners and resulted in harm being done.661
4.3.3
Delivery to the Americans
In April 2002, Staff Sergeant Callaghan left a message with the Americans, informing them that the CDs were ready.662 An American agency retrieved the
CDs on April 9, 2002.663 Staff Sergeant Callaghan assumed another American
agency picked up the CDs on April 18 or 19, 2002.
4.4
PROJECT A-O CANADA PRESENTATIONS
4.4.1
April 2002 — Canadian Agencies and the Americans
Starting in April 2002, Project A-O Canada gave several presentations about its
investigation to a number of government agencies, including the Americans, the
RCMP’s CID and the Canadian Department of Justice. As Inspector Cabana observed, Project A-O Canada was “very popular at the time.”664
Although the content of the presentation varied occasionally, it generally
followed a similar format. Entitled either “The Pursuit of Terrorism: A Canadian
Response” or “The Pursuit of Terrorism: A Global Response,” it addressed
Project A-O Canada’s mandate, the genesis of the investigation and the team
structure, as well as more recent developments, such as the search results or
Mr. Almalki’s departure from Canada. Under the heading, “Present Situation,” the
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
presentations invariably devoted significant attention to certain individuals, including Abdullah Almalki and Ahmad El Maati.665 Generally, Mr. Arar was included among the individuals mentioned; however, he received varying degrees
of prominence, depending on the presentation.
Constable Rail of CID was present at one Project A-O Canada presentation
in mid-April, 2002, and his notes indicate that Mr. Arar was portrayed as a target of the investigation, along with Mr. Almalki and Mr. El Maati.666
4.4.2
May 24, 2002 — CROPS
On May 24, 2002, Project A-O Canada made a presentation to CROPS.667 Under
the heading “Present Situation,” it included the names of Abdullah Almalki and
Ahmad El Maati. Although Mr. Arar was not listed here, he was mentioned later
on as a “business associate” of Abdullah Almalki (with reference to the Mango’s
Café meeting). The presentation also mentioned Mr. Arar’s rental application
listing Mr. Almalki as a reference, his link to Mr. El Maati, and his status as a contract employee of The MathWorks, Inc. in Boston. According to the presentation
as well, Mr. Arar had refused an interview request by Project A-O Canada. As
already described, however, Mr. Arar had agreed to the interview, subject to
very stringent conditions.668
4.4.3
May 31, 2002 — American Agencies
On May 31, 2002, Inspector Cabana and Staff Sergeants Callaghan and Corcoran
travelled to Washington, D.C. to give a presentation at FBI Headquarters. A representative of the U.S. Department of Justice was present,669 as were representatives of the FBI and other agencies.670
The impetus for the presentation appears to have come, at least in part,
from the Americans themselves. As it was, the FBI’s powers in Canada were
limited to collecting intelligence on certain individuals. The FBI was apparently
interested in many of the same individuals.
On May 21, 2002, Inspector Cabana and Staff Sergeants Callaghan and
Corcoran met with representatives of the American agencies. The FBI, in particular, urged Project A-O Canada officials to present the status of their investigation to FBI prosecutors in Washington. The hope was that FBI prosecutors
would begin a criminal investigation of Mr. Almalki and his associates in the
United States.671
Chief Superintendent Couture explained that the RCMP felt it was important
to lobby for a criminal investigation in the United States, as this would have
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allowed Project A-O Canada to obtain information from there more quickly. For
its part, Project A-O Canada was conducting a criminal investigation; the team
had obtained search warrants and conducted searches. Officials needed to show
the court they were proceeding expeditiously after the searches, so that they
could eventually request further detention of the seized articles. From Project
A-O Canada’s perspective, the pressure was on. Project A-O Canada officials felt
that a criminal investigation would provide the FBI with the incentive needed
to move quickly. Chief Superintendent Couture’s view was that if the FBI initiated a criminal investigation things might go faster.672
Project A-O Canada’s presentation to the Americans was similar to many of
its recent presentations. Entitled “The Pursuit of Terrorism: A Canadian
Response,” it described the investigation’s background, team structure and various stakeholders. Like the other presentations, it listed several names under
“Present Situation,” including Abdullah Almalki and Ahmad El Maati, among several others. Unlike in other presentations, however, Mr. Arar’s name was included in this section. Inspector Cabana testified that Mr. Arar was only named
as a person of interest, but could not explain why his name was mentioned
here when it had not been included only a week earlier in the May 24, 2002
presentation to CROPS.
Clearly, Mr. Arar was not the main focus of the presentation, as his name
appeared on only three of the more than 30 slides. The one page dedicated
solely to Mr. Arar included the following information about him: he was a “business associate of Abdullah Al Malki;” the lease agreement for Mr. Arar’s Ottawa
residence listed Abdullah Almalki as a reference; he was linked to Mr. El Maati;
he was a contract employee of The MathWorks, Inc. in Boston; and he had refused an interview request.
The presentation dealt with a number of other individuals, including
Mr. Almalki, and it made reference to Amr El Maati.
In a concluding slide entitled “Project A-O Canada: What’s Next,” the presentation indicated that Mr. Arar, along with three other individuals, might be
part of an investigative hearing under Bill C-36. As this type of hearing is limited to people who may be witnesses, it appears that as of May 31, 2002 Project
A-O Canada did not intend to bring charges against Mr. Arar. Inspector Cabana
confirmed this to be true and testified that it was still the case when he left
Project A-O Canada on February 4, 2003.673
Although CID’s Corporal Flewelling was scheduled to attend the
Washington presentation on behalf of RCMP Headquarters, he did not receive
his authorization in time. As a result, no one from Headquarters attended.
Corporal Flewelling testified that it was not entirely abnormal for a division of
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
the RCMP to meet with the Americans in this manner, as long as Headquarters
was aware of the subject of the discussion.674
On June 5, 2002, Staff Sergeant Corcoran spoke to an FBI agent about the
American response to the May 31 presentation. The agent requested a copy of
the presentation and other materials. He indicated that the presentation had
been well received.
On June 26, 2002, Chief Superintendent Couture sent a letter to the U.S.
Embassy on behalf of Project A-O Canada. While the letter mainly concerned
outstanding requests for information and documentation from the FBI, it also
mentioned the May 31 presentation at FBI Headquarters. The letter indicated
that the FBI had requested a copy of the Project A-O Canada presentation of
May 31, and that the information would be given to the FBI.
Staff Sergeant Corcoran met with the FBI about sharing information on
July 8, 2002, and the FBI again requested copies of the presentation and other
documents to show to its managers. The same day, Staff Sergeant Corcoran and
Inspector Cabana updated the presentation.675
A current copy of the presentation, excluding speaking notes, was sent to
the Americans on July 22, 2002.676 [***].677
4.5
MR. ARAR’S DEPARTURE FOR TUNISIA — JULY 2002
In mid-July 2002, Project A-O Canada officials learned that Mr. Arar and his family had left for Tunisia several weeks earlier. They also concluded that he did
not plan on returning to live in Canada. Corporal Lemay met with Officer
Thériault from Canada Customs to “red flag” Mr. Arar.
CSIS was informed of Mr. Arar’s apparently permanent departure for Tunisia
in the Project A-O Canada situation report for July 12, 2002.678 In a meeting on
July 15, Project A-O Canada officials informed the Americans of Mr. Arar’s departure. They discussed possible reasons for his departure, including whether it
was as a result of the investigation, or if it had already been planned.679
Although Project A-O Canada officials expected that Mr. Arar would be returning to Canada, it does not appear they intended to interview him. That said,
Corporal Lemay did spend some time in the summer revising questions that had
been prepared for Mr. Arar’s interview in January 2002 — the interview that
never took place.680
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4.6
THE TUNISIAN INQUIRIES
Project A-O Canada and CSIS officials met on August 28, 2002 to discuss various topics, including Mr. Arar’s departure to Tunisia with his family.681 CSIS offered to conduct trace checks on Mr. Arar with its foreign intelligence contacts.
CSIS witnesses testified that no such requests were ever made.
Staff Sergeant Callaghan testified he did not have any knowledge that anyone in the RCMP induced, suggested, requested, or in any way caused the
Tunisian military intelligence to visit Mourad Mazigh (Mr. Arar’s brother-in-law)
or Dr. Mazigh’s father in Tunisia, in or around August 2002.682 However,
Dr. Mazigh’s father was apparently asked certain questions about whether his
son-in-law had moved to Tunisia, or was merely there on vacation.
4.7
THE PROPOSED INTERVIEWS OF MESSRS. EL MAATI AND ALMALKI
(JANUARY 2002 TO SEPTEMBER 2002)
4.7.1
Efforts to Interview Mr. El Maati in Syria and Egypt
As noted above, Ahmad El Maati left Canada on November 11, 2001, and was
arrested in Syria the next day.683 Following is a limited chronological description
of Project A-O Canada’s attempts to interview Mr. El Maati during his detention
in Syria and during his subsequent detention in Egypt, where he was transferred
in January or February 2002.
4.7.1.1
Proposed Interview in Syria
In December 2001 (perhaps even earlier), Project A-O Canada officials were deciding whether to interview Mr. El Maati about a number of issues, including
Mr. Almalki’s suspected involvement with al-Qaeda. The interview was considered an important step in their investigation, and Inspector Clement discussed
the possibility with the Americans in December 2001.684
On January 9, 2002, Inspector Clement sent a fax to the RCMP liaison officer in Rome (the office responsible for Syria), describing Project A-O Canada’s
interest in Mr. El Maati and giving some details of the investigation.685 The fax
referred to efforts already made on Project A-O Canada’s behalf to determine if
Syrian authorities would allow Mr. El Maati to be interviewed, and requested that
another attempt be made, emphasizing the criminal investigation currently
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underway in Canada. The fax indicated that Project A-O Canada officials
had made representations to, and sought the assistance of, their American
colleagues.686
In his testimony, Inspector Clement indicated that Project A-O Canada’s aim
for the interview was to try and establish certain facts about the investigation.
With respect to human rights issues, Inspector Clement testified that although
these rights were likely not held in as high regard in Syria as they are in Canada,
Project A-O Canada officials had no evidence of torture at the time, nor was it
an issue. They were more concerned about possible non-compliance with
Canadian law regarding any statement they might obtain, as they wanted it to
be admissible in Canadian courts.687
As discussed below, Project A-O Canada officials would have required approval from RCMP Headquarters to travel to Syria, following consultation with
the Department of Foreign Affairs and International Trade (DFAIT).688 However,
the fact that a liaison officer was involved at this stage meant that DFAIT was
also involved, as liaison officers are responsible on an administrative level to
DFAIT and operationally to the RCMP.689
Inspector Clement’s notes for January 25, 2002 refer to an interesting conversation between Inspector Cabana and the Americans, in which they discussed
Mr. El Maati’s potential interview. Asked what Project A-O Canada’s position
would be if Mr. El Maati claimed to have been tortured, Inspector Clement responded that any allegations would be reported to the Canadian ambassador to
Syria. The Ambassador would then meet with Mr. El Maati to determine his general demeanour and whether he had any injuries, and to try and obtain a statement. According to Inspector Clement, DFAIT was responsible for addressing
any issue of torture.690
Inspector Clement said there was no evidence that Mr. El Maati had been
tortured. Nor did he think it appropriate to cast aspersions on a country without having any facts indicating torture, even if the country was known to have
a poor human rights record.691
4.7.1.2
Proposed Interview in Egypt
On February 11, 2002, Inspector Clement learned that Mr. El Maati had been
moved from Syria to Egypt. In the months that followed, the RCMP had numerous discussions about the possibility of interviewing him while he was in
custody in Egypt. In the end, Project A-O Canada’s efforts to interview
Mr. El Maati were not successful.
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FACTUAL BACKGROUND: VOLUME I
In order to advance their efforts to interview Mr. El Maati, Project
A-O Canada officials from time to time had discussions with senior officers of
“A” Division, CID at RCMP Headquarters, the RCMP LO in Rome, CSIS, DFAIT,
and the Americans. In all of these dealings, Project A-O Canada’s primary focus
was to interview Mr. El Maati as part of its ongoing criminal investigation.
Officials considered it vitally important to obtain information from him concerning their investigation. This became increasingly important after the
January 22, 2002 searches.
Over the course of these discussions, officials raised the issue of torture, either in Syria or in Egypt. While Project A-O Canada officers thought it possible,
they had no indication that torture had, in fact, occurred, at least until July
2002, when a briefing note to RCMP Commissioner Zaccardelli, signed by
Superintendent Pilgrim from CID, stated that there were indications that
Mr. El Maati had been exposed to “extreme treatment” while in Egyptian custody.692Moreover, they considered torture of a Canadian detained abroad to be
more of a concern for DFAIT.
On July 4, 2002, Canada’s ambassador to Syria, Franco Pillarella, facilitated
a meeting in Damascus between General Khalil, head of the Syrian Military
Intelligence, and the RCMP liaison officer in Rome who is responsible for Syria.
In July 2002, the RCMP was considering the possibility of interviewing
Mr. El Maati abroad. The RCMP did not conduct any interviews of Mr. El Maati,
nor did the RCMP provide a list of questions for Mr. El Maati to any foreign government agency.
On August 13, 2002, Project A-O Canada received a fax indicating DFAIT
consular personnel had visited Mr. El Maati in Egypt the preceding day.693
Mr. El Maati said he wanted to return to Canada, and that he had been beaten,
subjected to electric shock, and forced to give false information while incarcerated in Syria. However, he did not give details of these admissions.694
Mr. El Maati also said he had been held in four different prisons in Egypt. He
wanted his family advised; he wanted a lawyer; and he wanted to talk to CSIS
officials in Toronto.695 The fax indicated that consular officers were looking into
the possibility of arranging for legal counsel through Mr. El Maati’s mother or
other relatives in Cairo.696 That same day, James Gould of DFAIT pointed out to
Project A-O Canada that Mr. Almalki was in a Syrian prison, something that
Mr. Gould felt posed a potential problem.697
The fax was the first clear indication to Project A-O Canada that Mr. El Maati
might have been tortured. Moreover, it appeared that the media would soon be
aware of these allegations. In the following days, Project A-O Canada officials
met with partner agencies, including DFAIT and CSIS, to prepare a media
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
response. DFAIT officers in Cairo were exploring options for helping
Mr. El Maati’s relatives visit, the clear implication being that the family would
soon learn of the torture allegations.698 There was concern that these allegations, combined with the RCMP’s search of Mr. El Maati’s residence on January
22, 2002, would lead to intense media scrutiny.699
At this point, it was Project A-O Canada’s understanding that DFAIT was responsible for dealing with issues of torture, as well as for the return of
Mr. El Maati to Canada.700 DFAIT inquired whether the RCMP wished to lay
charges against Mr. El Maati, if and when he returned, but Project A-O Canada
officials did not have sufficient evidence to lay charges at the time.701 Apparently,
Project A-O Canada was also concerned that, if released, Mr. El Maati would
become a national security concern in Canada because of alleged threats he had
made, despite the possibility that the threats had been obtained through
torture.702
Officials at Project A-O Canada were still interested in interviewing
Mr. El Maati in Egypt,703 believing that if he was released, he would not return
to Canada and they might lose track of him.704 Moreover, Mr. El Maati’s allegations of torture were against Syrian, not Egyptian, authorities (although the briefing note described above referred to possible “extreme treatment” by Egyptian
authorities as well).705
On August 15, 2002, Project A-O Canada requested that the RCMP Rome LO
contact Egyptian authorities to request access to Mr. El Maati for an interview.
This request had been approved by the OIC of “A” Division CROPS at a meeting on August 13, 2002. On August 28, 2002, Project A-O Canada personnel met
to prepare an interview plan and questions for Mr. El Maati, in the event the
Egyptians agreed to an interview.
On September 10, 2002, Project A-O Canada tasked the RCMP LO with a request to get further information from the Syrian authorities in preparation for
their proposed interview of Mr. El Maati in Egypt. As noted however, this interview with Mr. El Maati in Egypt never took place.
4.7.2
Mr. Almalki — Questions and/or Interviews in Syria
As noted above, Mr. Almalki left Canada for Malaysia in late November 2001. At
one point, Project A-O Canada officials expected Mr. Almalki to return to Canada
around Christmas, but he did not, and officials lost track of him.
Project A-O Canada did not learn of Mr. Almalki’s whereabouts again until
May 31, 2002. The news came to Corporal Flewelling at CID that Mr. Almalki was
likely in Syria (the information was not yet confirmed), and that he might have
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FACTUAL BACKGROUND: VOLUME I
been arrested/detained by Syrian authorities within the last couple of days.
Corporal Flewelling passed the information to Project A-O Canada. The Foreign
Intelligence Division (ISI) in DFAIT had already been informed.706
At a June 3, 2002 meeting the RCMP urged that the United States be advised
of Mr. Almalki’s possible detention. The American officials were informed the
same day. The Project A-O Canada team indicated its wish to interview
Mr. Almalki.707
According to RCMP officials, CSIS suggested that the RCMP lay charges
against Mr. Almalki, so that CSIS could then approach the Syrians and ask for
his return. RCMP officials were under the impression that CSIS had a relationship with the Syrian Militray Intelligence, and could secure Mr. Almalki’s return
to Canada. When this scenario was put to a CSIS witness during testimony, he
rejected it. As with Mr. El Maati, however, Project A-O Canada did not have sufficient evidence to lay charges.
During the summer months that followed, Project A-O Canada had discussions with the Americans, DFAIT, RCMP-CID, the RCMP LO in Rome, and senior officers of “A” Division, all in an attempt to gain access to Mr. Almalki in Syria
and interview Mr. El Maati in Egypt.
On July 10, 2002, Project A-O Canada officials discussed among themselves
the possibility of sharing information with the Syrians in order to gain access to
Mr. Almalki.708 A protocol for sharing Project A-O Canada information with
Syrian authorities was discussed again at a meeting on July 16, 2002, at which
the former RCMP LO for Syria was present. It was concluded that any relationship between Project A-O Canada and Syrian intelligence would have to be coordinated through the RCMP LO in Rome.709
As already mentioned, when DFAIT informed Project A-O Canada officials
on August 13, 2002 of Mr. El Maati’s allegations of torture, the department also
advised that Mr. Almalki’s incarceration in a Syrian prison posed a potential
problem.710 However, Project A-O Canada officials regarded Mr. Almalki’s release and the possibility of torture as concerns for DFAIT.711 They continued
their attempts to obtain information from the Syrians, or to gain access to
Mr. Almalki.
On August 20, Project A-O Canada officials considered the possibility of
inviting the Syrians to Canada to review their investigative material, and to provide them with questions for Mr. Almalki on the RCMP’s behalf.712 However,
they never did so.
On September 10, 2002, Chief Superintendent Couture and senior officers
from Project A-O Canada met with a number of DFAIT officials, including
Ambassador Pillarella. The meeting dealt primarily with the type of assistance
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
DFAIT could provide the RCMP, either for sending Mr. Almalki questions, or for
arranging an interview.713, 714 Inspector Cabana summarized Project A-O Canada’s
investigation thus far. For his part, Ambassador Pillarella explained the intricacies of the Syrian intelligence community, and indicated that a Syrian general
(General Khalil) had finally admitted having Mr. Almalki in custody.715 It is also
likely that Ambassador Pillarella agreed to facilitate future requests to Syrian authorities, and may have made a comment to the effect that the Syrians would
probably expect something in return for sharing their information with
Canada.716
At this same meeting, a junior DFAIT officer, Jonathan Solomon, raised the
risk of torture. On the topic of sending questions for Mr. Almalki to Syria, he said
something to the following effect: “If you are going to send questions, would
you ask them not to torture him.”717 Mr. Solomon had recently completed a posting with the Human Rights and Humanitarian Law division of DFAIT. He had
seen reports on Syria, and was surprised that the issue of asking questions was
even on the table, given his understanding that Syrian detention practices could
involve aggressive questioning, especially if no one else was present.718
Mr. Solomon described the situation afterwards as awkward, with the RCMP
remaining nonplussed. Mr. Solomon remained quiet as a result of the ensuing
discomfort.719 However, he believed that someone turned to Ambassador
Pillarella to determine whether the statement about torture was accurate, and the
Ambassador made some sort of affirmative gesture or comment.720
Ambassador Pillarella did not recall Mr. Solomon’s comment.721 He was on
vacation at the time, had only dropped by to see friends, and was invited to the
meeting. He did not take notes, and his recollection of the meeting was understandably poor.722
Despite the fact that Mr. Solomon’s comment was made seriously, there
was little, if any, discussion about the possibility of torture. A brief discussion
may have ensued, in which another, more senior DFAIT officer (Scott
Heatherington), also said something about the possibility of torture, referring to
Mr. El Maati’s allegation that he had been tortured in Syria. Inspector Cabana
commented, possibly in response, that it was possible Mr. El Maati had only
claimed torture, but that the torture had not actually occurred.723
Mr. Heatherington had no recollection of the meeting, but he did not dispute that something to this effect was said. According to him, DFAIT was comfortable with the RCMP interviewing Canadian citizens anywhere, but was also
trying to make the RCMP aware of conditions in countries like Egypt and Syria.
At the time, DFAIT knew of Mr. El Maati’s claims in Egypt that he had been tortured by the Syrians.724
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FACTUAL BACKGROUND: VOLUME I
Inspector Cabana agreed that discussions of torture possibly took place at
this meeting, although he could not recall specific comments. When shown the
comment he reportedly made, that individuals may claim torture when it has not
actually occurred, he stood by it. His view was that this is always a possibility.725
The same day as the meeting, Inspector Cabana sent a fax to Staff Sergeant
Fiorido in Rome, who was the RCMP LO responsible for Syria.726 Inspector
Cabana referred to the meeting with Ambassador Pillarella. He then wrote as
follows:
It is our understanding that the Syrians are prepared to question ALMALKI on
our behalf. While their offer is appreciated, it obviously would be in our best interests to interview ourselves.
We would request that you approach your Syrian contact to see if they will
grant us access to conduct our own interview of this individual. The Syrians have
been most cooperative with our earlier requests and we are hoping that our requests will meet with favourable review. In the alternative, we are contemplating
providing the Syrian officials with questions for ALMALKI.
The Syrian authorities have expressed an interest in information we have on
ALMALKI and we are lead to believe that they would like access to our information
to assist them in their inquiries. I would propose that the Syrians be approached and
advised that we would like to extend an invitation for their investigators to come
to Canada and meet with our team to share information of common interest.
On January 15, 2003, Project A-O Canada delivered questions for
Mr. Almalki to the Syrian Military Intelligence through the LO in Rome and the
Canadian ambassador to Syria. The circumstances are discussed in detail in a
later section of this Report.727
Mr. Almalki was released from Syrian custody and returned to Canada in
August 2004.
4.8
PROJECT A-O CANADA’S RELATIONSHIP WITH OTHER AGENCIES:
JANUARY TO SEPTEMBER 2002
During its investigation prior to Mr. Arar’s detention in New York, Project
A-O Canada interacted with other agencies, primarily CSIS and the FBI. Earlier
sections of this report describe many of the specific communications with each
of these agencies that are relevant to the mandate of this Inquiry. However, the
Inquiry also heard a good deal of evidence about the nature of the relationships
between these agencies and Project A-O Canada. While this evidence arguably
does not bear directly on the Inquiry’s mandate, it nonetheless provides
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
background and context to the investigation as it relates to Mr. Arar. Some of the
key features of these relationships are described below.
4.8.1
CSIS
Viewed from Project A-O Canada’s perspective, the relationship with CSIS was
frustrating at times.
Project A-O Canada was concerned that CSIS was not providing full and
timely disclosure of all relevant information. CSIS, on the other hand, maintained
that it provided full and proper disclosure to Project A-O Canada throughout the
investigation.
Project A-O Canada officials also felt that CSIS had not provided
adequate assistance in analysing the results of the January 22, 2002 searches,
and that other agencies had been more helpful. According to CSIS, however,
its resources were strained at the time, and it did the best it could in the
circumstances.
For its part, CSIS was concerned about the RCMP’s close relationship with
the Americans. CSIS periodically complained about these relationships,728 suggesting that the RCMP was meeting with the American agencies too frequently
and giving them too much access to information about its investigation.
In contrast, Project A-O Canada was of the view that full and open sharing
in a timely manner was essential in the post-9/11 climate. Officials had been directed by superior officers at “A” Division and RCMP Headquarters to take this
approach in communicating with the American agencies. Indeed, Project
A-O Canada officials pointed out that senior officers were fully aware of how
they were conducting the investigation, and explicitly or tacitly approved of
their approach.
Although the relationship between Project A-O Canada and CSIS was at
times strained, it appears that this did not have a direct bearing on the events
affecting Mr. Arar.
4.8.2
The FBI
Project A-O Canada also experienced some frustration in its dealings with the
FBI. As mentioned, it appears that Project A-O Canada and the FBI were interested in some of the same individuals.729 Even so, the FBI agents revealed very
little to Project A-O Canada about the extent and nature of their interest. In contrast, Project A-O Canada was far more responsive to FBI requests.730 The
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FACTUAL BACKGROUND: VOLUME I
Project’s attempts to achieve greater cooperation with the FBI — its May 31,
2002 presentation, for example — were generally unsuccessful.
Despite the apparent understanding that caveats were down for information
sharing, most FBI documents continued to include caveats directed at Project
A-O Canada. For instance, on January 24, 2002, Project A-O Canada received a
letter from the FBI, together with a caveat prohibiting distribution of the information to third parties or its use in any proceedings.731
4.8.3
American Agencies in General
In his testimony, Inspector Clement spoke about the need to exercise caution
with American agencies, especially regarding their potential for using strongarm tactics in the fight against terror. He understood that American agencies
had been accorded sweeping powers by presidential decree, and that they most
likely used them.732
The relationship between Project A-O Canada and the American agencies
created problems in its relationship with RCMP Headquarters. As a result, several meetings were held at which ad hoc resolutions were reached. The relationship with the Americans also concerned CSIS. According to Mr. Hooper,
Superintendent Pilgrim assured him that restraints and restrictions had been imposed on Project A-O Canada’s relationship with the Americans, and that the
problems cited in his report had been dealt with. Nevertheless, CSIS observed
that American agents continued to frequent “A” Division offices. Although CSIS
knew now they were not part of a joint investigation, their access was a continuing concern. Even after a meeting on September 26, 2002, Assistant
Commissioner Proulx was advised that the Americans were still at “A” Division.
By mid- October 2002, American access was curtailed, likely as a result of the
controversy surrounding Mr. Arar’s removal to Syria.733
No suggestion was made at the September 26 meeting that caveats should
go back on information shared with the Americans.734 Nor, during the period
leading up to that time, does it appear that American correspondence with
Project A-O Canada included explicit caveats.735
4.9
MR. ARAR’S STATUS AS OF SEPTEMBER 26, 2002
Immediately preceding Mr. Arar’s detention in New York on September 26, 2002,
Project A-O Canada still considered him to be peripheral to its investigation, despite the significant amount of information they had acquired about him.736 He
had been linked to the main targets of the Project A-O Canada investigation, but
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
officials wanted to know more, particularly about his links to Mr. Almalki,
and whether Mr. Arar was involved with “JIHAD training, terrorist groups and
or acts.”737
To summarize, prior to September 26, 2002, Project A-O Canada considered Mr. Arar to be, at best, a person of interest that the RCMP wished to interview as a witness. The RCMP did not have evidence to support a search warrant
or a wiretap, let alone the evidence needed to lay criminal charges.
4.10
INFORMATION ON MR. ARAR PROVIDED TO AMERICAN
AUTHORITIES PRIOR TO SEPTEMBER 26, 2002
It is clear from the discussion above that Project A-O Canada provided American
authorities with a substantial amount of information about Mr. Arar on different
occasions in the months prior to September 26, 2002. Despite the Project’s assessment that Mr. Arar was no more than a person of interest, the information
passed to the Americans included a number of misleading or false statements
that were potentially damaging, such as:
•
•
•
The description of Mr. Arar and Dr. Mazigh as being members of a “group
of Islamic Extremist individuals suspected of being linked to [the] Al Qaeda
terrorist movement.”
Several references to Mr. Arar as a “suspect,” “principal subject,” target or
important figure.
The assertion that Mr. Arar had refused an interview with the RCMP.
For convenience, the information provided to the Americans before
September 26, 2002 is summarized in Annex 1.
In addition to the specific exchanges of information listed in Annex 1, it is
possible, indeed likely, that information on him was provided to the Americans
during regular meetings that took place with Project A-O Canada, starting in
October and November 2001 and continuing until Mr. Arar’s removal to Syria.
Informal exchanges would also have occurred as a result of the frequent telephone contacts that Project A-O Canada officers had with the Americans.738
For example, Staff Sergeant Corcoran’s notes of a meeting on April 30, 2002
with the Americans indicate that there was “no new information on Arar.”
Obviously, Mr. Arar was a subject of discussion with the Americans, but the
contents of these discussions were not available to the Commission.739
The Americans may also have had access to Project A-O Canada situation
reports during their regular visits, and the contents of these reports were likely
discussed during meetings.740
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FACTUAL BACKGROUND: VOLUME I
As noted previously in this Report, no explicit caveats were attached to the
information sent to the Americans. One of the reasons given for this was that all
the information in question (i.e., that might have been subjected to a caveat) was
already being discussed in open meetings between the RCMP and its partner
agencies.741
4.11
EVIDENCE OF AN AMERICAN INVESTIGATION OF MR. ARAR
This section reviews evidence related to whether the FBI had an investigation
involving Mr. Arar, and if so, to what extent these investigations obtained information other than that provided by Project A-O Canada.
As the Americans declined to testify at this Inquiry, this discussion is based
solely on the evidence of Canadian officials. That being the case, it is not possible, in some instances, to reach a definitive conclusion.
In summary form, a review of the evidence discloses the following:
•
•
•
•
It is quite possible that the Americans were investigating Mr. Arar prior to
9/11.
Starting in early November 2001, Project A-O Canada began providing information about Mr. Arar to American agencies, and continued to do so up
until his detention in New York.
By February 2002, the FBI was possibly conducting an investigation that included Mr. Arar.
Despite an extensive information-sharing relationship between Project A-O
Canada and the American agencies, it is not clear whether the Americans
had independently produced information adverse to Mr. Arar.
The following chronological account, through to September 2002, sets out
developments in the Project A-O Canada investigation and evidence of American
interest in Mr. Arar, and how the two became intertwined.
November 2001
By early November 2001, Project A-O Canada had begun to provide the
Americans with a significant amount of information on Mr. Arar, mainly by way
of the November 2, 2001 memo to the FBI requesting further information, and
the request for TECS checks and TECS lookouts on Mr. Arar and his wife and
others. The request for TECS checks and lookouts described Mr. Arar and the
others as part of a group of “Islamic extremist individuals.”742 The November 2
memo said that Mr. Arar was a “close associate” of Mr. Almalki, and that he had
�EVENTS PRIOR TO MR. ARAR’S DETENTION IN NEW YORK
listed Mr. Almalki as his emergency contact on his lease application. These exchanges may have increased American interest in Mr. Arar.
The request for TECS checks resulted in information from the Americans
about the cross-border travels of Mr. Arar and his wife. This might indicate that
Mr. Arar and Dr. Mazigh had previously been placed on a lookout, implying
that they were possibly the subjects of a prior investigation. On the other hand,
the fact that Mr. Arar and Dr. Mazigh’s vehicle turned up in the TECS system is
not conclusive of an American investigation of Mr. Arar, as information about a
person’s travels may be in TECS for a number of other reasons.743 TECS contains
more than just law enforcement and terrorist suspect information; it also contains
information entered for immigration and monitoring purposes. For example,
one database that feeds into TECS monitors the history of individuals crossing
into the United States, in part to verify that they obey immigration laws and stay
in the country for the permitted time. Another database feeding into TECS stores
traveller arrival and departure information, including car travel between the
United States and Canada.744 One Canadian Customs agent also described readers that photograph vehicle license plates at land border crossings and
run checks for vehicle offences.745 This information may also end up in the TECS
system.
Whatever the explanation for Mr. Arar’s name and vehicle appearing in
TECS, on November 6, 2001, Constable Lang was advised that further checks
were being conducted on him. Apparently, the FBI was now investigating
Mr. Arar because there were positive hits on him in TECS.746
Constable Lang testified that he was never told there was a U.S. investigation of Mr. Arar, but all the information he was receiving at that point led him
to believe there was.747 According to Staff Sergeant Callaghan, the number of
times Mr. Arar’s car was identified demonstrated that the Americans had an independent lookout on him before Project A-O Canada began its investigation.748
December 2001
American authorities were now fully implicated in the Project A-O Canada investigation.
February 2002
When the FBI visited Project A-O Canada in February 2002, two agents expressed an interest in Mr. Arar and others. During their visit, they were permitted to see the material Project A-O Canada had assembled on Mr. Arar.
Despite the interest in Mr. Arar, the FBI never made it clear what its investigation had revealed, or whether its interest preceded Project A-O Canada’s.749
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Corporal Lemay, who was in close contact with the FBI agents during this
February visit, could not say whether Mr. Arar was the subject of a separate FBI
investigation, or if the FBI was simply responding to the RCMP’s interest in
him.750
However, it is clear that by this point the FBI was reaching conclusions
about Mr. Arar that Project A-O Canada officials were not willing to, based on
the evidence they had. Either the Americans had more information, or they were
simply quicker to judge Mr. Arar’s links to terrorism. Again, it is impossible to
tell.
March and April 2002
Information sharing with the Americans increased during this period. By April
2002, the full contents of the Project A-O Canada Supertext database had been
provided to the U.S. agencies.
May and June 2002
The exchange of information between Project A-O Canada, and the Americans
continued during these two months.
During Project A-O Canada’s May 31, 2002 presentation in Washington,
D.C., no mention was made of a prior investigation of Mr. Arar.751 The presentation included information on Mr. Arar.
Further attempts were made to obtain information on Mr. Arar from
American authorities during this period, but with little success.
July and August 2002
The Americans and Project A-O Canada continued to exchange information during July and August 2002, including information related to Mr. Arar. On July 15,
2002, Project A-O Canada officials informed the Americans of Mr. Arar’s departure to Tunisia, and discussed with the Americans whether he had left as a result of the investigation, or if the departure was already planned.752
Conclusions Regarding the American Investigation into Maher Arar
Many Project A-O Canada officers testified about their belief that the Americans
were undertaking a separate, independent investigation of Mr. Arar.753 It is conceivable, however, that the FBI had little additional information on Mr. Arar, but
was simply recycling and refining information received from Canadian
authorities. Unfortunately, it is impossible to determine with certainty which
view is correct, given the lack of evidence from the United States.
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[IC] Cabana testimony (October 25, 2004), pp. 2315–2316.
[IC] Clement testimony (January 18, 2005), pp. 8866–8867.
[IC] Cabana testimony (October 25, 2004), p. 2339.
Officers’ notes from September 25 and September 26, 2001 refer to a meeting where the three
goals of Project Shock and the introduction of the Financial Intelligence Branch were discussed. Clement notes, vol. 1, book 2, p. 46; [IC] Clement testimony (January 18, 2005),
pp. 8876–8879; Couture notes, p. 1; [IC] Couture testimony (December 7, 2004),
pp. 7072–7074.
[IC] Cabana testimony (October 25, 2004), pp. 2339–2341 and [IC] (November 2, 2004), pp.
3550–3551; [IC] Clement testimony (January 18, 2005), pp. 8876–8877. Prior to this meeting,
IPOC units focused primarily on collecting evidence for the purpose of prosecuting offences.
[IC] Clement testimony (January 18, 2005), pp. 8877–8878.
Exhibit C-30, Tab 13.
[IC] Pilgrim testimony (January 26, 2005), pp. 10381–10382. This meeting was referred to in
an FBI letter to the RCMP and CSIS dated September 23, 2001. The letter concerned certain
individuals that the FBI believed were part of a terrorist cell in Canada. Superintendent Wayne
Pilgrim, the Officer in Charge of NSIB, could not recall if there was a discussion at the meeting about specific activities that would have led to the September 23, 2001 letter.
[IC] Cabana testimony (November 2, 2004), p. 3651.
Section 12 of the CSIS Act sets out the criteria permitting CSIS to investigate an individual for
matters related to Canadian security. CSIS uses a targeting system that classifies persons being
investigated as level 1, 2 or 3 targets. It is not necessary to describe this targeting process in
detail here. However, from time to time, the Report will refer to a CSIS target, meaning a person who is the subject of an ongoing CSIS investigation pursuant to the targeting process.
[IC] Hooper testimony (September 22, 2004), pp. 1466–1467.
Ibid., pp. 1467–1468; [P] Hooper testimony (June 22, 2004), p. 407. Mr. Hooper became the
Assistant Director of Operations at CSIS Headquarters in June 2002.
[IC] Hooper testimony (September 22, 2004), p. 1468 and [IC] (August 26, 2005),
pp. 17841–17843.
[IC] Hooper testimony (August 26, 2005), pp. 17843–17844. In a letter dated September 24,
2001, Mr. Hooper wrote to RCMP “O” Division in Toronto with the information promised at
the September 22 meeting. The copy of the letter that was reviewed by the Commission did
not include the al-Qaeda profile attachment. Exhibit C-330: letter dated September 24, 2001 to
Chief Superintendent John MacLaughlan from William J. Hooper re: Multiple Terrorist Attacks
in the United States. [IC] Hooper testimony (August 26, 2005), pp. 17847–17849.
Exhibit C-30, Tab 14. September 26, 2001 CSIS advisory letter, p. 2. According to Mr. Hooper,
the police consulted with the Ontario Crown Attorney to determine whether the information
CSIS had provided them could be used as evidence in a criminal prosecution. All of the material information the police now had derived from a CSIS investigation, which is conducted
at a lower threshold than a criminal investigation. Mr. Hooper stated that the Ontario Crown
Attorney’s position was that the information was tainted and could not be used as evidence
in criminal litigation. This resulted in the focus of the investigation moving from prosecution
to more of a disruption exercise, whereby the police would assist CSIS in dismantling a group
of alleged terrorists. [IC] Hooper testimony (September 22, 2004), pp. 1469 and 1474–1475.
[IC] Hooper testimony (September 22, 2004), p. 1469.
Ibid., pp. 1471–1473. Under s. 2 of the CSIS Act, the definition of “threats to the security of
Canada” refers to activities “relating to Canada” or “detrimental to the interests of Canada.”
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[IC] Testimony (September 14, 2004), pp. 278–279.
[IC] Testimony (September 13, 2004), p. 175.
[IC] Hooper testimony (September 22, 2004), p. 1474 and [IC] (August 26, 2005),
pp. 17837–17838.
[P] Cabana testimony (August 9, 2005), p. 9371.
[P] Hooper testimony (August 25, 2005), pp. 10745–10746.
The investigation of Abdullah Almalki is described below in Section 3.2
Cabana notes, book 2, p. 15; [IC] Cabana testimony (October 25, 2004), p. 2329.
On October 5, 2001, Inspector Garry Clement (CROPS) informed the soon-to-be Officer in
Charge of Project A-O Canada that the project would be taking over management of the
Almalki investigation. Cabana notes, book 2, p. 19. In effect, this marked the beginning of
Project A-O Canada as separate from Project O Canada in Toronto. As discussed later in this
report, the two Projects continued to meet and share information from time to time.
[IC] Cabana testimony (October 25, 2004), p. 2340.
Ibid. and [IC] (November 2, 2004), p. 3545.
[P] Cabana testimony (June 29, 2005), pp. 7782–7783.
[IC] Cabana testimony (October 25, 2004), pp. 2340–2341.
Ibid., pp. 2342–2343 and 2381; [IC] Clement testimony (January 18, 2005), pp. 8880–8881.
[IC] Clement testimony (January 18, 2005), p. 8881. When Project A-O Canada was created,
NSIS units were located in all major Canadian cities. In February 2002, NSIS units in Toronto,
Montreal, Vancouver and Ottawa became integrated policing units called Integrated National
Security Enforcement Teams (INSETs).
[IC] Couture testimony (December 7, 2004), pp. 7324–7325.
After leaving Project A-O Canada, Inspector Cabana was promoted to Superintendent, the
position he currently holds. For clarity, this Report refers to him throughout by the rank of
Inspector, the rank which he held at the time.
In January 2002, Inspector Cabana became the Officer in Charge of “A” Division’s IPOC unit.
He remained in this position during his time with Project A-O Canada and returned to his duties in IPOC when he left Project A-O Canada on February 4, 2003. [IC] Cabana testimony
(October 25, 2004), p. 2313.
Ibid., pp. 2311–2314.
[IC] Couture testimony (December 7, 2004), pp. 7323–7324; [IC] Clement testimony (January
18, 2005), pp. 8884–8885. The Commanding Officer of “A” Division, Assistant Commissioner
Dawson Hovey, approved the appointment of Inspector Cabana, as movement of an officer
within “A” Division required his approval. Apart from Inspector Cabana, Assistant
Commissioner Hovey was not involved in assigning or hiring personnel for the team. [IC]
Hovey testimony (January 17, 2005), pp. 8643 and 8645.
[IC] Clement testimony (January 18, 2005), p. 8884.
Inspector Clement personally selected some members of the team. Any members selected by
Inspector Cabana were subject to approval by Inspector Clement. Ibid., p. 8882 and [IC]
(January 19, 2005), p. 9249; [IC] Cabana testimony (October 25, 2004), p. 2372.
[IC] Cabana testimony (October 25, 2004), pp. 2369–2372; [IC] Couture testimony (December
6, 2004), p. 7027; [IC] Clement testimony (January 18, 2005), pp. 8882–8884. Many RCMP witnesses spoke about the advantages of integrated operations involving many agencies.
[IC] Couture testimony (December 6, 2004), p. 7030; [IC] Clement testimony (January 18, 2005),
p. 8886.
[IC] Cabana testimony (October 25, 2004), pp. 2374–2375; [IC] Clement testimony (January 18,
2005), pp. 8882–8883 and [IC] (January 19, 2005), pp. 9200–9201.
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[IC] Cabana testimony (October 25, 2004), pp. 2372–2375 and [IC] (November 2, 2004),
pp. 3529–3530.
[IC] Cabana testimony (October 25, 2004), pp. 2376–2377. At the beginning of the Project,
Sergeant Walsh also served as lead investigator and project scribe for meetings. Once he became the Project’s affiant (the person swearing affidavits), Staff Sergeants Callaghan and
Corcoran took over the lead investigator role. Sergeant Walsh also drafted the Project’s situation reports from time to time. [IC] Callaghan testimony (November 3, 2004), pp. 3865–3866;
[IC] Walsh testimony (November 29, 2004), pp. 5928–5930.
[IC] Lemay testimony (November 16, 2004), p. 5273.
[IC] Lang testimony (November 18, 2004), pp. 5751 and 5753.
[IC] Clement testimony (January 18, 2005), p. 8895.
[IC] Corcoran testimony (November 9, 2004), p. 4614.
Corporal Buffam was the first member of NSIS to join the team. Over time, three other members of NSIS came on board on a full-time basis and another individual joined on a part-time
basis. [P] Cabana testimony (June 29, 2005), p. 7833.
Corporal Buffam did not mention CSIS, but members of NSIS usually have contact with CSIS.
[IC] Cabana testimony (October 25, 2004), pp. 2378 and 2381; [IC] Buffam testimony
(December 1, 2004), pp. 6378–6380.
[IC] Clement testimony (January 19, 2005), pp. 9220–9221.
Ibid., p. 9250. For awhile, some members of Project A-O Canada did not have the appropriate top secret security clearance. However, this is not relevant to Mr. Arar’s situation.
[IC] Couture testimony (December 6, 2004), p. 7029.
Ibid., pp. 7027–7029.
[IC] Cabana testimony (October 25, 2004), p. 2377.
[IC] Cabana testimony (November 2, 2004), pp. 3526-3527.
[IC] Cabana testimony (October 25, 2004), p. 2378; Exhibits C-172, C-173, C-174 and C-175.
[IC] Buffam testimony (December 1, 2004), pp. 6352–6355 and 6357–6358.
[IC] Pilgrim testimony (January 26, 2005), p. 10328.
[IC] Buffam testimony (December 1, 2004), p. 6349.
[IC] Couture testimony (December 7, 2001), pp. 7061–7062; [IC] Pilgrim testimony (January 28,
2005), p. 10726.
Exhibit P-12, Tab 45, p. 15 (syllabus). Superintendent Pilgrim testified that at the time of 9/11,
the RCMP’s national security training course offered minimal training in Sunni Islamic extremism. This topic was usually addressed during CSIS presentations, which were part of the
threat assessment portion of the training course. Superintendent Pilgrim stated that efforts
were made to enhance the focus on Sunni Islamic extremism in the revamped course. [IC]
Pilgrim testimony (January 26, 2005), pp. 10328–10330 and [IC] (January 28, 2005),
pp. 10725–10726.
[IC] Corcoran testimony (November 9, 2004), p. 4646; [IC] Lemay testimony (November 16,
2004), p. 5276; [IC] Walsh testimony (November 29, 2004), pp. 5949–5950; [IC] Buffam testimony (December 1, 2004), pp. 6347–6348. According to Inspector Cabana, space was limited
because Bill C-36 was a new training initiative. Due to the limited seating, he could not release everyone to go on this training course. He would send as many people as there were
reserved seats. He noted, however, that when Bill C-36 was enacted, RCMP Headquarters,
with the assistance of the Department of Justice, prepared a training and information package,
which included a CD and a manual. This package was distributed to members of the RCMP.
[P] Cabana testimony (June 29, 2005), pp. 7837–7838 and pp. 7840–7841.
[IC] Cabana testimony (November 1, 2004), p. 3499.
[P] Cabana testimony (June 29, 2005), p. 7838.
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[IC] Corcoran testimony (November 9, 2004), pp. 4637–4638.
[IC] Buffam testimony (December 2, 2004), pp. 6643–6646 and 6650–6651.
[IC] Cabana testimony (November 1, 2004), pp. 3499–3500. Superintendent Pilgrim testified
that immediately after 9/11, there were few officers in the RCMP with national security experience. Despite the need to formally train officers who were now joining the national security
program at RCMP Headquarters and in the divisions, the new officers could only be released
for training in small numbers, if at all. Often officers being trained in national security were
held back due to operational necessity. The only other option available was on-the-job training where officers new to national security were trained by other officers with some degree
of experience in this area. [IC] Pilgrim testimony (January 28, 2005), pp. 10733–10734.
[IC] Walsh testimony (November 29, 2004), p. 5950 and [IC] (November 30, 2004), p. 6247.
These policies are described below in Section 3.1.1.
[P] Cabana testimony (June 29, 2005), p. 8065.
Ibid., pp. 8065–8067. Inspector Cabana did note that one of the two assistant managers of the
Project had been seconded for a number of years to the RCMP prior to his assignment to
Project A-O Canada. Inspector Cabana believed he was fully aware of RCMP policies and
had received RCMP training during that time. Ibid., pp. 8065–8066.
[IC] Couture testimony (December 6, 2004), pp. 7029–7030.
[IC] Couture testimony (December 7, 2004), pp. 7326–7327.
[IC] Cabana testimony (October 25, 2004), pp. 2368–2369; [IC] Couture testimony (December
6, 2004), pp. 7019–7022 and [IC] (December 7, 2004), pp. 7317–7318 and 7321–7322; [IC]
Clement testimony (January 18, 2005), pp. 8864–8865. RCMP divisional offices are divided
into units, (e.g., commercial crime, drugs, customs and excise, national security, criminal intelligence), some of which conduct investigations. The units operate under CROPS, which is
the operational nerve center of the division.
CROPS is headed up by the CROPS officer, who is responsible for directing and coordinating
the activities of the various units in accordance with the mandate of the division. The CROPS
officer is also responsible for allocating the division’s budget to the various units.
The CROPS officer works with an assistant CROPS officer, who takes a more hands-on
approach in overseeing the units. The assistant CROPS officer briefs the CROPS officer on all
major projects conducted within the division.
Units within a division operate under the command of an officer in charge. Neither the CROPS
officer nor the assistant CROPS officer controls the day-to-day management of a unit. This responsibility falls to the officer in charge. All of the units that conduct investigations report to
CROPS through the assistant CROPS officer.
[IC] Cabana testimony (October 25, 2004), pp. 2369–2370; [IC] Couture testimony (December
6, 2004), p. 7036; [IC] Hovey testimony (January 17, 2005), p. 8807; [IC] Clement testimony
(January 18, 2005), pp. 8885–8886. If Inspector Clement was not available, Inspector Cabana
would contact the CROPS officer, Chief Superintendent Couture, directly. On the rare occasion when neither Inspector Clement nor Chief Superintendent Couture was available,
Inspector Cabana reported directly to the Commanding Officer of “A” Division, Assistant
Commissioner Dawson Hovey.
[IC] Couture testimony (December 6, 2004), p. 7036; [IC] Hovey testimony (January 17, 2005),
p. 8647.
[IC] Couture testimony (December 6, 2004), pp. 7036–7038. Chief Superintendent Couture
could not recall if he initiated the requirement that situation reports be filed by Project
A-O Canada on a daily basis. Regardless, he made an effort to read them each day, and believed that daily filing was necessary to best manage information related to the investigation
and to stay informed of the project’s progress.
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When Chief Superintendent Couture was asked if using situation reports to keep management
up to date on an investigation was a strategy he had encountered previously, he stated he had
seen it used on one, or maybe two, previous occasions.
[IC] Proulx testimony [ET] (December 9, 2004), pp. 7627–7628; [IC] Pilgrim testimony (January
26, 2005), p. 10332.
[IC] Proulx testimony [ET] (December 9, 2004), pp. 7630–7631; [IC] Pilgrim testimony (January
26, 2005), pp. 10332–10333.
SCIS is discussed in more detail below in Section 2.4.4.3.
Exhibit P-12, Tabs 10 and 11. NSIB was the part of the Criminal Intelligence Directorate (CID)
that dealt with national security issues. In 2003, the national security program at CID was reorganized into three sub-units (National Security Intelligence Branch, National Security
Operations Branch, and Policy, Planning and Development) under the direction of the Director
General, National Security, who reported to the head of CID.
[IC] Pilgrim testimony (January 26, 2005), pp. 10326–10327, 10330–10331 and 10333.
Superintendent Pilgrim became the Officer in Charge of NSIB one year prior to 9/11. NSIB was
responsible for 1) coordination of any criminal investigations within the RCMP related to national security; 2) coordination of the collection, analysis and dissemination of any criminal
intelligence related to national security within the RCMP, including liaising with CSIS; and 3)
development of threat assessments in support of the RCMP’s protective policing operations.
One of Superintendent Pilgrim’s first tasks was to create a vision for building expertise within
the investigative capacity of the national security program across the country, and a vision for
centralized coordination and direction of national security matters. Superintendent Pilgrim testified that NSIB’s counterpart agencies, such as CSIS and foreign agencies, operated under a
centralized structure. The RCMP, on the other hand, was more decentralized because the field
units reported to individual CROPS officers, where varying degrees of priority or importance
were assigned to national security matters.
[IC] Cabana testimony (October 25, 2004), pp. 2385–2387.
Ibid., pp. 2386–2387.
[IC] Couture testimony (December 6, 2004), pp. 7038–7039; [IC] Hovey testimony (January 17,
2005), pp. 8647–8648. Unlike situation reports that cover the detailed progression of an investigation, and could apply to a wide audience, briefing notes were used to advise the RCMP
Commissioner or Deputy Commissioner of specific issues, or the progression of an investigation over a given period of time. In most major operations, regardless of whether they are of
national interest, briefing notes are submitted if there is a particular issue an RCMP division
wants to bring to the attention of the RCMP’s senior management at Headquarters.
[IC] Cabana testimony (October 25, 2004), pp. 2383–2384; [IC] Hovey testimony (January 17,
2005), p. 8822; [IC] Pilgrim testimony (January 28, 2005), p. 10612. Inspector Cabana claimed
that providing situation reports to CID represented an unusual reporting relationship in that
Project A-O Canada made CID aware of everything it was doing on a daily basis. His position was supported by the Commanding Officer of “A” Division, Assistant Commissioner
Hovey, who testified that it was common for “A” Division to send briefing notes to
Headquarters, but providing situation reports indicated an extra effort on the part of Project
A-O Canada to keep Headquarters informed. In contrast, the Officer in Charge of NSIB,
Superintendent Pilgrim, testified that it was a common practice to provide situation reports during major investigations, and major incidents or events.
[IC] Pilgrim testimony (January 28, 2005), pp. 10611–10612.
[IC] Proulx testimony [ET] (December 9, 2004), pp. 7634–7637.
Ibid., pp. 7629 and 7637.
Ibid., pp. 7629 and 7337–7639.
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[IC] Hovey testimony (January 17, 2005), pp. 8820–8821.
[IC] Cabana testimony (October 25, 2004), pp. 2352–2354. For example, the Officer in Charge
of Project O Canada outlined continued problems between Project O Canada and Project
A-O Canada, including whether there was one case manager overseeing both investigations.
Project O Canada appeared to believe the O Canada case manager was in charge of both investigations. Project O Canada also complained that Project A-O Canada was sharing information with external agencies without the full knowledge and consent of the Project O Canada
case manager. Project O Canada Debriefing Comments p. 10, Exhibit C-30, Tab 15.
Exhibit C-30, Tab 63.
[IC] Cabana testimony (October 25, 2004), p. 2361.
[IC] Corcoran testimony (November 9, 2004), p. 4626; [IC] Walsh testimony (November 29,
2004), p. 6061.
[IC] Cabana testimony (October 25, 2004), p. 2394; [IC] Corcoran testimony (November 9,
2004), p. 4626.
[IC] Corcoran testimony (November 9, 2004), p. 4626.
[IC] Cabana testimony (October 25, 2004), p. 2393.
See Section 4.3 below.
[IC] Clement testimony (January 18, 2005), p. 8893.
[IC] Cabana testimony (October 25, 2004), p. 2362; [IC] Couture testimony (December 6, 2004),
p. 7040; [IC] Clement testimony (January 18, 2004), p. 8894.
[IC] Cabana testimony (October 25, 2004), pp. 2362–2363.
Ibid., p. 2397.
If an individual’s name is entered into SCIS, there are apparently audit guidelines for how
long that name and any corresponding information will remain in the system. However, the
Commission did not hear evidence about these guidelines. [P] Loeppky testimony (June 30,
2004), p. 820. If information on an individual was entered into SCIS during one investigation,
it could theoretically surface again in another investigation. Deputy Commissioner Loeppky testified that this was an acceptable outcome, as he felt there were many cases in which apparently innocuous pieces of information later became important. Therefore, police should not
arbitrarily decide to purge a file. [P] Loeppky testimony (July 6, 2004), p. 1279.
[P] Loeppky testimony (July 6, 2004), p. 1279. [IC] Proulx testimony [ET] (December 9, 2004),
pp. 7629–7637.
NSIS units were described by Deputy Commissioner Loeppky as small sections located within
the divisions that are charged with pursuing the criminal aspects of national security matters.
[P] Loeppky testimony (June 30, 2004), p. 751.
[IC] Buffam testimony (December 1, 2004), pp. 6364–6365. Corporal Buffam testified that NSIS
units did not have Supertext or E&R III prior to 9/11. SCIS was their primary database, but they
also had access to CPIC (Canadian Police Information Centre), NCBD (National Crime Data
Bank) and PIRS (Police Information Retrieval System).
[P] Loeppky testimony (June 30, 2004), pp. 754–755.
[IC] Buffam testimony (December 1, 2004), p. 6382.
[P] Loeppky testimony (June 30, 2004), p. 806.
[IC] Cabana testimony (November 1, 2004), pp. 3430–3431.
[IC] Cabana testimony (October 25, 2004), pp. 2387–2388.
[IC] Kibsey testimony (December 15, 2004), pp. 8437–8439.
Ibid., pp. 8482–8483 and 8486. Sergeant Kibsey testified that at the start of the Project, the situation reports were mostly produced on a daily basis. Near the end of his term as the CSIS
LO in April 2003, the frequency had slowed to once a week or less.
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Ibid., pp. 8485–8486. On a maximum of three occasions, Sergeant Kibsey left the situation reports with his CSIS counterpart who was posted to the RCMP — to be delivered to CSIS OR.
Ibid., p. 8485.
Ibid., pp. 8530–8531.
Ibid., p. 8590.
The chapter on national security investigations in the RCMP Operational Manual has been
updated since September 11, 2001. The reporting requirements discussed in this section relate to the requirements that were in place at Project A-O Canada’s inception.
[IC] Cabana testimony (November 1, 2004), pp. 3428–3429 and 3435.
Section 5.1, Criminal Intelligence Program Guide (May 2001), Exhibit P-12, Tab 44.
[IC] Cabana testimony (November 1, 2004), pp. 3386–3387.
Section D.1, RCMP Operational Manual – IV.10 National Security Investigations, Exhibit P12, Tab 34.
[IC] Cabana testimony (November 1, 2004), pp. 3430–3431. As has been mentioned, and as
will be discussed in greater detail in the following sections, E&R III reports would only permit RCMP Headquarters to view investigators’ progress through the Project. It would not
allow RCMP Headquarters to view all documents held by the Project. All documents received and generated by the project were held in the Supertext database. The contents of
the Supertext database were not uploaded to SCIS.
Section E.2.a.1, RCMP Operational Manual – IV.10 National Security Investigations, Exhibit
P-12, Tab 34.
Ibid.
[IC] Cabana testimony (November 1, 2004), p. 3433.
Ibid., p. 3436.
[IC] Pilgrim testimony (January 26, 2005), pp. 10344–10346.
Exhibit P-12, Tab 26.
[P] Loeppky testimony (July 6, 2004), p. 1119.
Exhibit P-12, Tab 26.
[P] Loeppky testimony (July 6, 2004), pp. 1393–1399.
Exhibit P-12, Tab 44.
[P] Loeppky testimony (June 30, 2004), pp. 802–803.
Exhibit P-12, Tab 27.
Ibid., Tab 26.
[IC] Cabana testimony (November 1, 2004), p. 3441.
There are about 35 RCMP foreign liaison officers in 25 locations around the world, some with
responsibility for many countries. Their mandate is to assist Canadian law enforcement with
inquiries, and to facilitate inquiries from foreign law enforcement agencies. [P] Loeppky testimony (June 30, 2004), pp. 831–832 and [P] (July 6, 2004) pp. 1161–1162.
The RCMP has three foreign liaison officers in the United States — two in Washington and one
in Miami. The foreign liaison officer for Syria is actually based in Rome, Italy.
[IC] Flewelling testimony (January 20, 2005), p. 9355; [IC] Pilgrim testimony (January 28, 2005),
p. 10717.
[IC] Hovey testimony (January 17, 2005), p. 8668.
[IC] Pilgrim testimony (January 28, 2005), pp. 10717 and [IC] (January 26, 2005),
pp. 10355–10356. Superintendent Pilgrim, who at the time was the Officer in Charge of the
National Security Intelligence Branch and Superintendent of the RCMP National Security
Program, said that this type of direct exchange of information was a practice he was trying to
change in the months preceding 9/11. He attempted to impose a rule whereby requests from
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the Americans would first go through RCMP Headquarters. However, when pressed, he admitted that, pre-9/11, it was fairly common for the divisions to deal directly with the FBI.
[IC] Pilgrim testimony (January 26, 2005), p. 10356; [P] Leoppky testimony (July 6, 2004),
p. 1151.
[IC] Cabana testimony (November 1, 2004), p. 3441; [P] Loeppky testimony (June 30, 2004),
p. 900.
Exhibit P-12, Tab 31.
Ibid., Tab 34.
Ibid., Tab 49.
Ibid., Tab 49, para. 7.
[IC] Kibsey testimony (December 15, 2004), p. 8431. Sergeant Kibsey was the “A” Division
RCMP liaison officer to the CSIS Ottawa Region from June 2001 to April 2003.
Exhibit C-179; [P] Loeppky testimony (July 6, 2004), pp. 1189–1190.
[IC] Callaghan (November 9, 2004), p. 4551; [IC] Corcoran testimony (November 9, 2004),
pp. 4631–4632.
[IC] Cabana testimony (November 2, 2004), pp. 3540 and 3543.
[IC] Cabana testimony (October 25, 2004), p. 2419.
[P] Cabana testimony (June 29, 2005), pp. 7762–7763.
[IC] Corcoran testimony (November 9, 2004), pp. 4633–4634; [IC] Clement testimony (January
19, 2005), pp. 9280–9281.
[IC] Pilgrim testimony (January 26, 2005), pp. 10432–10433.
[IC] Cabana testimony (November 2, 2004), p. 3549; [IC] Hovey testimony (January 17, 2005),
pp. 8811–8812.
This topic is discussed in detail below in Section 3.1.4.
[IC] Corcoran testimony (November 9, 2004), p. 4639; [IC] Hovey testimony (January 17, 2005),
pp. 8808–8809.
[IC] Hovey testimony (January 17, 2005), pp. 8799–8800.
[IC] Clement testimony (January 19, 2005), pp. 9262–9263.
[IC] Hovey testimony (January 17, 2005), p. 8815.
[IC] Cabana testimony (November 2, 2004), p. 3547.
[IC] Proulx testimony [ET] (December 9, 2004), pp. 7664 and 7666–7668, and
[IC] (December 13, 2004), pp. 8124–8125.
[IC] Proulx testimony [ET] (December 9, 2004), p. 7669. A February 10, 2004 briefing note to
the RCMP Commissioner explaining how the RCMP came to share CSIS information with the
Americans without the permission of CSIS stated: “Following the events of 9/11, a new era of
openness and an environment of sharing was necessitated by the need to prevent further terrorist attacks from happening” [italics added]. The briefing note was approved and signed by
Assistant Commissioner Proulx, who testified that despite what was written in the briefing
note, this was a routine meeting and the message he delivered was not ground-breaking.
Exhibit C-30, Tab 586; [IC] Proulx testimony [ET] (December 13, 2004), pp. 8127–8128 and
8139–8140.
[IC] Proulx testimony [ET] (December 13, 2004), pp. 8108–8109 and 8118. Assistant
Commissioner Proulx explained that, under normal circumstances, some American agencies
would pass information to CSIS. If CSIS felt it was information the RCMP should have, it would
then have to go back to the originating agency for permission to share the information with
the RCMP. With real-time sharing, the RCMP would receive information directly from American
agencies without the intervention of CSIS. Ibid., pp. 8136–8137.
Ibid., p. 8119. Sharing information in real time also meant that RCMP Headquarters would be
kept up to date on what was being shared. Assistant Commissioner Proulx added that, in
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terms of national security matters, keeping RCMP Headquarters informed in real time of what
was happening outside Headquarters was not a new operating procedure on account of 9/11.
Ibid., p. 8109.
[IC] Proulx testimony [ET] (December 9, 2004), p. 7673.
[IC] Proulx testimony [ET] (December 13, 2004), pp. 8135–8136.
[IC] Proulx testimony [ET] (December 9, 2004), p. 7668 and [IC] (December 13, 2004), p. 8131.
[IC] Proulx testimony [ET] (December 13, 2004), p. 8133.
Ibid., p. 8120.
[IC] Proulx testimony [ET] (December 9, 2004), pp. 7673–7674, 7739 and 7741, [IC] (December
13, 2004), pp. 8109–8110, 8172–8173 and 8192, and [IC] (December 14, 2004), pp. 8207–8208.
[IC] Proulx testimony [ET] (December 13, 2004), pp. 8137–8138.
Ibid., pp. 8134–8135. Assistant Commissioner Proulx did not agree with the suggestion that
once information had been given to one of the participating agencies, it could be passed to
the other agencies without the consent of the originating agency.
[IC] Proulx testimony [ET] (December 9, 2004), p. 7671 and [IC] (December 13, 2004),
pp. 8186–8187. The February 10, 2004, briefing note to the RCMP Commissioner stated:
“….Further, it was agreed at Senior levels that it would be the exception rather than the rule
to seek permission prior to utilizing or sharing the information between the […partner agencies]” [italics added]. Assistant Commissioner Proulx did not believe this statement contradicted
his testimony that it was always necessary to obtain permission of the originating agency before sharing written documents from one of the participating agencies. Exhibit C-30, Tab 586;
[IC] Proulx testimony [ET] (December 9, 2004), p. 7681.
Assistant Commissioner Proulx also stated that sharing another agency’s documents was not
raised as an issue because it was presumed that the participating agencies had received the
same reports, or virtually the same reports, from one another in order to facilitate an open discussion. [IC] Proulx testimony [ET] (December 13, 2004), pp. 8188–8189.
[IC] Proulx testimony [ET] (December 9, 2004), pp. 7669–7670 and [IC] (December 13, 2004),
pp. 8138 and 8184.
[IC] Proulx testimony [ET] (December 9, 2004), p. 7670 and [IC] (December 13, 2004),
pp. 8183–8184; Exhibit C-30, Tab 586.
[IC] Proulx testimony [ET] (December 13, 2004), p. 8143.
Ibid., pp. 8141–8142 and 8144–8145 and [IC] (December 14, 2004), p. 8282–8283. Assistant
Commissioner Proulx did not have a written record of his communication with the commanding officers or the officers in charge of CROPS concerning the information-sharing
arrangement. During his testimony, he suggested that a written record of group meetings
whether with the commanding officers or the officers in charge of CROPS should exist. [IC]
Proulx testimony, December 9, 2004, pp. 7721–7222 and [IC] (December 13, 2004), p. 8142.
The Commission was only provided with RCMP officers’ handwritten notes for video conferences on September 27, 2001 and October 12, 2001, when information sharing with external
agencies was discussed. The Commission has not seen a written record of meetings during
Project A-O Canada’s inception in which the specific details of the information-sharing
arrangement were discussed.
[IC] Proulx testimony [ET] (December 13, 2004), pp. 8141–8142 and 8144–8145, and [IC]
(December 14), p. 8282.
Assistant Commissioner Proulx testified that he took part in several video conferences and did
not specifically recall the video conference of September 27, 2001. He took it for granted that
he attended this video conference, however, because Chief Superintendent Couture made reference in his notes to Assistant Commissioner Proulx being present. [IC] Proulx testimony [ET]
(December 9, 2004), pp. 7700–7703 and [IC] (December 13, 2004), pp. 8148–8149.
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[IC] Proulx testimony [ET] (December 9, 2001), pp. 7713–7716. Assistant Commissioner Proulx
testified that he spoke about the general need to cooperate and share information for about
the next year. Ibid., p. 7714.
[IC] Proulx testimony [ET] (December 13, 2004), pp. 8143–8144, 8174 and 8193–8194, and [IC]
(December 14, 2004), pp. 8279–8280.
Chief Superintendent Couture’s notes and testimony regarding a December 6, 2001 video conference attributed the statement that “caveats and third-party rule have been lifted” to Assistant
Commissioner Proulx. However, Assistant Commissioner Proulx testified he did not make this
statement. In fact, the first time Assistant Commissioner Proulx heard that caveats were down
was while preparing for his testimony before the Inquiry. [IC] Proulx testimony [ET] (December
9, 2004), p. 7739 and [IC] (December 13, 2004), p. 8192.
This is the only meeting referred to by RCMP witnesses during the early stages of the investigation where the issue of caveats being down was specifically mentioned.
[IC] Loeppky testimony (April 19, 2005), pp. 14862–14865 and [P] (July 27, 2005),
pp. 8404–8405. At no time did Deputy Commissioner Loeppky sanction the suspension of
RCMP policies relating to the application of caveats. During his time as the Deputy
Commissioner of Operations, he never heard reference to the understanding that “caveats are
down.” The amendment or suspension of any RCMP policy was a formal process that normally
involved broad consultation across the RCMP, as well as final approval by RCMP Headquarters.
Any amendment to a policy in response to a particular investigation would apply across the
country. Deputy Commissioner Loeppky expected that such a change or suspension of RCMP
policy would be in writing and communicated to the divisions. [P] Loeppky testimony (July
27, 2005), pp. 8406–8407 and [P] (July 28, 2005), pp. 8899–8901.
[P] Loeppky testimony (July 27, 2005), pp. 8403–8404.
Ibid., pp. 8411–8412. Deputy Commissioner Loeppky testified that the biggest gaps in information sharing prior to 9/11 were in timeliness and quality. Requests received and requests
made for information were not always responded to quickly. In fact, there was a danger requests would languish on someone’s desk until the next shift or the next week. As well, details were sometimes glossed over when information was exchanged, and the police force
culture of protectionism could affect the quality of information. Although he did not attend the
meeting with Assistant Commissioner Proulx on September 12 or 13, 2001, Deputy
Commissioner Loeppky was briefed on the meeting by the Assistant Commissioner. He was
told in general terms that Assistant Commissioner Proulx discussed the need for agencies to
collaborate and work together in an efficient and effective manner. While it was indeed true
that law enforcement was operating in extraordinary times, it was not his understanding that
an unprecedented agreement had been reached at the meeting. Rather, Assistant Commissioner
Proulx delivered the message he had heard from Deputy Commissioner Loeppky in particular, as well as from the broader community, that there was to be a timely and thorough sharing of information. [P] Loeppky testimony (July 28, 2005), pp. 8893–8895 and 8908–8912.
[P] Loeppky testimony (July 28, 2005), pp. 8877–8880.
Ibid., p. 8887.
[IC] Loeppky testimony (April 19, 2005), p. 14862, [IC] (April 20, 2005), pp. 15318–15320 and
[P] (July 27, 2005), pp. 8404–8405.
These officers were Superintendent Wayne Pilgrim, Inspector Rick Reynolds and Corporal
Rick Flewelling.
[IC] Pilgrim testimony (January 26, 2005), pp. 10369–10371; [IC] Flewelling testimony (January
20, 2005), pp. 9352–9353 and 9413–9414; [IC] Reynolds testimony (February 1, 2005), pp.
10830–10833.
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RCMP Administration Manual – (XI.1. Organizational and Administrative Security), Exhibit
P 12, Tab 26.
[IC] Testimony (January 24, 2005), pp. 10000–10001 and 10003; [IC] Testimony (August 5,
2005), pp. 17213–17215; [P] Hooper testimony (August 25, 2005), pp. 10594–10595.
[IC] Testimony (January 24, 2005), pp. 10001–10003; [IC] Testimony (August 5, 2005),
pp. 17209–17210; [P] Hooper testimony (August 25, 2005), p. 10595.
[IC] Hovey testimony (January 17, 2005), pp. 8802 and 8805. Assistant Commissioner Hovey
was convinced that Project A-O Canada investigators felt their information-sharing practices
were consistent with RCMP policy. Assistant Commissioner Hovey held this view as well, although he admitted he was not aware of the specific documents that were shared by members of Project A-O Canada. [IC] Hovey testimony (January 17, 2005), pp. 8802–8803.
[IC] Hovey testimony (January 17, 2005), pp. 8658–8660
Ibid., pp. 8679–8681 and 8694. Assistant Commissioner Hovey was aware there was an understanding among “A” Division personnel that caveats were down. But he only learned this
after his retirement in November 2002. [IC] Hovey testimony (January 17, 2005), pp. 8673–8674
and 8678.
[IC] Couture testimony (December 6, 2004), pp. 7048–7049. Chief Superintendent Couture testified there were several communications with RCMP Headquarters where the sharing of information was stressed within the context of Canadian law enforcement and, at different times,
it was implied that information would be shared with the Americans.
Ibid., pp. 7047–7048.
Ibid., pp. 7056–7057.
[IC] Couture testimony (December 7, 2004), p. 7063.
[IC] Couture testimony (December 6, 2004), pp. 7048 and 7053.
Couture notes, p. 61; [IC] Couture testimony (December 7, 2004), pp. 7112 and 7119. Chief
Superintendent Couture discussed a video conference he attended on December 6, 2001 with
personnel from various RCMP divisions and RCMP Headquarters. One of the discussion topics was sharing information with the Americans.
[IC] Couture testimony (December 6, 2004), pp. 7050–7051. Chief Superintendent Couture
would not go so far as to say that information could be shared and discussed by any of the
partners at that point because there was an underlying assumption that what was being distributed to one agency was also being distributed to the other agencies. He would only confirm that the arrangement at the beginning of the investigation was that each agency would
put its information on the table.
Ibid., p. 7057.
[IC] Couture testimony (December 7, 2004), pp. 7293–7294.
Ibid., pp. 7330–7331.
Ibid., pp. 7331–7332. Chief Superintendent Couture did not provide a date for this conversation with Assistant Commissioner Proulx, but his prior testimony suggests he was referring to
the December 6, 2001 video conference, where it is alleged that Assistant Commissioner Proulx
stated that “caveats and third-party rule have been lifted.”
Ibid., pp. 7332–7333. Canada and the United States are parties to a Mutual Legal Assistance
Treaty (MLAT), which provides for the international exchange of evidence to be used in criminal proceedings. Under the MLAT process, as detailed in the Treaty between the Government
of Canada and the Government of the United States of America on Mutual Legal Assistance in
Criminal Matters, the United States can seek information and other forms of assistance from
Canada relating to the investigation, prosecution or suppression of offences for use in law enforcement. The Treaty would require the United States to request assistance pursuant to its provisions. The request must be made in writing; in urgent circumstances, it can be made orally
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and confirmed in writing after the fact. The request is made by the Central Authority of the
Requesting State, which is the Attorney General in the case of the United States, to the Central
Authority of the Requested State, which is the Minister of Justice in the case of Canada. The
request shall contain such information as the Requested State requires to execute the request,
including: (a) the name of the competent authority conducting the investigation or proceeding to which the request relates; (b) the subject matter and nature of the investigation or proceeding to which the request relates; (c) a description of the evidence, information or other
assistance sought; (d) the purpose for which the evidence, information or other assistance is
sought, and any time limitations relevant thereto; and (e) requirements for confidentiality.
[IC] Couture testimony (December 6, 2004), p. 7058.
[IC] Clement testimony (January 18, 2005), pp. 8913–8914.
Ibid. Inspector Clement’s undertaking of the open-book investigation was limited to the partner agencies. The FBI was an integral part of the investigation and the efforts for full disclosure. Inspector Clement felt that the CIA and the FBI became one and the same agency due
to the post-9/11 presidential decree for these agencies to work together. Clement testimony
(January 18, 2005), pp. 8914 and 8929–8930.
Ibid., pp. 8915–8918. Inspector Clement noted that Assistant Commissioner Proulx was briefed
at the beginning of the project, when RCMP Headquarters was given Project A-O Canada situation reports. The reports were very clear in documenting how Project A-O Canada was
handling the investigation. Ibid., pp. 8915–8916. Furthermore, at an October 12, 2001 video
conference chaired by Deputy Commissioner Leoppky, officers were told that situation reports were to be shared with the RCMP’s partners — in this case, provincial and municipal police forces — and the risk would be accepted. Inspector Clement felt that his open-book
approach was in line with direction at this meeting, which was attended by some of the
RCMP’s highest-ranking officers. Ibid., pp. 8900, 8902, 8907–8908 and 8918.
Deputy Commissioner Garry Loeppky testified that his message at the meeting focused
on working together and sharing information, where appropriate, among domestic law enforcement agencies. His comment about accepting the risk concerned the fact that some
provincial and municipal law enforcement officers might not have security clearance to the secret level. [IC] Loeppky testimony (April 19, 2005), pp. 14860–14862.
[IC] Clement testimony (January 18, 2005), pp. 8921 and 8928. The decision to deviate from
RCMP policies was not done on Inspector Clement’s initiative, but he supported this approach
to the investigation. Ibid., p. 8922.
Ibid., pp. 8929–8930. As will be described in Section 4.3, over time, they did pass information
in documentary form.
Ibid., p. 8930 and [IC] (January 19, 2005), pp. 9203–9204.
[IC] Clement testimony (January 18, 2005), pp. 8917 and 8930–8931. Inspector Clement went
so far as to suggest there was no violation of the third-party rule under the open-book arrangement because the partner agencies, who were the custodians of their records, agreed to share
information outside the bounds of the formal policy. Ibid., p. 8931.
Ibid., pp. 8924–8927, 8955–8956 and 9010–9011 and [IC] (January 19, 2005), p. 9205. Inspector
Clement did not attend the December 6, 2001 video conference, at which it is alleged that
Assistant Commissioner Proulx made the comment that caveats would not apply. However, he
was informed by his superior, Chief Superintendent Couture, that this comment had been
made. Although Inspector Clement could not remember the exact date of their conversation,
he did not believe the instruction changed anything, due to the implicit understanding among
partner agencies about the third-party rule. [IC] Clement testimony (January 18, 2005),
pp. 8923–8924 and 9010.
[IC] Clement testimony (January 18, 2005), pp. 8916–8917 and 8920.
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Ibid., pp. 8920–8921.
Ibid., pp. 8918–8919.
Ibid., pp. 8957–8958.
Ibid., pp. 8960–8961.
Ibid., pp. 8958–8960. Inspector Clement did not believe that attaching caveats and the thirdparty rule to documents, as per RCMP policy, served no purpose. He agreed that, despite
more senior officers working with the implicit understanding about their use, caveats and the
third-party rule served to inform front-line investigators that the document was the property
of another agency. Ibid., p. 8960.
[IC] Cabana testimony (October 25, 2004), p. 2422.
See above, Section 1.1.
[IC] Cabana testimony (November 2, 2004), pp. 3550–3551 and 3788.
Ibid., pp. 3553–3554.
[IC] Cabana testimony (October 25, 2004), pp. 2423–2424.
[P] Cabana testimony (June 29, 2005), p. 7787.
[IC] Cabana testimony (November 2, 2004), pp. 3555–3556. Inspector Cabana did not participate in the initial discussions establishing the information-sharing arrangement. However, he
emphasized that the arrangement was discussed at numerous meetings and video conferences,
and that he took instructions from his immediate superiors in the CROPS office. [P] Cabana testimony (June 29, 2005), pp. 7788–7789 and 7791.
While Inspector Cabana was certain of the general tone and message that was communicated by Inspector Clement, he could not say if Inspector Clement used the phrase “all
caveats are down,” or if he specifically told Inspector Cabana not to worry about caveats. He
also could not remember if Inspector Clement specifically mentioned that certain RCMP policies would not apply. He was certain, however, that the directions he received clearly indicated that caveats were no longer required. [IC] Cabana testimony (November 2, 2004),
pp. 3784–3785.
Exhibit P-12, Tab 26, XI.1; [P] Cabana testimony (June 29, 2005), pp. 7804–7807.
[P] Cabana testimony (June 29, 2005), pp. 7787–7788 and [P] (June 30, 2005), pp. 8242–8244
and 8246–8247.
[P] Cabana testimony (June 30, 2005), pp. 8254–8255 and 8318.
[IC] Cabana testimony (November 2, 2004), p. 3557.
[IC] Callaghan testimony (November 3, 2004), p. 3868; [IC] Corcoran testimony (November 9,
2004), p. 4618.
Ibid.; ibid., pp. 4641–4642.
[IC] Callaghan testimony (November 3, 2004), p. 3869.
[IC] Corcoran testimony (November 9, 2004), pp. 4638–4642.
Ibid., pp. 4640–4641 and 4643.
Ibid., pp. 4645–4646.
[IC] Cabana testimony (October 27, 2004), p. 2792; [IC] Callaghan testimony (November 9,
2004), pp. 4382–4383 and 4391–4392; [IC] Corcoran testimony (November 9, 2004), p. 4644.
[IC] Cabana testimony (November 2, 2004), pp. 3554–3555.
[IC] Cabana testimony (October 25, 2004), p. 2375 and [IC] (November 2, 2004), p. 3584.
[IC] Cabana testimony (November 2, 2004), pp. 3581 and 3584–3585.
[IC] Cabana testimony (October 25, 2004), p. 2376.
[IC] Cabana testimony (November 2, 2004), pp. 3586–3587.
Ibid., p. 3797.
Ibid., pp. 3589–3591.
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Ibid., p. 3798. As a member of the RCMP, Inspector Cabana was aware of the organization’s
policies. However, the assistant project managers were not members of the RCMP, and did not
receive training in RCMP policies. Testimony by Staff Sergeants Callaghan and Corcoran suggests that RCMP policies were not at the forefront of their minds. Instead, they were careful
to adhere to the guidelines and instructions given to them by RCMP senior management.
The investigation of Ahmad El Maati is discussed below in Section 3.6.
[IC] Walsh testimony (November 29, 2004), p. 5926.
See below, Section 3.3.
[IC] Buffam testimony (December 1, 2004), pp. 6368–6371.
[IC] Corcoran testimony (November 9, 2004), pp. 4631–4632.
[IC] Callaghan testimony (November 3, 2004), pp. 3887–3890; [IC] Buffam testimony
(December 1, 2004), p. 6385.
[IC] Buffam testimony (December 1, 2004), pp. 6390–6391.
Cabana notes, vol. 1, book 2, p. 59; [IC] Cabana testimony (October 25, 2004), pp. 2344 and
2346.
Exhibit C-30, Tab 26; C-81; [IC] Corcoran testimony (November 10, 2004), pp. 4656–4657.
Exhibit C-30, Tab 26 (Master Surveillance Report – Team B); Exhibit C-81 (Master Surveillance
Report – Team A); Tab 29 (RCMP Situation Report for October 12, 2001); [IC] Lang testimony
(November 18, 2004), pp. 5776–5778; [IC] Walsh testimony (November 29, 2004), p. 5986.
There are a number of reports of this meeting, which differ in some relatively insignificant
details. The above represents what is considered to be the most accurate portrait of what
occurred.
[IC] Callaghan testimony (November 3, 2004), p. 3874.
[IC] Cabana testimony (October 25, 2004), pp. 2452–2453; [IC] Walsh testimony (November 29,
2004), pp. 5988–5990.
[IC] Cabana testimony (October 25, 2004), pp. 2453–2454. Inspector Cabana explained that officers were assigned to develop a biographical profile on certain individuals. Investigators referred to such individuals as “targets” in their notes strictly for the purpose of building the
biographical profile. This was supported by Staff Sergeant Callaghan and Corporal Lemay,
who testified that “target” and “person of interest” were used interchangeably early in the investigation. [IC] Callaghan testimony (November 3, 2004), p. 3875; [IC] Lemay testimony
(November 16, 2004), pp. 5282–5283.
Exhibit C-30, Tab 32; [IC] Cabana testimony (October 25, 2004), p. 2444; [IC] Walsh testimony
(November 29, 2004), p. 5989.
Exhibit C-89; [IC] Lemay testimony (November 16, 2004), pp. 5283–5285; [IC] Buffam testimony (December 1, 2004), pp. 6399–6401.
Exhibit C-89. Corporal Lemay testified that database checks were standard practice in
Integrated Proceeds of Crime (IPOC) investigations as a way to build an individual’s profile.
Corporal Lemay eventually assembled two binders of information. [IC] Lemay testimony
(November 16, 2004), pp. 5283 and 5285.
Project A-O Canada later learned that Mr. Arar had a mother living in Montreal and six siblings, most of whom lived in Montreal.
[IC] Cabana testimony (October 26, 2004), pp. 2561–2562.
Exhibit C-30, Tabs 53 and Tab 54.
Ibid., Tab 57.
[IC] Lemay testimony (November 16, 2004), pp. 5346–5347.
[IC] Lemay testimony (November 17, 2004), pp. 5591–5593.
[IC] Hooper testimony (September 23, 2004), pp.1747–1748.
Buffam notes, p. 21.
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Exhibit C-30, Tab 38; [IC] Lemay testimony (November 16, 2004), pp. 5311–5312.
Exhibit C-30, Tabs 3, 4 and 39.
Ibid., Tab 4. The lease application actually listed “Abdullah Malki” as the emergency contact.
The phone number listed for Abdullah Malki was traced to Dawn Services, a company owned
by the Ottawa target Abdullah Almalki. [IC] Corcoran testimony (November 16, 2004), p. 5249;
[IC] Lemay testimony (November 16, 2004), p. 5320.
[IC] Cabana testimony (October 25, 2004), p. 2459.
Ibid., pp. 2458–2459 and 2461.
[IC] Cabana testimony (November 2, 2004), pp. 3765–3766.
[IC] Walsh testimony (December 1, 2004), pp. 6274–6278 and 6321–6322; [IC] Buffam testimony (December 2, 2004), pp. 6706–6707.
Exhibit C-30, Tab 48; [IC] Corcoran testimony (November 16, 2004), p. 5217.
As discussed below in Section 4.2.3, members of the FBI went to Project A-O Canada’s offices
in late February 2002 and reviewed the file on Mr. Arar. It is almost certain they would have
seen these documents and could have made notes.
Lemay notes, p. 22.
Exhibit C-30, Tab 35; Lemay notes, p. 27; [IC] Lemay testimony (November 16, 2004),
pp. 5303–5306.
Exhibit C-30, Tab 31. A Project O Canada financial investigation report, dated October 16,
2001, indicated that Nex Link Communications was “associated to AL MALKI associate ARAR.”
Thus, it appears that Project O Canada may have also been taking a closer look at Mr. Arar,
but this information was not shared with Project A-O Canada. [IC] Cabana testimony (October
25, 2004), pp. 2440–2441
Exhibit C-30, Tab 76.
[IC] Lemay testimony (November 16, 2004), p. 5290. Any information collected on Dr. Mazigh
was incorporated into the binders for Mr. Arar. Ibid., pp. 5289–5290 and 5297.
Exhibit C-30, Tab 35; Lemay notes p. 27; [IC] Lemay testimony (November 16, 2004),
pp. 5303–5306.
Exhibit C-30, Tab 38. Corporal Lemay testified that checks at local schools were standard IPOC
practice. [IC] Lemay testimony (November 16, 2004), pp. 5312–5314.
Exhibit C-30, Tab 49. The purpose of the search was to uncover credit card numbers used by
the couple, possible destinations visited, and the address reported on their application. [IC]
Cabana testimony (October 25, 2004), pp. 2524–2525.
Exhibit C-30, Tab 35; [IC] Lemay testimony (November 16, 2004), pp. 5302–5303.
Lemay notes, p. 25.
Exhibit C-30, Tabs 40 and 44; [IC] Lang testimony (November 18, 2004), pp. 5792–5793. It
was believed that the Americans might have done a check on Mr. Arar previously and that he
was already a part of their files. Exhibit C-30, Tab 43; [IC] Clement testimony (January 18,
2005), p. 8945.
See Section 3.5.2.
Exhibit C-30, Tab 43.
Ibid., Tab 45.
[IC] Webb testimony (February 2, 2005), p. 11137. The term “Canada Customs” is used frequently throughout this Report. Prior to December 12, 2003, Canada Customs was part of the
Canada Customs and Revenue Agency (CCRA); however, it is now a part of the Canada Border
Services Agency (CBSA). This change in organizational structure is not significant for the purposes of this Report and, for convenience, the term “Canada Customs” will often be used.
Exhibit C-188, Tab 11, p. 3.
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Exhibit C-188, Tab 14, para. 47. The entry in ICES must be for a specified period of time not
exceeding 90 days. Users with the appropriate access profile may extend a lookout or cancel
it, depending on operational requirements.
Under s. 11 of the Customs Act, everyone is required to report to Canada Customs. However,
the front-line officer usually exercises discretion as to whether a traveller should undergo a
secondary examination. There are various types of referral to secondary examination — selective referrals, mandatory referrals and referrals that are randomly generated by a computer.
In a lookout, a mandatory referral would direct the subject to a secondary inspection by the
front-line officer.
[IC] Gantner testimony (February 3, 2005), pp. 11679–11680.
Exhibit C-188, Tab 11, p. 3. The policy does not specifically set out what constitutes reasonable grounds. However, the following paragraph from the intelligence chapter in the Customs
Enforcement Manual gives some context:
“Intelligence lookouts may also originate from local sources or other agencies. In accepting
lookouts from another agency, Customs will weigh each case and make decisions on the extent to which any action will be undertaken. This means that the other agency must supply
sufficient details to a Canada Customs representative (usually the RIO or a Customs superintendent) to establish support for action on our part. If the decision is made to issue the lookout, this back-up information should remain on file with the reviewing officer. If the
justification put forward by the other agency does not satisfy our requirement to have reasonable grounds, the request for a lookout will be declined.”
Ibid.
[IC] Webb testimony (February 2, 2005), p. 11138.
Exhibit C-188, Tab 19. CCRA Enforcement Bulletin 01-02 serves as a guideline for classifying
lookouts. It defines a terrorism lookout as “a person lookout used when the individual is suspected of being a member, associate or sympathizer of a known terrorist organization, but
there is no outstanding warrant for the apprehension of the individual. Where the person is
wanted for questioning, or there is a warrant for arrest, it will be listed as a “wants and warrants” lookout.”
[IC] Thériault testimony (February 8, 2005), p. 11842.
Even when a lookout is cancelled/de-activated, it stays in the ICES inventory and Customs
Canada officials with a sufficiently high level of access are still able to view it. Webb testimony
(February 2, 2005), p. 11360.
A deleted or removed lookout is still traceable, for example, by searching the system for all
the activities of the issuing RIO. [IC] Webb testimony (February 2, 2005), pp. 11361–11362.
Only the Director of Intelligence at Customs Canada can remove or delete a lookout. Ibid.,
pp. 11351–11352.
A member of Project A-O Canada, Constable Lang acquired knowledge about lookouts
through his work with RCMP drug enforcement in the 1990s.
Exhibit C-93.
Officer Thériault had initially been seconded to “A” Division IPOC (Integrated Proceeds of
Crime) in February 2001. He was transferred to Project A-O Canada after 9/11 and was associated with the investigation in a part-time capacity until February 2003.
As discussed in greater detail in Section 3.5.2, a similar request would be made to the U.S.
Customs authority.
Exhibit C-93.
Exhibit C-190, Tab 4.
[IC] Thériault testimony (February 8, 2005), p. 12027.
Ibid., pp. 11807–11808.
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[IC] Walsh testimony (November 29, 2004), p. 6049.
[IC] Callaghan testimony (November 3, 2004), p. 3920; [IC] Cabana testimony (October 25,
2004), pp. 2463 and 2470; [IC] Cabana testimony (October 27, 2004), p. 2851. At this point,
the information Project A-O Canada had about Mr. Arar primarily concerned Mr. Arar’s meeting with Mr. Almalki at Mango’s Café on October 12, 2001, and Mr. Arar’s rental application
showing Mr. Amalki as an emergency contact.
Exhibit C-190, Tab 4.
Exhibit C-102, p. 2.
[IC] Thériault testimony (February 8, 2005), p. 11842.
For example, in November 2001, the lookout was extended to February 2002. Exhibit C-30,
Tab 86. Officer Thériault’s notes for June 11, 2002 indicate that Constable Lang asked him to
extend the lookout on Mr. Arar. Exhibit C-30, Tab 183. In September 2002, Mr. Arar’s lookout
was continued once again. Exhibit C-30, Tab 494. Staff Sergeant Callaghan also testified that
Officer Thériault came to Project A-O Canada’s offices about every 60 days to ask if they
wanted the lookouts extended.
Lang notes, p. 147.
Exhibit C-190, Tab 9.
[IC] Thériault testimony (February 8, 2005), pp. 11980–11981.
However, Officer Thériault forgot to remove Mr. Arar’s licence plate from the lookout; this was
not corrected until November 26, 2003.
Mr. Webb claimed that the lookout was totally deleted or removed from the system, but was
unable to provide documented proof of this. [IC] Webb testimony (February 2, 2005), pp. 11361
and 11364.
The following information about the U.S. TECS lookouts was obtained from Canadian witnesses, one American expert and publicly available sources only. No American officials with
knowledge of the system gave evidence, and for this reason, it may not be entirely complete
or accurate.
Constable Lang testified that the CIA also has access, but that there is no documented proof
of this. [IC] Lang testimony (November 18, 2004), p. 5760. According to Officers Lang and
Cabana, the FBI does not have direct access to TECS, unless its members are part of a joint
task force or similar group. Ibid., pp. 5760–5761.
Exhibit C-34, K.1.d.
[P] Yale-Loehr testimony (June 7, 2005), pp. 5656–5658; Exhibit P-121.
[P] Yale-Loehr testimony (June 7, 2005), pp. 5659–5661.
Ibid., pp. 5665–5666.
Ibid., pp.5672–5674.
Ibid., pp. 5677–5679.
Exhibit C-34, K.1.d.
[IC] Lang testimony (November 18, 2004), p. 5794; Exhibit C-30, Tab 44.
This type of lookout is different from an FBI terrorist watch list. According to Inspector Cabana,
the U.S. terrorist watch list is completely different from a TECS lookout. To Inspector Cabana’s
knowledge, Mr. Arar was not on the FBI terrorist watch list, even though the Project A-O
Canada lookout request described Mr. Arar and Dr. Mazigh as Islamic extremists with suspected ties to al-Qaeda. According to Inspector Cabana, it would be completely inappropriate for a Canadian agency to request that the Americans include someone on their terrorist
watch list, but this does not apply to a TECS lookout.
[IC] Cabana testimony (October 25, 2004), p. 2477.
Exhibit C-71, E&R Report; Exhibit C-30, Tab 43.
Exhibit C-30, Tab 44.
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Ibid.
Ibid.
ICES documents travel into Canada.
Lang notes, p. 73.
[IC] Lang testimony (November 18, 2004), pp. 5908–5909.
Ibid., p. 5814.
Exhibit C-30, Tab 44.
However, as described in detail in the following chapter, before Mr. Arar arrived in New York
on September 26, 2002 U.S. authorities notified Project A-O Canada that he would be arriving that day and would be refused entry to the United States.
[IC] Cabana testimony (October 26, 2004), pp. 2637–2638. Mr. Almalki’s wife is Malaysian.
Ibid., p. 2638.
See Chapter V, Section 1 for a discussion of rendition.
[IC] Buffam testimony, (December 1, 2004), pp. 6437–6439.
Ibid., p. 6449; [IC] Clement testimony (January 18, 2005), pp. 9044–9048.
Exhibit C-190, Tab 4.
Exhibit C-30, Tab 64.
Exhibit C-30, Tab 236.
Ibid., Tab 64.
Ibid. The documents were stamped with the following caveat: “This document is the property
of CANADA CUSTOMS. It is provided on the understanding it will be used solely for official
purposes by your agency and that it will not be further disseminated without the written permission of CANADA CUSTOMS, from the office of origin or from Headquarters.”
[IC] Thériault testimony (February 8, 2005), p. 11856.
Ibid., p. 12012.
Exhibit C-30, Tab 70.
[IC] Corcoran testimony (November 16, 2004), p. 5236.
This is discussed in greater detail in Section 4.3 below.
Exhibit C-30, Tabs 248 and 236. The fax went to Headquarters NOC (National Operations
Centre) and to the RCMP LO in Washington.
This issue is discussed more fully in Chapter II, Section 3.3.
Exhibit C-30, Tab 84.
Although Officer Mutombo may have relevant information to provide to the Inquiry, she is no
longer with Canada Customs. She lives in Massachusetts and has indicated to Government
counsel that she does not wish to cooperate with the Commission, even by conference call.
Exhibit C-190, Tab 5.
[IC] Gantner testimony (February 3, 2005), p. 11702.
Exhibit C-30, Tab 84.
[IC] Gantner testimony (February 3, 2005), p. 11687 et seq.
Exhibit C-30, Tab 84.
[IC] Gantner testimony (February 3, 2005), p. 11694.
Ibid., p. 11718 et seq.
Exhibit C-190, Tab 38. In this context, NSIS undoubtedly refers to Project A-O Canada.
Exhibit C-199, “MCIA Daily Operations Report,” December 20, 2001 and Gantner testimony
(February 3, 2005), p. 11739.
[IC] Gantner testimony (February 3, 2005), p. 11742.
Exhibit C-199, “MCIA Daily Operations Report,” December 20, 2001.
Ibid.
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Superintendent Gantner did not draft the Daily Operations Report and, although he admitted
to the possibility that he wrote the note referred to in the Report, he does not recall its contents. [IC] Gantner testimony (February 3, 2005), p. 11744. Superintendent Leclerc might have
drafted the Daily Operations Report, but he does not recall drafting the portion that refers to
the note, nor does he recall anything at all about what the note said. [IC] Leclerc testimony
(February 9, 2005), p. 12062. Superintendent Crabbe was on duty the next morning and he
does not recall seeing a note on the items. He stated that this might have been because Officer
Thériault arrived and viewed the items before him. [IC] Crabbe testimony
(February 9, 2005), pp. 12084–12085.
Exhibit C-190, Tab 39; [IC] Gantner testimony (February 3, 2005), pp. 11697–11699.
[IC] Crabbe testimony (February 9, 2005), p. 12075.
The bond room is where seized or held goods are secured pending an outcome, such as the
payment of duties and taxes in the case of Mr. Arar. Shift superintendents have access to the
bond room, as do the chief of operations and one bond room officer. Line officers do not have
access. The protocol for entry is that a shift superintendent and another officer/employee of
Canada Customs access the bond room together to retrieve goods. Personnel are not supposed to enter the bond room alone.
[IC] Crabbe testimony (February 9, 2005), p. 12080.
Exhibit C-30, Tab 84.
Ibid.; [IC] Thériault testimony (February 8, 2005), p. 11884.
Exhibit C-190, Tab 41.
[IC] Crabbe testimony (February 9, 2005), p. 12097.
The evidence is confusing as to how these items were finally appraised and what appraisal
options were available to Customs. Superintendent Crabbe testified that it would have been
possible to negotiate a value for the laptop and PDA on the spot, meaning that an arrangement could possibly have been reached at the time of seizure. [IC] Crabbe testimony
(February 9, 2005), pp. 12091–12092. Superintendent Gantner was of a different opinion, stating that Customs was not a “flea market.”
Exhibit C-190, Tabs 44 and 45.
Exhibit C-30, Tab 90.
Ibid., Tab 78. Officer Thériault testified he was not surprised that CSIS would be asked to help
with the laptop and PDA as the organization has been known to get involved in national security investigations. Sometimes, CSIS is contacted as the primary investigative body and
chooses to interview individuals during the Customs process. At that point, however, the subject would be made aware that the Customs process was over.
Exhibit C-86, Tabs 23 and 24. This is discussed in greater detail below in Section 4.3.
Exhibit C-205.
This is discussed in Chapter III, Section 3.7.
Exhibit C-188, Tab 19.
Ibid., Tab 16.
[IC] Webb testimony (February 2, 2005), p. 11216.
Exhibit C-188, Tab 17 “Enforcement Bulletin 02-02.”
The amended policy is discussed in Chapter III, Section 3.7 in relation to the secondary examination of Dr. Mazigh.
Exhibit C-188, Tab 6. It appears that line officers, RIOs and others continued to apply the old
policy concerning the exchange of information until the new guidelines were released in
November 2003. [IC] Thériault testimony (February 8, 2005), p. 11863.
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Exhibit C-188, Tab 10. Two other statutes come into play as well: the Access to Information
Act covers disclosure of non-personal, general information; and the Privacy Act deals with
disclosure of personal information.
Exhibit C-189, Tab 6, Memorandum D1-16-1. A complete list of senior managers who have this
authority is provided in Appendix A to this Memorandum. A July 1991 Interim Memorandum
D1-16-2 expanded the permissible disclosure of information to include not only other federal
and provincial institutions charged with the duties of law enforcement, but also those charged
with the administration or enforcement of a federal or provincial law. This memorandum also
expanded the grounds upon which authority could be granted. Previously, the authorizing person had to be convinced that the disclosure of information was for the purposes of enforcing
any law of Canada or of carrying out a lawful investigation. As of July 1991 the authorizing
person could also consider whether the disclosure was for the purposes of preparing to implement, administering and enforcing any law of Canada or a province, or for carrying out a
lawful investigation. That being said, the fundamental notion remained that permission was
required from an authorized person.
Exhibit C-188, Tab 6. Sections of 107(4) read, in part, as follows: “An official may provide, allow
to be provided or provide access to customs information if the information: (a) will be used
solely in or to prepare for criminal proceedings commenced under an Act of Parliament; …
(h) is reasonably regarded by the official to be information relating to the national security or
defence of Canada.” Subsection 107(4)(a) is inapplicable given that no criminal proceedings
had been commenced at any of the relevant times.
Exhibit C-189, Tab 6. Subsection 107(5)(a) reads as follows: “An official may provide, allow
to be provided or provide access to customs information to the following persons: (a) a peace
officer having jurisdiction to investigate an alleged offence under any Act of Parliament or of
the legislature of a province subject to prosecution by indictment, the Attorney General of
Canada and the Attorney General of the province in which proceedings in respect of the alleged offence may be taken, if that official believes on reasonable grounds that the information relates to the alleged offence and will be used in the investigation or prosecution of the
alleged offence, solely for those purposes;” Subsection 107(5)(m) provides for the provision
of customs information to “any person, if the information is required to comply with a subpoena or warrant issued or an order made by a court of record in Canada.” However, no warrant was issued in this case.
Subsection 107(1) defines an “official” as “a person who (a) is or was employed in the service of Her Majesty in right of Canada or of a province; (b) occupies or occupied a position of
responsibility in the service of Her Majesty in right of Canada or of a province; or (c) is or was
engaged by or on behalf of Her Majesty in right of Canada or of a province.”
[IC] Cabana testimony (October 26, 2004), pp. 2698–2700.
Exhibit C-30, Tabs 93, 96, 99; [IC] Callaghan testimony (November 3, 2004), p. 3944; [IC]
Corcoran testimony (November 10, 2004), p. 4723; [IC] Walsh testimony (November 29, 2004),
pp. 6055–6057.
At this point, the information that Project A-O Canada had gathered about Mr. Arar included
the following:
1) his meeting at Mango’s Café;
2) the materials obtained from secondary examinations;
3) Mr. Arar’s connection to Mr. Almalki; and
4) his use of Mr. Almalki as emergency contact on the Minto rental application.
Source: [IC] Corcoran testimony (November 10, 2004), pp. 4724–4730; [IC] Walsh testimony
(November 29, 2004), pp. 6055–6057.
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[IC] Corcoran testimony (November 10, 2004), pp. 4724–4730; [IC] Callaghan testimony
(November 3, 2004), pp. 3950–3952.
Clement notes, p. 154; [IC] Clement testimony (January 19, 2005), p. 9184.
Exhibit C-30, Tab 93; [IC] Walsh testimony (November 29, 2004), p. 6055.
[IC] Callaghan testimony (November 3, 2004), p. 3959.
Exhibit C-75.
Exhibit C-30, Tab 100.
[IC] Corcoran testimony (November 16, 2004), pp. 5254–5255.
Exhibit C-30, Tab 105.
[IC] Cabana testimony (October 26, 2004), pp. 2700–2709; Exhibits C-45 and C-75.
Exhibit C-30, Tab 106.
Exhibit C-44.
[IC] Callaghan testimony (November 3, 2004), pp. 3964–3967.
[IC] Lemay testimony (November 17, 2004), p. 5618.
His notes indicate that he worked on these questions off and on between January 7 and 16,
2002.
[IC] Lemay testimony (November 17, 2004), pp. 5400–5412; Exhibit C-94; [IC] Lemay testimony
(November 17, 2004), pp. 5618–5623.
[IC] Buffam testimony (December 2, 2004), p. 6451.
Corporal Buffam confirmed that the business card he left contained his name, unit, telephone
number e-mail address and office address.
Buffam notes, pp. 68–69.
[IC] Buffam testimony (December 1, 2004), pp. 6454–6455; Exhibit C-30, Tab 528.
Exhibit C-30, Tab 528.
See Section 3.5.1.1 above.
[IC] Lang testimony (November 18, 2004), pp. 5868–5869 and p. 5873.
[IC] Buffam testimony (December 1, 2004), pp. 6455–6456.
Ibid., pp. 6456–6457.
[IC] Corcoran testimony (November 10, 2004), p. 4731.
Exhibit P-141; [P] Edelson testimony (June 16, 2005), p. 7228.
[P] Edelson testimony (June 16, 2005), pp. 7230–7232.
Exhibit P-143.
Ibid.; [P] Edelson testimony (June 16, 2005), pp. 7251–7256.
Ibid.; ibid. Mr. Arar also discussed his suspicion that his phone had been tapped. When
Mr. Arar returned to Canada, he phoned his mother and immediately thereafter the RCMP
placed a telephone call to his residence. From this, he assumed that the RCMP was engaged
in live listening. [P] Edelson testimony (June 16, 2005), pp. 7251–7252 and p. 7404.
Exhibit P-143; [P] Edelson testimony (June 16, 2005), pp. 7251–7256.
[P] Edelson testimony (June 16, 2005), pp. 7241–7242.
Ibid., pp. 7260 and 7306.
Ibid., pp. 7411–7413.
Ibid., pp. 7406–7409 and pp. 7412–7413.
Ibid., pp. 7414–7415 and 7497–7498. Mr. Edelson also pointed out in testimony that a KGB
statement is usually preceded by several warnings, including a Criminal Code warning about
how the statement can be used, and the illegality of giving false evidence. If a statement is
sworn and it can subsequently be established that the individual said something false, there
is the potential for charges. Mr. Edelson wanted to avoid a situation where his client was
placed in this type of jeopardy.
Ibid., pp. 7414–7415.
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There was also discussion about the interview being held in Mr. Edelson’s office.
[P] Edelson testimony (June 16, 2005), p. 7415.
Ibid., p. 7493.
[IC] Cabana testimony (November 1, 2004), pp. 3336–3337.
[IC] Corcoran testimony (November 10, 2004), p. 4734.
[IC] Cabana testimony (October 26, 2004), p. 2707.
[IC] Buffam testimony (December 1, 2004), pp. 6459–6460; [IC] Corcoran testimony (November
10, 2004), p. 4732.
[IC] Cabana testimony (October 26, 2004), pp. 2708–2709; Exhibit C-45.
[IC] Corcoran testimony (November 10, 2004), p. 4735.
Exhibits C-47, C-45; [IC] Cabana testimony (October 27, 2004), pp. 2717–2718.
Exhibit C-45 and [IC] Corcoran testimony (November 10, 2004), pp. 4735–4738.
Exhibit C-45.
Ibid.
Ibid. There is differing testimony about the meaning of this message. These differences are discussed below in Section 4.1.2.
Exhibit C-47.
[IC] Cabana testimony (October 25, 2004), p. 2362.
Exhibit C-47.
[IC] Hovey testimony (January 17, 2005), p. 8736.
[IC] Clement testimony (January 18, 2005), pp. 9091–9092.
[IC] Cabana testimony (October 27, 2004), p. 2722. Inspector Cabana was asked to produce
a copy of this presentation for the Commission, but he was only able to locate his speaking
notes. [IC] Cabana testimony (November 2, 2004), p. 3601. Inspector Cabana also testified that
he believed someone from CROPS took minutes from the meeting. Again, these minutes were
never produced. Ibid.
Exhibit C-75.
Exhibit C-76.
[IC] Cabana testimony (October 27, 2004), p. 2723.
[IC] Clement testimony (January 18, 2005), p. 9094.
Exhibit C-47.
[IC] Callaghan testimony (November 3, 2004), p. 3974.
Exhibit C-47. As mentioned, Superintendent Pilgrim attended on behalf of RCMP Headquarters.
He does not recall if he was there for the whole meeting, but testified that someone from
Headquarters would have been present the entire time. Pilgrim testimony (January 28, 2005),
p. 10691.
Exhibit C-47.
[IC] Callaghan testimony (November 3, 2004), p. 3975.
Ibid.
Ibid., pp. 3985–3986.
[IC] Clement testimony (January 18, 2005), p. 9093–9094.
[IC] Cabana testimony (October 27, 2004), p. 2732.
Ibid., p. 2727.
Ibid., p. 2731.
Ibid.
Ibid., p. 2729.
Ibid., p. 2825.
[IC] Cabana testimony (November 2, 2004), p. 3613.
Ibid., p. 3597.
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Ibid., pp. 3804–3805. Inspector Clement testified that he gave the general impression the parties at the table should continue to work together and share everything in pursuit of their
common goal. [IC] Clement testimony (January 19, 2005), pp. 9260–9261. Superintendent
Pilgrim could not say whether sharing the seized information was a significant part of the discussion. However, it was generally agreed that U.S. authorities would have access to the material. He does not recall any specific discussions about sharing anything more than the fruits
of the January 22, 2002 searches, although he may not have been present for the whole meeting. [IC] Pilgrim testimony (January 26, 2005), pp. 10442–10443 and
[IC] (January 28, 2005), p. 10691.
[IC] Corcoran testimony (November 10, 2004), pp. 4739–4740.
Ibid., pp. 4743–4744.
[IC] Callaghan testimony (November 3, 2004), pp. 3981–3982.
[IC] Cabana testimony (November 2, 2004), p. 3591.
[IC] Testimony (January 24, 2005), pp. 10015–10022.
[IC] Testimony (September 29, 2004), pp. 2185–2192.
[IC] Couture testimony (December 7, 2004), p. 7183.
Ibid., p. 7187.
As a reminder, Chief Superintendent Couture’s view of the original free-flow-of-information
agreement was as follows: 1) Project A-O Canada was encouraged to share efficiently in order
to deal with the imminent threat; 2) Project A-O Canada could share information without
caveats; 3) information belonging to an agency other than the “sisters” could not be shared
without permission of the originating agency; 4) each of the sisters should share their own information with the others; and 5) an MLAT (see Section 3.1.4.4, note 212) would be required
if the agency receiving information wished to use it in a formal legal proceeding. [IC] Couture
testimony (December 7, 2004), p. 7188.
Exhibit C-45.
[IC] Couture testimony (December 7, 2004), p. 7148.
[IC] Clement testimony (January 19, 2005), pp. 9260–9261.
Ibid., pp. 9187–9188.
[IC] Pilgrim testimony (January 26, 2005), p. 10443.
Ibid.
Ibid., p. 10444. He may not have been present for the entire meeting.
[IC] Proulx testimony [ET] (December 9, 2004), p. 7771.
Ibid., pp. 7773–7775.
Exhibit C-45.
Exhibit C-30, Tab 118.
[IC] Walsh testimony (November 29, 2004), pp. 6066–6071. His search produced numerous emails as well as addresses and names, including e-mails involving Mr. Arar that went back to
1999.
Exhibit C-30, Tab 119.
[IC] Corcoran testimony (November 10, 2004), p. 4761.
[IC] Callaghan testimony (November 3, 2004), pp. 3985–3986.
[IC] Couture testimony (December 6, 2004), pp. 7042–7043. According to Project A-O Canada,
the fact that CSIS was slow to come on board after the January 22, 2002 searches was a source
of frustration. Material from the searches required immediate attention and the lack of a CSIS
representative at the outset was seen as a handicap.
[IC] Corcoran testimony (November 10, 2004), pp. 4786 and 4799; Exhibit C-30, Tab 139.
Constable Lemay did continue to carry out relatively minor tasks with respect to Mr. Arar,
even in April.
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[IC] Cabana testimony (October 27, 2004), p. 2749.
Exhibit C-74.
[IC] Corcoran testimony (November 10, 2004), p. 4650.
Ibid., pp. 4651–4652.
[IC] Clement testimony (January 19, 2005), pp. 9208–9209.
[IC] Callaghan testimony (November 3, 2004), p. 3897.
[IC] Callaghan testimony (November 9, 2004), p. 4431.
Ibid., p. 4433.
[IC] Clement testimony (January 19, 2005), p. 9219.
[IC] Cabana testimony (October 27, 2004), p. 2783.
This includes one particularly long visit that is summarized below in Section 4.2.3.
Exhibit C-74.
The actual information that was shared among the agencies is dealt with in detail below in
Sections 4.2.2 and 4.3.
See Section 3.1.4.4, note 212 for a description of the MLAT.
[IC] Corcoran testimony (November 10, 2004), pp. 4753–4754.
This meeting is discussed in greater detail below in Section 4.2.3.
[IC] Cabana testimony (November 2, 2004), pp. 3604–3605.
Ibid., pp. 3801–3802.
Exhibit C-30, Tab 118.
[IC] Corcoran notes, p. 69; Corcoran testimony (November 10, 2004), p. 4760.
[IC] Cabana testimony (October 27, 2004), p. 2728.
Corcoran notes, p. 71; [IC] Corcoran testimony (November 10, 2004), p. 4765.
Corcoran notes, p. 71; [IC] Cabana testimony (October 27, 2004), p. 2763.
[IC] Corcoran testimony (November 10, 2004), p. 4755.
[IC] Cabana testimony (October 27, 2004), pp. 2786–2787. Inspector Clement testified that he
was not certain if CSIS ever picked up a copy of the imaged hard drives, but nothing prevented
CSIS officials from doing so. [IC] Clement testimony (January 18, 2005), p. 9095. Chief
Superintendent Couture recalls raising this matter with CSIS on a couple of occasions. He
found it surprising that they did not come to pick up the information; however, he believes
they eventually did, although he cannot remember exactly when. [IC] Couture testimony
(December 7, 2004), pp. 7151–7152.
Corcoran notes, p. 72.
Ibid.
Walsh notes, p. 555. On February 6, 2002, Staff Sergeant Corcoran asked Sergeant Walsh to
make three more copies of the ITO for another American agency. Walsh notes, vol. 1, p. 548.
At some point, FBI personnel also had the opportunity to view the ITO. [IC] Clement testimony
(January 19, 2005), pp. 9224–9225.
[IC] Walsh testimony (December 1, 2004), pp. 6236–6237.
[IC] Clement testimony (January 19, 2004), p. 9224.
Exhibit C-110. The sealing order was varied on December 1, 2004. Exhibit C-118.
[IC] Walsh testimony (November 30, 2005), p. 6237.
Corcoran notes, p. 73.
[IC] Cabana testimony (October 27, 2004), pp. 2775–2776.
Exhibit C-30, Tab 124.
Corcoran notes, p. 73.
[IC] Clement testimony (January 18, 2005), p. 9118.
Ibid., p. 9117.
[IC] Lemay testimony (November 17, 2004), pp. 5427 et seq.
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[IC] Cabana testimony (November 2, 2004), pp. 3681 and 3825.
It is unclear how long the FBI was actually at Project A-O Canada offices. Staff Sergeant
Corcoran testified that agents were there analyzing information for two days. [IC] Corcoran testimony (November 10, 2004), p. 4775. Corporal Lemay testified that the FBI spent a few days
at the offices. In particular, he indicated that the FBI agents were there on February 21, 2002
for the entire day, reviewing the binders on Mr. Arar, meaning that the FBI were there for more
than two days. [IC] Lemay testimony (November 17, 2004), pp. 5424 and 5435; Lemay notes,
p. 159.
Callaghan notes, p. 122.
Corcoran notes, p. 73; Callaghan notes, p. 122.
Callaghan notes, p. 122.
[IC] Corcoran testimony (November 10, 2004), p. 4776.
It is perhaps a moot point whether FBI officials made or received a copy of the rental agreement and lease application during their February visit. Corporal Buffam had already provided
the relevant information from the Minto documents to the FBI in November 2001. [IC] Corcoran
testimony (November 16, 2004), p. 5217. It is far from clear that Mr. Arar was in fact shown
a rental application or lease while in New York. Although Mr. Arar has publicly said that he
was shown these items, the FBI memorandum of its interview with Mr. Arar makes no mention of this matter.
Exhibit C-76; [IC] Corcoran testimony (November 16, 2004), p. 5215.
[IC] Corcoran testimony (November 16, 2004), p. 5216. Inspector Clement testified that this was
consistent with his instructions to share information. He was aware that the FBI was given access to the binders and agreed that if the FBI had requested copies, it would have been appropriate to provide them. [IC] Clement testimony (January 19, 2005), pp. 9210–9211.
[IC] Corcoran testimony (November 10, 2004), pp. 4776–4777.
[IC] Coons testimony (December 8, 2004), p. 7458.
[IC] Corcoran testimony (November 16, 2004), pp. 5216–5217.
[IC] Lemay testimony (November 17, 2004), p. 5436. A November 7, 2003 letter from the RCMP
Washington liaison officer to the FBI seems to indicate that some information was passed on
to the investigators, but Project A-O Canada investigators cannot recall specifically whether
the rental application and lease were given to them. Exhibit C-30, Tab 534. An agent later
stated that he did not recall receiving or removing these documents during his visit. [IC] Coons
testimony (December 8, 2004), p. 7458.
[IC] Lemay testimony (November 17, 2004), p. 5426.
[IC] Callaghan testimony (November 3, 2004), pp. 3996–3997.
Exhibit C-30, Tab 126; [IC] Cabana testimony (October 27, 2004), pp. 2784 to 2786.
As discussed earlier, the E&R III database was a management tool used by Project A-O Canada.
The assignment of tasks and their follow up was recorded in this database.
Exhibit C-30, Tab 126.
[IC] Cabana testimony (October 27, 2004), p. 2782; [IC] Callaghan testimony (November 3,
2004), pp. 3999–4000. As mentioned, the visiting FBI agents were not only interested in
Mr. Arar, but in others as well, such as Mr. Almalki. It appears that the FBI officials were given
access to this information during their visit. [IC] Corcoran testimony (November 10, 2004), p.
4775. The evidence on information sharing during the February 2002 FBI visit does not indicate that a significant exchange of information occurred. However, the point may be moot,
as will become clear in the following section, which deals directly with the extent to which
the Project A-O Canada team shared the contents of their databases with the Americans.
Exhibit C-30, Tab 119.
Corcoran notes, p. 71; [IC] Corcoran testimony (November 10, 2004), p. 4763–4764.
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Exhibit C-30, Tab 124.
Ibid., Tab 147. Inspector Clement received an informal request from another partner agency
during a telephone conversation on February 4, 2002, in which the partner agency requested
copies of hard drives and videos from the search. [IC] Clement testimony (January 18, 2005),
p. 9095; Clement notes, p. 127.
Exhibit C-30, Tab 127; Exhibit C-145.
[IC] Cabana testimony (October 27, 2004), p. 2803.
Ibid., p. 2825.
[IC] Corcoran testimony (November 16, 2004), p. 5242.
Exhibit C-30, Tab 127.
[IC] Proulx testimony [ET] (December 14, 2004), p. 8228.
[IC] Reynolds testimony (February 1, 2005), p. 11093.
Exhibit C-30, Tab 127.
[IC] Proulx testimony [ET] (December 14, 2004), p. 8231.
Exhibit C-145; [IC] Proulx testimony [ET] (December 14, 2004), p. 8228–8229.
[IC] Proulx testimony [ET] (December 14, 2004), p. 8232.
That said, Corporal Flewelling could not indicate what “please process” meant. [IC] Flewelling
testimony (January 21, 2005), p. 9694.
[IC] Proulx testimony [ET] (December 14, 2004), pp. 8234–8235. A document such as this
would normally be forwarded to the divisions with a cover letter.
[IC] Clement testimony (January 19, 2005), pp. 9206–9207.
Ibid., p. 9207.
[IC] Corcoran testimony (November 16, 2004), p. 5238.
Exhibit C-30, Tab 149. The situation report states as follows: “…was provided with 3 CD’s
which comprised the scanned documents seized from the various search locations on 02-0122. The CD’s in question were provided upon the receipt of a formal request from…”
[IC] Corcoran testimony (November 15, 2004), p. 5082. Staff Sergeant Callaghan testified that
the situation report contained either an error in thinking or an error in reporting when it stated
that the CDs were made up of scanned documents seized from the various search locations
on January 22, 2002. He did not notice this error when the report was created. [IC] Callaghan
testimony (November 3, 2004), p. 4014.
[IC] Cabana testimony (October 27, 2004), p. 2823.
Sergeant Walsh explained that situation reports (SITREPS) were internal RCMP documents disseminated to certain sections within the RCMP. The National Operations Centre (NOC) would
receive SITREPS at Headquarters, and from there they were sent to CID. The purpose of the
SITREPS was to keep everyone informed of the Project A-O Canada investigation; in fact,
SITREPS were the primary means of keeping Headquarters informed. In a normal investigation,
SITREPS would only be submitted every second week or more, but Project A-O Canada investigators were told at the beginning of the investigation that they were to be submitted on a
daily basis. The Americans were not sent copies of SITREPS. [IC] Walsh testimony (November
29, 2004), pp. 5930–5935.
[IC] Callaghan testimony (November 3, 2004), p. 4014; [IC] Corcoran testimony (November
10, 2004), pp. 4805–4806.
[IC] Corcoran testimony (November 9, 2004), p. 4626. See also, for situation reports, [IC] Walsh
testimony (November 29, 2004), p. 5935.
[IC] Cabana testimony (October 25, 2004), p. 2394; [IC] Corcoran testimony (November 9,
2004), p. 4626. In contrast, the E&R database set out tasks performed by officers and the actions taken in the performance of those tasks. [IC] Cabana testimony (October 25, 2004),
p. 2396. It should also be noted that Supertext did not include officers’ notes, with the ex-
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ception of one set by Constable Lang that was scanned into the system on March 5, 2002.
Exhibit C-86, vol. IV, Tab 10
[IC] Corcoran testimony (November 15, 2004), p. 5046–5048. As an aside, it seems clear that,
before testimony was heard, the RCMP had turned its attention to disclosing and sharing information, and burning CDs of Supertext material. In a letter, Pierre Perron, Officer in Charge
at National Security Operations Branch, suggested to then-Assistant Deputy Inspector Corcoran
that he should “question all investigators (including those that have left the project) in order
to ascertain if there are any records indicating sharing of CDs and other investigative information. It is my understanding that there are records kept of all burning of Supertext CDs. …
I agree that disclosure and sharing of information may become an issue at the Arar inquiry.
In light of the inquiry, every effort must be made to find records of this sharing of information, and the steps taken in trying to find these records must be properly documented before
proceeding with this request.” Exhibit C-30, Tab 602.
Consistent with his interpretation of the free-flow-of-information agreement between the agencies, Inspector Cabana did not seek CSIS’ consent to disclose these documents. However, he
testified that CSIS would already have been present when much of their information was
shared with the American agencies during presentations to the joint management team. He also
said that CSIS would have understood the free-flow-of-information arrangement. CSIS might
or might not have been aware of the timing for sharing the CDs, but was nonetheless aware
that Project A-O Canada was sharing everything with American agencies. [IC] Cabana testimony (October 27, 2004), pp. 2831–2832.
As an aside, the government summary identified the date that the CDs were shared as April
2, 2002, but this is not correct; the actual date was April 9, 2002. Exhibit C-85.
Ibid.
Exhibit C-86. This list is a summary of what is included in the non-search material. There were
a total of 94 non-search documents related to Mr. Arar.
[IC] Corcoran testimony (November 16, 2004), pp. 5236–5239. Staff Sergeant Corcoran testified that, in his view, he did not need Canada Customs’ consent to send this information to
the Americans. It was his understanding that the direction was to share this type of document,
but if the information was to be used for non-intelligence purposes, an MLAT would be
necessary.
Exhibit C-86, vol. II, Tab 5.
The following are examples of such language:
(1) Exhibit C-86, vol. III, Tab 4: This document provides an explanation for the missed Customs
lookout on Mr. Arar upon his return from Tunisia after the January 22, 2002 searches. It refers
to Mr. Arar as a “suspect.”
(2) Ibid., vol. I, Tab 41: It refers to Mr. Arar as a “Principal Subject” of the investigation.
(3) Ibid., vol. I, Tab 43: This is a Project A-O Canada situation report for October 23, 2001,
referring to Mr. Almalki’s connection to Mr. Arar as “important.”
(4) Ibid., vol. II, Tab 4: This is an analytical diagram entitled “Bin Laden’s associates: Al-Qaeda
Organization in Ottawa.” Mr. Almalki is at the centre, and Mr. Arar is directly linked to
Mr. Almalki.
Ibid., vol. I, Tab 50 or Exhibit C-30, Tab 45.
Cabana Testimony (November 2, 2004), pp. 3610–3612. The contents of the two binders on
Mr. Arar prepared by Corporal Lemay were not yet in Supertext when the CDs were sent to
the Americans. However, it is worth repeating that the FBI reviewed the binders when they
visited Project A-O Canada offices between February 19 and 21, 2002.
Exhibit C-86, vol. I, Tab 50 or Exhibit C-30, Tab 45.
Ibid. or ibid.
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Exhibit C-30, Tab 106.
Exhibit C-86, vol. I, Tab 24.
Ibid., vol. II, Tab 35, Vol. II, Tab 38, Vol. II, Tab 45.
Ibid., vol. IV, Tab 6.
[IC] Cabana testimony (October 27, 2004), pp. 2833–2838.
[IC] Corcoran testimony (November 15, 2004), pp. 5083–5084
Ibid., p. 5125.
[IC] Cabana testimony (November 2, 2004), pp. 3609 and [IC] (October 27, 2004),
pp. 2831–2832.
[IC] Clement testimony (January 19, 2005), pp. 9188–9189.
Ibid., p. 9207.
Ibid., pp. 9187–9188.
Ibid., p. 9188.
Ibid., p. 9296.
Ibid., p. 9297.
[IC] Couture testimony (December 7, 2004), p. 7183.
Ibid., p. 7184.
Ibid., pp. 7184–7185.
Ibid., p. 7186.
Ibid., p. 7187. The Chief Superintendent did point out that the Supertext database was managed by people in charge of major case management. In order for a part of the database to
be copied, someone in Project A-O Canada had to request it from the computing staff, but
he could not say who would have made the request.
Exhibit C-45
[IC] Couture testimony (December 7, 2004), p. 7148.
[IC] Hovey testimony (January 17, 2005), p. 8746.
Ibid., p. 8748.
Ibid., pp. 8754–8755.
Ibid., p. 8753.
[IC] Proulx testimony [ET] (December 9, 2004), p. 7686.
Ibid., p. 7688. Interestingly, Assistant Commissioner Proulx testified that he did not worry before about what was sent to the Americans, but now it was necessary to pay more attention,
as it was possible an individual could get placed on a watch list. He testified that RCMP policies had changed as a result of the Arar case. According to Assistant Commissioner Proulx, the
RCMP has to be very careful about what they give to the Americans. Ibid., p. 7792.
Ibid., pp. 7773–7774. Assistant Commissioner Proulx was not entirely sure whether documents
were to be shared, or only the hard drives. Ibid., pp. 7774–7775. Nor was he sure why this
would have been necessary. Ibid., p. 7786.
[IC] Pilgrim testimony (January 26, 2005), p. 10326.
Ibid., pp. 10447–10448.
Ibid., pp. 10450–10451.
[IC] Pilgrim testimony (January 28, 2005), p. 10691.
Ibid., p. 10784.
[IC] Flewelling testimony (January 20, 2005), p. 9394.
Ibid., p. 9395.
Ibid., p. 9396.
Ibid., p. 9415.
Ibid., p. 9413.
Ibid., p. 9397.
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Ibid., p. 9400.
Ibid., pp. 9416–9417.
[IC] Reynolds testimony (February 1, 2005), p. 10813.
Ibid., p. 10852.
Ibid., pp. 10852–10853.
Ibid., p. 10853.
When he stated that the sharing essentially fell within the agreement, he was not questioned
on, nor did he mention, the sharing of non-partner agency materials.
[IC] Reynolds testimony (February 1, 2005), pp. 11058–11059.
Ibid., p. 11060.
Callaghan notes, p. 146.
Exhibit C-30, Tab 149; Callaghan notes, p. 149; Corcoran notes, p. 92; [IC] Corcoran testimony
(November 10, 2004), pp. 4802–4803; Exhibit C-30, Tab 528.
[IC] Cabana testimony (October 27, 2004), p. 2866.
Exhibit C-56.
Exhibit C-30, Tab 153.
[IC] Cabana testimony (November 1, 2004), pp. 3317–3318; Exhibit C-56, Tab 1.
See Section 3.10 above.
[IC] Cabana testimony (October 27, 2004), p. 2879.
Ibid., p. 2869.
[IC] Callaghan testimony (November 3, 2004), p. 4064
[IC] Couture testimony (December 7, 2004), p. 7204.
[IC] Cabana testimony (November 1, 2004), pp. 3337–3338.
[IC] Flewelling testimony (January 20, 2005), pp. 9422–9423.
Corcoran notes, p. 123.
[IC] Cabana testimony (November 1, 2004), pp. 3317–3318; [IC] Callaghan testimony
(November 3, 2004), p. 4078.
[IC] Cabana testimony (October 27, 2004), p. 2880.
Exhibit C-30, Tab 195.
[IC] Corcoran testimony (November 15, 2004), p. 4844.
[IC] Lemay testimony (November 17, 2004), pp. 5475–5476.
Exhibit C-30, Tab 213.
[IC] Callaghan testimony (November 9, 2004), pp. 4428–4229.
[IC] Clement testimony (January 18, 2005), pp. 9057–9063. See Section 3.6.2.
Exhibits C-130 and C-131.
Exhibit C-30, Tab 95.
[IC] Clement testimony (January 18, 2005) p. 9069; Exhibit C-30, Tab 95.
[IC] Clement testimony (January 18, 2005), pp. 9062–9067.
Ibid., pp. 9067–9068.
Ibid., p. 9070.
Clement notes, p. 121; [IC] Clement testimony (January 18 ,2005), pp. 9079–9085.
[IC] Clement testimony (January 18, 2005), pp. 9086–9087.
Exhibit C-49. The briefing note was dated July 18, 2002.
Callaghan notes, p. 228; Exhibit C-30, Tab 207.
Walsh notes, p. 395; Exhibit C-30, Tab 207.
Walsh notes, p. 395.
Callaghan notes, p. 228.
Ibid., p. 229.
Walsh notes, pp. 409–411; [IC] Walsh testimony (November 30, 2004), pp. 6131–6133.
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Exhibit C-30, Tab 207.
Callaghan notes, pp. 4085–4089.
[IC] Walsh testimony (November 30, 2004), pp. 6135–6136.
Ibid., pp. 6136–6137.
Exhibit C-30, Tab 208.
[IC] Cabana testimony (October 28, 2004), p. 2949.
[IC] Walsh testimony (November 30, 2004), p. 6135.
[IC] Flewelling testimony (Janaury 20, 2005), pp. 9424–9426; Walsh notes, p. 272; [IC] Walsh
testimony (November 30, 2004), p. 6087. Callaghan notes, p. 193; Exhibit C-161.
Corcoran notes, p. 109.
[IC] Cabana testimony (October 27, 2004), p. 2921. Chief Superintendent Couture testified that
Inspector Cabana would have taken this as authorization for him to proceed with this course
of action.[IC] Couture testimony (December 7, 2004), pp. 7306–7308.
Exhibit C-30, Tab 199; [IC] Cabana testimony (October 27, 2004), p. 2919.
[IC] Callaghan testimony (November 3, 2004), pp. 4085–4086; Callaghan notes, p. 229.
[IC] Callaghan testimony (November 3, 2004), pp. 4085–4089.
[IC] Flewelling testimony (January 20, 2005), pp. 9480–9482.
[IC] Corcoran testimony (November 15, 2004), pp. 4860–4861; Roy notes, p. 11. Chief
Superintendent Couture, Inspector Cabana and Staff Sergeants Callaghan and Corcoran were
present from Project A-O Canada, as were Ambassador Pillarella, Don Saunders, Scott
Heatherington, James Gould and Jonathan Solomon from DFAIT. The RCMP LO to DFAIT,
Inspector Richard Roy, was also present, and perhaps others.
Callaghan notes, p. 279. A series of questions had been prepared for the Syrians to put to
Mr. Almalki if Project A-O Canada officials were not permitted direct access.
Ibid.
[IC] Pillarella testimony (March 30, 2005), pp. 13416–13420 and [IC] (March 31, 2005),
pp. 13768–13771.
Mr. Solomon ‘s comment was not recorded in the contemporaneous notes of the Project A-O
Canada officers present. It is mentioned in Staff Sergeant Callaghan’s notes for November 23,
2003, more than a year later, after Mr. Arar’s return to Canada and his press conference. In
November 2003, Inspector Cabana had asked about any discussions Project A-O Canada
might have had about sending questions for Mr. Arar to Syria. Staff Sergeant Callaghan could
not recall any such discussions, but reminded Inspector Cabana of the September 10, 2002
meeting and the comment by Mr. Solomon.
[IC] Solomon testimony (April 4, 2005), pp. 13912–13916.
Ibid., pp. 14078–14082.
Ibid., pp. 13912–13915.
[IC] Pillarella testimony (March 30, 2005), pp. 13413–13414 and 13427.
[IC] Pillarella testimony (March 31, 2005), pp. 13749–13750.
[IC] Roy testimony (December 6, 2004), pp. 6815–6822.
[IC] Heatherington testimony (April 27, 2005), pp. 16164–16171.
[IC] Cabana testimony (August 8, 2005), pp. 17291–17296.
Exhibit C-219, Tab 1.
See Chapter III, Section 6.3.
This is discussed at greater length in Section 4.8.3 below.
The issue of whether FBI interest in Mr. Arar pre-dated or arose independently of Project
A-O Canada is discussed below in Section 4.11.
[IC] Cabana testimony (October 27, 2004), pp. 2890–2892; [IC] Couture testimony (December 7,
2004), pp. 7305–7306. Project A-O Canada directed its requests for information from the FBI
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to different places. At times, officials wrote to an FBI regional office; at other times, they wrote
to the Ottawa legal attaché at the U.S. Embassy. As a third point of contact, the RCMP occasionally directed its requests to FBI Headquarters in Washington, either directly, or through
the RCMP liaison officer in Washington. Project A-O Canada tended to try different communication routes with the FBI, not so much because of protocol, but because they hoped to elicit
a quicker response. Chief Superintendent Couture was aware and approved of this direct correspondence between Project A-O Canada and the FBI.
Exhibit C-30, Tab 109.
[IC] Clement testimony (January 19, 2005), pp. 9175–9178.
[IC] Hooper testimony (August 26, 2005), pp. 17857–17858.
[IC] Cabana testimony (November 2, 2004), p. 3623.
Exhibit C-30, Tab 145; Ibid., Tab 204; Ibid., Tab 200.
[IC] Cabana testimony (October 28, 2004), pp. 2962–2963.
Exhibit C-30, Tab 216.
Exhibit C-74; [IC] Clement testimony (January 18, 2005), pp. 8970–8973.
[IC] Cabana testimony (October 27, 2004), pp. 2893–2896.
[IC] Clement testimony (January 18, 2005), pp. 8933–8935; [IC] Cabana testimony (October 27,
2004), pp. 2728–2729.
[IC] Cabana testimony (October 27, 2004), pp. 2728–2729.
Exhibit C-30, Tab 44.
[IC] Lang testimony (November 18, 2004), pp. 5907–5909.
[P] Yale-Loehr testimony (June 7, 2005), pp. 5657–5666.
[IC] Webb testimony (February 2, 2005), p. 11383.
[IC] Lang testimony (November 18, 2004), p. 5814.
Ibid., pp. 5905–5906.
[IC] Callaghan testimony (November 9, 2004), pp. 4491–4492.
[IC] Cabana testimony (November 2, 2004), p. 3681.
[IC] Lemay testimony (November 17, 2004), pp. 5427–5434.
[IC] Cabana testimony (November 2, 2004), pp. 3690–3692.
[IC] Corcoran testimony (November 15, 2004), pp. 4844–4845.
[IC] Cabana testimony (October 27, 2004), pp. 2893–2896.
147
��II
Detention in the United States
1.
INTRODUCTION
On Thursday, September 26, 2002, Mr. Arar arrived at John F. Kennedy
International Airport (JFK Airport) in New York on a flight from Zurich,
Switzerland. He had started his trip in Tunisia and made a connection to
New York in Zurich, with the intention of flying from there to Montreal.
However, when he arrived in New York, he was detained and imprisoned.
The following is a description of what happened during Mr. Arar’s detention in New York from two p.m. on September 26 to about four a.m. on
October 8, 2002. Mr. Arar has not testified about these events. This account is
based primarily on the evidence of officials from the RCMP, CSIS and the
Department of Foreign Affairs (DFAIT), in accordance with the Inquiry’s mandate to report on the actions of Canadian officials with respect to Mr. Arar. The
Inquiry did not hear testimony from any American officials, and thus does not
have their first-hand evidence about the reasons the Americans detained
Mr. Arar. However, the Inquiry did receive and review American documents
concerning his detention and removal, and it also heard testimony from
Canadian officials about their conversations with American officials.
The Inquiry’s mandate uses the term “deportation” to describe the process
by which Mr. Arar was taken from the United States to Syria via Jordan.
According to American law, however, the correct term for the process is “removal,” and therefore this term is used throughout this Report. However, some
documents and witnesses referred to “deportation,” and where necessary, that
term is used to accurately reflect the evidence.
2.
THE RCMP’S RESPONSE TO MR. ARAR’S ARRIVAL IN NEW
YORK, SEPTEMBER 26, 2002
At 12:55 p.m. on September 26, 2002, Staff Sergeant Patrick Callaghan of Project
A-O Canada received a call from the FBI legal attaché’s office in Ottawa. The
American official indicated that Maher Arar was flying into New York and was
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FACTUAL BACKGROUND: VOLUME I
due to land about two o’clock that afternoon. According to this official, the
Americans intended to question Mr. Arar, and then deny him entry into the
United States. He said that Mr. Arar would be sent back to Zurich, where his
flight to New York had originated. When the official asked if the RCMP had any
questions for Mr. Arar, Staff Sergeant Callaghan replied that he would check and
get back to him.1
The three managers of Project A-O Canada had slightly different views on
why the FBI offered to ask Mr. Arar questions on behalf of the Project. According
to Staff Sergeant Callaghan, the FBI was aware that the RCMP had wanted to interview Mr. Arar earlier in the year. To his mind, the offer was intended to assist the RCMP, not aid the Americans with their investigation.2 However, in
Inspector Michel Cabana’s view, the FBI’s offer was aimed at assisting both the
Canadian and American agencies, because this might be the last chance for them
to have their questions answered.3 Staff Sergeant Kevin Corcoran agreed with
Inspector Cabana, testifying that “The information we gleaned from this [interview] would be of assistance to our investigation and it may be of assistance to
their investigations.”4
Project A-O Canada’s officials were not aware that Mr. Arar was coming to
the United States until they were advised by the FBI on September 26.
According to Staff Sergeant Callaghan, his telephone conversation was the first
contact between the American authorities and the RCMP concerning Mr. Arar’s
detention in the United States.5
After speaking with the American official, Staff Sergeant Callaghan informed
Staff Sergeant Corcoran and Sergeant Randal Walsh of the news.6
At one point in his testimony, Inspector Cabana said that he believed he
was notified by one of the Project’s assistant managers that Mr. Arar was en
route to New York and would be denied entry into the United States. He believed this to be so because he was aware that questions were to be sent to the
FBI.7 Elsewhere in his testimony, however, Inspector Cabana said he only
learned about Mr. Arar’s predicament on September 27.8
When he spoke to the FBI, Staff Sergeant Callaghan specifically asked if
Mr. Arar’s detention was based on an American or the Canadian investigation.
The American official told him that Mr. Arar was being detained as a result of
an FBI investigation.9 In Inspector Cabana’s opinion, the purpose of the FBI’s call
was not to get Project A-O Canada’s input into the decision to refuse Mr. Arar
entry into the United States, but simply to inform the Canadians that the decision had been made.10
�DETENTION IN THE UNITED STATES
2.1
THE FAXED QUESTIONS
Shortly after speaking with the FBI, Staff Sergeants Callaghan and Corcoran instructed Sergeant Walsh to organize the questions for Mr. Arar.11
Sergeant Walsh approached Corporal Robert Lemay for assistance, as the
Corporal had prepared a list of questions for an interview with Mr. Arar in
January 2002. When that interview did not take place as scheduled, he updated
the questions in the summer of 2002 and provided the new version of the questions to Sergeant Walsh. Considering the urgency involved, officials decided not
to draft a new set of questions. Sergeant Walsh quickly edited the existing questions and prepared a fax cover sheet.12
Sergeant Walsh felt a sense of urgency in this assignment because he received his instructions within an hour of Mr. Arar’s arrival in New York. He understood that Mr. Arar was going to be interviewed and refused entry, which
meant that he would be sent back to Switzerland in short order.
Sergeant Walsh testified that once the questions were complete, he took
them to Staff Sergeants Callaghan and Corcoran for their review.13 Although
Staff Sergeant Callaghan did not recall reviewing the questions,14 Staff Sergeant
Corcoran acknowledged checking them and then instructing Sergeant Walsh to
get Inspector Cabana’s sign-off before they were sent to the FBI.15 Sergeant
Walsh could not find Inspector Cabana. Since he had reached his deadline, he
decided to send the questions without the Inspector’s signature. To his mind, he
had prior approval for this action because the questions had to be sent out
immediately.16
Sergeant Walsh sent the questions to the National Operations Centre (NOC)
at RCMP Headquarters, with instructions to forward the questions to the FBI
legal attaché’s office.17 Corporal Rick Flewelling, the officer at the RCMP’s
Criminal Intelligence Directorate (CID) assigned to monitor Project A-O Canada,
was copied on the fax. However, Corporal Flewelling testified that he did not
see the fax or the list of questions prior to this Inquiry. He could not explain why
this was so.18
The fax confirmation sheet indicated that questions were sent out at 12:56
p.m. on September 26, 19 but apparently this record was incorrect. According to
Sergeant Walsh, he was directed to put the questions together at 1:10 p.m. He
believed that the fax confirmation sheet was out by one hour, and that the correct time was 1:56 p.m. As the last page of the fax went through, Sergeant Walsh
noted that the time on his watch was 2:00 p.m.20
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FACTUAL BACKGROUND: VOLUME I
The following message on the fax cover sheet preceded the list of questions
sent by Project A-O Canada to the FBI:
1. The attached pages are suggested questions for Maher ARAR as per your request.
The list was one prepared earlier this year prior to Arar’s sudden departure from
Canada and, as such, some questions are a bit dated. 2. We appreciate your assistance in interviewing ARAR.21
Appended to the cover sheet were the suggested questions, which were preceded by the following statement:
Interview Questions: The following questions were prepared for [an] interview that
was slated to be conducted with ARAR in January 2002. Due to the urgent need to
transmit this to New York, this outline for questions to be asked was not edited.22
Sergeant Walsh made few substantive changes to Corporal Lemay’s questions.
The only change of consequence was the addition of a concluding section.
The opening paragraph was followed by several questions about Mr. Arar’s
biographical information, occupation and contacts with police. The fax then
referred to questions about Abdullah Almalki. Mr. Arar was to be asked why
Mr. Almalki was listed as the emergency contact on his “tenancy agreement”
and about possible business connections between Mr. Arar and Mr. Almalki 23
He was also to be asked why he had met with Mr. Almalki at Mango’s Café, and
why the two men had walked in the rain after their meal.
Other questions concerned Mr. Arar’s attendance at a conference in Japan
on January 18, 2000 and whether Mr. Arar had visited any other countries.24
The questions also referred to Mr. Arar’s relationship with Ahmad El Maati.
Although phrased in the form of questions, the fax contained significant
information about Mr. Arar. For example, it disclosed that Mr. Almalki was
Mr. Arar’s emergency contact on his lease application, and that Mr. Arar had
travelled to Japan.
The fax concluded with the following statement:
ARAR kept a low profile while in Canada but he seemed to be connected to many
of the targets of our investigation. ARAR had been asked by our members for an interview as a potential witness but ARAR sought legal counsel and declined. ARAR
soon after departed the country rather suddenly for Tunisia.25
Neither the fax cover sheet nor the list of questions contained a caveat or made
reference to the third-party rule.
�DETENTION IN THE UNITED STATES
In Sergeant Walsh’s opinion, the questions did not give any new information to the Americans; Project A-O Canada had previously shared some of the
information, and the Americans had learned some of it on their own (e.g.,
Mr. Arar’s employment at The MathWorks, Inc.).26 Inspector Cabana testified
that the personal information about Mr. Arar in the conclusion of the fax was
well known to American authorities, and was discussed in joint meetings of
Project A-O Canada, CSIS, DFAIT, and the American agencies.27
Regardless of whether the information was known to American authorities,
Project A-O Canada’s concluding statement about Mr. Arar declining an interview was not accurate, as has been described in the preceding chapter. The
conclusion also said that “soon after” declining the interview, Mr. Arar departed
Canada “rather suddenly.” This is simply wrong. He left approximately five
months later.28
Sergeant Walsh was certain the issue of Mr. Arar’s departure for Tunisia
had come up in discussions with the Americans prior to September 26. However,
he could not point to a document informing the Americans that Mr. Arar had left
Canada or that he had left “rather suddenly” after declining an interview.
Sergeant Walsh explained that “suddenly” was used to express Project
A-O Canada’s surprise at Mr. Arar’s departure from Canada.29
On October 7, 2002, Project A-O Canada was informed that its questions
had been used during an FBI interview of Mr. Arar which was not referred
to in the INS decision to remove Mr. Arar.30 Staff Sergeant Callaghan testified
that he never received a complete description of Mr. Arar’s answers to these
questions.31
2.1.1
Lack of Caveats
In Inspector Cabana’s opinion, it was not necessary to attach caveats to the questions because the purpose of forwarding them was to ask them of Mr. Arar.32
Further, Inspector Cabana did not expect the questions to be used for an
Immigration and Naturalization Service (INS) hearing because he understood
that Mr. Arar was to be refused entry to the United States and returned to Zurich
immediately. The purpose of the questions was to assist the Americans with an
ongoing criminal investigation.33
Staff Sergeant Callaghan agreed that caveats were unnecessary in the circumstances. Despite the concluding section of the fax, he did not regard the
questions as “intelligence.” The fax was simply a list of questions for the
Americans to ask Mr. Arar.34
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FACTUAL BACKGROUND: VOLUME I
The CROPS Officer for “A” Division, Chief Superintendent Antoine Couture,
did not recall being briefed about sending the questions to the FBI. In fact, his
authority was not required.35 However, if Sergeant Walsh had asked him for
permission, he would have agreed. According to Chief Superintendent Couture,
the American authorities would have eventually asked the same questions, once
they had time to review all of the information provided by Project A-O Canada.36
Implicitly, he accepted that the questions could be sent without caveats.
2.1.2
RCMP Headquarters
RCMP Headquarters was not aware that the questions were being sent until well
after they had gone. A briefing note for the period from September 26 to
October 2, 2002 was sent to CID and Deputy Commissioner Garry Loeppky.37
It stated:
The FBI requested a list of questions from A-O Canada for their interview. The FBI
indicated that they had detained ARAR based on their investigation and not based
on any request or investigation from A-O Canada. The questions were faxed out as
requested.38
As mentioned, Corporal Flewelling, the officer at RCMP Headquarters assigned to monitor the Project, did not see the questions until he began preparing for this Inquiry. According to him, it would have been prudent for Project
A-O Canada to engage CID prior to sending the questions. Nevertheless, with
approval from the CROPS Officers, Project A-O Canada would have been authorized to send the questions directly to the American authorities. Corporal
Flewelling was not sure if the CROPS Officers approved submitting the questions.39 As also mentioned, the CROPS Officer did not recall seeing the questions.
However, the situation report for September 26, 2002, which noted that questions were requested by and sent to the FBI, was approved by Superintendent
Wayne Watson, the Assistant CROPS Officer.40
Corporal Flewelling did not believe it was appropriate to attach caveats to
the questions, since it would prevent them from being asked. However, he
stated that caveats should have been attached to any background, contextual or
third-party information that was included.41
The Officer in Charge of the National Security Investigations Branch (NSIB),
Superintendent Wayne Pilgrim, did not recall seeing the questions before they
were sent out, but he remembered participating in a discussion about them at
some point after September 26. According to Superintendent Pilgrim, direct
�DETENTION IN THE UNITED STATES
contact between the FBI and Project A-O Canada, without the involvement of
CID, was appropriate due to the urgency of the situation. Furthermore, he did
not believe that CID was required to help prepare the questions. This was a
matter best left to the investigators.42
As with other Project A-O Canada witnesses, Superintendent Pilgrim did
not view the lack of caveats as a problem. From his perspective, caveats were
not necessary because the questions were being asked in order to benefit the
Canadian investigation. The fact that the conclusion contained personal information did not change his view. On the contrary, Sergeant Pilgrim believed that
a caveat would have prevented the FBI from asking the questions at all.43
2.1.3
Right to Counsel
The questions were sent to the FBI without Project A-O Canada knowing if
Mr. Arar had retained legal counsel. During Project A-O Canada’s attempt to
interview Mr. Arar in January 2002, he had informed them that he would only
participate under certain conditions — one being that his counsel be present.
Inspector Cabana did not see anything inappropriate about asking the questions while Mr. Arar was in American custody, because Mr. Arar was free not to
answer them. In his view, Mr. Arar was being held in a country with many of
the same values as Canada. Thus, he would be free to answer or refuse to answer as he chose. Mr. Arar still had a right to counsel, but the Project
A-O Canada team hoped that his inclination to answer the questions had
changed.44
According to Inspector Cabana, Project A-O Canada was under the impression that Mr. Arar would only be detained for a short time. This explained
the urgency to get the questions to the FBI before Mr. Arar arrived in New York.
Under normal circumstances, officials would conduct a very quick interview,
the individual would be informed why he was being refused entry, and then he
would be sent out on the next flight.45
Inspector Cabana disagreed with the suggestion that Project A-O Canada
was trying to circumvent Mr. Arar’s right to counsel under the Charter.46
Mr. Arar’s refusal to speak to officials without his counsel present in January
2002 did not prevent Project A-O Canada from trying to approach him directly
to discuss a potential interview.47
Staff Sergeant Callaghan agreed with Inspector Cabana that there was nothing inappropriate in sending the questions to New York. He stressed as well that
Canadian authorities only viewed Mr. Arar as a witness. If the Americans were
treating him as a suspect, Mr. Arar would have access to legal counsel who
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FACTUAL BACKGROUND: VOLUME I
could advise him whether or not he should answer the questions. Staff
Sergeant Callaghan knew there were laws in the United States governing persons who were arrested and held in detention. However, he conceded that he
was not sure if Mr. Arar had actually been placed under arrest, or if American
laws regarding the right to counsel applied to aliens.48
It appears that no one in Project A-O Canada sought legal advice before
sending the questions to the FBI.49
3.
PROJECT A-O CANADA’S INVOLVEMENT —
SEPTEMBER 27 TO OCTOBER 8
3.1
SEPTEMBER 27 TO OCTOBER 2, 2002
Shortly after 1:15 pm on Friday, September 27, another representative of the FBI
legal attaché’s office spoke to Staff Sergeant Corcoran and Corporal Buffam and
explained that Mr. Arar was still in custody in New York and was being questioned by American authorities. The American official stated that FBI investigators had interviewed Mr. Arar.50
Inspector Cabana testified that the American authorities had informed
Project A-O Canada on September 26 that Mr. Arar would be questioned by
the FBI that same day and then sent back to Zurich. Inspector Cabana believed
that after this phone call on September 27 he was told by a member of the
Project that Mr. Arar would be sent back to Zurich.51
One of the Project A-O Canada officers’ notebooks recorded an entry for
September 27 indicating that Michael Edelson — a lawyer who had previously
represented Mr. Arar — contacted Project A-O Canada about Mr. Arar.52
Although none of the Project A-O Canada witnesses could recall it,53
Mr. Edelson testified that he had in fact spoken to someone from Project
A-O Canada on that date about Mr. Arar’s apparent disappearance.54
On September 30, Sergeant Walsh prepared a situation report for
September 27 and Inspector Cabana signed it. Noting the phone call from the
FBI official, the Sergeant wrote: “Arar was to be held for additional questioning
and then refused entry to the U.S. He was also denied permission to enter
Canada via the U.S….. Arar was then removed from the country.”55 [Italics added.]
Sergeant Walsh was not able to say on what basis he included the statement
that Mr. Arar “was then removed from the country,” since clearly that was not
the case. Sergeant Walsh could only say that, over the weekend, Project
A-O Canada concluded that Mr. Arar had been sent back to Switzerland.56
�DETENTION IN THE UNITED STATES
However, he did not have any notes relating to this matter. In any event, it appears that, as of September 30, it was a commonly-held belief within Project
A-O Canada that Mr. Arar had been removed from the United States to Zurich.57
It is unclear precisely when, after September 30, the members of Project
A-O Canada were first informed that Mr. Arar was still in the United States.
However, the exact timing is not critical to this Inquiry. At the latest, on
October 2, Project A-O Canada was informed by DFAIT that Mr. Arar remained
in custody in New York.58
There is no evidence of any contact between the RCMP and American authorities between the American official’s phone call at 1:15 p.m. on September 27
and the late afternoon of October 3, other than one conversation between Staff
Sergeant Corcoran and an FBI agent. On October 1, Staff Sergeant Corcoran was
told by the agent that it was his understanding that Mr. Arar was going to be refused entry into the U.S. and sent back to his original port of call.59
3.2
THE AMERICAN QUESTIONS — OCTOBER 3
Late in the afternoon of October 3, [***] sent a fax to RCMP CID, asking a number of questions about Mr. Arar.60 The next morning, Corporal Flewelling sent
a fax to Project A-O Canada,61 attaching [***] questions. On the cover page,
Corporal Flewelling wrote:
[***] contacted this office after hours looking for Project A-O Canada’s
assistance with information pertaining [to Mr. Arar]. On behalf of American law enforcement [***] is seeking any evidence that can assist in the support of criminal
charges.
Find attached request forwarded by [***] with a list of questions. They would
be most appreciative of any additional information you can supply on this subject.
They further request that any response be channeled through the FBI for evidentiary purposes.
Due to time restrictions facing investigator in the U.S.; [***] would be grateful
for your attention to this matter.62
[***].
When Staff Sergeant Callaghan read the fax, he thought it most likely that
the FBI — as the American law enforcement agency — would use the responses
to pursue criminal charges against Mr. Arar. He did not consider whether he
had any discretion in answering the questions. For him, it was a matter of responding to a request by RCMP Headquarters.63
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FACTUAL BACKGROUND: VOLUME I
Inspector Cabana was not involved in preparing a reply to the request.
However, when questioned on the issue of Project A-O Canada’s authority to
send a reply, he testified that the request was channeled through CID to the
Project in order for officials there to comply with it.64
[***].
The request included seven questions regarding Mr. Arar’s contacts or possible connections with other individuals, sleeper cell members, or known
terrorists. The memorandum also asked that the information be provided to
Project A-O Canada because the questions were related to an American investigation.
According to RCMP witnesses, the request did not cause any alarm or concern on their part, despite the strong language it used.
Based on the request, it was clear to the RCMP that the Americans considered Mr. Arar to be a member of al-Qaeda. In Staff Sergeant Callaghan’s view,
the American authorities were not being aggressive in their assessment of
Mr. Arar. In fact he wondered if they had more information than Canadian authorities on Mr. Arar in relation to the period of time when Mr. Arar worked for
The MathWorks, Inc. in Boston.65 He also wondered if Canada had additional
information that would confirm that Mr. Arar was a member of al-Qaeda. The
al-Qaeda assessment did not give him cause for concern about sharing information with the United States.66
Superintendent Pilgrim was one of the officers at RCMP Headquarters to
whom the fax was directed. He did not recall seeing or reading a copy of it
when it came in.67 Asked if Canadians should have been careful about the type
of information that was given to the Americans, especially in respect of young
Muslim men just a year after 9/11, Superintendent Pilgrim replied that Mr. Arar
was a person of interest in an ongoing criminal investigation. It was appropriate for the RCMP to share relevant information with agencies [***], due to the
events of 9/11 and the ongoing investigations that they were or might have been
involved in. He assumed that the assessment of Mr. Arar as a member of alQaeda, was an assertion that the Americans could support on some level.68
It is noteworthy that the request appears to indicate that there were two potential purposes underlying the request — removal and law enforcement. The
Immigration and Naturalization Service (INS) was currently processing Mr. Arar
for removal, and the request was in support of this process. In effect, the
Americans intended to use the information from Canadian authorities for that
process. The request also inquired about the RCMP’s ability to pass the information to the FBI for potential use in law enforcement proceedings.
�DETENTION IN THE UNITED STATES
3.3
THE CANADIAN RESPONSE — OCTOBER 4
Detective Constable David Beardsley and Sergeant Mona La Salle of Project
A-O Canada drafted a response to [***] request,69 which was reviewed by
Staff Sergeants Callaghan and Corcoran. Inspector Cabana was not personally involved. The response was sent to the National Operations Centre (NOC) at
RCMP Headquarters, to be forwarded to the FBI legal attaché’s office and the
RCMP’s Washington liaison officer (LO). A copy of the response was also sent
to Corporal Flewelling, RCMP CID.70
Deputy Commissioner Leoppky testified that it was not CID’s practice to
look at individual exchanges in each investigation. Literally hundreds of investigations were underway at any given time and it would be beyond CID’s capacity to examine each step in an investigation. CID would ensure that a reply
was within the acceptable parameters, but would not become involved in second-guessing every exchange.71
Although the cover sheet indicated the response was sent on October 2,
this date was incorrect. In fact, the fax was sent out on Friday, October 4 at
5:05 p.m.72
Although Corporal Flewelling received this fax, he did not see it before it
was sent out. However, he had not specifically requested or indicated to Project
A-O Canada that the reply should be sent to him before going to the American
authorities.73
The fax cover sheet accompanying the October 4 reply stated:
Project A-O Canada received a facsimile this date (through RCMP HQ) from [***] requesting information on Maher ARAR. A-O Canada have responded to each of the
requests contained in the facsimile. This information is being provided to the FBI,
who are coordinating the request for information. The supporting documents will
be forwarded on a later date….It is important to note that the information contained
in the attached report only addresses the issues raised. Project A-O Canada has significant documentation on this individual that could be of assistance in your
investigation.74
The supporting documents mentioned in the fax cover sheet were not sent out.
Staff Sergeant Callaghan could not explain why. The Americans did not follow
up to request them between October 4 and October 8 (the day Mr. Arar was removed from the United States). 75
Project A-O Canada’s response included information obtained during
Mr. Arar’s secondary examination at the Canadian border on November 29,
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FACTUAL BACKGROUND: VOLUME I
2001.76 It also included information indicating a relationship between Mr. Arar
and Mr. Almalki, such as a reference to the meeting between Messrs. Almalki and
Arar at Mango’s Café in October 2001.
The reply made it clear that Project A-O Canada had yet to establish definitive ties between Mr. Arar and al-Qaeda. Specifically, Project A-O Canada
stated that “a link analysis has yet to be completed on ARAR and while he has
had contact with many individuals of interest to this project we are unable to indicate links to al-Qaida.” The reply also mentioned that a detailed investigation
into Mr. Arar had not been completed to date.
The memorandum was accompanied by two caveats. One identified the
information as the property of the RCMP and noted that it could not be reclassified, distributed or used without first obtaining the authorization of the RCMP.
The other highlighted the third-party rule and the fact that it “may affect the disclosure of… information” the RCMP had received from CSIS.77
3.3.1
Use of the Information
Three facts bear repeating. First, [***] requested the information for use in supporting the INS removal process. Second, [***] inquired about the RCMP’s ability to pass the information to the FBI for law enforcement purposes. Finally, the
RCMP reply contained the following caveat:
This document is the property of the Royal Canadian Mounted Police. It is loaned
to you in confidence and it is not to be reclassified, distributed or acted upon without the prior authorization of the originator.78
Three members of the RCMP — Staff Sergeant Callaghan, Staff Sergeant
Corcoran and Corporal Flewelling — testified in some detail about how they anticipated the Americans would use the answers to their questions. Although the
details of their evidence and the language they used differs somewhat, the general thrust of the testimony is the same. All three understood that the information might be used either for criminal charges or INS removal proceedings.
However, because of the caveat attached to the answers, they believed that
American authorities would have to get RCMP approval before using the information for either purpose. Put another way, without consent the information
could be used for intelligence purposes only, and not for any legal proceedings.
In arriving at these conclusions, at least two of the witnesses considered that INS
proceedings would be covered by this caveat.79
�DETENTION IN THE UNITED STATES
The INS was not a partner in the information-sharing arrangement involving the RCMP, CSIS and the American agencies. In this instance, Project
A-O Canada expanded this arrangement to allow the INS access to RCMP information. According to Staff Sergeant Callaghan, this was appropriate because
Project A-O Canada included a caveat that would make it necessary for the INS
to get approval before using the information.80
Despite the fact that Project A-O Canada foresaw that the information it
supplied in the October 4 reply might be used in an INS proceeding, and so inserted a caveat, team members did not use this opportunity to address the information that had been passed to the American authorities regarding Mr. Arar
prior to October 4. This includes the information passed to the Americans in the
three CDs in, or shortly after, April 2002. Staff Sergeant Callaghan testified that
it was not specifically communicated to the American authorities on October 4
that any of the information provided prior to October 2002 could not be used
in INS proceedings without seeking permission from the RCMP. The entire time
that Project A-O Canada dealt with the American partner agencies, the understanding was that shared information could be used for intelligence purposes
only, and that otherwise an MLAT was needed. According to Staff Sergeant
Callaghan, the American authorities were not advised of this requirement on
each and every occasion that Project A-O Canada supplied them with information. However, the requirement for an MLAT was implied.81
The Americans never sought the approval of the RCMP to use the information in the October 4 reply in the INS proceedings that led to Mr. Arar’s removal. Nor did they need approval to use any other information previously
supplied to them by the RCMP.
On Monday, October 7, Staff Sergeant Callaghan returned to work to learn
in an e-mail from Corporal Flewelling that there were problems reading the fax
sent to the FBI on October 4. Staff Sergeant Callaghan contacted the FBI, which
told him that it was the fax sent to the FBI in Washington, D.C. that was the
problem, and that another fax had already been re-sent there by the
RCMP NOC.82
When Staff Sergeant Callaghan spoke with the FBI on October 7, the
American official indicated that the FBI had not given up on charges against
Mr. Arar and would be sending more questions that same day.83 However, the
FBI did not send any additional questions.84
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3.3.2
CSIS Information
The RCMP’s reply of October 4 contained some information originating from
CSIS. The information was subject to caveats requiring CSIS consent before
disclosure.
The CSIS information was sent to the Americans without CSIS’ consent.
However, a caveat was attached stating: “The third party rule may affect disclosure of this information.” Staff Sergeant Callaghan explained that it was important to attach specific third-party caveats to CSIS information to signify that it did
not derive from the RCMP’s own investigation.85
Witnesses from RCMP Headquarters were frank in their assessment of including CSIS information in the October 4 reply without first obtaining the
agency’s consent. According to both Assistant Commissioner Proulx and
Superintendent Pilgrim, Project A-O Canada would have been in breach of the
CSIS caveat if it had passed CSIS information to the Americans without first receiving permission.86 Assistant Commissioner Proulx added that CSIS approval
would have been required if CSIS information was shared with the American authorities for potential use in law enforcement proceedings.87
Chief Superintendent Couture was less clear about the propriety of sending CSIS information without seeking the agency’s approval. He agreed that it
was up to CSIS to choose what to disclose, despite the information-sharing
arrangement between the partner agencies.88 Nevertheless, the arrangement
could be interpreted to mean that information could be shared among partner
agencies without the originating agency’s authority.89 Ideally, however, a partner agency should be advised that information was being shared.90
3.4
CONTACTS WITH DFAIT
Project A-O Canada’s first contact with DFAIT during Mr. Arar’s detention was
on October 2, six days after Project A-O Canada had been informed that
Mr. Arar would be denied entry into the United States. DFAIT contacted Project
A-O Canada officials to tell them Mr. Arar had been detained.
Project A-O Canada officials did not think they were required to inform
DFAIT of Mr. Arar’s detention when the FBI notified them on September 26. (In
fact, during Mr. Arar’s detention, Project A-O Canada never initiated contact
with DFAIT.) As already discussed, the information officials originally received
was that Mr. Arar would not be detained for long; he would simply be interviewed and returned to Zurich. Further, as Inspector Cabana explained, from
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September 27 to September 30, Project A-O Canada believed that Mr. Arar was
no longer in the United States.91
Deputy Commissioner Loeppky concurred that it was unnecessary to contact DFAIT in every case. The RCMP’s mandate was to further the criminal investigation. The United States was not known as a country that disrespects
individual rights, and there was no indication that Mr. Arar would be denied
consular access. In general, the RCMP left DFAIT to carry out its consular mandate, unless an individual was unable to access consular services. In Deputy
Commissioner Loeppky’s opinion, notifying DFAIT could be counterproductive
from an investigative perspective, if consular officials approached the detained
individuals when they were not aware they were being investigated.92
At the time, Inspector Richard Roy, the RCMP’s liaison officer (LO) at DFAIT
had only been in the position for about three weeks.93 The RCMP LO, physically
located in DFAIT’s Foreign Intelligence Division (ISI),94 facilitates communication between DFAIT and the RCMP.95 If DFAIT ISI was to provide information
to the RCMP, Inspector Roy would take the documents to CID with the expectation that CID officials would disseminate the information to the appropriate investigation team, in this case Project A-O Canada.96
Inspector Roy first learned about Mr. Arar’s detention when Jonathan
Solomon, a DFAIT ISI policy advisor, approached him in the afternoon of
October 2. Mr. Solomon advised him that Mr. Arar was being detained in the
United States, that the case was “not immigration oriented,” and that the consulate there was not able to see him.97
Inspector Roy’s understanding was that Mr. Solomon was passing along
this information because he wanted to know if the RCMP was aware of Mr. Arar’s
detention.98
Following the conversation with Mr. Solomon, Inspector Roy went to the
Project A-O Canada offices. Staff Sergeant Callaghan’s notes indicated that
Inspector Roy arrived there at 2:45 p.m. on October 2.99 Staff Sergeants Callaghan
and Corcoran told him they were not sure of Mr. Arar’s whereabouts.100 They
also informed him that: Mr. Arar was a close associate of Mr. Almalki; Mr. Arar
had been arrested in New York on September 27; Project A-O Canada had supplied questions to the FBI on September 26; and Mr. Arar was refused entry
into the United States.101 According to Project A-O Canada, a report of these
events had been faxed to CID.102
Inspector Roy returned to DFAIT and informed Mr. Solomon of everything
that he had learned.103
Inspector Roy instructed Mr. Solomon not to tell anyone that the RCMP
had known for a few days about Mr. Arar’s detention, as he did not think there
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FACTUAL BACKGROUND: VOLUME I
was any need for Mr. Solomon’s colleagues at DFAIT to know. According to
Mr. Roy, Mr. Solomon understood his instructions and agreed he would simply
say that Project A-O Canada was aware of Mr. Arar’s detention.104
Inspector Roy acted on his own initiative in giving this instruction; he was
not acting on instructions from Project A-O Canada. Because he had only been
in the LO posting for a short time, he was still trying to establish what could and
could not be said. He believed that this information had been given to him as
a member of the RCMP, not as a member of DFAIT, and he was not sure what
information he should pass on to DFAIT. According to Inspector Roy, his goal
was to keep information sharing on a “need-to-know” basis.105
At 3:30 p.m. on October 2, Inspector Roy reported back to Staff Sergeant
Callaghan that Mr. Arar was still in detention.106 Although Inspector Roy did not
recall being told by members of Project A-O Canada earlier in the day that they
believed Mr. Arar had been sent back to Switzerland, he believed that he probably was given this information. This was why he had telephoned Project
A-O Canada to tell officials that Mr. Arar was still in detention.107
After hanging up, Inspector Roy realized that he had forgotten to tell Staff
Sergeant Callaghan an additional piece of information. At 3:45 p.m., he called
Staff Sergeant Callaghan again and told him that Mr. Arar had originally intended
to fly from New York to Montreal.108
Inspector Roy also shared the news that Mr. Arar was still in detention with
Corporal Flewelling at CID, because it was his understanding that Corporal
Flewelling oversaw the Project A-O Canada file at RCMP Headquarters.109
Inspector Roy did not verify whether Corporal Flewelling already knew that
Mr. Arar was still being detained. He could not remember if Corporal Flewelling
had any reaction to his news.110
Corporal Flewelling did not notify Sergeant Ron Lauzon, his superior at
CID, that Mr. Arar had been detained in the United States. Sergeant Lauzon
learned of Mr. Arar’s detention during an unrelated meeting at “A” Division on
October 3. Regardless, the Sergeant did not believe that Corporal Flewelling had
erred in not communicating this information to him immediately.111
DFAIT first learned on October 1 that Mr. Arar and his brother were concerned about the possibility Mr. Arar would be sent to Syria.112 Despite DFAIT’s
awareness of a removal threat, Project A-O Canada did not hear about these
concerns until October 8.
According to Inspector Roy, Mr. Solomon provided him with copies of
DFAIT consular reports regarding Mr. Arar that described the removal concerns
of Mr. Arar and his brother on the afternoon of October 7 or the morning of
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October 8. Inspector Roy claims he provided copies of these documents to both
Project A-O Canada and CID.113
However, Mr. Solomon’s testimony on this point differs markedly from that
of Inspector Roy. He did not remember giving consular reports to Inspector
Roy or asking him to convey them to the RCMP on October 7 or 8. An arrangement was in place for members of DFAIT ISI to pass consular documents to an
external agency provided the Director General of Consular Affairs gave approval.
Mr. Solomon said it would not have been unusual for the Director General to
approve passing the RCMP a document expressing Mr. Arar’s fear of removal to
Syria. Personnel at ISI were trying to help their consular services colleagues on
the Arar file, and would have wanted the RCMP’s assistance. While Mr. Solomon
thought it possible that Inspector Roy saw the reports, he was adamant that the
Director General of Consular Affairs would have had to approve their dissemination.114 He suggested that Inspector Roy might have overheard or participated
in discussions with DFAIT ISI on the issue of Mr. Arar’s possible removal to
Syria.
According to Mr. Solomon’s recollection of events, ISI was alerted around
October 3 or 4 that Mr. Arar had been threatened with possible removal to Syria.
The involvement of ISI in the Arar case began on October 1 or 2 when ISI officials offered to help consular officials determine if there was a security link. On
October 3 or 4, ISI officials discussed the threat of Syria. In the normal course
of events, once ISI had been consulted, Consular Affairs would update ISI on
any new or significant developments. Mr. Solomon assumed that if a consular
report reflected a concern that Mr. Arar might be sent to Syria, ISI would have
heard about it a day or two later. Logically then, ISI would have been informed
about the October 1 consular report by October 3. Again, Mr. Solomon had no
specific memory of ISI learning about the Syrian threat by October 3, but he believed that it was likely.115
After learning about the removal threat, ISI officials began to hold in-house
“scrums” on the issue. They were aware the Americans believed that Mr. Arar
was a member of al-Qaeda; that he was being held in a high-security detention
facility; and that the FBI was involved in the case. However, the predominant
belief among ISI staff was that the threat of removal to Syria was being used as
a tool to intimidate Mr. Arar into answering questions. Although Mr. Solomon
could not remember if he discussed the issue with Inspector Roy, given that
LOs share the same office space as ISI staff, it was possible that Inspector Roy
was present for one of these scrums.116 Mr. Solomon believed that Inspector
Roy could have become aware of the Syrian threat anywhere from October 4
to 9.117
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FACTUAL BACKGROUND: VOLUME I
For his part, Inspector Roy said he would be surprised to learn that ISI was
discussing on October 3 or 4 the allegations that Mr. Arar might be connected
to al-Qaeda and that he might be removed to Syria. He had no recollection of
hearing or discussing the possibility of Mr. Arar being sent to Syria. Moreover,
even if such a discussion did take place, it was not apparent that this information should be passed on to the RCMP. Finally, he could not have taken part in
such a discussion on October 4 because he was not at work that day.118
Inspector Roy did remember being in Mr. Solomon’s office and reading information on his computer pertaining to Mr. Arar’s state of mind and his fear of
being sent to Syria, as well as seeing a reference to al-Qaeda. However, he was
not sure if this information was from a consular report. Inspector Roy believed
he saw this information sometime after October 3, because he did not think that
Mr. Solomon or ISI was aware of the consular visit until a few days later.
According to Inspector Roy, he saw this information on the same day he was
given the consular reports.119
Leaving aside Inspector Roy’s involvement, it does not appear that ISI took
further action to alert others to the threat of Mr. Arar’s removal to Syria. Two reasons were offered to explain this. First, Mr. Arar was seen as a consular case that
was being managed. Until he was removed from the United States, ISI believed
that its role was only to lend assistance to consular officials.120 Second, the threat
of removal to Syria was regarded as simply an interrogation technique, not as a
plausible course of action. In DFAIT’s experience, nothing like this had ever
happened before, and it was completely outside acceptable and normal practice. A Canadian citizen (even if a dual citizen) travelling on Canadian documents would either be sent back where he or she came from, or to the location
on his or her passport. Any other action would have harmed the Canada-U.S.
bilateral relationship, and thus it did not enter the minds of DFAIT officials as a
realistic possibility.121
3.5
CORPORAL FLEWELLING’S TELEPHONE CONVERSATIONS
On Friday, October 4 and Saturday, October 5, Corporal Flewelling of CID at
RCMP Headquarters had telephone conversations with a representative of the
FBI legal attaché’s office about where the Americans were considering sending
Mr. Arar. Corporal Flewelling is the only witness who testified about what was
said during these discussions.
As already indicated, Corporal Flewelling had first learned of Mr. Arar’s detention on October 2 from Inspector Roy.122 There is no evidence that
�DETENTION IN THE UNITED STATES
Inspector Roy was aware at that time of concerns by Mr. Arar and his brother
that Mr. Arar might be sent to Syria.
Corporal Flewelling testified that he spoke to Inspector Roy again on
October 4 on a matter other than Mr. Arar. He could not recall the specifics of
their conversation, but believed that it was very possible they also discussed
Mr. Arar123 — perhaps regarding the issue of consular access.124
However, Inspector Roy had no recollection of such a conversation. As indicated previously, Inspector Roy was not in the office on October 4, and although he could have been reached on his cell phone, he had no notes or any
memory of a phone conversation with Corporal Flewelling.125
Corporal Flewelling testified that about noon, a short time after speaking to
Inspector Roy, he went to the RCMP’s Immigration and Passport Office to find
out about the law related to removal.126 Corporal Flewelling provided two explanations for doing this. Early in his testimony, he stated that he was due to
have a conversation with the FBI later that day. He wanted to be “armed with
enough information to be able to talk about [the removal process] or know what
the process was.” Later on, he stated that the term “removal” had been used in
conversations with his colleagues at Project A-O Canada. When it was suggested that something Inspector Roy said to him had instigated his inquiries,
Corporal Flewelling agreed that “It could have been. I just don’t recall the content of that conversation.”127
When Corporal Flewelling arrived at the Immigration and Passport Office,
he intended to speak with the CID official who worked on immigration matters
there. This individual was not available, but he approached two other officers
who were sitting at a table having lunch. Although at the time he did not know
their names, Corporal Flewelling later learned that one of the men was Gregg
Williams. Corporal Flewelling told the officers that an RCMP subject of interest
had flown in from Zurich and was being detained by American authorities. He
asked what the normal process would be with respect to removal. Corporal
Flewelling could not recall if he mentioned that the person was a dual
national.128
He was advised that in a removal process, the individual is placed on an
aircraft of the airline that brought him into the country, and taken back to his
last port of call.129 Corporal Flewelling could not remember which of the two officers gave him this information.130 Mr. Williams did not recall the conversation,
but agreed it was possible he spoke to Corporal Flewelling.131
Corporal Flewelling did not take any action with respect to this
information.132
167
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FACTUAL BACKGROUND: VOLUME I
By this time, DFAIT had heard that Mr. Arar and his brother were worried
Mr. Arar was going to be sent to Syria. However, Corporal Flewelling was certain that Inspector Roy did not share this information with him during their conversation earlier in the day.133
Although it is not clear who initiated the call, sometime after 6 p.m. on
October 4, Corporal Flewelling spoke to an FBI official. After discussing a few
unrelated issues, the discussion turned to what was going to happen to Mr. Arar.
The FBI official advised him that Mr. Arar was due to appear at an immigration
hearing on Wednesday, October 9. According to him, because Mr. Arar had
never officially entered the United States, he would be removed from the country and sent back to Switzerland. Once Mr. Arar was in Switzerland, he could
choose his destination, whether it be Canada or Syria. Corporal Flewelling said
this was one of the first times that Mr. Arar’s dual nationality was discussed.134
Corporal Flewelling questioned the FBI official about why it was necessary
to send Mr. Arar all the way back to Switzerland, when he could just be dropped
off at the Canada-United States border. They also discussed setting up RCMP
surveillance of Mr. Arar if the Project A-O Canada team agreed to it. According
to Corporal Flewelling, the FBI official responded to his suggestion to send
Mr. Arar to Canada by stating that this was more than likely what they would
do.135 In fact, Corporal Flewelling’s impression was that the FBI official took his
suggestion seriously, but he could not recall exactly how the conversation was
left. He understood that the FBI and the RCMP would be waiting to see the outcome of the October 9 hearing to determine whether Mr. Arar was sent to Zurich
or Canada.136
Corporal Flewelling did not record the conversation with the FBI official in
his notes. He explained that he was on his way out of the office when he was
called. Corporal Flewelling recorded other phone calls with this official in his
notebook.137
At 6:10 p.m. on Saturday, October 5, Corporal Flewelling received a call at
home from the same FBI official, who told him that the FBI was unable to read
Project A-O Canada’s October 4 fax containing answers to the questions sent
on October 3. He requested that the report be re-faxed.138
During this conversation, the FBI official said that the Americans feared
they did not have sufficient information to support charges against Mr. Arar, and
they would therefore be looking into deporting him. He informed Corporal
Flewelling that Mr. Arar was a dual citizen and had asked to be deported to
Canada. He also said that Washington wanted to know about the RCMP’s interest in Mr. Arar (i.e., was the RCMP able to charge him) and if it could refuse him
entry into Canada. Corporal Flewelling told the FBI official that if an individual
�DETENTION IN THE UNITED STATES
has Canadian citizenship, and there is not enough evidence to support charges
in the United States, let alone Canada, it is likely that the person could not be
refused entry into the country.139
Although Corporal Flewelling was not experienced in immigration matters,
he did not seek guidance, information or advice before providing the FBI official with this information. According to Corporal Flewelling, his honest belief
was that a Canadian citizen, even if he is a dual national, cannot be refused
entry into the country.140 The October 5 conversation was recorded in Corporal
Flewelling’s notebook.
Corporal Flewelling testified that this conversation did not raise warning
signs that Mr. Arar might be sent to Syria, even though the FBI official had raised
the following points: 1) the Americans did not have enough information to
charge Mr. Arar criminally; 2) Mr. Arar was a dual national who wanted to be
sent to Canada; and 3) they wanted to know if Canada could refuse him entry.
Corporal Flewelling testified that, in the context of this conversation on Friday,
October 4, he still believed that Mr. Arar would be sent to Switzerland. When it
was pointed out to Corporal Flewelling that Switzerland was not mentioned in
the Saturday evening conversation, he replied: “All I can tell you is at the time
I did not take that as an indicator that they were going to do what they did.”141
Moreover, he believed that telling the American official Canada did not have
reason to charge Mr. Arar and could not refuse entry, would result in his release
and early return to Canada. As well, he knew that a hearing was slated for
Wednesday, October 9, and Mr. Arar would have an opportunity for an appeal
and to make the necessary arguments.142 (At this time, Corporal Flewelling had
no knowledge of the term “rendition.”143)
Based on the FBI official’s questions, Corporal Flewelling did not form an
impression of whether he was hopeful about the RCMP’s ability to refuse
Mr. Arar entry into Canada. In his testimony, Corporal Flewelling stated “I just
thought it was a matter-of-fact question.”144
The same evening as the call, Corporal Flewelling informed Sergeant
Lauzon, his superior at CID, of his conversation with the FBI official. The next
day, he sent an e-mail to Staff Sergeant Callaghan.145 On the morning of Monday,
October 7, he informed Superintendent Pilgrim of the weekend’s events. He
also spoke to Sergeant Lauzon about the issue again.146
In the weekend e-mail to Staff Sergeant Callaghan, Corporal Flewelling advised him of the problem with the October 4 fax to the FBI. He also mentioned
that Mr. Arar’s trial was scheduled for the coming Wednesday (October 9), and
that it appeared the United States did not have enough evidence to support
charges. He indicated that Mr. Arar was requesting deportation to Canada
169
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FACTUAL BACKGROUND: VOLUME I
following the trial and that the INS and the FBI wanted to know if there were
any objections or laws that would prevent Canada from accepting Mr. Arar. In
his e-mail, Corporal Flewelling said that he had advised the FBI that as a
Canadian citizen, Mr. Arar could not be refused entry into the country. Corporal
Flewelling wanted the question of whether Mr. Arar could be refused entry to
be followed up on that Monday.147
Corporal Flewelling also recommended that Staff Sergeant Callaghan inform CSIS Headquarters about what was going on. He further indicated that
CSIS should be told that, in responding to the Americans’ October 3 request for
information, Project A-O Canada might have alluded to CSIS information.148
Staff Sergeant Callaghan testified that he was not at work during the weekend of October 5 and 6, and did not receive Corporal Flewelling’s e-mail until
the morning of Monday, October 7.149 He called Corporal Flewelling immediately
to discuss it. According to Staff Sergeant Callaghan, this was the first time he had
heard that there was a chance of Mr. Arar coming to Canada. Prior to this, members of Project A-O Canada believed that Mr. Arar would be sent to Zurich.150
Staff Sergeant Callaghan’s testimony and his notes of the conversation indicate that Corporal Flewelling told Staff Sergeant Callaghan that Mr. Arar would
most likely be sent to Canada.151 However, Corporal Flewelling’s testimony and
his notes of the Saturday evening conversation with the FBI, as well as his e-mail
to Staff Sergeant Callaghan, say only that Mr. Arar requested that he be sent to
Canada.152 Corporal Flewelling did not make notes of this conversation.
At 10:40 that morning, Staff Sergeant Callaghan replied to Corporal
Flewelling’s e-mail, but he did not address the question of whether a Canadian
citizen could be refused entry into Canada.153 Although it is possible that Staff
Sergeant Callaghan sent another e-mail on this matter, no one recalls that he
did so.
To Corporal Flewelling’s knowledge, there was no follow-up on the questions in his e-mail to Staff Sergeant Callaghan, or on the questions that the FBI
official asked him on Saturday, October 5. In particular, Corporal Flewelling did
not follow up on whether Mr. Arar could be refused entry into Canada. He remained under the impression that Mr. Arar was going to an immigration hearing on October 9.154
Despite the phone calls from the FBI on October 4 and 5, Corporal
Flewelling did not recall contacting Inspector Roy on October 7 to obtain more
information on Mr. Arar’s situation.155
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3.6
THE POTENTIAL INTERVIEW WITH MR. ARAR
On October 4, Project A-O Canada took steps to interview Mr. Arar while he
was in custody in New York.
On the morning of October 4, Staff Sergeant Callaghan received a call from
the FBI, asking if Project A-O Canada knew of any aliases for Mr. Arar. Staff
Sergeant Callaghan then contacted Corporal Flewelling and advised him of
Project A-O Canada’s interest in interviewing Mr. Arar. A short while later, Staff
Sergeant Callaghan called the FBI back and provided him with the aliases for
Mr. Arar. He also took the opportunity to inform the FBI that Project A-O
Canada would be sending the FBI a request for an interview.156 This request
was included in the fax cover sheet accompanying the October 4 reply to the
Americans’ October 3 request for information.157
To Inspector Cabana’s mind, this would be the last opportunity to interview Mr. Arar before he was returned or sent to Zurich. Initially, officials at
Project A-O Canada thought that his removal would occur quickly and consequently there would be no opportunity for an interview. However, when it became clear that Mr. Arar was still in New York, Project A-O Canada asked for
access.158
Before sending out the October 4 reply and request for an interview, the
three Project A-O Canada managers and Ann Alder, counsel to the Project, met
with Michael Edelson, Mr. Arar’s counsel. The purpose of the meeting was to
discuss Mr. Edelson’s concerns about Mr. Almalki’s detention in Syria and
Mr. Arar’s detention in New York — concerns that Mr. Edelson had first raised
on September 27. Mr. Edelson advised them that Mr. Arar was currently being
detained in a Brooklyn jail.159
From October 4 to 7, Project A-O Canada did nothing to pursue the interview with Mr. Arar. However, on the morning of Monday, October 7, Staff
Sergeant Callaghan spoke to an FBI official, who wanted to know if Project
A-O Canada “could link Mr. Arar to Al-Qaida or any other terrorist group.” Staff
Sergeant Callaghan replied that the only possible link was through Mr. Almalki.
The FBI official also indicated that Mr. Arar had a hearing that day and would
have a final hearing on Wednesday, October 9. According to him, if no further
information was received, Mr. Arar would likely be deported to Canada that
same day.160 This was the first time the American authorities had directly mentioned Canada as a possible destination for Mr. Arar.
171
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FACTUAL BACKGROUND: VOLUME I
The FBI official agreed to pursue Project A-O Canada’s request to interview Mr. Arar, if the RCMP so wished. Staff Sergeant Callaghan told him that he
would discuss the matter with his colleagues and call him back.161
That afternoon, Project A-O Canada’s assistant managers advised Inspector
Cabana that Mr. Arar would likely be released and refused entry to the United
States, and the American authorities were planning to send him to Canada.
Inspector Cabana asked them to explore the possibility of interviewing Mr. Arar
in the United States while he was in custody. First, however, they were to find
out the results of the FBI interview, including Mr. Arar’s responses to the questions provided by Project A-O Canada on September 26. Inspector Cabana also
requested information on the cost of flights to New York, as officials would
have to travel either that day or the day after, since Mr. Arar was possibly going
to be released that Wednesday.162
By the afternoon of October 7, Project A-O Canada officials were making
tentative travel plans, even though they understood that Mr. Arar would
possibly be sent to Canada two days later. According to Inspector Cabana, they
were simply pursuing the original request to interview Mr. Arar, made on
October 4.163
Inspector Cabana also testified that the final decision to go to New York
would be determined in part by Mr. Arar’s willingness to talk. The team was
most interested in whether Mr. Arar was being cooperative with American authorities, and if he would agree to an interview with Project A-O Canada.
Inspector Cabana understood that RCMP policy requires a Canadian detainee to
give his or her consent before the RCMP can conduct an interview in a foreign
country.164
Another determining factor was whether Mr. Arar was going to be removed
to Zurich. If he was, then the RCMP would likely go to New York to question
him.165
Between noon and about 4:15 p.m. on October 7, Staff Sergeant Callaghan
called the FBI to inquire about the results of Mr. Arar’s interview on
September 27. [***]. Subsequently, Staff Sergeant Callaghan left the FBI a voice
mail message about the importance of speaking directly with the official who
had interviewed Mr. Arar.166
In a conference call at 4:15 p.m. on October 7,167 this FBI official was not
able to remember many of the details of his interview with Mr. Arar, as he did
not have his notes with him. [***].
Project A-O Canada was also told that the U.S. Department of Justice was
still trying to iron out some issues regarding the Project’s interview with
Mr. Arar.168
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Shortly after this conversation, Project A-O Canada officials made the decision not to interview Mr. Arar. Three factors contributed to this decision: 1) the
time involved in going to New York; 2) the cost of flying; and 3) the fact that
the American authorities had not yet given their approval. It was decided that it
would be more prudent to await Mr. Arar’s return and then to make arrangements to put him under surveillance for a few days. After this, Project officials
would try to interview him.169
At 4:30 p.m. on October 7, Staff Sergeant Callaghan informed the FBI that
Project A-O Canada would not be going to New York to interview Mr. Arar. He
advised Corporal Flewelling of CID of this decision as well.170
That afternoon, Corporal Lemay was instructed to start preparing a surveillance package and interview questions for Mr. Arar.171 The surveillance package
included photos of Mr. Arar, a surveillance request, a profile of Mr. Arar, and
mosque locations.172
3.7
CONTACTS WITH MR. ARAR’S FAMILY
Acting on a request from Project A-O Canada, officers from RCMP “C” Division
in Montreal met with members of Mr. Arar’s family living there.173
In a fax to Project A-O Canada dated October 8, “C” Division reported that
at 4:25 p.m. that afternoon, two officers went to the residence of Mr. Arar’s
mother, where they spoke to her, as well as to Taufik Arar, one of Mr. Arar’s
brothers. Explaining that he was the contact person while Maher Arar was in
New York, Taufik Arar said he did not know when his brother would be released from prison.174
At five p.m., the same two officers went to Bassam Arar’s residence in Laval,
Quebec. Mr. Arar knew his brother was in custody in New York, but he did not
know why.175 Although the evidence is not clear, it appears that officers for “C”
Division may have also interviewed other members of Mr. Arar’s immediate
family.
None of the family members provided information on whether Mr. Arar
was coming back to Canada.176
173
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FACTUAL BACKGROUND: VOLUME I
3.8
THE EVENTS OF OCTOBER 8
3.8.1
Project A-O Canada
At around four a.m. on October 8, Mr. Arar was served with a removal order directing his removal to Syria. The evidence shows that Mr. Arar was taken first
to Jordan and, from there, to Syria. Although it is not clear precisely when
Mr. Arar was put on the plane to Jordan, it was likely very soon after he was
served with the removal order.
Prior to October 8, none of the Project A-O Canada officials who testified
before this Inquiry had any information, either from the Americans or from
DFAIT, that removal to Syria was a possibility. On the contrary, they believed
that Mr. Arar would either be returned to Zurich, where he had boarded the
plane to the United States, or sent to Canada.
At about quarter to ten on the morning of October 8,177 Inspector Roy met
with members of Project A-O Canada. According to Staff Sergeant Callaghan’s
notes, Inspector Roy showed them consular reports, and informed them of
Mr. Arar’s concerns that he might be sent to Syria. Staff Sergeant Callaghan testified that Inspector Roy said “there was a very good possibility that he [Mr. Arar]
was going to Syria.”178 However, Inspector Roy disputes this account of events.
According to him, no one at ISI had ever told him that Mr. Arar might go to Syria,
so he was unlikely to have indicated this to Project A-O Canada. He did remember mentioning that Mr. Arar was afraid of being sent to Syria.179
Inspector Roy’s testimony was not entirely clear concerning the consular reports that were shown to Project A-O Canada. As mentioned earlier,
Mr. Solomon of ISI contended that he did not give consular reports to Inspector
Roy, either for his own information or to be shown to Project A-O Canada.
Inspector Roy testified that he went to Project A-O Canada with a file folder
containing two consular notes, but he could not testify with certainty as to which
consular notes he brought with him.180
Members of Project A-O Canada had varied reactions to the news that
Mr. Arar might be removed to Syria. In general, however, they were not certain
what to make of it. After receiving the news from Inspector Roy, they continued preparing for Mr. Arar’s possible arrival in Canada.
At 10:30 a.m., an FBI official came to Project A-O Canada’s offices with information found in Mr. Arar’s possession during his New York detention.
�DETENTION IN THE UNITED STATES
According to this official, Mr. Arar was still in New York (although he was
not) and the FBI did not know when he was getting out — it was an INS matter, he said. He added that the FBI did not have anything that would allow them
to hold Mr. Arar,181 and indicated that the U.S. Department of Justice was still
considering Project A-O Canada’s request to interview Mr. Arar.182 He also said
that Mr. Arar “could well be sent to Canada or Syria.”183
About noon, the three Project A-O Canada managers met to consider the
situation.184 Among other things, they again discussed the possibility of interviewing Mr. Arar while he was in New York. They still were not sure if Mr. Arar
was returning to Canada and were concerned about missing an opportunity if
he was sent to Zurich. As well, they were concerned about a perception that the
United States was holding Mr. Arar so that Project A-O Canada could interview
him. There might also be a suggestion that Mr. Arar would be sent to Syria if he
did not cooperate with the Canadian investigation, and this could be damaging
to the RCMP. The Project A-O Canada managers agreed to raise this concern
with the FBI, and wait for a reply from the U.S. Department of Justice about their
request to interview Mr. Arar.185
As a result of the meeting, Project A-O Canada decided that they should
not interview Mr. Arar until they knew three things: 1) why Mr. Arar was in
American custody; 2) what Mr. Arar had said while in custody; and 3) where he
was going to be sent.186 According to one manager, if the Americans decided to
send Mr. Arar to Syria, Project A-O Canada did not want to be seen as “encouraging it, participating in it, asking for it, [or] anything of that nature.”187
Inspector Cabana explained that Project A-O Canada’s continued interest
in interviewing Mr. Arar depended on where he was going to be sent: “If he was
coming back to Canada, we wouldn’t seek to interview him in the U.S. If we
found out that he was going to be deported back to either Zurich or elsewhere,
then yes, we would continue with our efforts to gain access to him.”188
At 2:15 p.m., members of Project A-O Canada and Sergeant Lauzon from
CID met with an American official to find out about Mr. Arar’s situation — specifically regarding the three questions agreed on earlier.189 Because of Mr. Arar’s
dual nationality, Canada and Syria were presented as two possible destinations
for his removal. Although Sergeant Lauzon understood Switzerland to be another possibility, it was not discussed at this meeting.190 However, the American
official could not provide an answer, as he indicated this was an INS matter.191
At six o’clock that evening, Staff Sergeant Callaghan called the FBI and
asked the same three questions. He indicated that Project A-O Canada was concerned about the perception that they had anything to do with Mr. Arar’s
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FACTUAL BACKGROUND: VOLUME I
possible removal to Syria. The FBI official promised to look into the matter and
get back to him the next day.192
At 9:04 a.m. on October 9, this official left a message with Staff Sergeant
Callaghan that Mr. Arar would not be available for an interview as he was no
longer in New York. Furthermore, Mr. Arar would not be returning to Canada.193
No further information was provided. By two o’clock that afternoon, Project
A-O Canada confirmed, via the Americans, that Mr. Arar had been sent to
Syria.194 Project A-O Canada officials then notified their supervisors at RCMP
CROPS.195
After Project officials were informed on the morning of October 8 that
Mr. Arar might be removed to Syria, they did not take any steps to dissuade the
Americans from doing so, nor did they register any objections. Two explanations
were put forward. First, the Project members did not really believe that Mr. Arar
would be sent to Syria;196 at various times they had been told he would be sent
to either Zurich or Canada. Second, DFAIT was aware of Mr. Arar’s circumstances and it was that department’s role to take whatever steps were warranted
to protect him.197 Furthermore, it should be noted that by the time Project officials were first advised of the possibility of removal to Syria, Mr. Arar had already
been removed from New York.
Project members were also asked if they were not concerned that Mr. Arar
might be tortured in Syria. They were aware that Ahmad El Maati had alleged
that his statement to Syrian authorities had been obtained by torture.198 Although
they each expressed their views somewhat differently, those who were asked
were not concerned about the prospect of torture. They had been told it was
likely that Mr. El Maati had not been tortured, that he had consular access, and
that there was some corroboration for his confession.199 Moreover, the primary
concern for at least one of the Project managers was that Mr. Arar’s removal to
Syria could have an adverse effect on their investigation. Two of the Project’s
main targets, Messrs. Almalki and El Maati, were already in custody in Syria
and Egypt, respectively. That a third Canadian of interest could potentially end
up in Syrian custody might pose a problem for the team in its attempts to neutralize threats to Canadian security, or to obtain information for prosecution.200
3.8.2
RCMP Headquarters
Following September 26, Project A-O Canada provided situation reports to
CID/NSIB for the following dates: September 26, September 27, October 2,
October 4, October 7 and October 8. These reports outlined the Project’s information on Mr. Arar’s detention in New York, and on the communications
�DETENTION IN THE UNITED STATES
between the Project and American authorities during the time Mr. Arar was in
New York.
There is no evidence RCMP Headquarters knew of the possibility that
Mr. Arar could be sent to Syria before October 8. As described, Corporal
Flewelling had conversations with the FBI on October 4 and 5, during which
Mr. Arar’s situation was discussed. However, Corporal Flewelling testified that
there was no mention of Syria in either of these conversations, and that neither
conversation led him to consider Syria as a possible destination for Mr. Arar.
DFAIT did not inform RCMP Headquarters that on October 1 and 3,
Mr. Arar’s brother and Mr. Arar, respectively, had told DFAIT officials that
American immigration officials had informed Mr. Arar he would be sent to Syria.
Inspector Roy was uncertain if he informed RCMP Headquarters of the possibility of removal to Syria on October 8, the same day he informed Project
A-O Canada of this possibility. It was Inspector Roy’s routine to deliver to CID
all documents that were passed to him from DFAIT. In this instance, however,
he could not remember if he met with anyone at CID to inform them of the
possibility of Mr. Arar being sent to Syria, or if he dropped off the documents
in his file folder at CID.201
CID eventually learned of Mr. Arar’s removal around October 8 or 9.202 A
briefing note to Commissioner Giuliano Zaccardelli, dated October 9, 2002, and
signed by Superintendent Pilgrim, stated: “CID/NSOS learned that ARAR was
deported and subsequently escorted to Syria, by U.S. authorities at an undetermined time on October 8, 2002.”203
4.
CSIS’ RESPONSE TO MR. ARAR’S DETENTION
CSIS first learned of Mr. Arar’s detention from DFAIT on October 2, 2002, when
DFAIT’s communications branch advised the CSIS communications branch that
a Syrian-born Canadian, Mr. Arar, had been arrested and detained by U.S. authorities in New York. DFAIT advised that the arrest did not appear to relate to
an immigration matter, and that it could be “much bigger.”204
Later that day, the CSIS liaison officer (LO) at DFAIT ISI sent an e-mail to
CSIS Headquarters concerning Mr. Arar’s detention. (The CSIS LO was not aware
that CSIS Headquarters had already heard about it.) Informed of the detention
by her supervisor, she was asked to find out what CSIS knew about Mr. Arar.
In her e-mail, the LO reported that Mr. Arar had been an immigration case in the
United States, but now appeared to be a security case. She asked that CSIS staff
check Mr. Arar out as a matter of priority.205
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FACTUAL BACKGROUND: VOLUME I
The LO did not flag the e-mail as urgent.206 ISI often made informal requests for CSIS to conduct checks. She did not consider this request to be either
unusual or urgent.207
Eventually, her e-mail was forwarded to another CSIS official who worked
in the Sunni Islamic Terrorism section at CSIS Headquarters. He carried out a
quick review of the CSIS holdings for information about Mr. Arar up to
October 2, then sent a summary to the CSIS office in Washington and to the LO
at ISI. His summary did not contain all of the information that he had found because he was pressed for time and was attempting to put together a quick response for his colleagues. He did not want to mislead them by adding
information that might not have been supportable in the long run.208
During his review, the CSIS official saw an RCMP profile of Mr. Arar that had
been entered into the CSIS holdings on September 26, 2002.209 As a result, he
told the CSIS LO that CSIS was aware the RCMP had an interest in Mr. Arar because of his connections with Mr. Almalki and that therefore the RCMP might
be able to provide additional information.210
He also contacted the CSIS office in Washington. His message included a
summary of his review and a request that they seek clarification from their
American counterparts regarding the circumstances and rationale for Mr. Arar’s
arrest.211
The Washington office treated the message as a routine request. The CSIS
official did not flag it as urgent because he did not see the situation as an emergency. (However, he did follow up the message with a phone call.212) Another
CSIS official testified that any threat he posed had been neutralized because he
was in custody. Moreover, Mr. Arar was seen to be a consular case by this
point.213 It should be noted that the Washington office had a small staff who handled 500 to 700 information requests each month.214
The CSIS official also provided other CSIS colleagues with a summary of information about Mr. Arar, and informed them that the RCMP was conducting an
active investigation into Mr. Almalki and his contacts, including Mr. Arar. He
wrote that it was likely the RCMP had had direct exchanges with the FBI about
Mr. Arar. The e-mail also mentioned that CSIS had yet to receive any formal
communication from the FBI or any other American agency regarding Mr. Arar’s
arrest, and would seek clarification regarding the reasons for his detention.215
Another CSIS employee sent an e-mail saying she was aware the RCMP
knew Mr. Arar was returning to the U.S. (from abroad) and the FBI were planning to hold him.216 She believes that she formed this opinion after telephoning
Project A-O Canada to inquire about Mr. Arar.217 She could not recall if she
shared this information with staff at CSIS Headquarters.218
�DETENTION IN THE UNITED STATES
The RCMP’s situation reports about Mr. Arar were not delivered to CSIS
until several days after they were prepared. The CSIS holdings state that on
Friday, September 27, CSIS received the RCMP’s situation report for Thursday,
September 26, which stated that Mr. Arar was about to arrive in New York and
that he would be denied entry into the United States.219 However, this record in
the holdings was incorrect, as a CSIS employee testified that CSIS received and
read the report on October 3.220
The RCMP’s situation report for Friday, September 27 stated that the RCMP
informed CSIS Mr. Arar was being detained and interrogated in New York.
Moreover, the report indicated that Mr. Arar would be denied entry to the United
States, and would be denied permission to enter Canada via the United States.221
Again, a record in the CSIS holdings erroneously indicated that CSIS received this
report on Monday, September 30. According to the CSIS employee’s testimony,
in fact, CSIS received and read the report on October 3.222
It was customary for Sergeant Glenn Kibsey, the RCMP liaison officer for
CSIS, to deliver Project A-O Canada’s situation reports to CSIS. In this case, he
did not deliver the situation reports for September 26 and September 27 to CSIS
until October 3. The situation report for Thursday, September 26 was completed
on Friday, September 27, after Sergeant Kibsey had already returned to his office at CSIS following a trip to Project A-O Canada. The situation report for
Friday, September 27 was completed on Monday, September 30. However,
Sergeant Kibsey was attending an off-site course from September 30 to October 2
and did not return to the office until October 3.223
After receiving the two reports on October 3, a CSIS employee e-mailed
other CSIS staff about the situation.224 A briefing note was prepared the same day
for Jack Hooper, Assistant Director, Operations, entitled “Maher Arar, Contact of
Almalki, Arrested in NY,” outlining the action CSIS had taken to date.
As mentioned, on October 2 CSIS sought to contact its American counterparts for clarification about the circumstances and rationale for Mr. Arar’s detention.225 This was followed by a similar request on October 4. [***] to find out
about Mr. Arar’s recent activities, why he was arrested, his current status, and any
information that had been gleaned from him. [***].226 The request from CSIS
Headquarters contained a written text that was to be passed to the Americans.
It had two caveats attached.227
[***].228
It is unclear what became of the October 2 request. The October 4 request
was delivered via a letter to the Americans on October 10, following Mr. Arar’s
removal from the United States.
179
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FACTUAL BACKGROUND: VOLUME I
On October 9, CSIS learned from two sources that Mr. Arar had been removed from the United States the previous day. An employee of another government agency who was seconded to CSIS was told by a colleague seconded
to RCMP Headquarters that Mr. Arar had been sent to Syria. This information was
passed on to CSIS; shortly after, the CSIS LO in ISI telephoned with the same
news.229
On hearing about Mr. Arar’s removal, CSIS sought information from the
Americans about Mr. Arar’s whereabouts and the circumstances surrounding his
removal to Syria. The request had two caveats attached.230
[***]. The letter was marked “Urgent” and contained caveats.231. The message
[***] was sent to Washington on October 9. The text of the message was transferred to a letter and delivered [***] on October 10, along with a second letter
based on CSIS Headquarters’ October 4 request for information concerning
Mr. Arar’s detention in New York. Both letters had caveats.232
[***] replied to the October 9 request in a message dated November 5,
2002.233 An identical reply was also sent to RCMP Headquarters.
[***] replied verbally to the CSIS Washington office on October 11, but did
not send a formal reply until June 9, 2003.234 This delay was considered to be
normal.235
Despite the limited role CSIS had played during Mr. Arar’s detention in the
United States, there was speculation within CSIS that the RCMP might have been
involved in Mr. Arar’s removal.
For example, in an October 10, 2002 e-mail exchange, a CSIS official stated
her opinion that the RCMP had significantly contributed to Mr. Arar’s removal.236
However, this official downplayed the e-mail during her testimony, saying that
her comment only referred to CSIS information suggesting that information
had been flowing back and forth between Project A-O Canada and American
officials.237
According to an October 10 briefing note, it was not known if the RCMP
had any role in Mr. Arar being sent to Syria. However, a notation in brackets attributed to the CSIS Director indicated that it was likely the RCMP was involved.238 CSIS witnesses who were asked about this notation did not comment
further on it.239
�DETENTION IN THE UNITED STATES
5.
DFAIT’S ACTIONS
5.1
THE INITIAL CONTACTS
DFAIT first found out about Mr. Arar on Sunday, September 29, 2002, when
they received a call from Mr. Arar’s brother, Taufik Arar.
Mr. Arar’s brother called DFAIT Headquarters, concerned that Mr. Arar appeared to be missing at JFK Airport in New York. He explained that Mr. Arar had
left Tunisia on September 25 and was to have arrived in Montreal on
September 27 on a connecting flight from New York. At 11:42 a.m., a CAMANT
note240 was sent to the Canadian Consulate General in New York informing officials of the situation and asking them to determine if Mr. Arar had been arrested
or detained. DFAIT Headquarters also noted that there was no information on
file concerning a problem with Mr. Arar’s passport.241
Maureen Girvan was the manager of consular services at the Consulate
General in New York. She had nine years of consular experience in various positions at DFAIT, and had been at the Consulate General since September
2001.242 Ms. Girvan read the note on the morning of Monday, September 30,
but had no reason to believe that Mr. Arar was being detained.243
By noon, the Consulate General had also received a CAMANT note from
DFAIT’s mission in Tunis concerning Mr. Arar’s whereabouts. The message was
sent to Myra Pastyr-Lupul, the case management officer for the Middle East region at DFAIT Headquarters, and was copied to others, including consular officials in New York. Ms. Pastyr-Lupul was informed that Mr. Arar’s wife, Monia
Mazigh, had contacted the mission when Mr. Arar had failed to call her upon his
arrival in Montreal.244
With information from two members of Mr. Arar’s family, Lisiane Le Floc’h,
a consular officer in New York, contacted the INS office at JFK Airport to find
out if Mr. Arar had been arrested and, if so, where he was being detained.245
Unable to reach anyone, Ms. Le Floc’h left a message. Ms. Girvan believed that
Ms. Le Floc’h called JFK Airport a second time that day regarding Mr. Arar.246
The Consulate General did not receive a reply until the next day. Ms. Girvan
was not surprised, as she knew that the INS office at JFK Airport was very busy.
As will be discussed, the reply was obtained from the INS Public Affairs Office.247
In the early morning of October 1, CAMANT notes were exchanged between the mission in Tunis, DFAIT Headquarters and the Consulate General
concerning a passport for Mr. Arar’s infant son, who was in Tunis with Mr. Arar’s
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FACTUAL BACKGROUND: VOLUME I
wife and six-year-old daughter. Mr. Arar was travelling with his son’s expired
passport and had intended to renew it upon his return to Canada.248 In the midst
of the messages on how to sort out issues surrounding the son’s passport, the
mission in Tunis also sent a message to Ms. Le Floc’h and Ms. Pastyr-Lupul confirming Mr. Arar’s flight numbers.249
On the morning of October 1, Dr. Mazigh notified DFAIT that Mr. Arar had
been detained in New York. Neither the American authorities nor the RCMP
had contacted the Consulate General in New York with this information,
even though the RCMP had been notified of Mr. Arar’s detention on
September 26.That said, however, consular officials did not expect that they
would have been contacted by the RCMP in these circumstances.250
In a CAMANT note sent to Ms. Le Floc’h at 9:31 a.m. on October 1, the
Tunis mission stated that Dr. Mazigh had just informed them that Mr. Arar had
called his mother-in-law in Canada and told her that he was being detained in
New York at the “Federal Bureau of Brooklyn.” Mr. Arar told his mother-in-law
that he had been given no reason for his detention, and that he had not been
treated well. The mission in Tunis asked the Consulate General to “contact that
Federal Bureau and advise.”251
Within 20 minutes of receiving the message from Tunis, consular officials
in New York confirmed that Mr. Arar was actually being held at the Metropolitan
Detention Centre (MDC) in Brooklyn. However, they did not know what charges
Mr. Arar was facing or why he was being held.252 (It appears consular officials
assumed that Mr. Arar had been arrested and charged because he was being
held at a detention facility. However, at no time during Mr. Arar’s detention in
the United States did the Consulate General receive confirmation that Mr. Arar
had been arrested.)
According to Ms. Girvan, everything seemed normal up to this point. The
fact that the MDC did not immediately confirm the charges against Mr. Arar was
not unusual. Although the detention facility was not required to provide information concerning any charges, it usually replied to such inquiries through its
records division.253
At the same time as consular officials in New York were investigating the
charges against Mr. Arar, DFAIT Headquarters received another call from
Mr. Arar’s brother telling them of his concern that Mr. Arar would be sent to
Syria. This was the first of two instances when consular officials heard concerns
about Mr. Arar being sent to Syria. The second instance occurred during
Ms. Girvan’s consular visit with Mr. Arar on October 3.254 These were the only
times during Mr. Arar’s detention in the United States that Syria was mentioned
to consular officials.
�DETENTION IN THE UNITED STATES
In a CAMANT note sent October 1 at 12:17 p.m., Nancy Collins, the case
management officer for the U.S. region at DFAIT Headquarters, wrote: “Brother
called this morning in a state of panic. He said that subject was able to call him
this morning from the MDC and informed him that he would be deported back
to Syria where he was born. Both, subject and brother are extremely afraid that
he would be deported to Syria and not in [sic] Canada.”255 Ms. Collins told
Mr. Arar’s brother that they had just received confirmation of Mr. Arar’s whereabouts and that they were trying to confirm the charges. Ms. Collins also informed him that DFAIT was not able to provide any additional information
without prior authorization from Mr. Arar. Ms. Collins told consular officials in
New York to forward the usual letter of introduction to Mr. Arar.256
At the time, Ms. Collins was not aware of possible human rights violations
committed by the Syrian government. Neither did she consult with anyone in
DFAIT ISI to determine whether there were serious concerns about human rights
if Mr. Arar was removed there.257
Although she could not say exactly when, Ms. Girvan read Ms. Collins’ message, took note of it, and continued with efforts to find out the charges against
Mr. Arar.258 At this point, her main concern was the charges. Once she had obtained that information, she would try to visit Mr. Arar at the MDC. For these reasons, she put aside the suggestion of sending a letter of introduction.259
In Ms. Girvan’s view, there were four main reasons why consular officials
in New York did not consider the threat of removal to Syria to be a real possibility at the time. First, it was common for dual citizens to be concerned about
being sent to their other country of citizenship. Second, most family members
were very upset when a loved one was in prison; thus the brother’s state of
panic was understandable.260
The next two reasons were particularly important because they coloured
Ms. Girvan’s mindset throughout Mr. Arar’s detention in the United States.
The third reason given by Ms. Girvan was that she was not aware of the
United States ever having removed a Canadian citizen to a country other than
Canada when that person had been travelling on Canadian documents.261
Finally, Ms. Girvan testified that sending Mr. Arar to a destination other than
Canada would have been more of a possibility if he had been held at the airport. She was aware of the international custom whereby a person who is refused admittance at the port of entry is sent back to where his or her flight
originated (also referred to as the port of origin). In fact, she had intervened in
such cases before, and negotiated the Canadian citizen’s return to Canada, provided the family agreed to pay the difference in airfare between Canada and the
port of origin.262
183
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FACTUAL BACKGROUND: VOLUME I
For these reasons, Ms. Girvan did not regard the situation as serious at the
time. However, her suspicions began to increase later in the afternoon on
October 1.
5.2
THE SERIOUSNESS OF THE SITUATION
At around three o’clock in the afternoon of October 1,263 consular officials264
contacted the records division at the MDC requesting information about the
charges against Mr. Arar. However, the division refused to provide information
without a faxed request. Consular officials were then referred to the Warden’s
Executive Assistant (EA), who gave the same answer and said that, notwithstanding a faxed request, the office would not be able to provide a reply that
day.265
Ms. Girvan regarded this response by the MDC as “highly unusual.”266
Normally, consular officials were able to obtain at least some information about
the charges over the phone.267
Consular officials also called the Deportation section of the INS in New
Jersey to determine if there was a deportation file on Mr. Arar.268 An INS officer
informed them that there was no such file and suggested that it was unlikely that
Mr. Arar was a deportation case, as the MDC does not hold deportation cases.269
Consular officials were referred back to the MDC.270
Since Canadian officials were not getting any information, they decided to
call the Public Affairs Office at INS. When Ms. Le Floc’h was told that no one
was available to discuss the case, she asked to speak to the official’s superior.
This was not the normal procedure.271
Although not personally aware of Mr. Arar’s case, the superior officer undertook to contact the INS office at JFK Airport and to call back immediately.272
At this point, Ms. Le Floc’h had still not received a response to the two messages
she had left the day before with the INS office at JFK Airport.273
The superior officer called back and informally advised that this case was
“of a seriousness that should be taken to the highest level.” He suggested that
the Canadian Ambassador in Washington contact the U.S. Department of
Justice.274
The information consular officials received from the INS offices did not
raise any flags that Mr. Arar’s case might be a deportation matter. The New
Jersey INS office had told consular officials that there was no INS file on Mr.Arar,
and that deportation cases were not handled at the MDC. From Ms. Girvan’s
general knowledge, removals occurred at the airport. As far as she knew, the
MDC was not a deportation facility, or a place that INS used for removal cases.275
�DETENTION IN THE UNITED STATES
The information from the superior officer at the INS Public Affairs Office did
not clear things up. Although the official there had referred to the seriousness
of the case, consular officials did not conclude from this that the information
they had received from the INS office in New Jersey was wrong. Based on what
the superior officer had told her, Ms. Girvan assumed that Mr. Arar had been
arrested and that the matter was serious. She did not speculate further as to
what his statement meant.276
Nor did Ms. Girvan assume that the suggestion the Canadian Ambassador
intervene in Mr. Arar’s case indicated that this was a deportation matter. She
had never had anyone suggest that she should take such action.277 Ms. Girvan
believed that the INS official made the suggestion because he did not understand
the Consulate General’s reporting structure — namely, that consular officials reported to their superiors in the New York office, as well as to DFAIT
Headquarters.278
However, Ms. Girvan was certain the INS official’s comments indicated that
the case was “bigger than [her]” and that she had to get instructions from DFAIT
Headquarters.279
Immediately after calling the INS Public Affairs Office, Ms. Girvan called
Ms. Collins at DFAIT Headquarters. When she could not reach Ms. Collins, she
telephoned Gar Pardy, Director General of the Consular Affairs Bureau at DFAIT
Headquarters (Consular Affairs). Although not the norm, this was permitted in
a serious case. Ms. Girvan was referred to Helen Harris, Director of Emergency
Services at Consular Affairs, who was acting for Mr. Pardy while he was away.280
(Mr. Pardy was ultimately notified of the Arar case by Ms. Harris on the
morning of October 3, when she called him at home. Mr. Pardy was returning
from an overseas trip. He began his review of the file at home.281)
Ms. Harris agreed to verify the passport and citizenship data on Mr. Arar.282
However, she cautioned that Canadian consular officials in Washington would
probably have to be consulted about the advisability of sending a diplomatic
note to the U.S. State Department, if consular officials could not get the information they needed from the MDC.283
The option of contacting the Canadian Ambassador and the U.S.
Department of Justice was not discussed as a course of action. According to
Ms. Girvan, she had notified Ms. Harris, who was familiar with serious and problematic cases, and would have been aware of the proper means of bringing a
matter to the U.S. State Department. (Ms. Girvan testified that if DFAIT was interested in “going to the top,” it was the U.S. State Department that would be
approached, not the Department of Justice.) Ms. Girvan noted that it is a fundamental rule of diplomacy that lower-level contacts be approached before an
185
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FACTUAL BACKGROUND: VOLUME I
issue is raised to a higher level — this explained Ms. Harris’ suggestion that
Canadian consular officials in Washington be contacted first.284
Ultimately, it was decided to send a fax to the MDC that evening asking for
details of the charges against Mr. Arar,285 with a follow-up call the next morning. In addition, consular officials in New York would speak to DFAIT
Headquarters and the Canadian Embassy in Washington the next morning about
sending a diplomatic note to obtain information about the case. The note would
also advise U.S. authorities that the Consulate General had not been officially notified about Mr. Arar’s case.286
A CAMANT note detailing the afternoon’s events involving the MDC and the
INS, as well as the suggested course of action, was copied to Mr. Pardy,
Ms. Collins, the mission in Tunis, DFAIT’s communications office, and Hélène
Bouchard and Robert Archambault at the Canadian Embassy in Washington.287
Ms. Bouchard was a consular officer, and Mr. Archambault was the head of
consular services.288
(In the midst of the calls to the MDC, the INS and DFAIT Headquarters,
Ms. Girvan received a call from a close friend of the Arar family. He offered his
assistance and asked if there was any more information about Mr. Arar’s arrest.
He also offered the information that Mr. Arar had worked in the United States
at one time, and that he had a valid visa and had travelled there several times
during the year. Ms. Girvan replied that they were vigorously researching the
arrest and would likely have more information by the next day. She asked that
the family friend speak to the Arar family and decide which member would
serve as the main contact with DFAIT.289)
On the morning of October 2, the Warden’s EA at the MDC called, telling
Ms. Girvan that she could only give them limited information, and apologizing
for not being able to provide any information earlier. She acknowledged that the
MDC was holding Mr. Arar and that the consul or lawyer would be allowed to
visit him, provided they received prior approval from the EA.290
The EA’s specification that Mr. Arar would only be recognized to the consul and to Mr. Arar’s lawyer raised Ms. Girvan’s suspicions that the case was related to terrorism. She asked if Mr. Arar was being held in the MDC’s special
security unit on the facility’s ninth floor.291
Ms. Girvan’s suspicion was related to her knowledge of two post-9/11 cases
involving two detained Canadians, Mr. Baloch and Mr. Jaffri. Mr. Baloch was
a dual Canadian-Pakistani citizen, and Mr. Jaffri was a landed immigrant in
Canada. Both men were held in the MDC’s special security unit and both were
charged with immigration violations (they were considered to be “persons out
of status” in the United States). In fact, both men were being investigated by the
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FBI on suspicion of terrorism and were eventually deported to Canada in
April 2002.292
When the EA responded that Mr. Arar was indeed being held in the special
security unit,293 Ms. Girvan’s suspicions were confirmed. She now believed that
Mr. Arar’s case was probably not immigration-related, but rather was a criminal
investigation related to terrorism.294
According to the EA, Mr. Arar was being held for an immigration violation.
Although the EA acknowledged that she was not being very specific, she added
that “wherever the Consulate General might go, [they] would get ‘the same run
around’.”295 Ms. Girvan assumed that the “immigration violation” was being used
as a cover for a terrorism investigation.296
Anticipating that DFAIT might have to field questions from the public or
members of Parliament, Ms. Girvan suggested that Ms. Collins develop press
lines for the case. In her message, she also told Ms. Collins that she was trying
to arrange a visit with Mr. Arar the following day.297 The one-day delay was due
to the fact that it usually took 24 hours to obtain the necessary permission from
the American authorities.298
On the morning of October 3, Ms. Girvan went to the MDC for her consular
visit with Mr. Arar. This visit is described below in Section 5.4.
5.3
DIPLOMATIC OPTIONS
By late afternoon of October 1, DFAIT planned to hold discussions the next day
between DFAIT Headquarters, consular officials in New York and the Canadian
Embassy in Washington regarding the advisability of sending a diplomatic note
to the U.S. State Department. The purpose of the note would be to obtain more
information about Mr. Arar’s circumstances, if the MDC proved not to be forthcoming, and to advise American authorities that the Consulate General had not
officially been notified about Mr. Arar’s detention.
In the morning of October 2, DFAIT officials exchanged a series of e-mails
about Mr. Arar.
At 8:49 a.m., Ms. Girvan e-mailed Mr. Archambault, the head of consular
services in Washington, that she hoped to speak to him that morning about
whether the best way to proceed with the Arar case was through embassy contacts or via a diplomatic note. Ms. Girvan indicated that she had spoken to
Ms. Harris the night before, and that they were leaning towards a diplomatic
note, as local American authorities had referred the Consulate General to the U.S.
Department of Justice for any information on Mr. Arar’s situation.299
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Ms. Collins, who was copied on Mr. Archambault’s message, e-mailed
Ms. Girvan and Mr. Archambault to remind them that DFAIT had the same problem when it tried to confirm Mr. Baloch’s detention and request consular access
with him. DFAIT sent a diplomatic note in that case.300
In a second e-mail to Ms. Girvan and Mr. Archambault, Ms. Collins suggested waiting until the MDC replied to the Consulate General’s faxed request
to visit Mr. Arar. If the MDC failed to respond, a diplomatic note should be
sent.301
At 10:09 a.m., Ms. Girvan sent an e-mail to Ms. Collins and Mr. Archambault
agreeing with Ms. Collins’ suggestion. Ms. Girvan informed her colleagues that
consular officials in New York intended to follow up on the evening’s fax with
a phone call that morning. However, Ms. Girvan speculated that the advice from
the INS Public Affairs Office suggested that they were unlikely to be successful
with the MDC. It was her understanding that the Canadian Embassy in
Washington was likely to check informally with its contact at the U.S.
Department of Justice as a first step. Ms. Girvan concluded that the diplomatic
note could follow that attempt, if necessary.302
Besides being used to request information, diplomatic notes are used to inform a government that it has failed in some action. In Mr. Arar’s case, the note
was designed to obtain information and to tell the American government about
the failure to notify the Consulate General of Mr. Arar’s detention. At the time,
consular officials did not know if Mr. Arar had asked to see a Canadian consul.
Nevertheless, DFAIT was anticipating that he might have asked and been refused.303 (Their instincts in this case proved to be correct.)
Ms. Girvan explained that a diplomatic note is a formal communication between two countries. Considered exceptional in consular services, it is a last resort after lower-level attempts to assist a detained Canadian citizen have failed.
This includes trying to contact local authorities and contacting senior management at the consulate as well as at DFAIT Headquarters. DFAIT Headquarters
decides if a higher-level contact is warranted. If so, the Director General of
Consular Affairs (or the acting Director General) is authorized to approve a
diplomatic note, which is then sent to the foreign affairs department of the host
country, via the Canadian Embassy.304
Ms. Girvan pointed out that the disadvantage of sending a diplomatic note
is that the expected response time from foreign affairs departments is slow —
anywhere from a few days to a few months. One reason for the slow response
is the chilling effect that diplomatic notes have on lower-level officials. Once a
diplomatic note is issued all communication is carried out through the foreign
affairs department. The effect is that Canadian consular officials are denied
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informal access to information because everyone is concerned about responding formally. Diplomatic notes are a heavy weapon that should only be used
when necessary.305
However, the option of sending a diplomatic note was put on hold because the MDC responded to the Consulate General’s faxed request for information concerning Mr. Arar.306
5.4
THE CONSULAR VISIT — OCTOBER 3
Ms. Girvan went to the MDC on October 3 for her first and only consular visit
with Mr. Arar. Consular responsibilities include looking after a detainee’s wellbeing and medical care, ensuring the detainee is in touch with his or her family, and assisting in obtaining legal representation.307
Ms. Girvan had prior experience visiting detainees at the MDC in general,
and the special security unit in particular.308 While she found prison facilities in
the United States to be very secure from the moment a visitor arrived, visits to
the special security unit at the MDC involved enhanced security precautions.
Visitors were subjected to additional identification checks when they arrived.
Instead of meeting in a large room (with other detainees present), visitors were
accompanied to a room with cell-like bars. The detainee was either brought to
meet the consular official in the same room, or placed in an adjacent room
where communication was through a non-contact barrier. A prison official remained on the outside of the barred room and observed the entire visit. Despite
this arrangement, however, Ms. Girvan felt that she was able to have a private
conversation with detainees.309
Ms. Girvan observed that detainees in the special security unit wore a fluorescent orange jumpsuit. Moreover, they were shackled at the ankles and handcuffed. Sometimes, the shackles and handcuffs were joined by a chain.310
When Ms. Girvan arrived for her visit with Mr. Arar on the morning of
October 3, she presented herself on the ninth floor of the MDC. As in previous
visits, she was subjected to an additional security check, and then accompanied
to a cell-like room with a table and chairs. Because this was a contact visit, Ms.
Girvan sat in the same room as Mr. Arar.311
When Mr. Arar was brought in, he was wearing a fluorescent orange jumpsuit, and was handcuffed and wearing leg shackles. Ms. Girvan could not remember if there was a chain linking the handcuffs to the shackles. She believed
that he remained in restraints during their meeting. One or two prison officials
remained in the corridor.312
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Initially, Ms. Girvan did not believe Mr. Arar knew who she was or that he
had been given notice a consular official would be visiting him. Indeed, she felt
it was unlikely since detainees did not usually receive such notice.313
During the first few minutes, Mr. Arar appeared upset, although he was relatively glad to see her and was very anxious to tell her what had happened to
him. She urged him to remain calm, telling him who she was and the purpose
of her visit. Ms. Girvan also informed Mr. Arar that his family had found a
lawyer, and that the lawyer would be coming to see him. She told him that she
had spoken to his wife, and that everyone was concerned about him. Mr. Arar
seemed pleased about the lawyer’s visit and that Ms. Girvan had been in touch
with his wife.314
Ms. Girvan assumed that she was the first person to visit Mr. Arar. She did
not believe they discussed the issue of Mr. Arar’s ability to contact members of
his family during the meeting. Ms. Girvan knew that it had been a long time before Mr. Baloch and Mr. Jaffri were able to make any calls, whereas Mr. Arar
had made at least two calls — one to his mother-in-law and one to his brother.
Ms. Girvan’s focus at the meeting was on his well-being and listening to him.315
Mr. Arar appeared to be oriented in terms of time and location. He told
Ms. Girvan that he was innocent, expressed his love for the United States and
spoke of his experience with Americans. Overall, he appeared open and cooperative. Ms. Girvan said that he was voluble, and she did not get the sense that
he was withholding information from her.316
Mr. Arar showed Ms. Girvan what appeared to be an official document he
said had been given to him on October 2, 2002. 317 As recorded by the consul,
the wording on the document was as follows:
Factual Allegation of Inadmissibility under Section 235C of the Immigration and
Nationality Act.
1)
You are not a citizen of the United States
2)
You are a native of Syria and a citizen of Syria and Canada
3)
You arrived in the United States on September 26, 2002, and applied for
admission as a non-immigrant in transit through the United States, destined to Canada
4)
You are a member of an organizing [sic] that has been designated by the
Secretary of State as a Foreign Terrorist organization, to wit Al Qaeda aka
Al Qa’ida.318
Ms. Girvan had never seen such a document, nor had she seen a formal instrument charging people with a crime.319 Although the document referred to
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Mr. Arar as inadmissible under U.S. immigration legislation, she was struck more
by the document’s reference to al-Qaeda.320
Even after reading this document, Ms. Girvan did not have immigration issues in the forefront of her mind. She believed that Mr. Arar was to be investigated by the FBI for terrorism. In her experience, such investigations took time
and any charges would not be made for months. Even if Mr. Arar was not
presently facing charges, she believed that he might be charged down the
road.321 Ms. Girvan did not think about the possibility of Mr. Arar’s immediate
removal.
As a result, Ms. Girvan did not pursue a discussion with Mr. Arar about immigration hearings that would possibly flow from the inadmissibility allegation.
In her mind, Mr. Arar was going to be in detention for some time while the FBI
investigated him. She was also aware that Mr. Baloch and Mr. Jaffri had been
detained for months. However, she kept these thoughts to herself because she
did not want to upset Mr. Arar.322
Ms. Girvan did not have legal training and relied on her experience as a
consul in concluding that the U.S. authorities were going to hold Mr. Arar. None
of Ms. Girvan’s responsibilities included conducting research into the legality of
actions. Her responsibility was to relay information from the consular visit to
DFAIT Headquarters and to assist the detainee in finding legal representation.323
Mr. Pardy shared Ms. Girvan’s belief that the al-Qaeda allegation possibly
meant a longer period of detention in the United States. He thought there was
a possibility Mr. Arar would be held in custody until American authorities could
make further decisions in their investigation. He considered it possible that
Mr.Arar might be transferred to Guantánamo Bay, although it was exceptional
for persons apprehended in the United States to be sent there.324
Ms. Girvan could not recall if Mr. Arar had any other documents in his possession, or if the document she remembered seeing had more than one page.325
As will be discussed,326 the INS removal order stated that, on October 1,
2002, Mr. Arar was served with all unclassified documents that the INS was relying on in initiating proceedings for his removal. These documents included:
1) an executed I-147 notice saying that Mr. Arar had five days to provide a written response to the allegations and charge of inadmissibility; 2) an attachment
to the I-147 alleging Mr. Arar to be a member of an organization that had been
designated by the Secretary of State as a Foreign Terrorist Organization (alQaeda) and charging Mr. Arar with inadmissibility under the Immigration and
Naturalization Act; 3) a publication issued by the U.S. State Department listing
al-Qaeda as a Foreign Terrorist Organization; and 4) a publication relating to free
legal service provided in the New York area.327
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FACTUAL BACKGROUND: VOLUME I
Ms. Girvan did not see anything confirming that there was a notice period.
She would have noted this and raised the issue with Mr. Arar’s lawyer when she
spoke to her later that day.328 Admittedly, Ms. Girvan was shocked by the alQaeda allegations, but she disagreed with the suggestion that this shock caused
her to overlook reference to a notice period. That said, Ms. Girvan could not categorically exclude the possibility that a notice period was mentioned without
seeing the document that Mr. Arar had showed her.329
The document that Ms. Girvan reviewed during the consular visit is not
available to this Inquiry. As such, there is no way to determine if the document
Mr. Arar presented to Ms. Girvan on October 3 had more than one page, or if
it was one of the documents he was served with on October 1, including the
document indicating the notice period of five days.
During the visit, Mr. Arar described what happened at the airport when he
arrived in New York on September 26 at two o’clock in the afternoon. He was
immediately stopped by immigration officials, who took him to an interview
room where he was interrogated by “police” and the FBI for many hours.330
(This was the first time Ms. Girvan learned that the FBI was involved in
Mr. Arar’s case.331)
According to Mr. Arar, he was polite and tried to give officials all of the information they asked for, even when the questions were extremely personal.
They insulted him, but he kept his peace. He provided them with his e-mail accounts and the names of his family. He explained that his laptop computer belonged to the company for which he did contract work, The MathWorks, Inc.332
At first, the officers told Mr. Arar that he was not a suspect and that he
would be put back on the plane once he had answered their questions. After
four hours of interrogation, they again said that they were going to put him on
the plane. At seven o’clock that evening, they informed him that they did not
have a final decision.333
At 1:30 a.m., Mr. Arar was taken to a cell.334
According to Mr. Arar, the next morning he was again interviewed by the
FBI. Although they showed him their name cards when he asked for identification, he could not remember their names.335
At one point, two immigration officers told him that they were going to
send him to Syria. Mr. Arar asked why, since he had not been to Syria for years
and all his family was in Canada.336
Eventually, Mr. Arar was put back in his cell. Three armed men then came
and transported him in handcuffs to the MDC.337
Although this was the second time Ms. Girvan heard that Mr. Arar might be
sent to Syria, she still did not believe it to be a realistic possibility. She thought
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that the Syria threats were possibly used as leverage to force Mr. Arar to offer
additional information, or as a preamble to the decision to send him to the
MDC’s special security unit. She did not believe that the threat would be carried
out.338
Throughout her testimony, Ms. Girvan distinguished between an expedited
removal and a deportation. In the case of an expedited removal, a person is refused entry into the country upon his or her arrival. The person remains at or
near the airport for a brief period (about a day or two), and is then sent back
to his or her port of origin. She was not very experienced with expedited removals because they occurred quickly and there was no requirement to notify
consular officials.339
Ms. Girvan had more experience with deportation. In this instance, the person is removed from the airport and brought to a detention facility in the city.
Once the INS has made a removal decision, the consul is notified of the decision. From Ms. Girvan’s experience, the average post-decision removal cycle is
six to eight weeks, and involves the consul.340
In Ms. Girvan mind, the current situation was not an expedited removal
scenario. When Mr. Arar mentioned the possibility of Syria, Ms. Girvan reassured him that he was now “in the system.” This was her way of acknowledging that Mr. Arar was in a prison, had a prison number, and was not at the
airport where the authorities might precipitately send him off.341
She also explained that it was very unlikely he would be sent to Syria because the American authorities recognized him as a Canadian, and the consul
had been to see him. She told him he would be seeing a lawyer.342
According to Ms. Girvan, Mr. Arar’s concern was not uncommon for someone with dual nationality. It was suggested that Mr. Arar’s case was different because he was actually told by the INS that he would be sent to his other country
of citizenship. However, Ms. Girvan stressed that Mr. Arar had also been assured that he would continue on his journey if he answered the FBI’s questions.
Subsequently, Mr. Arar was told that no decision had yet been made.343
Most importantly, Ms. Girvan had no precedent for believing that a
Canadian citizen would be sent to his other country of citizenship. Although
she believed that Mr. Arar would be sent to Canada, not to Syria, she nevertheless cautioned him that this was only her considered opinion. It would be up to
Mr. Arar’s lawyer to provide legal advice and inform him of what was most likely
to happen.344
Ms. Girvan was asked what she might have done differently if she had believed on October 3 that there was a real possibility Mr. Arar would be sent to
Syria. She stated that the only difference in her course of action would have
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been to adopt the negotiation approach that she sometimes used in an expedited
removal scenario. That is, Ms. Girvan would have contacted an INS official and
requested that the person be removed to Canada. If these overtures were rebuffed, and she felt the person was at imminent risk, she would not approach
the Canadian Ambassador to the United States, because he was not in her line
of authority. Rather, she would ensure that both senior management in New
York (i.e., the senior consul in charge of consular services and the Consul
General) and senior management in Ottawa (i.e., the Director General of
Consular Affairs) were aware of the situation. She would also ensure Mr. Arar’s
lawyer knew what was happening in case the lawyer wanted to offer suggestions to the Canadian government as to how they could assist his or her client.345
According to Mr. Pardy, there were two possible courses of action if Syria
was a realistic possibility. The Canadian Ambassador in Washington could potentially speak to a senior person in the U.S. State Department. Alternatively,
the Minister of Foreign Affairs could contact the American Ambassador in
Ottawa. These meetings would be called on the assumption that DFAIT officials
had very specific information to justify their concerns. However, in Mr. Arar’s
case, DFAIT had received conflicting information.346
Consular officials were also aware of the U.S. National Security Entry-Exit
Registration System (NSEERS) that had been instituted on September 12, 2002.
Under this program, persons born in, or citizens of, Iran, Iraq, Libya, Sudan and
Syria are photographed and fingerprinted on entering and exiting the United
States. The Government of Canada issued two travel bulletins in September 2002
warning Canadians that such persons would be subjected to greater scrutiny by
immigration officials.347
Mr. Pardy denied that NSEERS was relevant to Mr. Arar’s case. First, the decision to remove Mr. Arar was made after he entered the United States, whereas
NSEERS deals with foreigners arriving in that country. Second, there was no evidence that the Americans would send a Canadian citizen to a country other
than Canada as a result of NSEERS.348
After her consular visit, Ms. Girvan did not follow up with an official from
the INS or any other government official about the Syria threat. Between the
consular visit on October 3 and Mr. Arar’s removal on October 8, no Canadian
official spoke directly with any U.S. government agency to determine whether
there was a realistic possibility that Mr. Arar would be sent to Syria.349
Although Ms. Girvan had experience dealing with the Middle East, she did
not have specific knowledge about human rights issues in Syria. To obtain more
information, she could have consulted officials at DFAIT Headquarters, who
would have then consulted their legal department.350
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During the consular visit, Mr. Arar tried to determine why he had been
arrested.
He said that he was repeatedly asked about a man of Syrian origin named
Abdullah who lived in Ottawa and ran an import/export business. Mr. Arar told
the authorities the two families knew each other, and his “elder brother” had attended the same school in Syria when they were young.351 He explained that the
brother had a start-up business in Ottawa and that he had worked there for a
period of time. However, the police did not seem interested in Abdullah’s
brother.352
Mr. Arar also wondered if the police had gone through his effects in
Canada. He noted that American officials kept referring to him by his father’s
name. He said that he did not use his father’s name and was known only as
“Maher Arar,” which is not unusual in Arab countries.353
Finally, Mr. Arar questioned whether his work in, and frequent travels to,
the United States in the past year had led the police to be suspicious of him.
(Ms. Girvan was given background information on his employment in the
United States.)354
Mr. Arar told Ms. Girvan that he had agreed to see someone from the
Canadian consulate while he was in custody at the airport. In fact, he believed
that he had signed a paper to that effect. However, the Consulate General was
never officially contacted about Mr. Arar’s request. Furthermore, Mr. Arar was
held at the MDC for four days without any access to a lawyer or a family member — essentially, no one knew where he was.355
As far as Ms. Girvan was concerned, it was not unusual that Mr. Arar was
asked to sign a document requesting consular services. Mr. Baloch had also
been asked to sign such a request. She interpreted this procedure as an encouragement for front-line officials to comply with the obligations under the
Vienna Convention on Consular Relations (VCCR) by notifying the appropriate
consulate.356
On returning to her office following the visit, Ms. Girvan called Mr. Arar’s
wife in Tunis, left two messages for Mr. Arar’s lawyer, and sent a fax to the
Warden’s Office at the MDC seeking approval for a visit by Mr. Arar’s lawyer.
She also sent a CAMANT note to DFAIT Headquarters to update officials on the
case. Over the course of the afternoon, she prepared three additional CAMANT
notes summarizing what Mr. Arar had told her.357
According to Ms. Girvan’s testimony, the CAMANT notes she prepared on
October 3 were fairly exhaustive, and included everything in her meeting notes.
Later on, likely in November 2003, she wrote another e-mail. Prepared from
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FACTUAL BACKGROUND: VOLUME I
memory, and with the assistance of the original CAMANT notes, this e-mail contained additional details concerning the consular visit.358
For the most part, the e-mail tracked the information in the original
CAMANT notes. However, there were two notable additions. First, Ms. Girvan
wrote that Mr. Arar had said that his wife had told him not to travel through the
United States. She also wrote that Mr. Arar said he had moved to Tunisia with
his wife and children a few months prior to his trip back to Canada.359
Back on October 3, Ms. Girvan did not consider Dr. Mazigh’s comments to
Mr. Arar to be significant. Many people were trying to avoid travelling to the
United States at that time due to the increased security measures. However, she
was confident that Mr. Arar had told her this during the consular visit.360
Similarly, she did not consider Mr. Arar’s comments about Tunisia to be
significant. She understood that the family had moved to Tunisia to care for
Dr. Mazigh’s ailing father, but that Mr. Arar was having difficulty finding work
and was looking for opportunities in Europe and North America. She emphasized that she initially had not recorded this information as she did not think it
important at the time.361
On the day of Mr. Arar’s consular visit, Ms. Girvan sent a message to
Ms. Collins at DFAIT Headquarters asking if Mr. Pardy, Ms. Collins,
Mr. Archambault and herself could discuss what steps the Canadian government
could take to find out the basis for the charges against Mr. Arar.362 In her mind,
it was important for Canadian officials to obtain more information on why the
American authorities believed Mr. Arar to be a terrorist.363
The meeting took place the next day, on October 4. Ms. Girvan informed
the others of her findings to date, including the fact that a lawyer would visit
Mr. Arar the next day. Mr. Archambault mentioned that he had received a call
from the State Department acknowledging Mr. Arar’s detention. The issue of a
diplomatic note was not mentioned.364 In fact, a diplomatic note was never sent
on behalf of Mr. Arar.365
5.5
INVOLVEMENT OF MR. ARAR’S NEW YORK LAWYER
There was some uncertainty regarding Mr. Arar’s legal representation during his
detention in the United States.
When Ms. Girvan began making arrangements for a consular visit on
October 2, she also received a call from a friend of the Arar family who told her
that the family had found a lawyer in New York named Amal Oummih.
Ms. Girvan said that she was going to be visiting Mr. Arar and would relay this
information to him.366
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After returning to her office following the October 3 consular visit,
Ms. Girvan faxed a thank-you message to the Warden’s office at the MDC. The
fax also stated that Mr. Arar intended to retain the services of Amal Oummih,
who had an office in Astoria, New York. Ms. Girvan requested that the lawyer
be permitted to visit Mr. Arar, and stated that she would ask Ms. Oummih to
contact the MDC directly.367 The fax was marked “Urgent.”368
That same morning, Ms. Girvan left two messages with Ms. Oummih.369
On the afternoon of October 3, Mr. Arar’s brother, Taufik Arar, spoke to
Ms. Collins by telephone. Ms. Collins told him that the consul had visited
Mr. Arar that morning and that consular assistance was being provided.
Mr. Arar’s brother asked if Mr. Arar had a lawyer and, if he could not afford
one, how he would be represented. Ms. Collins gave him some general information on public defenders.368
On October 3 as well, Ms. Girvan contacted Dr. Mazigh and told her that
the family had found a lawyer for her husband. Dr. Mazigh seemed pleased to
receive this news.369
While Ms. Girvan was unsure about the family’s financial situation, she
knew that Ms. Collins had given information about public defenders to
Mr. Arar’s family. She decided that she would ask Mr. Arar’s brother about who
would be handling the lawyer’s fees. Ms. Girvan also considered alternatives,
such as referring the family, without recommendation, to the Center for
Constitutional Rights (CCR). A non-profit legal organization in New York, the
CCR had helped Mr. Baloch and Mr. Jaffri locate lawyers during their detention in the United States.372
Later that afternoon, Ms. Girvan spoke to the family friend concerning
Mr. Arar’s legal representation. From her conversation, she learned that the family was interested in speaking to someone from the CCR.373 Ms. Girvan offered
to call a lawyer from the organization who had been in contact with her, and
relay the family’s potential interest in her services.374 According to Ms. Girvan,
this was intended to keep the family’s options open in the event that a member
wanted to contact the CCR in the future.375
In addition, Ms. Girvan told the family friend about her interview with
Mr. Arar and reiterated that the family should decide on a primary contact with
DFAIT. The friend promised to ensure that money for Mr. Arar was sent immediately to the MDC.376
At the end of the day, Ms. Oummih replied to Ms. Girvan’s messages.
From Ms. Girvan’s recollection of the conversation, she told the lawyer about her
consular visit with Mr. Arar, although she could not remember mentioning the
al-Qaeda allegations. Regardless, she told the lawyer everything that she knew,
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including the assertion from the INS Public Affairs Office that this was a serious
matter. Ms. Girvan believed that the lawyer understood the gravity of the situation. Ms. Oummih confirmed that she would contact the MDC to arrange a visit
with Mr. Arar. Ms. Girvan felt a certain degree of relief that a lawyer would be
meeting with Mr. Arar.377
On October 4, Janice Badalutz from the CCR responded to Ms. Girvan’s
message from the day before. Ms. Badalutz was trying to contact another lawyer,
Martin Stoller, who would charge a reasonable amount in the event he could not
represent Mr. Arar on a pro bono basis. Ms. Girvan explained that the family had
contacted another lawyer, but that she would pass along Ms. Badalutz’s contact
information so that the family could get in touch with her if need be.
Ms. Badalutz promised to get back to Ms. Grivan after she had spoken to
Mr. Stoller.378
Later that morning, Ms. Girvan followed up on the requests made by
Mr. Arar during this consular visit (i.e., toothbrush, toothpaste, instruments to
trim his beard, and a copy of the MDC rule book). The Warden’s Office agreed
to provide Mr. Arar with an orientation booklet and agreed to check on the
other items. Ms. Girvan was also informed that Ms. Oummih had contacted
them regarding a visit with Mr. Arar. Apparently, the lawyer had told the
Warden’s office that she had not yet been retained, but had to meet with
Mr. Arar in order to discuss her retainer. The visit was arranged for Saturday,
October 5.379
When Ms. Badalutz called back that afternoon, she asked Ms. Girvan to
give her number to the Arar family friend or to Mr. Arar’s brother. Ms. Girvan
asked Ms. Collins at DFAIT Headquarters to do this.380 Ms. Badalutz’s number
was given to Dr. Mazigh.381
By the end of the day on Friday, October 4, Ms. Girvan felt that things
were in good order, and knew that Mr. Arar would be seeing his lawyer the next
day.382 By Monday, October 7, the situation had changed.
On the morning of October 7, Ms. Girvan received a call from Dr. Mazigh,
who expressed concern about Mr. Arar’s mental state and requested that the
Consulate General intervene to assist Mr. Arar in calling her, and to help him obtain personal items, such as reading materials and hygiene items.383 Ms. Girvan
believed that Dr. Mazigh’s concerns about Mr. Arar’s mental state were of a
general nature, and that she wanted him to have reading materials to occupy his
time.384
Dr. Mazigh was told that if she did not hear from her husband by the next
day, Ms. Girvan would follow up with the MDC. Ms. Girvan was aware that
funds for Mr. Arar had arrived, and that the MDC had agreed to allow Mr. Arar
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to call his wife once that happened. In Ms. Girvan’s mind, these administrative
tasks might have been held up over the weekend. She would therefore wait
until Tuesday to make inquiries.385
On Monday morning as well, Ms. Oummih informed Ms. Girvan that she
had visited Mr. Arar on Saturday, October 5, and that the money for Mr. Arar had
arrived. However, Ms. Oummih found him in “very bad emotional condition.”
She was not yet representing Mr. Arar, as she still needed agreement from the
family. Ms. Oummih also reported that the District Director of the INS had called
her that morning to inform her of an INS interview that was to take place with
Mr. Arar at 7 o’clock that evening. If she was retained as Mr. Arar’s lawyer, she
would attend the meeting.386
Ms. Girvan did not consider the INS interview to be at all unusual. Mr. Arar
had been interrogated by the FBI, and was being treated as the two other
Canadians had been. As already noted Ms. Girvan believed that Mr. Arar was
suspected of terrorism and expected that he would be held for some time. The
INS interview did not raise her suspicions about removal. Rather, she anticipated the department’s continuing interest in Mr. Arar because he was being
held on an immigration violation. She was also aware that the INS commonly
interviewed persons for information-gathering purposes. From Ms. Girvan’s perspective, it was a good sign that the INS had invited the lawyer to participate.387
Ms. Girvan also received a call from the family friend on the morning of
October 7. Apparently, he was aware of the upcoming INS meeting and asked
if a consular representative would be present. According to Ms. Girvan, this
would not normally be the case. In fact, consular officials were not generally informed of these meetings. In any event, she would not be attending, but
Mr. Arar’s lawyer would be.388
Ms. Girvan did not believe there was a problem with the lawyer’s retainer
at this point. Even though Ms. Oummih had told her that she was not yet representing Mr. Arar, the family friend later informed her that Ms. Oummih would
be retained.389 (On October 8, 2002, after Ms. Girvan learned Mr. Arar had been
removed from the MDC, she contacted the family and the family friend. They
confirmed that Ms. Oummih had been retained.390)
While there appears to have been some discussion on Monday, October 7
about the possibility of the CCR representing Mr. Arar,391 by the time Ms. Girvan
went home on Monday, October 7, she was confident the Arar family had retained Ms. Oummih, who would attend the INS meeting that evening.
That same morning, during a call with the Warden’s Office at the MDC,
Ms. Girvan took the opportunity to follow up on Dr. Mazigh’s request to speak
to Mr. Arar. The Warden’s Office told her that social calls were restricted on the
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ninth floor, and that the MDC needed funds before allowing Mr. Arar to call his
wife. Ms. Girvan replied that Mr. Arar used one of his earlier calls to his family
to let the Canadian Consulate know that he wanted to see a consular officer. She
also noted that Mr. Arar was travelling on a Canadian passport and, at the airport, had expressed his desire to see the Canadian consul. The Warden’s Office
thought that perhaps the funds had not been processed over the weekend and
promised to look into it.392
As events actually occurred, the INS meeting with Mr. Arar took place on
Sunday, October 6, not on Monday, October 7. This is important because it appears Mr. Arar attended the meeting without representation. Apparently, there
was a miscommunication between the INS and Ms. Oummih about the day of
the meeting. This confusion was only sorted out after Mr. Arar had been sent to
Syria.
In a CAMANT note dated October 29, 2002, Ms. Girvan indicated that she
had spoken to Steven Watt, a lawyer with the CCR. She learned that
Ms. Oummih had told Mr. Watt that she picked up the INS message about the
“hearing” on Monday, October 7. However, Ms. Oummih said that the message
had probably been left the previous day, on Sunday, October 6. When
Ms. Oummih went to the MDC that Monday, she was told that the hearing had
been held on the Sunday, and that Mr. Arar was no longer there.393
5.6
DISCOVERY OF MR. ARAR’S REMOVAL AND EFFORTS TO LOCATE
HIM
On October 8, Ms. Girvan phoned the MDC to follow up on Dr. Mazigh’s request to speak to her husband by phone. She was told that Mr. Arar had been
removed from the premises by the INS between three and four o’clock that
morning. The MDC was unable to tell Ms. Girvan where Mr. Arar had been
taken. They suggested she check with the INS in Manhattan.394
The news of Mr. Arar’s removal did not raise Ms. Girvan’s suspicions, as
moving detainees in the middle of the night or early morning was a common
practice. For example, a detainee with a nine o’clock court hearing might be
moved from a cell as early as three or four o’clock in the morning.395 Ms. Girvan
testified that the Canadian Consulate was not notified when people were moved.
The Consulate most often found out when a family member was told about the
move in a call from the detainee.396
Ms. Girvan immediately called the INS central processing office in
Manhattan to find out what was going on.397 She also called a member of the
Arar family and the family friend to inform them that Mr. Arar had been re-
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moved from the MDC and that the Consulate General was trying to determine
his whereabouts. They told her that they were waiting to hear from
Ms. Oummih, and agreed to let Ms. Girvan know if they learned anything about
Mr. Arar from Ms. Oummih. Ms. Girvan then called Dr. Mazigh in Tunis, but
there was no answer.398
On the same day, Lisiane Le Floc’h spoke to an official at the INS Public
Affairs Office. The official was unable to find a record of Mr. Arar at any of the
INS facilities in the area,399 and suggested that Ms. Girvan call INS Headquarters
in Washington and speak to the Counsel to the INS Commissioner.400 This was
the first time Ms. Girvan had ever been referred to INS Headquarters on a consular case.401 She called and had to leave a message.402
Ms. Girvan had not heard back from INS Headquarters by the late afternoon of October 8. In the meantime, she had again spoken to the Arar family
friend, who had expressed concern that the Americans might return Mr. Arar to
Syria “where he could disappear into some jail as a ‘suspected criminal.’”
Ms. Girvan assured him that the authorities were well aware that Mr. Arar was
a Canadian citizen travelling on a Canadian passport. In her view, it was unlikely
that such action would be taken at that time.403
Later, she spoke to an attorney in the INS Commissioner’s office in
Washington, who said she would try to get information on Mr. Arar’s
whereabouts.404
On the morning of October 9, Ms. Girvan spoke to Dr. Mazigh, and possibly to the family friend, saying she was waiting for a call from INS
Headquarters. Dr. Mazigh indicated she was concerned that her husband might
be removed to Syria and that, if he was not removed, the longer he stayed in
American detention, the longer the American authorities would have to build a
case against him.405
Ms. Girvan assured Dr. Mazigh that there was little likelihood that Mr. Arar
would be removed to Syria, since the American authorities knew he was a
Canadian citizen travelling on a Canadian passport. She told Dr. Mazigh that
the Consulate had visited him and clarified his residence. She also suggested that
the American authorities had the legal framework to hold Mr. Arar for quite a
long time and the fact they no longer wanted to hold him on the ninth floor of
the MDC would seem to be good news. She reminded Dr. Mazigh that moves
of this sort were normal in the American system.406
Ms. Girvan called Ms. Oummih, who told her that she had not seen
Mr. Arar on Sunday night, an apparent indication that Ms. Oummih now knew
that the INS meeting had been scheduled for Sunday, and not Monday, as she
had informed Ms. Girvan on Monday morning. Ms. Oummih told Ms. Girvan
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that she was making calls to try to determine Mr. Arar’s whereabouts.407 At this
point, Ms. Girvan was still not aware that there had been confusion about the
call Ms. Oummih had received from the INS District Director concerning
Mr. Arar’s INS meeting.
During their conversation, Ms. Oummih did not mention that she had been
unable to locate Mr. Arar since Monday, October 7. Ms. Girvan only became
aware of this in November 2003. Despite this omission, Ms. Girvan stated that
Ms. Oummih was not obligated to notify the Consulate that Mr. Arar was missing. As the lawyer for Mr. Arar, her obligation was to the family.408
That same morning, Ms. Le Floc’h called the INS in Manhattan. She was told
that the INS office had no record of Mr. Arar being moved and no record of him
at any immigration facility.409
Given what had happened in Mr. Baloch’s case (as discussed above in
Section 5.2), Ms. Girvan called the MDC to see if Mr. Arar had been returned.
She left an urgent message asking that the individual handling Mr. Arar’s file
that week return her call.410
At mid-day, Nancy Collins tried unsuccessfully to speak to the counsel at
INS Headquarters.411 A short time later, Ms. Girvan succeeded in reaching him
on her cell phone. The counsel promised to get back to DFAIT shortly with information about Mr. Arar. (Consular officials still had no idea that Mr. Arar had
been removed from the United States.) In the meantime, Ms. Collins, Mr. Pardy,
Ms. Girvan and Robert Archambault, a consular official from the Canadian
Embassy in Washington, held a conference call and agreed they would wait 24
hours before taking any action. In Ms. Collins’ opinion, Mr. Arar’s case was
shaping up to be just like Mr. Baloch’s.412
Early in the morning of October 10, Mr. Arar’s brother called DFAIT
Headquarters for an update. He was told that attempts were still being made to
track down Mr. Arar.413 In the early afternoon of that same day, the INS counsel called Ms. Girvan and told her that Mr. Arar had been removed from the
country, adding that he could not provide any further information.414
Ms. Girvan was surprised by this news because, as far as she knew, nothing like this had ever happened before. She assumed that Mr. Arar had not been
sent to Canada because her INS contact would have told her had that been the
case. When her contact declined to give more information, Ms. Girvan’s working assumption was that Mr. Arar had been sent to Syria, and that DFAIT should
investigate this.415
After discussing with Mr. Pardy how to proceed, Ms. Girvan called Helen
Harris at DFAIT Headquarters and asked her to contact Damascus regarding
Mr. Arar.416 Ms. Harris contacted Léo Martel, the consul in Damascus, provided
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him with Mr. Arar’s biographical information and citizenship and passport details, and asked the Embassy to make a formal request to the Syrian Ministry of
Foreign Affairs the next day about Mr. Arar’s whereabouts and well-being.
Ms. Harris also asked that an attempt be made to ascertain whether Mr. Arar
had entered Syria in the previous 24 hours.417
Ms. Harris also consulted Jonathan Solomon at DFAIT ISI, who was to send
a C4418 message asking the Canadian ambassador in Damascus to investigate
Mr. Arar’s whereabouts. The message was also to say that DFAIT Headquarters
was attempting to obtain this information “through lower levels and formal
channels.”419
While Ms. Girvan was trying to contact the INS counsel, Ms. Collins and
Hélène Bouchard asked another INS contact to phone on their behalf to see if
she could confirm Mr. Arar’s whereabouts. During the telephone call, the
American official’s “face became white” and she hung up the phone.420
When Ms. Collins and Ms. Bouchard asked where Mr. Arar was, the official replied that she could not say anything; but when asked if Mr. Arar had
been sent to Jordan, she nodded. (Ms. Collins inquired about Jordan because
she was aware that it was used by the Americans as a transit point for persons
destined for Guantánamo Bay and elsewhere.) When Ms. Collins asked if
Mr. Arar was on his way to Syria, the official replied, “I would not look further.”421 She added that “there was nothing more the Canadian government
could have done. Their minds were made up.”422
Ms. Collins passed on what she had learned to Mr. Pardy, who by then
had also heard from Ms. Girvan that Mr. Arar had been removed. Mr. Pardy
contacted Scott Heatherington, the Director of Foreign Intelligence Division
(ISI), to find out if the information from the American official could be used in
a direct, official manner and if he had heard anything. Mr. Heatherington replied
that the U.S. Embassy in Ottawa had informed him that Mr. Arar had been removed to Syria.423
Later that day, Mr. Pardy spoke to the INS counsel in an attempt to obtain
information that could be used in an official manner. The counsel did not provide anything beyond what had already been shared with Ms. Girvan.424
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FACTUAL BACKGROUND: VOLUME I
6.
THE AMERICAN REMOVAL ORDER
6.1
CONTENT
As indicated at the beginning of this chapter, American authorities declined the
Commission’s invitation to testify at this Inquiry. As a result, the Commission
does not have a first-hand explanation from the Americans about why Mr. Arar
was removed to Syria, nor does it have an official copy of the INS order to remove him. However, the Commission does have a copy of that decision, which
was obtained by DFAIT from CBS News. There is no reason to believe that this
is not an accurate copy of the official order, and the following description is
based on it.
On October 7, the INS ordered that Mr. Arar be removed from the United
States because he had been found to be a member of a foreign terrorist organization, al-Qaeda.425 The Commissioner of the INS had determined that Mr. Arar’s
removal to Syria would be consistent with Article 3 of the United Nations
Convention Against Torture and other Cruel, Inhuman or Degrading Treatment
or Punishment. The decision was signed by J. Scott Blackman, Regional
Director, Eastern Region, INS (the Regional Director). Mr. Arar was served with
the decision at four in the morning on October 8.426
As described in the decision, the INS’ version of events between
September 26 and October 1 was as follows:
•
•
•
•
Mr. Arar, a native of Syria and a citizen of Canada, arrived at JFK airport
in New York on September 26, 2002 from Zurich, Switzerland.427
Mr. Arar was subject to a secondary inspection, and it was determined
that he was the subject of a TECS/NAILS lookout as a member of a
known terrorist organization.428 (This seems to be inconsistent with the
testimony that Project A-O Canada was told before Mr. Arar landed that
he would be detained and refused entry into the United States.)
On October 1, 2002, the INS charged Mr. Arar with being a member of
a terrorist organization, and initiated removal proceedings against him
under section 235(c) of the Immigration and Nationality Act.429
Mr. Arar had five days to respond to the charge. He was provided with
the following documents: 1) a notice of the requirement to respond
within 5 days; 2) an attachment alleging that he was a member of an organization designated as a foreign terrorist organization, al-Qaeda; 3) a
State Department publication listing al-Qaeda as a foreign terrorist
�DETENTION IN THE UNITED STATES
•
organization; and 4) a publication describing free legal services available
in the New York area.430
As of October 7, Mr. Arar had not provided a written statement or any
additional information in response to the charge.431
The Regional Director noted that he had reviewed both classified and unclassified materials in reaching his decision.432
The unclassified material included the following information obtained from
Mr. Arar during two interviews — one conducted on September 26 with an INS
officer, and the other on September 27 with the FBI:
•
•
•
•
basic background information on Mr. Arar, including that he had dual
Syrian/Canadian citizenship, and had been living in Tunisia for
three months prior to his application for admission;
Mr. Arar had denied being linked to a terrorist organization;
Mr. Arar had admitted to an association with Abdullah Almalki and
Nazih Almalki, including three business dealings with Abdullah Almalki;
Mr. Arar had admitted to knowing Ahmad El Maati.433
The classified material was contained in a separate Classified Addendum.434
The Commission does not have a copy of the Classified Addendum, and none
of the Canadian officials who testified at the Inquiry have seen it.435
The order also stated that an alien entering the United States must establish
clearly and beyond doubt that he or she is admissible to the country. Mr. Arar
denied that he was inadmissible, but offered no evidence in support of his
denial. Based on all of the information made available to the Regional Director,
both classified and unclassified, Mr. Arar was found to be “clearly and
unequivocally inadmissible… in that he is a member of a foreign terrorist
organization.”436
The Regional Director stated that al-Qaeda was considered a “clear and imminent threat to the United States,” and that Mr. Arar’s membership in this organization, as described in the order and more fully in the Classified Addendum,
barred him from admission to the country.437
6.2
THE LEGAL FRAMEWORK
The Inquiry was assisted by the testimony and written submissions of Stephen
Yale-Loehr, an expert in United States immigration law, concerning the legal
framework for removal.438
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FACTUAL BACKGROUND: VOLUME I
There are two types of removal proceedings that apply to non-citizens
under the Immigration and Nationality Act (INA): normal removal proceedings
and expedited removal proceedings. According to Mr. Arar’s removal order, it
appears that he was removed under the expedited removal proceedings authorized by section 235(c) of the INA.
Upon entry into the United States, all non-citizens are subjected to an inspection by an immigration inspector at the port of entry. During the primary
inspection, the applicant must present the inspector with required documentation and the inspector has the right to ask questions such as the purpose and
length of the trip. If the inspector is satisfied that the applicant is entitled to
enter, he or she is admitted to the United States under the appropriate category
(e.g., tourist, student, temporary worker, etc.439)
If the non-citizen’s admissibility is in doubt, the inspector can refer the applicant to a secondary inspection, which may include searching the applicant’s
bags, asking additional questions, and making inquiries with other government
departments.440
If everything is found to be in order, the applicant is released from secondary inspection and admitted to the United States. However, if it appears the
applicant is not admissible to the United States, he or she will be held (or possibly released on bail) pending a final determination by an immigration judge.441
Under the normal removal proceeding, the non-citizen does not have a
right to counsel and thus a lawyer will not be appointed to represent him or her
before the immigration judge. However, the applicant is free to hire a lawyer at
his or her own expense. After hearing arguments from the government’s lawyers
and the applicant, the immigration judge will issue a ruling as to whether the
individual should be removed.442 If the immigration judge decides that the applicant should be removed, the decision can be appealed.443
Non-citizens can be subjected to the expedited removal procedures under
section 235 of the INA if they arrive in the United States without proper documentation or there are security-related grounds to have them removed.
Under section 235(b), a non-citizen who arrives with a lack of immigration
documentation, or who has committed a fraud or a misrepresentation to try to
enter the United States, can be ordered removed. The decision is made by the
immigration inspector and becomes final after review and approval by a supervisory immigration officer. An immigration judge cannot review the order, and
make the final decision for removal, unless the applicant expresses a credible
fear of persecution or torture.444
Under section 235(c), an immigration inspector may order that a non-citizen be removed on security-related grounds. Because of the national security
�DETENTION IN THE UNITED STATES
issues involved, the U.S. Attorney General must review the order. If the Attorney
General finds that the applicant is inadmissible for security reasons, he or she
may order that the applicant be removed. The Attorney General’s decision is
not reviewable by an immigration judge.445
A removal order under section 235(c) cannot be executed under circumstances that would violate America’s obligations under Article 3 of the United
Nations Convention Against Torture (CAT). However, the regulations that set
out this requirement do not specifically state the factors the Attorney General
should take into account to ensure the removal order complies with CAT.446
Mr. Yale-Loehr testified that expedited removal proceedings under section
235 of the INA are rare.447 At the time of his testimony, he had no knowledge
of another case of expedited removal under section 235(c).448
Notes
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
[IC] Callaghan testimony (November 8, 2004), pp. 4119–4120.
Ibid., p. 4121.
[IC] Cabana testimony (October 28, 2004), p. 2993.
[IC] Corcoran testimony (November 15, 2004), p. 4883.
[IC] Callaghan testimony (November 8, 2004), p. 4122.
Ibid.
[IC] Cabana testimony (October 28, 2004), p. 2979.
[IC] Cabana testimony (November 2, 2004), p. 3762. It seems reasonable to conclude that
Inspector Cabana was informed about Mr. Arar’s detention in New York on September 26. Both
Staff Sergeant Corcoran and Staff Sergeant Callaghan’s evidence suggest that they would have
advised Inspector Cabana of what was happening on September 26.
[IC] Callaghan testimony (November 8, 2004), p. 4120.
[IC] Cabana testimony (November 2, 2004), p. 3701.
[IC] Callaghan testimony (November 8, 2004), p. 4122; Walsh notes, vol. 2, p. 526.
Walsh notes, vol. 2, p. 526; [IC] Corcoran testimony (November 15, 2004), p. 4882.
[IC] Walsh testimony (November 30, 2004), pp. 6171 and 6261.
[IC] Callaghan testimony (November 8, 2004), p. 4123.
[IC] Corcoran testimony (November 15, 2004), p. 4889.
Exhibit C-30, Tab 221; [IC] Walsh testimony (November 30, 2004), p. 6171.
[IC] Walsh testimony (November 30, 2004), pp. 6172–6173. Sergeant Walsh did not send the
fax directly to the FBI legal attaché’s office, even though he had the secure phone number for
the fax machine at the U.S. Embassy. According to Sergeant Walsh, the NOC would have to
be involved to send a secure fax to a foreign country because they have access to a secure
fax with the “right key.” Ibid.
[IC] Flewelling testimony (January 20, 2005), pp. 9493–9494.
Corporal Flewelling was not seconded to Project A-O Canada on a full-time basis. In addition
to monitoring the Project A-O Canada investigation, his duties included monitoring several
major investigations. Given his workload, it would have been impossible for him to have had
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19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
the complete in-depth knowledge of Project A-O Canada that he could have had if it was the
only file on his desk. [P] Flewelling testimony (August 23, 2005), pp. 10020–10021.
In particular, during the period of Mr. Arar’s detention, Corporal Flewelling was involved in
an unrelated, very sensitive investigation. Because he devoted a significant amount of time to
this other investigation, he conceded it was conceivable that some documents could have
come to his attention, but he simply could not recall if he saw them. [IC] Flewelling testimony
(January 21, 2005), pp. 9746–9749.
Exhibit C-30, Tab 221.
[IC] Walsh testimony (November 30, 2004), pp. 6159–6160.
Exhibit C-30, Tab 221.
Ibid.
Mr. Almalki was listed as the emergency contact on Mr. Arar’s lease application, not on the
tenancy agreement.
In December 2002, Project A-O Canada discovered that some information regarding Mr. Arar’s
travels was incorrect (see Exhibit C-30, Tab 406).
Exhibit C-30, Tab 221.
[IC] Walsh testimony (December 1, 2004), pp. 6280–6303.
[IC] Cabana testimony (October 28, 2004), p. 2991.
[IC] Walsh testimony (November 30, 2004), pp. 6169–6170.
[IC] Walsh testimony (December 1, 2004), pp. 6280–6283.
The INS decision only references an FBI interview on September 27, 2002.
[IC] Callaghan testimony (November 8, 2004), p. 4207 and [IC] (November 9, 2004),
pp. 4533–4534.
[IC] Cabana testimony (October 28, 2004), pp. 2986–2987.
[IC] Cabana testimony (November 2, 2004), pp. 3743–3744.
[IC] Callaghan testimony (November 9, 2004), p. 4561.
[IC] Couture testimony (December 7, 2004), p. 7245.
Ibid., pp. 7310–7311.
Exhibit C-30, Tab 230; Although the briefing note did not state who it was being sent to,
Inspector Cabana testified that he believed it would have been sent to CID and, ultimately, to
Deputy Commissioner Loeppky. [IC] Cabana testimony (October 28, 2004), p. 3011.
Exhibit C-30, Tab 230.
[P] Flewelling testimony (August 23, 2005), pp. 9774–9775.
Exhibit P-222.
[P] Flewelling testimony (August 23, 2005), pp. 9939–9941. In a previous statement to
Superintendent Garvie in January 2004, Corporal Flewelling stated that caveats should have
been attached to the questions. However, after reviewing the issue, Corporal Flewelling felt
that it would not make sense to attach a caveat to questions that were to be put to someone.
Exhibit P-221; [P ] Flewelling testimony (August 23, 2005), pp. 9937–9941.
[IC] Pilgrim testimony (January 26, 2004), pp. 10470–10474.
Ibid., pp. 10474–10476 and [IC] (January 28, 2004), pp. 10747–10748 and 10800–10802.
[IC] Cabana testimony (October 28, 2004), p. 2995 and [IC] (June 29, 2005), pp. 7929–7931.
[IC] Cabana testimony (October 28, 2004), pp. 2994–2996.
Canadian Charter of Rights and Freedoms.
[IC] Cabana testimony (October 28, 2004), pp. 2997–2998.
[IC] Callaghan testimony (November 9, 2004), pp. 4561–4563.
[IC] Callaghan testimony (November 8, 2004), p. 4129.
Walsh notes, vol. 2, p. 533; [IC] Walsh testimony (November 30, 2004), p. 6175.
[IC] Cabana testimony (October 28, 2004), pp. 3004–3005.
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53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
77
78
79
80
Exhibit C-30, Tab 225.
[IC] Cabana testimony (October 28, 2004), pp. 3012–3013; [IC] Corcoran testimony
(November 15, 2004), pp. 4885–4889.
[P] Edelson testimony (June 16, 2005), pp. 7266 and 7269–7270. On September 27, 2002,
Mr. Edelson’s office received a call from Monia Mazigh in Tunisia indicating that her husband
had gone missing during his trip to Canada. She asked Mr. Edelson for his help in finding out
what had happened to her husband. Mr. Edelson followed his instincts in contacting
Project A-O Canada since Project officials had previously demonstrated an interest in speaking to Mr. Arar. [P] Edelson testimony (June 16, 2005), pp. 7261–7265 and 7270.
Exhibit C-30, Tab 228; [IC] Walsh testimony (December 1, 2004), p. 6307.
[IC] Walsh testimony (November 30, 2004), pp. 6179–6181.
[IC] Cabana testimony (October 28, 2004), pp. 3004–3005; [IC] Callaghan testimony
(November 8, 2004), pp. 4138–4141; [IC] Corcoran testimony (November 15, 2004), p. 4890.
Exhibit C-30, Tab 238; [IC] Cabana testimony (October 28, 2004), p. 3015; [IC] Callaghan testimony (November 8, 2004), p. 4141.
[IC] Corcoran testimony (November 14, 2004), pp. 4891–4892.
Flewelling notes, p. 53; [IC] Flewelling testimony (January 21, 2005), pp. 9705–9708.
Flewelling notes, p. 55; [IC] Flewelling testimony (January 20, 2005), p. 9524.
Exhibit C-30, Tab 240.
[IC] Callaghan testimony (November 9, 2004), pp. 4535–4536.
[P] Cabana testimony (June 30, 2005), pp. 8320–8321.
See Exhibit P-117, Tab 7.
[IC] Callaghan testimony (November 8, 2004), pp. 4146–4147. Importantly, in its response to
one of the questions, Project A-O Canada pointed out that its investigation had yet to establish that Mr. Arar was linked to al-Qaeda.
[IC] Pilgrim testimony (January 26, 2004), p. 10477.
Ibid., pp. 10480–10483.
Exhibit C-30, Tab 248.
[IC] Cabana testimony (November 2, 2004), p. 3743; [IC] Callaghan testimony (November 8,
2004), pp. 4154–4155.
[P] Loeppky testimony (July 27, 2005), pp. 8481–8482.
Exhibit C-30, Tab 236; [IC] Callaghan testimony (November 8, 2004), pp. 4154–4157.
[IC] Flewelling testimony (January 20, 2005), p. 9523 and [IC] (January 21, 2005), pp. 9707–9708.
Exhibit C-30, Tab 236.
[IC] Callaghan testimony (November 9, 2004), pp. 4539–4540.
Before the reply was sent out, and in an unrelated request, Staff Sergeant Callaghan received
permission from CCRA to pass this information to the FBI. [IC] Callaghan testimony (November
8, 2004), pp. 4149–4150.
This was the first time during the Project A-O Canada investigation that a caveat had been included in correspondence sent to the Americans. [IC] Cabana testimony (October 28, 2004),
p. 3033.
Exhibit C-30, Tab 236. In testimony, the terms “caveat” and “third-party rule” were used interchangeably to describe this condition. Nothing turns on the different terminology.
[IC] Callaghan testimony (November 8, 2004), pp. 4148–4149 and [IC] (November 9, 2004),
p. 4602; [IC] Corcoran testimony (November 15, 2004), pp. 4896–4898; [IC] Flewelling testimony
(January 20, 2005), pp. 9516–9518 and 9520.
[IC] Callaghan testimony (November 9, 2004), pp. 4389–4391, 4464–4465 and 4545. Staff
Sergeant Callaghan also agreed that any information Project A-O Canada had given to the
American agencies before October 2002 could not be turned over to the INS because this was
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not part of the agreement coming out of the request on October 3, 2002. If the American
agencies wanted to pass along pre-October 2002 information to the INS, they would have to
come back to Project A-O Canada for an MLAT. [IC] Callaghan testimony (November 9, 2004),
pp. 4391–4392.
Ibid., pp. 4379–4384.
[IC] Callaghan testimony (November 8, 2004), pp. 4198–4199.
Exhibit C-54.
[IC] Callaghan testimony (November 8, 2004), p. 4210.
Ibid., p. 4152 and [IC] November 9, 2004), p. 4543.
[IC] Proulx testimony [ET] (December 9, 2004), pp. 7693–7695; [IC] Pilgrim testimony
(January 26, 2004), p. 10480.
[IC] Proulx testimony [ET] (December 13, 2004), p. 8200.
[IC] Couture testimony (December 7, 2004), p. 7312.
Ibid., p. 7314.
Ibid., pp. 7340–7341.
[IC] Cabana testimony (November 2, 2004), pp. 3762–3763.
[P] Loeppky testimony (July 27, 2005), pp. 8460–8463 and 8469–8470.
[IC] Roy testimony (December 6, 2004), p. 6796.
Ibid., p. 6805.
Ibid., pp. 6797–6798.
Ibid., pp. 6973–6974 and 7001.
Exhibit P-208, Timeline; Exhibit P-209, Crown Plaza note.
[IC] Roy testimony (December 6, 2004), p. 6834. Mr. Solomon chose to approach his RCMP
contact for information on Mr. Arar due to a prior conversation Mr. Solomon had with Nancy
Collins of DFAIT’s Consular Affairs Bureau. On October 2, 2002, Ms. Collins spoke to
Mr. Solomon about Mr. Arar’s consular case in New York. This was the first time Mr. Solomon
heard the name Maher Arar. [IC] Solomon testimony (April 4, 2005), pp. 13935–13937; Exhibit
P-82, p. 6 Collins’ notes; [P] Collins testimony (May 19, 2005), pp. 3052–3056.
Ms. Collins gave Mr. Solomon the general details of the case and asked if he had any more
information. Mr. Solomon undertook to find out if there was a security link to the case. He
contacted the RCMP LO, and also left a note for the CSIS LO. [IC] Solomon testimony (April 4,
2005), pp. 13937–13938 and 13946–13947; [P] Collins testimony (May 19, 2005), pp. 3056–3057.
Callaghan notes, vol. 1, p. 302.
Ibid.
Inspector Roy’s notes, Exhibit C-123.
[IC] Roy testimony (December 6, 2004), p. 6832. Project A-O Canada situation reports for
September 26 and September 27, which detailed what the Project A-O Canada assistant managers had repeated to Inspector Roy, were copied to Corporal Flewelling. Corporal Flewelling
was aware of the contents of the situation reports by 5:30 p.m. on October 2. Exhibit P-224,
Continuation Report; [P] Flewelling testimony (August 23, 2005), pp. 9790–9794.
[P] Roy testimony [ET] (August 22, 2005), pp. 9483–9485; Solomon notes, p. 14; [IC] Solomon
testimony (April 4, 2005), pp. 13938–13941. Inspector Roy could only remember telling
Mr. Solomon that Project A-O Canada was aware of Mr. Arar’s detention, that questions had
been sent to the FBI and that Mr. Arar had been interrogated.
Mr. Solomon’s notes detailing the information he received from Inspector Roy were virtually
identical to Inspector Roy’s notes of his October 2 visit to Project A-O Canada. Thus, it would
appear that Inspector Roy indeed told Mr. Solomon everything that he learned. Apart from the
details written in his notes, Mr. Solomon vaguely remembered the conversation. His main
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memory was the RCMP’s surprise that Mr. Arar was still in custody, and that this was not what
the RCMP had expected. [P] Roy testimony [ET] (August 22, 2005), pp. 9483–9485; Solomon
notes, p. 14; [IC] Solomon testimony (April 4, 2005), pp. 13938–13941.
[IC] Roy testimony (December 6, 2004), pp. 6841–6842.
Ibid., pp. 6842–6844.
[IC] Callaghan testimony (November 8, 2004), p. 4141.
[P] Roy testimony [ET] (August 22, 2005), pp. 9491–9493.
[IC] Callaghan testimony (November 8, 2004), p. 4141; [P] Roy testimony [ET] (August 22, 2005),
pp. 9498–9499.
[IC] Roy testimony (December 6, 2004), pp. 6851–6852 and 6858. Neither Inspector Roy nor
Corporal Flewelling has any recollection of Inspector Roy telling Corporal Flewelling of the
information Mr. Solomon shared with Inspector Roy earlier in the day. [P] Roy testimony [ET]
(August 22, 2005), pp. 9499–9507; [P] Flewelling testimony (August 23, 2005), pp. 9781–9787
and 9794–9796.
[IC] Roy testimony (December 6, 2004), pp. 6852–6854. Corporal Flewelling testified that this
exchange with Inspector Roy took place when Inspector Roy stopped by his desk. Inspector
Roy, on the other hand, said he communicated with Corporal Flewelling over the phone.
[IC] Roy testimony (December 6, 2004), pp. 6851–6852 and 6858; [IC] Flewelling testimony
(January 20, 2005), pp. 9506–9507.
There also appears to be an issue as to when this conversation took place. Inspector Roy’s testimony relied on the times (3:30 p.m. and 3:45 p.m.) provided in Staff Sergeant Callaghan’s
notes. He testified the conversation with Corporal Flewelling took place after Inspector Roy
spoke to Staff Sergeant Callaghan.
Corporal Flewelling’s notes do not mention the conversation with Inspector Roy. However,
Corporal Flewelling believes Inspector Roy came to see him prior to three p.m., because he
attended a meeting at CSIS then, as recorded in his notes. Flewelling notes, p. 52;
[IC] Flewelling testimony (January 20, 2005), pp. 9507–9509.
Exhibit P-231, p. 10; [P] Lauzon testimony (August 23, 2005), pp. 10126–10130 and
10166–10168.
For information about DFAIT’s involvement with Mr. Arar during his detention in New York,
and how DFAIT officials responded to the concerns about Mr. Arar being sent to Syria, see
Section 5 below.
[IC] Roy testimony (December 6, 2004), pp. 6863 and 6866–6869.
[IC] Solomon testimony (April 4, 2005), pp. 13955–13960 and 13965–13971. Both Mr. Solomon
and Inspector Roy testified that Inspector Roy had contact from time to time with officials in
the Consular Affairs Bureau, whose office was on the same floor as ISI. Ibid., pp. 13970–13972;
[P] Roy testimony [ET] (August 22, 2005), pp. 9444–9445. As mentioned in an earlier note,
Ms. Collins of DFAIT’s Consular Affairs Bureau spoke to Mr. Solomon about Ms. Arar’s case.
She noted during her testimony that, on occasion, she had direct dealings with officers in ISI,
but any dealings had to be authorized by Mr. Pardy. Ms. Collins did not speak to Inspector
Roy directly about Mr. Arar’s case nor did she consult with anyone in ISI about Mr. Arar’s concerns about being removed to Syria. [P] Collins testimony (May 19, 2005), pp. 3007, 3162 and
3167.
In terms of the actual sharing of consular reports, Maureen Girvan, the Canadian consul working on the Arar case in New York, drafted one of two consular reports where the possibility
of Mr. Arar being sent to Syria was raised. Ms. Girvan told detainees that she was providing
consular services in confidence, and that the only other persons who would receive information disclosed to her (other than those persons authorized by the detainee) would be officials
in Consular Affairs. Ms. Girvan was surprised to learn during her testimony that the RCMP
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might have read her report of her consular visit with Mr. Arar. [P] Girvan testimony (May 16,
2005), pp. 2373–2375.
To her knowledge, no one outside the consular services chain of command had the right to
access the contents of her consular visits. Ms. Girvan speculated there may be an exception
to this rule, but she was not aware of it. Further, no one told her that they were going to be
disseminating her information to ISI or to a policing agency. She considered herself to be
working separate and apart from ISI and thus believed that the sharing of any information from
her consular files would have been made at a higher level. [P] Girvan testimony (May 16,
2005), pp. 2375–2379.
Gar Pardy, the Director General of Consular Affairs, confirmed that his approval was required
for any ISI requests for access to consular records or requests for consular records to be exchanged with external agencies. [P] Pardy testimony (May 24, 2005), pp. 3332–3334.
[IC] Solomon testimony (April 4, 2005), pp. 13945–13946, 13962–13963 and 13975–13973.
Ibid., pp. 13947–13950.
Ibid., pp. 13963–13964. Mr. Solomon was not sure if the CSIS LO was also aware of this information. Ibid., pp. 13963–13965 and 13978–13979.
[P] Roy testimony [ET] (August 22, 2005), pp. 9521–9523.
Ibid., pp. 9514–9520 and [not ET] 9679–9682.
[IC] Solomon testimony (April 4, 2005), pp. 13962–13963.
Ibid., pp. 13974–13975 and 14129–14131. Mr. Solomon testified that there were discussions
with Gar Pardy, the Director General of Consular Affairs, and Scott Heatherington, the Director
of ISI, concerning the threat of removal to Syria after ISI learned of the threat.
Mr. Heatherington was a particularly useful resource since he had a background as an immigration officer. Messrs. Pardy and Heatherington informed Mr. Solomon that the normal practice for someone in Mr. Arar’s predicament was to be sent back where he or she came from
or to the location on his or her passport. The idea that a Canadian citizen travelling on a
Canadian passport would somehow be sent to Syria, even though he was also a Syrian citizen, was definitely outside of what had been described as normal practice. Ibid.,
pp. 14129–14131.
[IC] Flewelling testimony (January 20, 2005), p. 9492. Project A-O Canada forwarded situation
reports for September 26 and September 27 to CID on September 27 and September 30 describing Mr. Arar’s detention in the United States. Corporal Flewelling was aware of the contents of the situation reports by 5:30 p. m. on October 2. Exhibit P-224, Continuation Report;
[P] Flewelling testimony (August 23, 2005), pp. 9789–9794.
Exhibit P-211, Flewelling notes, p. 38; [P] Flewelling testimony (August 23, 2005),
pp. 9806–9807 and 9810–9811.
[IC] Flewelling testimony (January 20, 2005), pp. 9524–9525 and [P] (August 23, 2005),
pp. 9813–9814.
[P] Roy testimony [ET] (August 22, 2005), pp. 9523–9528.
[P] Flewelling testimony (August 23, 2005), pp. 9811–9813.
[IC] Flewelling testimony (January 20, 2005), pp. 9529 and 9553 and [P] (August 23, 2005),
pp. 9814–9815.
[P] Flewelling testimony (August 23, 2005), pp. 9821–9825.
Ibid., p. 9824.
Ibid., pp. 9825–9826.
[P] Williams testimony (August 23, 2005), pp. 10108–10109, 10113 and 10116.
[P] Flewelling testimony (August 23, 2005), p. 9827–9828.
[P] Flewelling testimony (August 23, 2005), pp. 9815–9816.
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[IC] Flewelling testimony (January 20, 2005), pp. 9529–9532 and [P] (August 23, 2005),
pp. 9833–9836. Interestingly enough, Corporal Flewelling was the officer who forwarded the
October 3 information request to Project A-O Canada. He was aware the Americans were
looking for information to support criminal charges, and that the charges were likely related
to terrorism. Despite this, Corporal Flewelling did not stop to consider why the Americans
would permit Mr. Arar to enter Canada indirectly from Switzerland, when they would not permit his direct entry into Canada from the United States, especially when he could be viewed
as a threat to the United States. [P] Flewelling testimony (August 23, 2005), pp. 9838–9844.
[IC] Flewelling testimony (January 21, 2005), pp. 9750–9751.
Ibid., pp. 9751–9752.
[IC] Flewelling testimony (January 20, 2005), p. 9531.
Exhibit C-30, Tab 249; [IC] Flewelling testimony (January 20, 2005), pp. 9531–9532 and
[IC] (January 21, 2005), p. 9753.
Exhibit C-30, Tab 249; [IC] Flewelling testimony (January 21, 2005), pp. 9753–9754.
[IC] Flewelling testimony (January 21, 2005), pp. 9759–9761.
[IC] Flewelling testimony (January 20, 2005), pp. 9534–9536.
[P] Flewelling testimony (August 23, 2005), pp. 9849–9851, 9956–9957 and 10065.
Ibid., pp. 9965-9966. See Chapter V, Section 1 for a detailed discussion of rendition.
[IC] Flewelling testimony (January 21, 2005), pp. 9754–9755.
[IC] Flewelling testimony (January 20, 2005), pp. 9533, 9536–9537 and [IC] (January 21, 2005),
p. 9717 and [P] (August 23, 2005), p. 9853.
[P] Flewelling testimony (August 23, 2005), p. 9853. Sergeant Lauzon has no recollection or
notes of having a conversation with Corporal Flewelling concerning Mr. Arar on October 5 or
October 7, but said it was possible these conversations did occur. [P] Lauzon testimony (August
23, 2005), pp. 10135–10138 and 10168–10172.
Exhibit C-30, Tab 250.
Ibid. Corporal Flewelling did not believe he followed up to see if anyone had contacted a CSIS
official concerning the CSIS information that was exchanged with the Americans on October
4, 2002 without CSIS’ knowledge. Neither Staff Sergeant Callaghan nor the CSIS official has any
recollection of speaking to the other about the contents of this e-mail. [IC] Callaghan testimony
(November 8, 2004), pp. 4195 and 4202–4203; [IC] Flewelling testimony (January 20, 2005),
p. 9541; [IC] Testimony (August 5, 2005), pp. 17043–17045.
[IC] Callaghan testimony (November 8, 2004), pp. 4189 and 4193.
Ibid., p. 4198.
Callaghan notes, vol. 1, p. 306; [IC] Callaghan testimony (November 8, 2004), pp. 4197–4199.
See Exhibit C-30, Tabs 249 and 250.
Exhibit C-54. In the reply e-mail that was provided to the Commission, Staff Sergeant Callaghan
informed Corporal Flewelling that he spoke to the FBI, and that the fax problem was straightened out. He also told Corporal Flewelling that Project A-O Canada was still seeking to interview Mr. Arar and that the FBI had indicated that it was dealing with the request. Furthermore,
Corporal Flewelling was told that the FBI had not given up on charges against Mr. Arar and
would be sending questions (most likely through Corporal Flewelling) that day.
[IC] Flewelling testimony (January 21, 2005), p. 9762
[IC] Flewelling testimony (January 20, 2005), p. 9546.
Exhibit P-226; Callaghan notes, vol. 1, p. 304; [IC] Callaghan testimony (November 8, 2004),
pp. 4178–4180; [P] Flewelling testimony (August 23, 2005), pp. 9804–9805. A
Project A-O Canada situation report for October 4, 2002 states: “A-O Canada received a … request from the [Americans] asking for information, including all aliases, for Maher ARAR. A
package was prepared and forwarded via HQ.” Inspector Cabana testified that this was a sep-
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arate request and package from those relating to the questions of October 3, 2002. The second package forwarded on October 4 contained biographical information on Mr. Arar as well
as general intelligence that had been accumulated. Exhibit C-30, Tab 247; [IC] Cabana testimony (October 28, 2004), pp. 3026–3027.
Exhibit C-30, Tab 236.
[IC] Cabana testimony (October 28, 2004), pp. 3031–3032.
Ibid., pp. 3023–3024.
Callaghan notes, vol. 1, pp. 306–307; [IC] Callaghan testimony (November 8, 2004),
pp. 4203–4204.
Ibid.; Ibid.
Cabana notes, book 6, p. 263.
[IC] Cabana testimony (October 28, 2004), p. 3037.
Ibid., pp. 3039–3040.
[IC] Callaghan testimony (November 8, 2004), p. 4205.
Callaghan notes, vol. 1, p. 308
[IC] Callaghan testimony (November 8, 2004), pp. 4206–4207.
Callaghan notes, vol. 1, p. 308. Inspector Cabana was not aware if a member of a Canadian
police force was present at any of Mr. Arar’s interviews while in American custody. He also
had no information as to whether the RCMP’s Washington liaison officer was present during
the interviews. [P] Cabana testimony (June 30, 2005), pp. 8274–8275.
Cabana notes, book 6, p. 265; Callaghan notes, vol. 1, p. 308; [IC] Corcoran testimony
(November 15, 2004), p. 4901. The RCMP Operational Manual (II.1 Investigation Guidelines)
provides guidance for conducting interviews in a foreign country. The CROPS Officer for “A”
Division was aware that Project A-O Canada was considering interviewing Mr. Arar in New
York and was satisfied that an interview would have been approved if the requirements of the
guidelines were met. One of the requirements was that Mr. Arar consent to the interview in
writing (Section l.2.g. RCMP Operational Manual [II.1 Investigation Guidelines]). Exhibit P12, Tab 29; [IC] Couture testimony (December 7, 2004), pp. 7252–7253 and 7315–7316.
[IC] Callaghan testimony (November 8, 2004), p. 4209.
[IC] Lemay testimony (November 17, 2004), pp. 5499–5502.
Exhibit C-30, Tab 266.
[IC] Cabana testimony (October 28, 2004), p. 3045; Exhibit C-30, Tab 275.
Exhibit C-30, Tab 267.
Ibid.
Ibid.
Callaghan notes, vol. 1, p. 309; [IC] Callaghan testimony (November 8, 2004), p. 4211; Walsh
notes, vol. 2, p. 560; [IC] Walsh testimony (November 30, 2004), pp. 6186–6187; Roy notes,
p. 29; [IC] Roy testimony (December 6, 2004), pp. 6875–6876.
Callaghan notes, vol. 1, p. 309; [IC] Callaghan testimony (November 8, 2004), p. 4211.
[P] Roy testimony [ET] (August 22, 2005), pp. 9536–9537.
Ibid., pp. 9539–9540 and 9545–9548.
Callaghan notes, vol. 1, p. 309; [IC] Callaghan testimony (November 8, 2004), pp. 4211–4212;
Walsh notes, vol. 2, p. 560.
Callaghan notes, vol. 1, p. 309.
[IC] Corcoran testimony (November 15, 2004), p. 4902. It is not known whether at this time
the FBI official knew that Mr. Arar had in fact been removed to Syria.
[IC] Callaghan testimony (November 8, 2004), p. 4214.
Callaghan notes, vol. 1, p. 310; [IC] Callaghan testimony (November 8, 2004), pp. 4214–4215;
[P] Cabana testimony (June 29, 2005), pp. 7980–7982.
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[IC] Corcoran testimony (November 15, 2004), p. 4908.
Ibid., p. 4909.
[IC] Cabana testimony (October 28, 2004), p. 3050.
Callaghan notes, vol. 1, p. 310. Sergeant Lauzon’s notes for the meeting were dated October 7.
The date is incorrect. His notes should have been dated October 8. [P] Lauzon testimony
(August 23, 2005), pp. 10144–10147.
Exhibit P-232; [P] Lauzon testimony (August 23, 2005), pp. 10148–10150. Sergeant Lauzon was
the only member of CID who was present at this meeting. He attended in the absence of
Corporal Flewelling, who was on holiday. The presence of a CID member at this meeting was
in accordance with the agreement reached between “A” Division and RCMP Headquarters on
September 26 that any Project A-O Canada meetings involving the presence of an American
partner would also involve a CID representative. [P] Lauzon testimony (August 23, 2005),
pp. 10150 and 10173–10174.
[IC] Callaghan testimony (November 8, 2004), pp. 4216–4217 and 4221; Exhibit P-232; Walsh
notes, vol. 2, p. 562.
Callaghan notes, vol. 1, p. 311; [IC] Callaghan testimony (November 8, 2004), pp. 4216–4217.
[IC] Callaghan testimony (November 8, 2004), p. 4218.
[IC] Cabana testimony (October 28, 2004), pp. 3062–3066; [IC] Callaghan testimony
(November 8, 2004), pp. 4222–4223; [IC] Corcoran testimony (November 15, 2004), p. 4912.
A fax sent by Project A-O Canada to the RCMP LO in Rome on October 17, 2002 stated that
Project A-O Canada managers were advised by American authorities on October 8, 2002 that
Mr. Arar had been removed to Syria. The date was incorrect. Exhibit P-173; [P] Cabana testimony (June 29, 2005), pp. 8000–8003.
[P] Cabana testimony (June 29, 2005), p. 7989.
[IC] Cabana testimony (November 2, 2004), pp. 3749–3751.
[IC] Callaghan testimony (November 9, 2004), pp. 4563–4564.
See Chapter I, Sections 3.6.2 and 4.7.1 for discussions of Mr. El Maati’s statement and allegations of torture while he was detained in Syria.
[IC] Corcoran testimony (November 15, 2004), pp. 4904–4908.
Ibid., pp. 4904–4906.
[IC] Roy testimony (December 6, 2004), pp. 6885–6886.
[IC] Pilgrim testimony (January 26, 2005), p. 10489.
Exhibit C-30, Tab 280.
Exhibit C-1, Tab 38. The CSIS LO at ISI could not explain why information was being given
to CSIS other than through her. At the same time, she did not consider this to be odd. She assumed that information that came to the CSIS communications branch must have come from
DFAIT’s communications branch. [IC] Testimony (September 16, 2004), pp. 784–785.
Exhibit C-1, Tab 38; [IC] Testimony (September 16, 2004), pp. 786–788.
[IC] Testimony (September 16, 2004), p. 789.
Ibid., pp. 791–792.
[IC] Testimony (September 14, 2004), pp. 328–329.
Project A-O Canada provided CSIS Ottawa Region with a background report dated April 11,
2002 that summarized their investigation to date in relation to Mr. Arar. It was uploaded by
CSIS on September 26, 2002. The report was received prior to the upload date, but no CSIS
witnesses could confirm the exact date when it was received. Exhibit C-1 Tab 34; [IC] testimony
(September 14, 2004), pp. 267–268 and 291–294; [IC] testimony (September 16, 2004), pp.
1057–1058 and [IC] (September 20, 2004), p. 1100; [IC] testimony (September 20, 2004), p.
1216.
Exhibit C-1, Tab 38; [IC] Testimony (September 14, 2004), pp. 304–305.
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Exhibit C-1, Tab 38.
[IC] Testimony (September 14, 2004), p. 305.
[IC] Testimony (September 16, 2004), pp. 857–858.
Ibid., p. 837.
Exhibit C-1, Tab 40.
Ibid., Tab 41.
[IC] Testimony (September 16, 2004), pp. 1051–1052 and [IC] (September 20, 2004),
pp. 1073–1074.
[IC] Testimony (September 16, 2004), p. 1053.
Exhibit C-1, Tab 36.
Ibid., Tab 43; [IC] Testimony (September 16, 2004), p. 1041.
Exhibit C-1, Tab 37.
Ibid., Tab 43; [IC] Testimony (September 16, 2004), pp. 1044–1045.
Exhibit C-169; Walsh notes, vol. 2, pp. 562–564; [IC] Testimony (January 24, 2005),
pp. 9992–9999.
Exhibit C-1, Tab 43.
Ibid., Tab 38.
Ibid., Tab 42.
[IC] Testimony (September 14, 2004), p. 340.
Ibid., pp. 342–343.
Exhibit C-1, Tab 50; [IC] Testimony (September 14, 2004), pp. 356–357.
Exhibit C-1, Tab 47.
Ibid., Tab 48; [IC] Testimony (September 14, 2004), pp. 338–339 and 358.
Exhibit C-1, Tabs 47 and 55.
Ibid., Tab 85.
Exhibit C-1, Tab 55.
[IC] Testimony (September 16, 2004), p. 867.
Exhibit C-1, Tab 54.
[IC] Testimony (September 20, 2004), pp. 1077–1079 and 1102–1103.
Exhibit C-1, Tab 53.
[IC] Testimony (September 20, 2004), pp. 1240–1241; [IC] Hooper testimony (September 22,
2004), pp. 1482–1483.
CAMANT is a program that forms part of SIGNET “D”, DFAIT’s unclassified communication system. SIGNET “D” allows DFAIT employees at Headquarters and various missions around the
world to exchange messages. Although CAMANT is part of SIGNET “D”, it is not accessible by
all DFAIT employees. It is a data recording system whose access is generally limited to DFAIT’s
consular officials. CAMANT notes allow consular officials to read and refer, in real time, to consular files regarding Canadian citizens. [P] Livermore testimony (May 17, 2005), pp. 2428–2429;
[P] Girvan testimony (May 11, 2005), pp. 1728–1729 and 1731.
Exhibit P-42, Tab 1; [P] Girvan testimony (May 11, 2005), pp. 1754–1756.
Exhibit P-49; [P] Girvan testimony (May 11, 2005), pp. 1708–1710. At the relevant time, the
Canadian Consulate General in New York was headed by the Consul General, Pamela Wallin.
It was organized into different areas of responsibility, one of which was Management and
Consular Services. André Laporte was the Consul for Management and Consular Services.
Ms. Girvan reported to Mr. Laporte. Three additional consular staff worked with Ms. Girvan
in providing consular services; the principal was Lisiane Le Floc’h. Ms. Le Floc’h helped
Ms. Girvan with files concerning detained persons. Exhibit P-50; [P] Girvan testimony (May 11,
2005), pp. 1713–1717.
[P] Girvan testimony (May 11, 2005), pp. 1759–1760.
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Exhibit P-42, Tab 2.
Ibid., Tab 3.
[P] Girvan testimony (May 11, 2005), p. 1762. The Inquiry was not provided with a written
record of the second call placed by Ms. Le Floc’h with the INS office at JFK Airport. Ms. Girvan
testified that, at a later point, she was told by Ms. Le Floc’h that a second attempt was made
to contact someone at JFK Airport, but to no avail. [P] Girvan testimony (May 12, 2005),
pp. 2160–2161.
See Section 5.2 below.
Exhibit P-42, Tabs 4, 6 and 7.
Ibid., Tab 5.
[P] Girvan testimony (May 12, 2005), pp. 2089–2090; [P] Pardy testimony (May 24, 2005),
pp. 3303–3304.
Exhibit P-42, Tab 8.
Ibid., Tab 9; [P] Girvan testimony (May 12, 2005), p. 2163.
[P] Girvan testimony (May 11, 2005), pp. 1768–1769.
This visit is discussed below in Section 5.4.
Exhibit P-42, Tab 10. A memorandum dated November 21, 2003 that was sent to the Minister
of Foreign Affairs mistakenly refers to Ms. Girvan taking this call from Mr. Arar’s brother. Ibid.,
Tab 705; [P] Girvan testimony (May 16, 2005), pp. 2390–2392.
Exhibit P-42, Tab 10. The letter of introduction is a standard form letter that is sent to detained
Canadians to inform them of the consular services that are available. The letter accompanies
an information and authorization form indicating proof of Canadian citizenship, as well as authorization for persons with whom consular officials can discuss the detainee’s case (e.g., family members, lawyer). Exhibits P-54 and P-55.
[P] Collins testimony (May 19, 2005), pp. 3166–3167.
The CAMANT system does not have a function similar to e-mail which notifies a person when
a message has arrived.
[P] Girvan testimony (May 11, 2005), pp. 1771–1772 and [P] (May 12, 2005), pp. 2166–2167.
[P] Girvan testimony (May 11, 2005), pp. 1772–1773.
Ibid., p. 1774. The fact that she had been notified on September 29 that there were no issues
with Mr. Arar’s passport led Ms. Girvan to assume that Mr. Arar was a Canadian citizen. DFAIT
Headquarters provided confirmation of Mr. Arar’s Canadian citizenship later that same day.
Exhibit P-42, Tab 12; [P] Girvan testimony (May 11, 2005), p. 1773.
[P] Girvan testimony (May 11, 2005), p. 1774–1776.
Ibid., pp. 1803–1804.
References to “consular officials” refer to Ms. Girvan, Ms. Le Floc’h or both.
Exhibit P-42, Tab 11.
Ibid.
[P] Girvan testimony (May 11, 2005), pp. 1779–1780.
Ibid, pp. 1781–1782.
Exhibit P-42, Tab 11.
Ibid.
Ibid.; [P] Girvan testimony (May 11, 2005), pp. 1785–1788. Ms. Girvan testified that she did not
interpret this response from the INS official to mean that the INS Public Affairs Office did not
want to discuss Mr. Arar’s case with the Consulate General. She believed that this frontline official simply did not know anything about the case, which is why they decided to speak to
the superior officer. [P] Girvan testimony (May 12, 2005), pp. 2175–2176.
Exhibit P-42, Tab 11.
[P] Girvan testimony (May 11, 2005), pp. 1786–1787.
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Exhibit P-42, Tab 11.
[P] Girvan testimony (May 12, 2005), pp. 2168–2173.
Ibid., pp. 2177–2179.
Ibid., p. 2180.
Ibid., p. 2181. Consular services at the Consulate General in New York did not report to the
Canadian Embassy in Washington. As the manager of consular services, Ms. Girvan reported
to André Laporte, the Consul for Management and Consular Services, and through him to
Pamela Wallin, the Consul General. If Ms. Girvan needed to be in touch with DFAIT
Headquarters, she would report to Nancy Collins, the case management officer for the U.S. region. Ms. Collins would be in touch with Gar Pardy, the Director General of the Consular
Affairs Bureau. [P] Girvan testimony (May 11, 2005), p. 1718.
[P] Girvan testimony (May 11, 2005), pp. 1789–1791.
Exhibit P-42, Tab 11; [P] Girvan testimony (May 11, 2005), pp. 1789 and 1791–1792. The CAMANT note documenting the calls to various people at DFAIT Headquarters did not mention
the first call that was made by Ms. Girvan to Ms. Collins. Ms. Girvan testified that she would
have called Ms. Collins before anyone else. [P] Girvan testimony (May 11, 2005),
pp. 1791–1792.
[P] Pardy testimony (May 24, 2005), pp. 3311–3312 and 3315.
Exhibit P-42, Tab 11. At 5:30 p.m. Ms. Harris was able to confirm that Mr. Arar had been a
landed immigrant since 1987 and a Canadian citizen since 1991. A CAMANT note containing
this information was sent to consular officials in New York and copied to others, including officials at the Canadian Embassy in Washington. Ibid., Tab 12.
Ibid., Tab 11; [P] Girvan testimony (May 11, 2005), pp. 1791–1792, 1796 and 1799–1801.
[P] Girvan testimony (May 12, 2005), pp. 2181–2185.
On October 1, 2002, a fax was sent at 5:05 p.m. to the MDC asking for information on the
charges against Mr. Arar. Exhibits P-56 and P-57. It should be noted that the Inquiry was provided with a CAMANT note replicating the fax that was sent to the MDC. The date on the fax
was October 2, 2002. This was an error. Exhibit P-42, Tab 13; [P] Girvan testimony (May 11,
2005), pp. 1808–1809.
Exhibit P-42, Tab 11.
Ibid.
[P] Girvan testimony (May 11, 2005), pp. 1795–1796 and 1806–1807.
Exhibit P-42, Tab 11.
Ibid., Tab 16.
[P] Girvan testimony (May 11, 2005), p. 1817.
Exhibits P-52 and P-53; [P] Girvan testimony (May 11, 2005), pp. 1817–1818; [P] Pardy testimony
(May 24, 2005), pp. 3294–3296. Mr. Jaffri has alleged that the United States government threatened him with deportation to Pakistan during his detention there. Canadian consular officials
were not made aware of this threat in September 2002. [P] Pardy testimony (May 24, 2005),
pp. 3296–3297.
Exhibit P-42, Tab 16.
[P] Girvan testimony (May 11, 2005), pp. 1817–1818.
Exhibit P-42, Tab 16.
[P] Girvan testimony (May 12, 2005), pp. 2186–2189.
Exhibit P-42, Tab 17.
[P] Girvan testimony (May 11, 2005), pp. 1819–1820.
Exhibit P-42, Tab 23.
Ibid. In October 2001, Mr. Baloch’s wife notified DFAIT that he was missing. When consular
officials in New York contacted the MDC, they were told that he was not there. In November
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2001, DFAIT received a call from Mr. Baloch’s attorney informing them that Mr. Baloch was
at the MDC. It turns out that Mr. Baloch’s name was on a special list. Due to the difficulty in
getting information about him, after gaining consular access to Mr. Baloch, DFAIT sent a diplomatic note concerning the lack of consular notification and the fact that the MDC had provided
inaccurate information. [P] Collins testimony (May 19, 2005), pp. 3036–3041 and 3046–3047.
The American reply to the diplomatic note confirmed that Mr. Baloch had indicated he did not
want consular access. [P] Pardy testimony (May 24, 2005), p. 3328.
Exhibit P-42, Tab 23.
Ibid.; [P] Girvan testimony (May 11, 2005), pp. 1813–1815. Neither Ms. Girvan nor Ms. Collins
were aware whether informal inquiries were actually made with the United States Department
of Justice. [P] Girvan testimony (May 16, 2005), p. 2274; [P] Collins testimony (May 19, 2005),
pp. 3213–3215.
[P] Girvan testimony (May 11, 2005), pp. 1796–1798. Canada and the United States are parties
to the Vienna Convention on Consular Relations (VCCR). The VCCR provides the general
rubric under which an individual has the right to access consular services. Government officials of a host country are not obliged to notify consular officials if a foreign national has been
arrested. They do, however, have an obligation to inform the foreign national of their right to
contact consular officials, and should facilitate such contact “without delay.” See Article 36(1)
of the VCCR; [P] Girvan testimony (May 11, 2005), pp. 1726–1727.
Mr. Pardy explained that the notification provisions under the VCCR are a weak element of
the treaty. “Without delay” has not been adequately defined in practice. In the post-9/11 national security environment, notification had become a problem area when dealing with
American officials. [P] Pardy testimony (May 24, 2005), pp. 3292–3293, and 3313–3314.
[P] Girvan testimony (May 11, 2005), pp. 1798–1802; [P]Collins testimony (May 19, 2005),
pp. 3050–3051.
[P] Girvan testimony (May 11, 2005), pp. 1802–1803 and [P] (May 12, 2005), pp. 2095–2097.
In November 2003, Ms. Girvan was asked by DFAIT Headquarters for further information on
the discussions surrounding the diplomatic note option. In her reply, Ms. Girvan mentioned
that the Canadian Embassy in Washington had prepared a draft diplomatic note, but Ms. Collins
suggested that they wait to see if the MDC responded to the faxed request to visit Mr. Arar.
When the MDC responded, the diplomatic note was shelved for the moment. Exhibit P-42, Tab
697.
[P] Girvan testimony (May 11, 2005), pp. 1829–1830 and [P] (May 16, 2005), p. 2394.
The Office of the Inspector General of the U.S. Department of Justice produced a report in
April 2003 entitled: “The September 11 Detainee: A Review of the Treatment of Aliens Held
on Immigration Charges in Connection with the Investigation of the September 11 Attacks.”
The report contained a chapter on the conditions of confinement at the MDC. According to
the report, prior to 9/11, the MDC had a Special Housing Unit (SHU), which was designed to
segregate inmates who required separation from the rest of the facility’s population for disciplinary or administrative reasons. After the September 11 terrorist attacks, an Administrative
Maximum Special Housing Unit (ADMAX SHU) was created from one part of the existing SHU.
The ADMAX SHU was used to house 9/11 detainees. It is considered the most restrictive type
of SHU. Exhibit P-64.
This Inquiry believes that Mr. Arar was held in the ADMAX SHU during his detention at the
MDC.
[P] Girvan testimony (May 11, 2005), pp. 1741–1743 and 1745.
Ibid., pp. 1744–1745.
Ibid., pp. 1746 and 1840–1841.
Ibid., p. 1841 and [P] (May 12, 2005), pp. 2143–2145.
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[P] Girvan testimony (May 11, 2005), pp. 1842–1843.
Ibid., p. 1843. One of the CAMANT notes prepared after the consular visit referred to Mr. Arar
as being in an “extremely emotional state.” Ms. Girvan acknowledged that “extreme” was perhaps a little exaggerated. Her purpose in writing this description was to communicate that he
was very upset and shaken. Exhibit P-42, Tab 27; [P] Girvan testimony (May 11, 2005),
pp. 1827–1829.
[P] Girvan testimony (May 11, 2005), pp. 1844–1845.
Ibid., pp. 1845–1846.
Exhibit P-42, Tab 31; [P] Girvan testimony (May 11, 2005), p. 1837.
Exhibit P-42, Tab 31.
[P] Girvan testimony (May 11, 2005), p. 1840 and [P] (May 12, 2005), pp. 2190–2191.
[P] Girvan testimony (May 11, 2005), p. 1853.
[P] Girvan testimony (May 12, 2005), pp. 2189–2193. It is noteworthy that in an e-mail prepared
by Ms. Girvan in November 2003, responding to the actions taken by consular officials in New
York, she mentioned that they had no reason to believe the United States would remove
Mr. Arar to Syria because he had been “charged with crimes.” Ms. Girvan testified that she considered being a member of al-Qaeda as a charge; thus, in writing “charged with crimes,” she
was being informal rather than technical. Although the al-Qaeda allegation was raised in a document that described an immigration matter rather than a criminal charge, Ms. Girvan stated
that the most important thing in her mind was that Mr. Arar was a terrorist suspect. She believed that if the American authorities saw fit to move Mr. Arar from the airport to the special
security unit of the MDC, it was because they considered him to be a terrorist suspect and they
were considering charges against him as a terrorist. Exhibit P-42, Tab 687; [P] Girvan testimony (May 12, 2005), pp. 2204–2208.
[P] Girvan testimony (May 11, 2005), pp. 1853–1854.
[P] Girvan testimony (May 12, 2005), pp. 2194–2195. When Ms. Girvan was asked what she
would do if she found herself at a loss to understand the legal situation of someone to whom
she was providing consular services, Ms. Girvan stated that she would contact the lawyer representing the individual. If they were not yet represented, she would contact DFAIT
Headquarters, which would be able to get her the information she needed. Ibid.,
pp. 2114–2115.
In Mr. Arar’s case, it was only after Mr. Arar was sent to Syria that DFAIT Headquarters and
consular officials in New York began to make inquiries about the legal aspects of what happened to Mr. Arar. [P] Girvan testimony (May 12, 2005), pp. 2115–2117 and 2196–2197;
[P] Pardy testimony (May 24, 2005), pp. 3489–3490.
[P] Pardy testimony (May 24, 2005), pp. 3322–3325 and [P] (May 26, 2005), pp. 3969–3972.
[P] Girvan testimony (May 11, 2005), pp. 1836–1838 and [P] (May 12, 2005), pp. 2250 and
2253–2254.
See Section 6.1 below.
Exhibit P-42, Tab 43.
[P] Girvan testimony (May 11, 2005), p. 1854 and [P] (May 12, 2005), pp. 2254–2256 and
2258–2259.
[P] Girvan testimony (May 16, 2005), pp. 2297–2300. Ms. Girvan has no recollection of Mr. Arar
showing her the publication listing al-Qaeda as a foreign terrorist organization nor does she
recall seeing the publication regarding free legal services. Ibid., pp. 2293–2297.
Exhibit P-42, Tab 31. Ms. Girvan was not clear who Mr. Arar was referring to when he said
“police.” She thought he might have been referring to the immigration police. [P] Girvan testimony (May 12, 2005), pp. 2214–2215.
[P] Girvan testimony (May 11, 2005), p. 1847.
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Exhibit P-42, Tab 31.
Ibid. Ms. Girvan was not clear whether the officers who told Mr. Arar that he would be put
back on the plane if he answered their questions were from the police or the FBI. Ms. Girvan
felt that, at various times, Mr. Arar seemed unclear as to who was talking to him. [P] Girvan
testimony (May 12, 2005), pp. 2214–2215.
Exhibit P-42, Tab 31.
Ibid.
Ibid.
Ibid.
[P] Girvan testimony (May 11, 2005), pp. 1849–1852.
Ibid., pp. 1885–1886 and [P] (May 12, 2005), pp. 2099–2101. Expedited removals are discussed
in greater detail in Section 6.2 below.
[P] Girvan testimony (May 11, 2005), pp. 1782–1784 and 1886 and [P] (May 12, 2005),
pp. 2101–2102.
[P] Girvan testimony (May 11, 2005), pp. 1862–1863. During her testimony, Ms. Girvan stated
that if she was alerted to the fact that a Canadian dual national was being held at the airport,
and the American authorities were considering sending him or her to a country other than
Canada (i.e. Tunis or Syria in this case), she would assume that something was going to take
place. As such, she would try to speak to the immigration authorities at the airport and arrange
for the person to be sent to Canada, under the standard stipulation that the detainee or his or
her family cover the difference in the airfare. Ms. Girvan was frank that she did not have the
right to insist that her request be carried out, but she would try to negotiate with the authorities. Once the person was transported from the airport, however, she would assume that the
American authorities had decided not to send the person back. [P] Girvan testimony (May 12,
2005), pp. 2217–2219.
[P] Girvan testimony (May 11, 2005), p. 1862.
[P] Girvan testimony (May 12, 2005), pp. 2210–2212.
Ibid., pp. 2221–2222. In November 2003, after Mr. Arar’s return to Canada, questions were
raised within DFAIT concerning how the threat of Mr. Arar’s removal to Syria was handled by
consular officials in New York. The various explanations in defence of the actions of consular
officials in not treating the threat as a real possibility included: 1) they were told it was not a
removal case; 2) the ninth floor of the MDC was not known to hold deportation cases; 3) he
was questioned by the FBI at the airport and held at a federal maximum security prison, with
the clear implication that he was being investigated for supposed terrorist connections (the accusation of being a member of al-Qaeda was on his charge sheet); 4) he was being held in
the same prison where other suspected terrorists had been held for months; 5) permission for
the lawyer to visit strengthened this interpretation, because in normal cases of inadmissibility
detainees were not permitted to see a lawyer and were removed from the country within a
few days (depending on flight availability), under the procedure known as “expedited removal;” 6) the threat regarding Syria was made to Mr. Arar at the airport and it was not repeated once he was at the MDC; 7) the Consulate General had never seen a case where a
Canadian citizen was sent on an “expedited removal” to his or her country of origin — they
were usually sent to the last point of departure or there was a negotiation by the Consulate
General to send them to Canada; and 8) American authorities never raised the possibility of
removing Mr. Arar to Syria with the Consulate General in New York or the Canadian Embassy
in Washington. See Exhibit P-42, Tabs 687, 703 and 705.
[P] Girvan testimony (May 16, 2005), pp. 2274–2279.
[P] Pardy testimony (May 26, 2005), pp. 3965–3968.
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Exhibit P-87, Government of Canada Travel Bulletins [September 10, 2002 and September 17,
2002].
[P] Pardy testimony (May 24, 2005), pp. 3361–3362.
[P] Girvan testimony (May 12, 2005), p. 2228; [P] Collins testimony (May 19, 2005), p. 3223;
[P] Pardy testimony (May 26, 2005), p. 3968.
Ms. Girvan had three years of experience working as a case management officer for the Middle
East region at DFAIT Headquarters. She had also lived in Damascus, Syria for approximately
three years prior to her employment with DFAIT. Nevertheless, Ms. Girvan’s knowledge in regards to the Middle East was general in nature. She testified that it was not part of her mandate as the case management officer to be familiar with the human rights records of the
different countries in that region. However, she would know how to reach experts if she required detailed information. [P] Girvan testimony (May 12, 2005), pp. 2108–2214 and [P] (May
16, 2005), pp. 2263–2264).
Ms. Girvan was not certain whether Mr. Arar had been referring to his older brother or
Abdullah’s older brother. [P] Girvan testimony (May 16, 2005), pp. 2326–2327.
Exhibit P-42, Tab 32.
Ibid. Later that day, Ms. Girvan spoke to a member of Mr. Arar’s family about his concerns regarding his father’s name being used and someone possibly having gone through his effects
in Canada. When she asked if anyone had gone through Mr. Arar’s effects, they assured her
that was not the case. Ms. Girvan did not consider this to be a big issue at the time and did
not dwell on it. [P] Girvan testimony (May 11, 2005), p. 1857 and [P] (May 16, 2005),
pp. 2322–2323.
When it was pointed out to Ms. Girvan that, in addition to his concerns about his father’s
name being used, Mr. Arar had told her that the questions he was asked during his interrogation were extremely personal, Ms. Girvan replied that she thought “personal” meant the
questions were rude. [P] Girvan testimony (May 16, 2005), pp. 2323–2324.
Exhibit P-42, Tab 32.
Ibid., Tab 34. Ms. Girvan testified that in her experience there have been issues around timely
notification concerning Canadian detainees being held on the ninth floor of the MDC. Indeed,
Ms. Girvan agreed that she has never been notified by the MDC or by any other United States
government agency about persons being held on the ninth floor. In the cases of Mr. Baloch
and Mr. Jaffri, Canadian officials were notified through third parties a few months after their
detention. Exhibits P-52 and P-53; [P] Girvan testimony (May 12, 2005), pp. 2123–2125.
Mr. Pardy, on the other hand, suggested that considering the weakness around the consular
notification provisions under Article 36(1) of the VCCR, he did not consider the lack of notice
within four days to be a violation of the VCCR. [P] Pardy testimony (May 24, 2005),
pp. 3329–3330.
[P] Girvan testimony (May 11, 2005), p. 1866; See also note 303 above for a summary of the
applicable obligations under the VCCR.
Exhibit P-42, Tab 27; [P] Girvan testimony (May 11, 2005), pp. 1827–1828. These were based
on her handwritten notes of the meeting. It appears that Ms. Girvan followed the usual protocol of destroying her handwritten notes after they were entered into the CAMANT system.
[P] Girvan testimony (May 11, 2005), pp. 1753–1754 and [P] (May 16, 2005), pp. 2306–2308 and
2311–2320.
Mr. Pardy was instrumental in implementing the CAMANT note system. He never gave consular officials directions about keeping personal notes; this was left to the discretion of the individual. That said, the destruction of personal notes was normal and most people followed
the practice applied by Ms. Girvan. [P] Pardy testimony (May 26, 2005), pp. 3831–3832.
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[P] Girvan testimony (May 11, 2005), pp. 1858–1859, [P] (May 12, 2005), pp. 2046–2047,
2048–2050, 2022–2029, 2038–2043 and 2055, and [P] (May 16, 2005), pp. 2342–2343.
Exhibit P-42, Tab 808.
[P] Girvan testimony (May 12, 2005), pp. 2047–2048 and 2051. As an example, Ms. Girvan
pointed out that it was normal for detainees to ask about spouses and children but that this
was something she did not write in her original report concerning Mr. Arar. She was now including such information to add more colour to the description. [P] Girvan testimony (May 12,
2005), p. 2049.
Ibid., pp. 2053–2054. When it was suggested that information about Mr. Arar’s residence was
more than contextual information, Ms. Girvan replied that her concern was whether the individual was a Canadian national. It did not matter where the Canadian national lived. During
a consular visit, the primary question that would be raised by consular officials was whether
the person was a Canadian citizen. If the person was a dual national, consular officials would
be interested in knowing if he or she was travelling on a Canadian passport. Regardless, he
or she would still receive the same treatment because “a Canadian is a Canadian.” Thus,
Mr. Arar’s residence was not something she was focusing on at the time. [P] Girvan testimony
(May 16, 2005), pp. 2343–2345.
Ms. Girvan’s comments were supported by Mr. Pardy. He recalled that during the period of
Mr. Arar’s detention, Ms. Girvan had shared portions of the information she had learned from
Mr. Arar concerning his current circumstances. However, it was not seen to be significant at
the time. Mr. Pardy emphasized that the residence of a Canadian citizen was of no consequence in terms of Canadian officials’ provision of consular services. [P] Pardy testimony
(May 26, 2005), pp. 3835–3838.
Exhibit P-42, Tab 34.
[P] Girvan testimony (May 11, 2005), pp. 1864–1866.
[P] Collins testimony (May 19, 2005), pp. 3069–3070.
[P] Pardy testimony (May 24, 2005), p. 3321. Although a diplomatic note was never sent,
Mr. Pardy noted that high-level discussions took place and complaints were registered with
the American authorities as to what happened to Mr. Arar. [P] Pardy testimony (May 24, 2005),
p. 3321.
Exhibit P-42, Tab 22. The friend also provided Ms. Girvan with background information on
Mr. Arar’s education, employment and children.
Ibid., Tab 26.
Exhibit P-59.
Exhibit P-42, Tab 27.
Ibid., Tab 29; [P] Girvan testimony (May 11, 2005), p. 1832. Mr. Arar’s brother was also concerned about keeping the family abreast of the latest news. He asked Ms. Collins if Mr. Arar
had provided authorization for information to be released to him. This message was relayed
to Ms. Girvan. When Ms. Girvan placed a follow-up call with the brother, she was unable to
reach him but decided to leave a message. In her message, she told him that Mr. Arar had
given verbal approval for his case to be discussed with anyone who could help him, including his brother, mother-in-law, wife and The MathWorks, Inc. Exhibit P-42, Tabs 29 and 30.
Mr. Arar’s brother finally returned Ms. Girvan’s call at the end of the day. She provided him
with a summary of the day’s events and suggested that he speak to the family friend or
Dr. Mazigh for more details. Exhibit P-42, Tab 36; [P] Girvan testimony (May 11, 2005),
pp. 1872–1873.
Exhibit P-42, Tab 30.
Ibid.; [P] Girvan testimony (May 11, 2005), pp. 1833–1835. Apart from the cases of Mr. Baloch
and Mr. Jaffri, Ms. Girvan had no other dealings with the CCR with regard to detained
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Canadians. Ms. Girvan agreed that the CCR was responding to the post-9/11 arrests and detention of suspected terrorists. [P] Girvan testimony (May 11, 2005), pp. 1835–1836.
It is not clear how the family friend heard about the CCR.
Exhibit P-42, Tab 33. A lawyer for the CCR called the Consulate General and left a message
for Ms. Girvan. She was not sure how the CCR heard about Mr. Arar’s case. [P] Girvan testimony (May 11, 2005), p. 1875)
[P] Girvan testimony (May 11, 2005), pp. 1859–1860.
Exhibit P-42, Tab 33.
Ibid., Tab 35; [P] Girvan testimony (May 11, 2005), pp. 1866–1867 and 1870–1871. In
November 2003, Ms. Girvan sent an e-mail to DFAIT Headquarters providing further commentary regarding Ms. Oummih’s efforts to arrange a visit. These additional comments were
reconstructed from memory. Ms. Girvan wrote that when Ms. Oummih contacted the MDC, she
was told to send a faxed request to visit Mr. Arar. A visit was eventually approved for Saturday,
October 5, 2002. Ms. Girvan recalled thinking that lawyers were not usually allowed in deportation cases. She also recalled thinking that the involvement of the FBI suggested that the
Americans were proceeding with an investigation based on a suspicion of terrorism. Exhibit
P-42, Tab 671; [P] Girvan testimony (May 11, 2005), pp. 1869–1870.
Exhibit P-42, Tabs 37 and 162.
Ibid., Tab 38; [P] Girvan testimony (May 11, 2005), pp. 1875–1877.
Exhibit P-42, Tab 39; [P] Girvan testimony (May 11, 2005), pp. 1878–1879.
Exhibit P-42, Tab 40.
[P] Girvan testimony (May 11, 2005), p. 1879.
Exhibit P-42, Tab 44.
[P] Girvan testimony (May 11, 2005), p. 1880.
Exhibit P-42, Tab 41; [P] Girvan testimony (May 11, 2005), pp. 1893–1896.
Ibid., Tab 44; Ibid., pp. 1881–1882.
[P] Girvan testimony (May 11, 2005), pp. 1882–1885. The CAMANT note in which this INS
meeting was discussed had the following handwritten note: “such interviews are usually –
pre-sentence reports prepared before court hearing.” [Italics added.] The CAMANT note was
dated October 7, 2002, but the handwritten note was made by Ms. Girvan some time after the
fact, most likely in November 2003 when DFAIT Headquarters was preparing an Arar chronology. Exhibit P-42, Tab 44; [P] Girvan testimony (May 11, 2005), pp. 1888–1889 and [P] (May
12, 2005), pp. 2197–2198.
Ms. Girvan acknowledged that “pre-sentence report” was a misnomer. By making this notation, she was trying to communicate that she was aware the INS frequently interviews persons
in detention. She thought the INS meeting was tied into this process. [P] Girvan testimony
(May 11, 2005), pp. 1889–1890.
Despite Ms. Girvan’s choice of words connoting an adjudicative process, at no time was she
thinking that an adjudicative process was about to take place. Ms. Oummih had told her that
there would be an interview, but she hadn’t said it was an adjudicative process, nor had she
attached specific meaning to the interview. Ms. Girvan took the lawyer’s advice since it was
the lawyer who had been contacted by the INS District Director. [P] Girvan testimony (May 12,
2005), pp. 2199–2200.
Exhibit P-42, Tab 44; [P] Girvan testimony (May 11, 2005), pp. 1886–1887.
[P] Girvan testimony (May 11, 2005), pp. 1888 and [P] (May 12, 2005), pp. 2241–2242. The duties of consular officials extend to assisting detainees and their families with the names of
lawyers who could assist them. Consular officials are not responsible for ensuring a lawyer is
retained, paying for a lawyer or supervising the lawyer’s work. [P] Girvan testimony (May 16,
2005), pp. 2394.
�DETENTION IN THE UNITED STATES
390
391
392
393
394
395
396
397
398
399
400
401
402
403
404
405
406
407
408
409
410
411
412
413
414
Exhibit P-42, Tab 46.
Ibid., Tabs 42 and 44; [P] Girvan testimony (May 11, 2005), pp. 1896–1898, [P] (May 12, 2005),
pp. 2242–2247 and [P] (May 16, 2005), pp. 2395–2396.
Exhibit P-42, Tab 42; [P] Girvan testimony (May 11, 2005), pp. 1896–1900.
Exhibit P-42, Tab 149; [P] Girvan testimony (May 11, 2005), pp. 1927–1930. While Ms. Girvan’s
record of Mr. Watt’s recollection of his conversation with Ms. Oummih refers to a “hearing”,
this Inquiry believes that it was an interview rather than a hearing that was held on October 7.
Exhibit P-42, Tab 45.
[P] Girvan testimony (May 11, 2005), pp. 1901–1904.
Ibid., pp. 1921–1922.
Ibid., p. 1904.
Exhibit P-42, Tab 46.
Ibid.; [P] Girvan testimony (May 11, 2005), pp. 1909–1911.
Exhibit P-42, Tab 47.
[P] Girvan testimony (May 11, 2005), p. 1912.
Exhibit P-42, Tab 47.
Ibid., Tab 48; [P] Girvan testimony (May 11, 2005), pp. 1913–1916.
Exhibit P-42, Tab 49; [P] Girvan testimony (May 11, 2005), p. 1918.
Exhibit P-42, Tab 52; [P] Girvan testimony (May 11, 2005), pp. 1919–1920.
Exhibit P-42, Tab 52.
Ibid. A CAMANT note dated October 29, 2002, documented a conversation Ms. Girvan had
with Steven Watt of the CCR, who had spoken to Ms. Oummih. According to the note,
Ms. Girvan received an early morning call from Dr. Mazigh on Tuesday, October 8, 2002, to
say that Mr. Arar had not called her. When Ms. Girvan contacted the MDC, she was told that
Mr. Arar had been removed. She contacted Ms. Oummih, who told her that she was no longer
representing Mr. Arar because the family had not kept its promise to get a cheque to her on
the Monday. Ms. Oummih was told on the Tuesday that there had been a mistake and the
cheque should have been sent on the Monday. Lawyers with the CCR were trying to reach
Ms. Oummih again to confirm these details. Exhibit P-42, Tab 149.
Ms. Girvan testified that she was not entirely clear on her conversation with Mr. Watt, but she
did recall speaking to Ms. Oummih on Wednesday, October 9 in her efforts to locate Mr. Arar.
It was possible that during this conversation, Ms. Oummih told her she was no longer representing Mr. Arar, but she was not entirely certain. During the search for Mr. Arar, issues related to Ms. Oummih’s retainer were less important to her than locating him. [P] Girvan
testimony (May 11, 2005), pp. 1967–1969 and [P] (May 16, 2005), pp. 2282–2291.
Exhibit P-42, Tab 703; [P] Girvan testimony (May 12, 2005), pp. 2104–2106.
Ms. Girvan testified that once a lawyer is involved in a consular case, consular officials take a
step back and essentially provide assistance to the lawyer, where appropriate. For instance,
the lawyer may approach DFAIT to get the Canadian government’s help in writing a letter or
attending a court hearing to assist the client. [P] Girvan testimony (May 12, 2005),
pp. 2106–2107.
Exhibit P-42, Tab 53; [P] Girvan testimony (May 11, 2005), pp. 1931–1932.
Ibid.; Ibid., pp. 1931–1932.
Exhibit P-42, Tab 55.
Ibid., Tab 675; [P] Girvan testimony (May 11, 2005), pp. 1937–1942; [P] Collins testimony
(May 19, 2005), pp. 3091–3093.
Exhibit P-42, Tab 56; [P] Girvan testimony (May 11, 2005), pp. 1942–1943.
Exhibit P-52, Tab 57; [P] Girvan testimony (May 11, 2005), pp. 1943–1944.
225
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FACTUAL BACKGROUND: VOLUME I
415
416
417
418
419
420
421
422
423
424
425
426
427
428
429
430
431
432
433
434
435
436
437
438
[P] Girvan testimony (May 11, 2005), pp. 1948–1949. Ms. Girvan testified that she recalled
using the words “working assumption” when speaking with the counsel, but could not recall
his reply. Ibid., pp. 1949–1952.
Ibid., pp. 1944–1945.
Exhibit P-42, Tab 57.
C4 is DFAIT’s classified communications system. It allows DFAIT employees to exchange secure messages worldwide. [P] Livermore testimony (May 17, 2005), p. 2429.
DFAIT, Tab 57; Exhibit P-42, Tab 57. This likely was not the first time Mr. Solomon had heard
of Mr. Arar’s removal. He testified that on or around October 9, 2002, there had been suggestions that Mr. Arar was no longer at the MDC and was not coming to Canada. Based on
Inspector Roy’s notes and his own recollection of events, Mr. Solomon believed that he had
probably learned about Mr. Arar’s removal on October 9, in a conversation with Inspector
Richard Roy, the RCMP liaison officer stationed at DFAIT Headquarters. Mr. Solomon had then
contacted Ms. Harris to see if consular officials could shed some light on the situation.
Mr. Solomon was not sure if the information he had shared with Ms. Harris had been passed
on to other officials in Consular Affairs. This would be a significant point because as of October
9, Canadian consular officials in the United States were still not aware that Mr. Arar had been
removed from the country. [IC] Solomon testimony (April 4, 2005), pp. 13975–13978,
13980–13981, 14128–14129 and 14132–14140.
[IC] Collins testimony (August 3, 2005), pp. 16657–16658 and 16662–16670. As noted above,
Hélène Bouchard was a consular official from the Canadian Embassy in Washington
Ibid., pp. 16668–16672.
Ibid., p. 16674. DFAIT officials have protected the identity of the American official who provided assistance to Ms. Collins and Ms. Bouchard. There are no documents that record the details of the conversation between these three individuals other than a DFAIT chronology
prepared in November 2003 that refers to Consular Affairs being informed by the INS that
Mr. Arar had been removed from the United States to Syria due to an immigration infraction
and that Mr. Arar might be in Jordan. (See Exhibit P-42, Tab 709, p. 5.)
Exhibit P-42, Tab 59; [P] Pardy testimony (May 24, 2005), pp. 3339–3340 and 3342–3344.
[P] Pardy testimony (May 24, 2005), pp. 3344 and 3354.
Exhibit P-20, Removal Order p. 2 [typed].
Ibid., p. 1 [typed].
Ibid., p. 3 [typed].
Ibid. For an explanation of TECS, see Chapter I, Section 3.5.2. The INS’ NAILS system is used
by inspectors at ports of entry to check incoming travellers. It is also used by INS officers to
make entries into TECS.
Ibid.
Ibid., pp. 3–4 [typed].
Ibid., p. 4 [typed].
Ibid.
Ibid., pp. 4-5
Ibid., p. 6 [typed].
[IC] Cabana testimony (November 2, 2004), p. 3729; [IC] Callaghan testimony (November 9,
2004), p. 4502.
Exhibit P-20, p.6 [typed].
Ibid.
Stephen Yale-Loehr is an adjunct professor of immigration and refugee law at Cornell Law
School and is an attorney of counsel at True, Walsh & Miller in Ithaca, New York. He is co-
�DETENTION IN THE UNITED STATES
439
440
441
442
443
444
445
446
447
448
author of the 20-volume Immigration Law and Procedure, the leading immigration law treatise in the United States.
See generally Exhibit P-120, Tab 4 [Yale-Loehr submission]; [P] Yale-Loehr testimony (June 7,
2005), pp. 5617–5618.
Exhibit P-120, Tab 4; [P] Yale-Loehr testimony (June 7, 2005), pp. 5618–5619.
Ibid.; Ibid., p. 5619.
Ibid.; Ibid., pp. 5619–5620.
Exhibit P-120, Tab 4, p. 6.
Exhibit P-120, Tab 4; [P] Yale-Loehr testimony (June 7, 2005), pp. 5620–5621.
Ibid.; Ibid., p. 5622.
Ibid.; Ibid. Mr. Yale-Loehr testified that there is no hearing per se where the Attorney General
gathers all of the information that will be used in coming to his decision concerning America’s
obligations under CAT. He believes it would be reasonable for the Attorney General to take
into account the human rights record of the particular country and credible threats or fears expressed by the applicant as to why he or she would be concerned about being tortured if returned. [P] Yale-Loehr testimony (June 7, 2005), p. 5624.
[P] Yale-Loehr testimony (June 7, 2005), pp. 5620–5621 and 5622.
Ibid., p. 5817.
227
��III
Imprisonment and Mistreatment
in Syria
1.
LOCATING MR. ARAR
Immediately after Mr. Arar’s removal from New York on October 8, DFAIT consular officials considered the possibility that he had been sent to Syria. However,
it was not until October 21, after considerable efforts by DFAIT officials and
Minister Graham, that Ambassador Pillarella received confirmation that Mr. Arar
was indeed in Syrian custody.
1.1
EFFORTS BY EMBASSIES AND AMBASSADORS
As discussed in the previous chapter, on October 10, Helen Harris of DFAIT’s
Consular Affairs Bureau asked Léo Martel, the consul at the Canadian Embassy
in Damascus, to inquire about Mr. Arar’s whereabouts and well-being.1 She also
asked the Embassy’s immigration control officer to use his contacts and gather
any information he could.2 On October 14, the first business day after being
contacted by Ms. Harris, Mr. Martel sent a diplomatic note to the Syrian Foreign
Ministry requesting its assistance in locating Mr. Arar.3 The Damascus embassy
never received a response to this request. In fact, according to Ambassador
Pillarella, the Embassy never received any official acknowledgment from the
Syrian Foreign Ministry that Mr. Arar was in the country, even after the Canadians
had consular access to him.4
Ms. Harris also arranged for Dan Livermore, the Director General of
DFAIT’s Security and Intelligence Bureau (ISD), to request that Ambassador
Pillarella use his resources to determine Mr. Arar’s location, status and condition.5
Importantly, this message to the Ambassador noted that “[t]here are concerns that
Arar may be aggressively questioned by Syrian security services.”6 The message
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FACTUAL BACKGROUND: VOLUME I
was marked “For HOM [head of mission] Only” to ensure that Ambassador
Pillarella dealt with the matter in an expeditious manner, tapping into sources
that only he could access.7 On October 11, the Ambassador raised the matter
with Syrian Deputy Foreign Minister Haddad, and was advised that he would get
back to him on whether Mr. Arar was in Syria.8
Ms. Harris also asked the Canadian ambassador to Jordan, Rod Bell, to
make inquiries about Mr. Arar,9 as Mr. Pardy had received information that
Mr. Arar had been “dumped” in Jordan.10 On or about October 12, Ambassador
Bell caused inquiries to be made of the Jordanian government and was advised
that there was no indication of Mr. Arar entering Jordan.11
DFAIT officials had asked Ambassador Pillarella to locate Mr. Arar because he
had a personal relationship with the head of the Syrian Military Intelligence
(SMI), General Khalil.12
On October 17, Ambassador Pillarella again made inquiries about Mr. Arar
to Deputy Foreign Minister Haddad,13 and scheduled a meeting with Mr. Haddad
for October 20.14 Also on October 17, DFAIT Assistant Deputy Minister John
McNee raised the matter with Syria’s Ambassador Arnous in Ottawa.15
On October 19, Mr. Pardy spoke to Ambassador Pillarella about his upcoming meeting with Mr. Haddad.16 Mr. Pardy asked him to raise both the Arar
and Almalki cases, and to advise Mr. Haddad that Mr. Arar was not the subject
of a police investigation in Canada and could return at any time. 17 Mr. Pardy
explained that DFAIT had also been making inquiries about Mr. Almalki,
who was then in Syrian custody, but the department had not yet received any
response.18
Ambassador Pillarella met with Deputy Foreign Minister Haddad on October
20 to request confirmation of Mr. Arar’s whereabouts.19 A former general and a
past member of the Syrian security services, Deputy Foreign Minister Haddad
was an essential conduit to the country’s security community.20 Ambassador
Pillarella briefed him on the Arar case, emphasizing that Mr. Arar was not the
subject of a police inquiry in Canada, and discussed dual citizenship and bilateral relations in the context of Mr. Arar.21 Deputy Foreign Minister Haddad stated
he was “99% certain” that Mr. Arar was not in Syria, and agreed to confirm this
by the next day, October 21.22 Ambassador Pillarella also raised Mr. Almalki’s
case, explaining that there had been no official confirmation of his presence in
Syria; the Deputy Foreign Minister agreed to look into his case by October 21,
as well.23
Ambassador Bell contacted Mr. Pardy on October 21 with news of Mr. Arar.
According to Jordanian Foreign Minister Shaher Bak, Mr. Arar had been in
�IMPRISONMENT AND MISTREATMENT IN SYRIA
Jordan, but only “in transit” to Syria.24 Minister Bak had agreed to find out the
date of Mr. Arar’s transit, and whether or not he had been accompanied.25
As promised, Deputy Foreign Minister Haddad contacted Ambassador
Pillarella on October 21 and advised him that Mr. Arar was, in fact, in Syria, having just arrived from Jordan earlier that day.26 The Ambassador requested consular access to Mr. Arar, but Deputy Foreign Minister Haddad was unable to
grant it as Mr. Arar was not in his custody.27 He arranged for the Ambassador to
meet with General Khalil the following day.28
Ambassador Pillarella informed Mr. Pardy that Mr. Arar was in Syria shortly
before four o’clock in the afternoon Ottawa time. The Ambassador also said he
had requested consular access and was awaiting a response.29 This news was
passed to officials in DFAIT, the RCMP and CSIS.
In a message to the Ambassador sent on October 21, Mr. Pardy outlined the
representations he should make to the Syrians.30 Included was a statement that
the “government of Canada would appreciate if the government of Syria could
permit the return of Mr. Arar to Canada, a country that he can return to at any
time.”31 Mr. Pardy also included background materials, and a briefing memorandum prepared for Minister Graham.32
That same day, Inspector Cabana spoke to James Gould of DFAIT ISI and
offered to share information about Mr. Arar and Mr. Almalki with the Syrians.
This offer was not pursued, however, and it appears that it went no further
within DFAIT.33 It is not referred to in Mr. Pardy’s written instructions to the
Ambassador, nor in the background materials he provided.
On the morning of October 22, Ambassador Pillarella received a call from
Deputy Foreign Minister Haddad indicating that General Khalil would see him
shortly. Moreover, the General would be in a position to determine what would
happen next regarding Mr. Arar.34 The details of the Ambassador’s meeting with
General Khalil are discussed below in Section 3.2.
1.2
THE MINISTER’S EFFORTS
Minister Graham began receiving questions regarding Mr. Arar about October 11
or 12.35 While DFAIT was still trying to locate Mr. Arar, Minister Graham met U.S.
Ambassador Paul Cellucci for lunch on October 15 to discuss consular issues, including Mr. Arar’s case. A briefing note prepared for the Minister’s meeting included a protest against the procedures used to remove Mr. Arar from the United
States, the absence of prior consultation on the matter, and the lack of complete and timely information on Mr. Arar’s whereabouts. The briefing note also
231
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FACTUAL BACKGROUND: VOLUME I
advised the Minister to request detailed information on Mr. Arar on an urgent
basis.36
Responding to the Minister’s protests, Ambassador Celluci stated that the
Americans were entitled to do what they did. He further advised Minister
Graham that there was evidence Mr. Arar had contacts with people that made
him a danger to the United States.37 According to the Ambassador, Mr. Arar’s
dual citizenship gave the Americans the right to deport him elsewhere.38 Minister
Graham requested the Ambassador’s help in determining what had happened
to Mr. Arar.39 Ambassador Cellucci told the Minister that some of the information that put Mr. Arar on an American watch list came from Canadian sources,
although it was not clear what information or from where.40
In an interview by a Canadian journalist on October 16, Ambassador
Cellucci was quoted as saying “I think that the U.S. INS authorities acted properly in deporting Mr. Arar to Syria. You should talk to your local people who
may know the reasons.”41 According to Minister Graham, Ambassador Cellucci’s
public position was inconsistent with what he had said in private to Minister
Graham. Subsequent to this, Ambassador Cellucci took that position publicly
several times.42
On October 18, while in Halifax for a conference, Minister Graham raised
the matter of Mr. Arar with Ambassador Arnous, requesting the co-operation of
Syrian authorities in locating him.43 In a letter to Dr. Mazigh on October 19,
Mr. Pardy reported on Minister Graham’s meeting as follows: “The Ambassador
responded that it was his information that Mr. Arar was not in Syria but did
promise to check further with his authorities in Damascus.”44 The letter further
noted that the Ambassador had mentioned Mr. Arar “had been in touch with the
Syrian embassy earlier this year with respect to travelling to Syria and expressing concern about any military service obligations.” He was advised that “there
were no obligations” and he “was free to return to Syria at any time.”45
1.3
DFAIT’S REQUEST FOR INFORMATION FROM THE RCMP
As a result of Minister Graham’s October 15 discussion with Ambassador
Cellucci, Mr. Pardy called an interdepartmental meeting with the RCMP and
CSIS the next day to discuss Mr. Arar’s case.46 His purpose was to “talk to other
officials in the Canadian government about what was going on”47 so that DFAIT
could prepare a detailed memorandum on the issue for Minister Graham.48
At the October 16 meeting, representatives of the RCMP and CSIS advised
DFAIT officials of the extent of their knowledge about Mr. Arar.
�IMPRISONMENT AND MISTREATMENT IN SYRIA
[***].49 For its part, the RCMP reported “they have an interest in Mr. Arar but
he is not the primary focus in any of their investigations,” “[r]ather, it was
Mr. Arar’s association with Mr. al-Maati [sic] and Mr. Abdullah al-Malki [sic] that
brought him to their attention.”50 The RCMP representative was not prepared to
speculate about what information had been provided to the Americans on
Mr. Arar.51
Mr. Pardy gave the RCMP official a list of very specific questions about
Mr. Arar.52 In response, the RCMP’s October 18 memorandum included the following statements:53 “U.S. authorities were advised that the RCMP was interested
in Arar from a criminal perspective,” “where Arar is a Canadian citizen, the RCMP
could not refuse his entry into Canada” and the “RCMP maintains an interest in
Arar as part of an [on]going criminal investigation.”54 Importantly, in response to
the question “What was the level of threat relating to Arar’s presence in the
U.S.?” the memorandum stated that “[t]he RCMP has no information concerning
any threat associated with/by Arar.”55
To Mr. Pardy’s mind, the RCMP’s message that Mr. Arar was not considered
to be a threat was clear and unequivocal.56 This would prove to be significant,
as it influenced the actions Mr. Pardy took during Mr. Arar’s detention in Syria.
Relying on information he received from the RCMP and CSIS, and on DFAIT’s
assessment of that information, Mr. Pardy drafted a public backgrounder on
October 20 that stated:
We have learned that the American authorities informed Mr. Arar that he was
considered to be a member of Al Qaeda [sic] and therefore, was ineligible for
entry into the United States. The Canadian authorities do not have any
information
which
would
support
the
conclusion
of
the
American
authorities.57
On October 21, Mr. Pardy drafted questions and answers for the press. One
of the questions was: “There have been allegations, including those used by the
United States in ordering his departure, that Mr. Arar is a member of Al Qaeda
[sic]. Are these allegations accurate?” In response, Mr. Pardy wrote that DFAIT
was “not aware of information to support the allegation that Mr. Arar is a member of Al Qaeda [sic]” and “[w]e have also been assured that other parts of the
government of Canada does not have information to support such allegations
either.”58
Mr. Pardy provided Minister Graham with a briefing memorandum on
October 21. In it he outlined the RCMP’s October 18 memorandum about its involvement in the matter.59 The briefing memorandum also explained that “[i]n
233
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FACTUAL BACKGROUND: VOLUME I
our earlier discussions with the RCMP they were much less categorical with
respect to their interest in Mr. Arar” and at the October 16 meeting, “the RCMP
reported ‘they have an interest in Mr. Arar but he is not the primary focus in any
of their investigations.’” This was qualified by the fact that the RCMP representative at the meeting was not directly involved in these investigations, and he
was to get back to DFAIT with any additional information.60
In anticipation of Ambassador Pillarella’s scheduled October 22 meeting
with Syrian officials, Mr. Pardy provided the Ambassador with a copy of the
briefing memorandum and the most recent press lines (both of which had been
prepared before DFAIT officially learned that Mr. Arar was in Syrian custody).
However, Mr. Pardy advised Ambassador Pillarella not to use any of this information in his representations to Syrian authorities.61
1.4
BRIEFING OF THE PRIME MINISTER’S OFFICE BY THE PRIVY COUNCIL
OFFICE
On October 18 — the same day the RCMP responded to DFAIT’s questions —
a written briefing was given to the Prime Minister by Ronald Bilodeau, Associate
Secretary to the Cabinet, Deputy Minister to the Deputy Prime Minister, and
Security Intelligence Coordinator. Prepared by Lawrence Dickenson, Assistant
Secretary to the Cabinet for Security and Intelligence in the Privy Council Office’s
(PCO) Security and Intelligence Secretariat, the briefing stated [***] “[i]t was unknown at that time if Mr. Arar was under criminal investigation by the RCMP,
although it is believed that a Canadian associate of Mr. Arar is being investigated by the RCMP for suspected terrorist activities.”62
A few days later, on October 21, Mr. Bilodeau sent Mr. Dickenson a package of documents containing his October 18 memorandum and a document
dated October 863 prepared by PCO’s Foreign and Defence Policy Secretariat.
The following note accompanied the package: “Are we coordinated with Claude.
We gave the PM advice which is a bit different.”64 “Claude” referred to Claude
Laverdure, Foreign Policy Advisor to the Prime Minister and Assistant Secretary
to the Cabinet (Foreign and Defence Policy) in PCO. The October 865 document
stated that “DFAIT has also been assured that other parts of the Canadian government do not have information to support such allegations either [that Mr. Arar
is a member of al Qaeda].”66 According to Mr. Dickenson, Mr. Bilodeau was
not concerned; rather, he wanted assurances that they were providing the Prime
Minister with accurate information. As well, the documents were very different
from each other, the October 18 document being a classified document at secret level, and the other a note for Question Period in the House of Commons.67
�IMPRISONMENT AND MISTREATMENT IN SYRIA
On October 22, Mr. Dickenson forwarded a memorandum to Mr. Bilodeau.
Written by a policy advisor in PCO’s Security and Intelligence Secretariat, the
memorandum explained the differences in the two memoranda that had gone
to the Prime Minister.68 According to the October 22 memorandum, the main reason for the content differences was that the document drafted by PCO’s Foreign
and Defence Policy Secretariat did not include classified information and was
based exclusively on publicly available information. A policy advisor noted that
the Foreign and Defence Policy Secretariat amended its note as of October 22.69
The revised note deleted the statement that DFAIT had assurances from other
government departments that there was no information supporting American
allegations that Mr. Arar was a member of al Qaeda, and that consultation would
occur on all future notes on this matter between PCO’s Security and Intelligence
Secretariat and the Foreign and Defence Policy Secretariat.70
2.
SYRIA’S HUMAN RIGHTS REPUTATION
Before continuing with the narrative of events while Mr. Arar was imprisoned
in Syria, it is important to establish what Canadian officials knew about Syria’s
human rights reputation at the time they were involved with his case. Their
knowledge defined the context in which they made decisions about Mr. Arar
while he was detained in Syria.
2.1
SOURCES OF INFORMATION
2.1.1
U.S. State Department and Amnesty International Reports
The primary public sources for Canadian officials needing information about
Syria’s human rights record during Maher Arar’s detention were the U.S. State
Department Country Reports on Human Rights Practices and Amnesty
International (AI) annual reports. While Canadian officials may also have reviewed other public sources, these two were considered authoritative and reliable. They provided unequivocal evidence of serious human rights abuses by
Syria, notably:
•
•
•
torture of detainees, especially while authorities were attempting to extract
a confession or information;
arbitrary arrest and detention;
prolonged detention without trial;
235
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FACTUAL BACKGROUND: VOLUME I
•
•
unfair trials in the security courts; and
poor prison conditions.
In its 2002 report, AI made specific mention of torture and ill-treatment during incommunicado detention at the Palestine Branch and Military Interrogation
Branch detention centres. Mr. Arar has publicly stated that he was detained in
the Palestine Branch, which makes references in AI’s report to this detention
centre relevant.
A more detailed description of the State Department and Amnesty
International reports is included as Annex 2.
2.1.2
DFAIT’s Assessment
Human rights issues are a central element in Canadian diplomacy. Daniel
Livermore, a former director of DFAIT’s Human Rights Division and former ambassador, testified that in all bilateral relationships, a country’s human rights
record is one of the factors that Canada considers in determining the nature of
the overall relationship.71 To assist in this endeavour, many Canadian missions
produce annual reports evaluating the state of human rights for most countries,
including Syria. These reports, in addition to the testimony heard before the
Inquiry, provide insights into Canadian officials’ knowledge of Syria’s human
rights record before and during Mr. Arar’s detention in Syria.
Background
DFAIT’s annual human rights reports are prepared by the mission under the authority of the head of mission.72 They are drafted by political officers in consultation with the geographic and human rights divisions in Ottawa, and are based
upon research and interviews conducted during the year. The reports use official and public sources of information as well as sensitive sources of information. They focus on the rights of citizens and how they exercise their rights.
Where relevant, the reports are shared with other Canadian departments and
agencies in order to inform government policy development and for other purposes.73 Canadian-based consular officers with the proper security clearance,
and who need to know a country’s human rights situation to carry out their
functions, may access these reports from a database, for example.74 However,
there was no evidence before this Inquiry that officials in either the RCMP or
CSIS received DFAIT’s annual reports on Syria. The RCMP has no record of ever
receiving DFAIT’s human rights reports.75
�IMPRISONMENT AND MISTREATMENT IN SYRIA
In contrast to the U.S. State Department, DFAIT classifies its human rights
reports as “confidential.” In other words, DFAIT’s reports are not intended for
the public, although some of the contents may later be downgraded to the unclassified level for public discussion with the Canadian NGO community.76
Mr. Livermore testified that because Canada and its missions abroad rely on local
goodwill to pursue Canadian interests abroad, publishing a public report accusing a government of atrocities may adversely affect Canadian officials’ ability to obtain co-operation from the same country. For example, there is some
concern about the impact public reports may have on Canadian commercial interests with these countries — as one of a range of issues that might be affected.77 Mr. Livermore explained that the U.S. State Department is able to
publicly publish such criticisms without serious repercussions because of its position on the world stage as “the big boys on the block.”78 Striking the proper
balance of public criticism versus “quiet diplomacy” is a theme that recurs
throughout Mr. Arar’s detention in Syria.
Human Rights Reports on Syria: 2001 and 2002
DFAIT’s Syria: Annual Human Rights Report for 2001 (released February 8,
2002)79 and for 2002 (released January 9, 2003)80 are summarized here because
they were available to DFAIT officials before and during Mr. Arar’s detention in
Syria. The Inquiry also received the reports for 2003 (released December 23,
2003)81 and 2004 (released January 10, 2005);82 however, these were prepared
after Mr. Arar’s release.
Before summarizing the report contents, two observations are in order. First,
Ambassador Franco Pillarella approved both the 2001 and 2002 reports.83
Second, the e-mail distribution lists of the DFAIT human rights reports for 2001
and 2002 did not include anyone in the Consular Affairs Bureau. The reports
were distributed to other Canadian missions, CIC, CIDA, PCO and members in
DFAIT’s Middle East Bureau. The 2002 report was also delivered to DFAIT ISI
and Jonathan Solomon.
DFAIT’s annual human rights reports on Syria include a review of the following: 1) the political situation in Syria; 2) the state of internationally recognized human rights and freedoms, including civil and political rights (i.e.,
physical integrity and security of the person, arbitrary arrest, torture/ill-treatment, rule of law/due process, political/democratic rights and freedoms); economic, social and cultural rights; and freedom from discrimination; and 3)
Canadian representations or interventions with Syria in the area of human rights.
This template mirrors the U.S. State Department human rights reports. In addition, DFAIT’s reports for 2001 and 2002 incorporate the State Department’s
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review of arbitrary arrests and extended periods of detentions without charge;
torture by security services; coerced confessions; incommunicado detentions;
the lack of due process; unfair trials before the Supreme State Security Court; and
the power of security and military services in Syria. While the 2001 DFAIT report quotes the U.S. State Department report verbatim with respect to “credible
evidence of torture” and the use of torture to extract confessions,84 the 2002 report qualifies the use of torture as “allegations” and omits mention of the use of
torture to extract confessions.85 However, the 2002 report does refer to some of
the torture techniques alleged to be used, including sleep deprivation, beatings
and electric shocks.86 Torture techniques were not listed or described in the
2001 report.
The DFAIT reports incorporate Amnesty International’s annual country reports and specifically mention AI’s findings of routine torture and ill-treatment
of prisoners, especially during the initial stage of detention and interrogation in
Tadmur Political Prison. Reference is also made to AI’s reports of secret arrests
in cases involving political or national security offences and prolonged detentions without due process.
Finally, DFAIT’s reports include information not found in either the U.S.
State Department or Amnesty International reports, such as other third-party information (i.e., Human Rights Watch reports and UNHRC reports); first-hand
knowledge or experiences of embassy officials that may corroborate or contradict findings in the other reports; and a Canadian perspective or analysis of the
information.
As noted earlier, the 2002 report was released on January 9, 2003 — approximately three months after Mr. Arar arrived in Syria. Yet there is no mention of Mr. Arar, the circumstances of his removal and detention, or the consular
visits he received. Nor is there mention of the details surrounding Abdullah
Almalki’s detention or of Ahmad El Maati’s allegations of torture while he was
detained in Syria.
2.1.3
CSIS’ Assessment
CSIS’ assessment of Syria’s human rights record in 2002 and 2003 quotes from
the U.S. State Department report relating to the use of torture, particularly when
held at detention centres run by the various security services and while authorities were trying to extract a confession or information about an alleged crime
or alleged accomplices.87
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2.2
CANADIAN OFFICIALS’ KNOWLEDGE
2.2.1
DFAIT Officials
Treatment of the Public Record and Prior Consular Cases in Syria
DFAIT officials from the Consular Affairs Bureau and the Security and
Intelligence Bureau (ISD) had access to the annual reports prepared by the U.S.
State Department, Amnesty International and other human rights organizations,
as well as DFAIT’s confidential annual human rights reports on Syria.88 When
asked what they knew about Syria’s human rights reputation, DFAIT officials
generally testified to having some understanding that it was poor.89 They based
their conclusions on media reports, first hand experience with Syrian officials,
DFAIT human rights reports, U.S. State Department reports, reports from various human rights organizations and other open sources.90
DFAIT officials’ specific knowledge of Syria’s human rights reputation varied. Many testified to having some knowledge that Syrian security authorities
may use torture.91 Minister Graham had no knowledge of specific acts of torture
in Syria or details about prison conditions and interrogation methods, but was
generally aware that Syria’s reputation included repression of internal dissent, especially with respect to the Muslim Brotherhood.92 DFAIT officials were aware
from the public record that Syria may hold prisoners incommunicado for a period of time to extract information before disclosing the individual’s whereabouts.93 Ambassador Pillarella first testified that in 2002 he was not aware of the
Palestine Branch or the reputation of human rights abuses at this detention centre as reported in the Amnesty International report.94 The next day, he testified
that he might have been aware of the Palestine Branch and might have read
about it, but did not recall at that particular point.95
The Ambassador stated that in 2002 and 2003 he had known of the allegations of torture in the U.S. State Department reports, but that “it [was] extremely
difficult to verify.”96 Later, he said that as the ambassador to Syria during those
years, “I did not have any indication that there were serious human rights abuses
committed that I could verify.”97
DFAIT also had knowledge of Syria’s human rights reputation prior to
Mr. Arar’s detention through Abdullah Almalki’s and Ahmad El Maati’s consular
files — Consular Affairs’ first direct dealings with Syrian authorities on such matters.98 On or about August 12, 2002, Mr. El Maati told consular officials in Egypt
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that he had been tortured and forced to give false information in Syria.99 Both
ISI and Consular Affairs officials in Ottawa became aware of Mr. El Maati’s claim
shortly after consular officials in Egypt learned of this information.100 By the time
Mr. Arar arrived in Syria, Ambassador Pillarella and Mr. Martel still did not know
of Mr. El Maati’s claim of torture.101 The Ambassador learned of it much later.102
While he agreed that this was an important piece of information that should
have been brought to his attention, he did not know who should have advised
him of it.103 Similarly, Minister Graham was not immediately informed of
Mr. El Maati’s allegation, although he became aware of it at some point. His
knowledge of other consular cases, including the difficulties in getting consular
access for Mr. El Maati and Mr. Almalki, deepened as his office became more
involved in Mr. Arar’s case.104
In his testimony, Ambassador Pillarella said he did not see how knowing
about Mr. El Maati’s allegation of torture would have helped the Embassy manage Mr. Arar’s case because each case must be treated separately:
[B]ecause Mr. El-Maati [sic] might have been tortured, it doesn’t necessarily follow
that Mr. Arar will have been tortured. If we had had any evidence of it, an inkling
of evidence, maybe, but we did not have it.105
In October 2002, ISI stated in two memoranda that there was a credible
risk of torture in Syria if Canada asked Syria to put questions to a detained
Canadian. As Mr. Livermore testified, “We had had an experience. We had to
characterize the risk as credible at that time.”106 He also advised CSIS on
December 5, 2002, that “DFAIT reporting and public documents provide credible reports that Syrian security services engage in torture.”107
The “Working Assumption”
Because of national security confidentiality, some DFAIT witnesses would neither confirm nor deny publicly whether their belief about Syria’s human rights
reputation was consistent with the U.S. State Department and Amnesty
International reports.108 However, in his evidence Mr. Livermore stated he was
sceptical of an approach that allows for an assumption to be made about a specific situation based on a general report of human rights conditions in a country. Each consular case is treated independently of prior experiences. Two
Canadians detained in the same country might experience different fates. One
Canadian might travel to a country with one of the worst human rights records
in the world and receive fairly good treatment, while another might travel to a
country with one of the best human rights record in the world and receive poor
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treatment.109 For this reason, Mr. Livermore said he would want to see the evidence in each particular case before reaching a conclusion. For example, while
he had heard of Mr. El Maati’s case, he did not have first-hand evidence that torture had occurred.110
Ambassador Pillarella concurred with Mr. Livermore with respect to treatment of the public record in specific consular cases. He testified that to reasonably believe that a Canadian detained in Syria was being tortured, he would
need evidence that this was happening. This was one reason he believed that
obtaining consular access was important — to verify that the detainee is safe.111
However, despite his position on needing evidence before concluding that torture had occurred, the Ambassador admitted that Mr. Arar’s prison conditions
were probably appalling, even though he had no direct or concrete evidence of
conditions, having never inspected prison conditions in Syria.112
It was suggested to Ambassador Pillarella that it was important to consider
patterns of conduct as well as the facts of a particular case. The Ambassador responded that one cannot go from the general to the particular.113 The
Ambassador believed that while “in theory” there was a credible risk of torture
for a Canadian detained in one of the detention centres described in the U.S.
State Department or Amnesty International reports, the propensity for torture
may depend on the type of allegations against an individual. For example, “[i]f
the detainee…was a Canadian that simply happened to be in Syria and had
committed some kind of — I don’t know. I doubt very much that he would
have been subjected to torture.” If, on the other hand, the Canadian was suspected of being a member of the Muslim Brotherhood, torture could happen.114
Ambassador Pillarella testified that the facts in the public record setting out
the predilection of Syrian security forces to torture were always “at the forefront
of [his] preoccupations” in Mr. Arar’s case. He stressed that as a former Director
of Human Rights at DFAIT, he was “absolutely cognizant of what human rights
mean.”115 Before obtaining access to Mr. Arar, he had been concerned about
Mr. Arar being abused or detained in poor conditions.116 However, throughout
Mr. Arar’s detention in Syria, no evidence of mistreatment or torture was observed in consular visits.117 He stated that had he believed Mr. Arar was being
tortured, the Embassy would not have remained silent because their interest
was Mr. Arar’s well-being.118 These latter statements are explored in greater detail below in the sections of the Report describing the consular visits.
In contrast, while Mr. Pardy did not believe that a political prisoner in
Syrian detention would be subjected to torture in every case, his “working assumption” was that torture was taking place, and he would need to be convinced it had not.119 He assumed throughout the relevant period that Mr. Arar
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was held incommunicado and was the victim of ill-treatment or torture in the
early stages of his detention in Syria.120 His understanding was that abusive treatment or torture usually took place early on in the incarceration. Mr. Pardy had
assessed the subsequent months of Mr. Arar’s detention as being very difficult,
but not quite as bad as the early days.121
Mr. Pardy based his assumption on the public record and his experience
with other consular files in the region.122 He was aware of the possibility of torture in Syria before Mr. El Maati’s allegations. While he found Mr. El Maati’s information useful, he said he did not need that example to tell him that the Syrian
government tortured people within its ambit.123
Asked which he found more relevant in assessing the likelihood of torture
in Mr. Arar’s case — the public record or information about Mr. Almalki and
Mr. El Maati — Mr. Pardy responded:
I think it was the public record that was more specific, and the public record I think
displayed a pattern of activity by the government of Syria going over a long number of years, and I think that allows you to form a certain impression of a government. Certainly we saw nothing down to today that gives any suggestion that Syrian
practice in this area is changing. The others [Mr. Almalki and Mr. El Maati] were details that went into your understanding of the practice of that government. These
were, if you like, sign posts along the way but the pattern is clearly evident with
respect to the government of Syria and how it treats prisoners and particularly prisoners who have ‘a political label’ on them.124
Mr. Pardy stated that the issue of torture in Syria had no bearing on his efforts to seek Mr. Arar’s release. He assumed that prison conditions were very difficult and this assumption brought urgency to the work. His goal was to obtain
Mr. Arar’s release as quickly as possible, whether or not he was being tortured.
He was more concerned about public allegations being made about these conditions because he believed publicity would delay Consular Affairs’ actions.125
There is no written document that clearly states Mr. Pardy’s working assumption. However, he testified that he believed that anyone in Ottawa who
deals with such cases would read into the circumstances the possibility of torture or serious abuse.126 Mr. Pardy believed that DFAIT officials were aware of
and shared his working assumption both “horizontally and vertically.”127
Horizontally, DFAIT’s Middle East Division, including Assistant Deputy
Minister John McNee, would have been as familiar as Mr. Pardy with the conditions that might have prevailed in Syria.128 Mr. Pardy reported to Mr. McNee,
who at one time was the Canadian ambassador to Syria.129 He believed that
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Mr. Jonathan Solomon and Mr. Dan Livermore of ISD/ISI would also have been
aware of the working assumption.130
Vertically, Mr. Pardy had daily contact with staff in Minister Graham’s of131
fice, whom he advised verbally of his views on the Arar situation. Minister
Graham discussed matters concerning Mr. Arar with the Deputy Minister and
with his staff.132 Mr. Pardy explained that to avoid the cumbersome coordination process often required in written communications with the Minister’s office, he spoke directly to the people involved on many of these issues.133 He
noted that, over time, he did not preface each conversation with a reminder that
he believed that Mr. Arar had faced especially difficult circumstances in October
2002. As he explained:
You sort of move beyond it because there was a certain comfort factor in those
meetings that we had with Mr. Arar up until — well, I would say February 18133 …I
think maybe we might have reflected that comfort factor in comments that we might
have made upwards and more broadly in the department.134
Minister Graham did not recall whether he had been informed of
Mr. Pardy’s working assumption.135 While he had been aware of concerns
about Mr. Arar’s well-being, he did not recall that concern extending to the idea
that Mr. Arar had been or would be tortured.136 Minister Graham strongly believed that being advised of this information in October 2002 might have “energized” DFAIT’s efforts and increased their sense of urgency. However, he did
not believe it would have changed the results and was uncertain about whether
he could have moved the Syrians any more quickly.137
Training of DFAIT Officials to Recognize Signs of Torture
DFAIT officials, specifically consular officials, received no training on Syria’s
human rights record or on identifying signs of torture or abuse in a detainee.138
In particular, Mr. Martel was briefed on neither Syria’s human rights situation nor
the conditions in the country’s prisons and detention centres when he arrived
in the country in September 2002.139 Nor did he read the annual DFAIT Country
Report for Syria created in February 2002.140 Mr. Martel stated, however, that he
was well aware of Syria’s human rights reputation — especially related to political detainees — from his own experience in the region and from keeping
abreast of world events.141
Both Ambassador Pillarella and Mr. Martel testified that they were not experts in torture.142 Mr. Martel agreed that modern techniques of physical abuse
do not leave visible signs and that psychological torture can really be identified
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only through a private conversation with a detainee.143 Ambassador Pillarella
testified that he understood that mental torture may be more difficult to discern
than physical torture in the context of a consular meeting, but believed that
mental torture would exhibit outward effects.144
Ambassador Pillarella said that while Mr. Martel might have lacked formal
training on identifying torture, the consul was very experienced and had received valuable training on the job.145 According to Mr. Martel, based on his
“on the job training” — and in the controlled conditions under which he had to
visit a detained dual national — he would try to glean as much information as
possible about the detainee’s treatment through observation: looking at the detainee’s eyes to see if he was drugged, and observing whether he could walk
normally and whether his leg was twitching or his hands bruised.146
In its November 2004 Review of Consular Affairs, the Office of the Inspector
General recommended that Foreign Affairs Canada develop training and procedures to help consular officials identify cases where torture is suspected.147
In 2005, DFAIT began to implement a Consular Services training program on
torture.148
2.2.2
CSIS Officials
Treatment of the Public Record on Syria
CSIS officials confirmed that they had, or likely had, knowledge of Syria’s poor
human rights reputation before and during Mr. Arar’s detention in Syria. This
knowledge included reports that Syrian security agencies used torture to interrogate detainees.149 CSIS officials were familiar with the Amnesty International
and U.S. State Department reports and assessed these documents as credible.150
As mentioned above, these reports were reviewed in assessing a country in addition to CSIS reporting from independent sources.151
CSIS Director Ward Elcock assessed the Amnesty International and U.S.
State Department reports as “credible” insofar as they allow CSIS to assess a
country where it is unable to inspect country or human rights conditions firsthand.152 The reports on Syria indicated to CSIS that intelligence services might
use torture in that country. However, Mr. Elcock testified that without knowing
the evidence on which these reports relied, CSIS could not conclude absolutely
that Syria engages in torture.153 While CSIS might suspect the use of torture, it
will rarely know for sure.154
Jack Hooper, Assistant Director, Operations, acknowledged that the U.S.
State Department human rights report was “more complete and inclusive” than
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a CSIS Country Profile on Syria’s human rights record. Specifically, the CSIS report did not mention the use of torture in Syria. Mr. Hooper questioned
whether, in light of the audience for which the Country Profile was intended,
CSIS needed to provide greater detail in the report. In contrast to the U.S. State
Department reports, CSIS Country Profiles are designed for police and security
officials only, not to inform policy decisions.155
In October 2002, CSIS officials knew that the United States might have sent
Mr. Arar to a country where he could be questioned in a “firm manner.” In a report to his superiors dated October 11, 2002, the CSIS security liaison officer
(SLO) in Washington [***].
[***].156 Mr. Arar’s whereabouts were unknown at the time.
It should also be noted that a few months earlier, CSIS officials had been
advised of credible evidence of torture in Syria. In July 2002, a memo to
Mr. Hooper reported information that was identical to that contained in the State
Department and Amnesty International reports. In particular, the memo reported
that torture was most likely to occur at a detention centre run by one of the security services, especially when information in a confession was being extracted
by the authorities.
During the relevant period, CSIS also became familiar with Syria’s human
rights record through its efforts to deport Hassan Almrei, who was detained pursuant to a security certificate. Mr. Almrei’s deportation was contingent on the
Canadian government demonstrating that he would not be at substantial risk of
torture were he returned to Syria. CSIS had previously obtained assurances from
foreign governments and intelligence services that no harm would befall individuals subject to a security certificate if they were returned to their country of
origin. However, assurances had never been tested with Syria,157 and it was unlikely that Canada would obtain the quality of assurances that would satisfy the
Canadian government and the Federal Court.
CSIS was concerned that the allegations of torture in Mr. Arar’s case might
hinder its ability to deport Mr. Almrei. CSIS believed that any indication at all that
Mr. Arar was being mistreated would make its chances of deporting anyone to
Syria very remote.158
Sharing Information with Syria
The decision to disclose information about an individual to Syria or to act upon
information received from Syria requires balancing the protection of individual
rights and Canada’s national security. For example, if the individual might be part
of a serious and imminent threat to Canada or foreign interests, and the consequences of CSIS doing — or not doing — something could result in the loss of
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lives, these factors may outweigh human rights considerations.159 Mr. Hooper
described this as the “art of our business.”160
While CSIS may be unable to reach an “absolute conclusion” about the use
of torture with respect to a piece of information, it will treat the information differently at the mere suspicion of torture. CSIS would accept information from a
foreign country or foreign intelligence service suspected of using torture — such
as Syria or the SMI — but would view it differently than information from a foreign service known never to use torture.161 The information itself does not cause
harm; it is how the information is used that has the potential to harm.162
Therefore, CSIS acts or relies on information suspected to be a product of torture only if it can be corroborated by independent information.163
Generally speaking, CSIS discloses information to a foreign agency with a
poor human rights reputation only after considering various issues. These issues include how the foreign agency may use the information — especially if it
concerns Canadians — and the threat an affected individual poses to national
security. CSIS also considers the foreign agency’s ability and willingness to respect caveats and protect information from public disclosure.164
2.2.3
RCMP Officials
RCMP Policy and Operations
In contrast to DFAIT and CSIS, the RCMP does not produce human rights assessments of countries. Nor does the RCMP National Security Program receive
annual reports of country conditions prepared by either DFAIT or CSIS.165
However, RCMP policy does contemplate that knowledge of a country’s human
rights record is necessary in carrying out its mandate. Deputy Commissioner
Loeppky testified that dealing with countries with poor human rights records is
an extremely important issue. The RCMP condemns any form of human rights
abuses, which are “contrary to RCMP values.”166 If at any point in a case an investigator has reason to believe that information will be used to infringe on an
individual’s human rights, the investigator should raise these concerns at the
highest levels.167
RCMP policy states that the Force will not become involved or appear to
be involved in any activity that might be considered a violation of an individual’s rights, unless there is a need to comply with certain international conventions relating to terrorist acts. The policy goes on to say that the disclosure of
information to a foreign government agency that does not share Canada’s respect
for democratic or human rights may be considered if it is justified by Canadian
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security or law enforcement interests; can be controlled by specific terms and
conditions; and does not have a negative human rights connotation.168
Knowledge of a country’s human rights record is also relevant to the RCMP’s
mandate when acting on a detainee’s statement from a country with a poor
human rights reputation. Deputy Commissioner Loeppky testified that in such a
case the RCMP would view the statement as presumptively unreliable to act on
or put in the database.169 In later testimony he qualified this response, saying that
the statement would be seen to be of questionable value but would nonetheless be reviewed, and that this review was absolutely required before acting on
the statement.170 An allegation of torture is given serious consideration when
assessing the reliability of the statement, but as one factor among others. The
RCMP would also rely upon the ambassador, DFAIT, the public record (including U.S. State Department reports on human rights) and any corroborating facts
investigators had before they received the statement.171
Evidence exists that the RCMP was aware of Syria’s poor human rights reputation before Mr. Arar’s removal to that country. Information came to Project
A-O Canada and RCMP Headquarters during their investigations of Mr. Almalki
and Mr. El Maati. For example, the RCMP was aware of Mr. El Maati’s August
2002 allegations that he had been tortured in Syria. It also knew that sending the
Syrian authorities questions to ask Mr. Almalki carried the risk of his being tortured; Jonathan Solomon raised these concerns at a meeting on September 10,
2002. The details of the latter incident are discussed below in Section 6.3.
Consultation with DFAIT Officials
If the RCMP wants to share information with a country with a poor human rights
reputation, a consultation process is triggered to ensure compliance with policy.
Deputy Commissioner Loeppky testified that an imminent threat would be
grounds to consider proceeding operationally in the face of any advice that
human rights abuses may occur or a Canadian citizen may be tortured. This approach would depend on the particular facts of the case, the RCMP’s judgment
and further discussions with DFAIT.172
RCMP witnesses testified that they rely on DFAIT for information about a
country’s human rights record if it is deemed relevant to an investigation or an
operational step — for example, sharing information with foreign entities, interviewing detained Canadians abroad or sending questions to be posed to a
Canadian detainee abroad.173 Consultation with DFAIT, and on occasion CSIS,
was deemed necessary when sharing information with a foreign entity in a country with a poor human rights reputation such as Syria.174 The Memorandum of
Understanding between DFAIT and the RCMP,175 as well as Ministerial Directives,
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require the RCMP to consult with DFAIT before embarking on certain acts that
may have an international dimension.176 On national security cases, the RCMP
would consult with DFAIT ISD.177
RCMP Headquarters — CID
According to RCMP witnesses, the RCMP’s Criminal Intelligence Directorate
(CID) at Headquarters should be engaged prior to operational decisions involving a country like Syria. CID should deal with DFAIT on human rights issues because CID has greater experience and expertise on national security files
than front-line RCMP investigators. In addition, CID needs to ensure central
coordination of these files.178 CID may also consult with agencies such as the
Department of Justice and the Solicitor General’s office before making a
decision.179
When asked about Syria’s poor human rights reputation, CID officials testified that they were generally aware that Syria did not have the same system or
standards as Canada, but were not aware that torture might be used during interrogation of detainees.180 Superintendent Wayne Pilgrim testified that he was
never advised of, nor were there discussions about, Syria’s poor human rights
reputation. However, he was aware of Mr. El Maati’s August 2002 allegation of
torture.181
Superintendent Pilgrim testified that he understood that there would be no
contact between field units and foreign agencies without first going through
Headquarters and/or dealing with the liaison officer in the respective country.
However, he gave investigators two options: deal directly with the liaison officer with immediate notification to CID, or come through CID to facilitate that
contact with the liaison officer. Either way, the liaison officer was the last point
of contact and would facilitate the contact with the foreign agency.182
Project A-O Canada
Discussions with DFAIT may also involve the investigative unit183 — in this case
Project A-O Canada. Project A-O Canada investigators either had no knowledge of Syria’s human rights record or only generally knew that Syria operated
under different standards than Canada. Inspector Cabana testified that he did not
have personal knowledge of how Syria treated its detainees but was fully aware
that it did not have the same human rights record as Canada, and that the
Charter of Rights and Freedoms would not apply in Syria. He had not accessed
the U.S. State Department human rights report on Syria and was unaware of the
use of torture or incommunicado detentions to extract confessions as reported
in these reports.184 However, the possible use of torture and mistreatment during
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interrogations was discussed and considered at any step of Project A-O Canada’s
investigation that involved Syria.185
Project A-O Canada investigators received no training on dealing with
countries or foreign agencies with poor human rights records or on the law relating to torture; training courses of this nature were not available to RCMP investigators.186 Therefore, Inspector Cabana consulted with RCMP Headquarters
and other government agencies who were the “experts” before dealing with
Syrian authorities. These included the Department of Justice, CSIS, DFAIT and
Ambassador Pillarella.187
RCMP Liaison Officer Responsible for Syria
RCMP witnesses pointed out that the RCMP liaison officer in the region should
also be consulted before establishing contact with a foreign agency, as he or she
would have a much better understanding of the environment.188 As noted earlier, the liaison officer is the last point of contact and facilitates the contact with
the foreign country.189 In this case, the RCMP liaison officer for Syria, Staff
Sergeant Dennis Fiorido, was stationed in Rome and was responsible for supervising contact with foreign agencies in ten countries.190 The liaison officer reports to the ambassador in the particular country and takes advice from the
ambassador concerning human rights conditions if the RCMP plans to approach
a law enforcement agency in that country.
Staff Sergeant Fiorido testified that, in this case, he did not review the U.S.
State Department human rights reports, Amnesty International reports or DFAIT
human rights reports about conditions in Syria. However, he had basic knowledge from media sources that Syria was a country in which human rights abuses
may be a concern.191 As of August 2002, he was also aware of Mr. El Maati’s
allegation of being tortured while in Syrian custody, but said he assumed this
was an allegation by someone “looking for some leverage to gain whatever he
was intending to gain.”192 As discussed in Section 6.3 below, Staff Sergeant
Fiorido did not raise human rights concerns with RCMP investigators. Nor did
he see it as his role to raise these concerns when he was asked to assist in operational matters involving Syria. As he said, “I am relying on someone else to
raise those flags for me to consider.”193
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3.
EARLY CONSULAR ACTIVITIES,
OCTOBER–NOVEMBER 2002
3.1
AMBASSADOR PILLARELLA’S RELATIONSHIP WITH GENERAL KHALIL
In his testimony, Ambassador Pillarella highlighted the importance of his relationship with General Hassan Khalil, the head of the Syrian Military Intelligence,
in gaining consular access to Mr. Arar.
By October 2002, Ambassador Pillarella had served in Syria for approximately a year and had developed a number of contacts with senior Syrian officials. In the initial period of his posting, his contacts were confined to the
Ministry of Foreign Affairs — in particular, to two deputy ministers there, Deputy
Foreign Minister Suleiman Haddad and Deputy Foreign Minister Walid
Mouallem.194 Ambassador Pillarella had no relationship with the SMI in 2001, and
he explained that diplomats — especially ambassadors — do not normally have
access to security services, particularly to military intelligence.195
However, over the course of 2002, Ambassador Pillarella was able to cultivate a more direct relationship with the SMI and General Khalil.196 According to
the Ambassador, in the 14 months after December 2001, the situation regarding
consular access to detainees changed tremendously as a result of that relationship. The Ambassador thought that this improvement was accompanied by a
significant change of attitude among the Syrians and extraordinary co-operation. As far as the Ambassador knew, he was the only ambassador to have contact with the SMI.197 Mr. Martel maintained his own contact there through
Colonel Majed Saleh, another senior official in the SMI.198
As Ambassador Pillarella testified, the SMI was extremely powerful within
the Syrian political framework.199 In a government assessment of the SMI, it was
noted that General Khalil reported directly to President Assad, and sat on the
National Security Council with important political figures and the chiefs of intelligence agencies.200 The Ambassador agreed with this assessment.
Ambassador Pillarella also noted that the degree to which General Khalil
was feared in Syria was likely an indication of the power he wielded over Syrian
citizens. Among locals, General Khalil’s name was not mentioned openly.201
Clearly, General Khalil was a central and powerful figure in Syrian security
and politics. It is apparent that — perhaps excluding President Assad himself —
General Khalil was the Syrian official with the greatest influence over Mr. Arar’s
fate.
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Ambassador Pillarella testified that, except for one meeting, he was always
received by General Khalil in “a most friendly manner.” The Ambassador believed that the General’s relationship with him was genuine.202 He noted later
that General Khalil could always be relied on to keep his word and would respond quickly to requests for consular access and information.203
Henry Hogger, the U.K. ambassador to Syria at the time, testified that he
was unaware of any other ambassador who had a relationship with General
Khalil.204 According to Mr. Martel, by February 2003, the Ambassador had a
“special relationship” with the General, as evidenced by Ambassador Pillarella’s
ability to intervene with him and gain access to Mr. Arar.205
3.2
FIRST MEETING WITH GENERAL KHALIL REGARDING MR. ARAR
Ambassador Pillarella first met with General Khalil to discuss Mr. Arar in the
morning of October 22, 2002.206 As noted above in Section 1.1, his instructions
from Mr. Pardy were to do everything possible to obtain consular access to
Mr. Arar, and to seek to have Mr. Arar released and returned to Canada as soon
as possible.207
The meeting took place at the General’s offices, as did subsequent meetings between the two. However, travelling to the General’s offices proved to be
an elaborate and complicated affair. The Ambassador’s driver was first instructed
to drive to a rendezvous point, where a Syrian official got into the car and directed the driver to the General’s building.
In his testimony, the Ambassador denied knowing the location of the
General’s office, except that it was in a large security compound in the middle
of Damascus. Specifically, he testified that he did not know — and had never
inquired — whether the General’s office was located in the Palestine Branch.
Further, he was not aware of the Palestine Branch in 2002, or of its reputation
as a place where torture is routinely employed. Asked whether he felt it was his
responsibility to determine where the meeting was and whether it was in a detention centre, the Ambassador responded that it was immaterial, adding that “to
deal with anybody else in Syria was totally and completely useless. We got
Mr. Arar out and it was through dealing with Mr. Khalil.”208
Ambassador Pillarella testified that his main concern at the meeting was to
obtain consular access, emphasizing that access to a detained Canadian had
never been granted before in Syria. The Ambassador was successful, however,
making arrangements with General Khalil for a consular visit the next day.
Responding to a suggestion that this meeting was a demonstration of Canada’s
leverage with the Syrians, the Ambassador explained that he was using the very
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few things he had in hand to obtain access to Mr. Arar — such as the level of
Canadian media interest.209
In the Ambassador’s report describing this meeting,210 he noted that, according to General Khalil, Mr. Arar had just arrived in Syria and had already admitted to connections with Pakistani terrorist organizations. Asked whether
Mr. Arar’s quick admission raised any questions in his mind, Ambassador
Pillarella suggested that Mr. Arar must have been very afraid and had decided
to say whatever the Syrians wanted to hear in order to avoid further pressure.
Asked about the risk that Mr. Arar’s admission was coerced through torture, the
Ambassador said that he would not jump to that conclusion: “All I can say is that
we wanted to have access to him as quickly as possible in order to verify that
he was safe.”211
Ambassador Pillarella’s report went on to say that “it would be more prudent if we could announce that a consular officer had in fact met with Arar and
that he is well.” The Ambassador wrote this report before Mr. Martel’s first visit,
and before he knew of Mr. Arar’s physical and mental condition.212
According to Ambassador Pillarella, as of October 22, he had no evidence
of torture and did not know what had happened to Mr. Arar.213 However, he was
generally aware of the Syrian practice of holding detainees incommunicado
while they attempted to extract confessions.214 Asked if there was a reason why
the Syrians might have been lying about Mr. Arar’s presence there for two
weeks, and whether he believed General Khalil’s version of events over
Mr. Arar’s, the Ambassador replied: “I don’t have the facts to make the choice.”215
The Ambassador noted in his report that General Khalil had promised to
pass on any information the Syrians gathered on Mr. Arar’s implication in terrorist
activities. The Ambassador testified that he did not solicit this information.
Rather, the General offered to provide information to prove that Mr. Arar was a
terrorist, in response to the Ambassador’s position that Mr. Arar should be returned to Canada.216 According to the Ambassador, it was important to gather
this information so that it could be sent back to Ottawa, and corroborated or disproved. In his view, obtaining information from the Syrians’ investigation would
ultimately operate in Mr. Arar’s favour, as it would allow the government to defend his interests. The Ambassador did not consider that a continued interrogation might involve torture, nor did it occur to him that agreeing to receive
information from a Syrian interrogation might send a signal that was inconsistent with Canada’s position that Mr. Arar should be released.217
Ambassador Pillarella met with General Khalil on several subsequent occasions, each time repeating what he called “the mantra”: “Mr. Arar is not sought
for any offence in Canada. Mr. Arar is free to come back to Canada. Either you
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have something on him and you charge him in a court of law or you release
him.”218
Distribution of the report within DFAIT
Ambassador Pillarella sent his report of the October 22 meeting to Mr. Pardy and
Mr. Livermore via C4, a classified e-mail system, with copies to other DFAIT bureaus. According to the Ambassador, whatever the Embassy sent to the Consular
Bureau was also copied to ISI because of the security aspects of the case. The
Ambassador believed that it was his responsibility to inform ISI division and ISD
bureau of information he obtained in the course of his consular duties, as ISI and
ISD were responsible for the security aspects of Mr. Arar’s case.219 Mr. Pardy
also testified that ISI had its own responsibilities in this area, which included providing the Minister and senior DFAIT officials with information about the activities of Canadians overseas that could affect Canada’s security.220
DFAIT reactions to Ambassador Pillarella’s report
A number of witnesses commented on Ambassador Pillarella’s report.
Mr. Livermore testified that while he had not been convinced of all the details,
it was plausible that Mr. Arar had just arrived in Syria.221 Asked for his reaction
to news that Mr. Arar was being subjected to interrogation and had already admitted connections with terrorist organizations, Mr. Livermore testified that this
was “precisely what one would expect of him if he were in detention in Syria.
He would be subject to interrogation of some sort.” However, Mr. Livermore
explained that DFAIT’s principal concern at this time was that Mr. Arar not be
subjected to torture, and if there had been torture, that Ambassador Pillarella’s
meeting with General Khalil would put a stop to it.222 Mr. Livermore did not
consider it problematic for an ambassador to a country with a poor human rights
record to receive information obtained through the interrogation of a Canadian.
He testified that in the context of security concerns in 2002, it was quite legitimate for Ambassador Pillarella to gather information on Mr. Arar to share with
CSIS and the RCMP: “It would be natural for a head of mission to wish to pass
on to all Canadian authorities any information they had on terrorist activities.”223
Scott Heatherington, the Director of DFAIT ISI, testified that his initial reaction to the report and information that the SMI was interrogating Mr. Arar was
simply relief that Mr. Arar had been located. In his view, DFAIT’s reaction was
“Well, now the work begins” in terms of consular access. Asked again whether
the reference to the SMI’s continued interrogation and Mr. Arar’s immediate confession raised concerns of possible mistreatment, Mr. Heatherington replied that
it did not. Rather, it suggested in his mind that Mr. Arar was “co-operating” and
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providing information to the Syrians.224 As interpreted by another ISI official,
James Gould, the Ambassador was making himself a recipient of Syrian interrogation information. Mr. Gould agreed that, despite the comments about interrogation, the Ambassador’s report did not express any apparent concern
about the possible mistreatment or torture of Mr. Arar.225
Unlike the others, Mr. Pardy’s comments focused on his concerns about
the information from the Syrians. He observed that Mr. Arar’s alleged admission
came very quickly, even for the Syrians. While he had accepted the information
at face value when he received it on October 22, he came to view it sceptically
the next day, in light of the Jordanian confirmation that Mr. Arar had only been
in transit through Jordan, and Mr. Arar’s statement to Mr. Martel that he had
been in Syria for two weeks.226
Disclosure of the report to CSIS and the RCMP
Asked whether he would share information that was acquired in the course of
his consular duties, Ambassador Pillarella testified that such information stayed
“in house” and that it “is not shared with the RCMP or CSIS or anyone else.”
However, as ISI and ISD are not police agencies, “there is no risk that by passing it on to ISD or ISI, the person would be put in jeopardy.”227
Notwithstanding Ambassador Pillarella’s comments, his report of the
October 22 meeting with General Khalil was distributed to both CSIS and the
RCMP.228 The evidence is not wholly clear as to who, if anyone, authorized its
distribution, in part because DFAIT did not maintain any written record of the
information that it disclosed about Mr. Arar. Mr. Pardy testified that he authorized disclosure of consular reports on three occasions, including October 22,
2002.229 However, one of the three reports authorized for distribution was dated
October 23, 2002.230 From the evidence overall, it seems most probable that
Mr. Pardy authorized distribution of the October 23 report of the first visit with
Mr. Arar, and not the October 22 report.231
It appears that an official with DFAIT ISI or ISD made the decision to share
the report with both CSIS and the RCMP. Mr. Livermore testified that in
Mr. Arar’s case, it would be “fairly natural” for DFAIT to pass it to both agencies.232 He explained that ISD had resolved to share more information after 9/11,
although the increased sharing was limited to the areas of criminal intelligence
and national security information.233 Mr. Solomon’s understanding was that, depending on the nature of the information, either Mr. Pardy or ISI would make
the decision about whether to share documents.234 If the liaison officers (LOs)
wanted ISI to disclose something, ISI would assess it to determine if it was personal information. Mr. Solomon explained that some information in the C4
�IMPRISONMENT AND MISTREATMENT IN SYRIA
messages was consular, while other information was political or intelligence-related. ISI did not consider comments about Mr. Arar from Syrian intelligence to
be consular, but more related to intelligence. If the information was not “pure
consular,” ISI was able to make its own determination of whether to release
it.235
Inspector Roy, the RCMP LO at DFAIT, sent the Ambassador’s report to
CID/NSOS (Criminal Intelligence Directorate/National Security Offences Section)
at RCMP Headquarters on October 22, and Headquarters forwarded it to Project
A-O Canada on October 24.236 It is not clear from the evidence exactly how
the report was transmitted to CSIS; however, CSIS documents indicate that it received its copy of the report through Inspector Roy on October 24.237 According
to a CSIS official, it was not unusual for CSIS to receive this report.
Purpose of disclosing the Ambassador’s report
Inspector Roy could not recall which ISI official had provided him with the report. However, DFAIT did not attach any conditions on how it could be distributed within the RCMP, nor any caveats or other restrictions on its
redistribution.238 In a fax forwarding the report to Headquarters, Inspector Roy
wrote “for your information,” but did not indicate any restrictions on how the
report could be used or distributed.239
On November 7, Project A-O Canada asked Inspector Roy whether the report included caveats, and if the RCMP could refer to it in a legal proceeding.
Inspector Roy asked his ISI colleagues, Mr. Solomon and Mr. Saunders, who
saw no problem and agreed that the RCMP could use the report as evidence.240
There is no indication that these officials considered the risk that Mr. Arar’s admission of terrorist connections, referenced in the report, was coerced through
torture.
Mr. Pardy assumed that ISI would share the report with the RCMP or CSIS.
While not critical of its distribution generally, he believed that DFAIT had a duty
to ensure that the RCMP properly understood the information. In particular,
DFAIT should have ensured the RCMP understood that reference to Mr. Arar’s
alleged “confession,” which was obtained by the Syrians during incommunicado
detention, was unreliable. It was not comparable to a confession obtained in a
proper Canadian investigation. In fact, in Mr. Pardy’s view, without independent verification, the confession was worthless.241
Mr. McNee advocates for Mr. Arar’s return
On the same day Ambassador Pillarella met with General Khalil in Damascus,
Assistant Deputy Minister McNee discussed the Arar case with Syrian
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Ambassador Arnous in Ottawa. When Mr. McNee advocated that Mr. Arar be allowed to return to Canada, Mr. Arnous responded that it would depend on the
results of the Syrian investigation. Mr. McNee went on to comment that
Mr. Arar’s case was a strange one as the Canadian government had no information suggesting he was a member of al Qaeda.242 Mr. McNee’s approach reflected the strategy and objectives established by Mr. Pardy, who, by this time,
was briefing Mr. McNee on the Arar case.243
3.3
FIRST CONSULAR VISIT
At his meeting with Ambassador Pillarella on October 22, General Khalil agreed
that the Canadian consul could visit Mr. Arar the next day. Léo Martel, the senior Canadian consular official in Damascus, had extensive consular experience.
He first provided consular services to detainees during a posting to Haiti in 1984,
and had 11 years’ experience as a foreign affairs officer in North Africa and the
Middle East, including four as consul at the Canadian Embassy in Cairo. He had
just transferred to the Damascus embassy as management/consular officer
(MCO) and consul in September 2002.244
Apart from a few basic phrases, Mr. Martel does not speak or understand
Arabic, and he was always accompanied on the consular visits by an SMI officer who acted as an interpreter.245 To varying degrees, the Syrians insisted at
every consular visit that Mr. Arar speak Arabic.
Senior DFAIT officials in Ottawa may not have appreciated that Mr. Martel
was linguistically disadvantaged during the consular visits. Mr. Livermore
testified that Mr. Martel spoke “pretty good” Arabic. He noted that the idea of
sending a fluent Arabic speaker to meet Mr. Arar had been discussed, but
was dropped because DFAIT was satisfied that Mr. Martel’s reporting was
satisfactory.246
Mr. Pardy’s instructions
On October 22, Mr. Pardy sent his instructions for the first consular visit.247 He
prefaced these by acknowledging that the circumstances of the visit might preclude Mr. Martel from doing anything more than observing Mr. Arar’s situation
or asking very transparent questions. However, he asked the consul, if possible,
to state the following during the visit:
•
•
the Canadian government was in daily contact with Mr. Arar’s family;
his situation was a matter of great public concern in Canada, and Minister
Graham had protested to the Americans;
�IMPRISONMENT AND MISTREATMENT IN SYRIA
•
•
•
•
Canada lacked accurate details about how he was removed from the United
States and when he arrived in Syria;
the Syrian government had assured Canada of a visit every three or four
days;
Canada was trying to make arrangements for his return, but this might take
some time, and in the meantime would try to ensure he received appropriate amenities; and
his wife was awaiting a message from him.
Mr. Martel testified that he was not shown Mr. Livermore’s October 10
e-mail to Ambassador Pillarella, which expressed concern that Mr. Arar might be
“aggressively questioned” in Syria. Nor did the Ambassador share its contents
with him.248 He speculated, however, that seeing this e-mail would not have
changed his actions during the first consular visit.249 During his testimony,
Mr. Martel was also referred to an October 15 CAMANT note citing three newspaper articles; one of these, from the New York Times, dated October 12, 2002,
expressed concern that Mr. Arar might be subjected to severe punishment by the
Syrians.250. He recalled that he had read the articles and had asked that they be
entered into CAMANT. A Globe and Mail editorial of October 19, 2002, entitled
“The Alarming Case of Maher Arar” and noting credible reports of torture in
Syrian jails, was also entered into the CAMANT system on October 19, 2002.251
Mr. Martel’s travel arrangements were similar to Ambassador Pillarella’s the
previous day. After he had switched to a car with Syrian officials, Mr. Martel
asked his SMI contact, Colonel Majed Saleh, why Syria was detaining Mr. Arar.
Colonel Saleh responded that Mr. Arar had confessed to knowing members of
a terrorist group. Mr. Martel testified that he “really took that with a grain of
salt.”252 Colonel Saleh also made it clear to Mr. Martel that he was not to discuss Mr. Arar’s case during the visit; he could ask only about family matters and
his well-being: “I was not to raise unpleasant questions.”253
The Colonel’s driver took them to a facility that he later learned was the
Palestine Branch.254 There he learned that he was meeting with SMI officials, at
least three of whom, according to his recollection, were colonels. Colonel Saleh
acted as his interpreter, as Mr. Martel had not been allowed to bring his own.
Mr. Martel testified that for about 30 minutes, the parties exchanged social pleasantries over coffee, as is typical in Syrian culture.255 He believed the security officials were frustrated and nervous about the meeting.256
When Mr. Arar was brought into the room, Mr. Martel observed that he was
walking normally, but he found him very submissive and disoriented. His head
was down and he looked surprised when he first saw Mr. Martel.257 Mr. Martel
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FACTUAL BACKGROUND: VOLUME I
shook Mr. Arar’s hand and told him he was there to help. He noted that
Mr. Arar’s handshake was “normal” and that he did not withdraw his hand.
Mr. Martel did not look at Mr. Arar’s hands, but at his eyes, to get a sense of his
well-being. Mr. Arar was then seated at a distance away from the consul.258
Mr. Martel said Mr. Arar’s eyes “were popping.” He testified that Mr. Arar
sent him eye signals that communicated that he could not speak freely. To
Mr. Martel, Mr. Arar “looked like a frightened person” and was obviously
scared.259 The meeting lasted about 30 minutes.
In his report, Mr. Martel noted that Mr. Arar appeared to be healthy but “of
course it is difficult to assess.” When asked why this was difficult to assess, he
explained that he is not a doctor, could not conduct a medical examination of
Mr. Arar, undress him or view him closely, and could ask certain questions only.
He noted that the Syrians would never let him see an individual who looked illtreated.260 He testified that he did not see any bruising on Mr. Arar; however all
he could see were Mr. Arar’s face and eyes, and how he walked and sat.261
Mr. Martel’s report stated that he began to question Mr. Arar in accordance
with Mr. Pardy’s instructions, but it was obvious that he was not free to answer
all the questions. They spoke in English and French, and Colonel Saleh translated into Arabic, with the Syrians writing down the entire conversation.
Mr. Martel tried to learn more about the period during which Mr. Arar was missing by asking how long he had been in Jordan. He testified that Mr. Arar tried
to answer and said he had been in Jordan for only a few hours. However, the
Syrians cut off this question by directing Mr. Arar not to answer, at which point
Mr. Arar “grew pale.”262 Mr. Martel speculated that the Syrians did not want him
to know they had had Mr. Arar in custody for a number of days. He testified that
when drafting the report, he and Ambassador Pillarella believed the Syrians were
lying and that there was enough evidence to show that. In his words, “Someone
was not telling the truth, and it wasn’t Maher.”263
Mr. Martel testified that he told Mr. Arar that Canada’s intervention was limited because the Syrian government took the view that he was a Syrian citizen.
While the Syrians had promised regular consular visits, he could not guarantee
this. In Mr. Martel’s opinion, Mr. Arar needed to understand these limitations.264
As noted in Mr. Martel’s report, they also discussed the well-being of
Mr. Arar’s wife and family, and his wife’s financial situation. Mr. Martel concluded the visit by asking if Mr. Arar wished the Embassy to provide him with
anything. He testified that it was obvious that the Syrians dictated Mr. Arar’s answer — which was that his needs were all taken care of by his Syrian hosts.265
The Syrians also forced Mr. Arar to repeat in English:
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I am Syrian and I obey the law of Syria. I am proud of my country of origin and I
am also proud of Canada, my country of adoption. I have been respected by
my Syrian brothers and I am happy to have come back to Syria. The authorities
have not exercised any pressure on me. You can see I feel well. Anything I ask for
I receive.
Mr. Martel saw no apparent signs of sore or red wrists or palms, and no blue
skin around Mr. Arar’s face or neck. He could not say whether Mr. Arar was
wearing a long-sleeved shirt or a t-shirt, although he did remember that he was
wearing blue trousers and light summer shoes. Mr. Martel testified that each
time he saw him, the Syrians had prepared Mr. Arar to “look nice,” and that it
appeared Mr. Arar was able to shave. However, he could not remember whether
Mr. Arar had a beard. He admitted that he did not know what it would mean to
an observant Muslim man to have his beard removed, although he believed it
indicated an attempt at humiliation. He did not know or inquire whether
Mr. Arar was a practising Muslim.266
When it was suggested to Mr. Martel that he did not consider that Mr. Arar
had been tortured because he observed no evidence, Mr. Martel responded:
But he didn’t have any visible signs. In other words, he spoke to me coherently. His
eyes were normal. He could walk. Even though he looked cowed, as I said before,
I didn’t know why. I couldn’t draw the conclusion, and say, for instance to the
Department, “I noticed one thing or another, and I believe that he has been
tortured.”267
The Ambassador’s reaction to Mr. Martel’s report
Ambassador Pillarella testified that he approved this report, as he did with most
of Mr. Martel’s reports, sometimes inserting his own comments.268 He believed
that the Syrians were extremely nervous about the meeting, and it was therefore
understandable that one officer had declined to give his name.269 He agreed he
would characterize what the Syrians had dictated for Mr. Arar to say as “a pile
of baloney.”270 Still, the Ambassador testified that it would have been impossible to request a private meeting. In that situation the Canadians were “beggars,
not choosers. We were on their territory, not on ours.” Canada was fortunate to
have a visit with Mr. Arar, and that he was alive.271
Ambassador Pillarella was equivocal about the discrepancy between the
Syrians’ claim that Mr. Arar had just arrived in Syria and Mr. Arar’s statement
that he had been there for two weeks. He testified that he did not know whom
to believe — Mr. Arar or the Syrians.272 When asked whether Mr. Arar’s statement
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raised concerns about incommunicado detention, he responded “maybe.”273 He
emphasized that he could not be sure where Mr. Arar had been during those two
weeks. He felt it would have been difficult and tactless to raise this question with
Deputy Minister Haddad.274
Ambassador Pillarella testified that he believes in facts. He said he had no
evidence that Mr. Arar had been physically tortured. He questioned the account
Mr. Arar gave after his release of being beaten with cables. He asserted that
Mr. Arar had shaken hands firmly with Mr. Martel without withdrawing his hand
in pain, and that Mr. Martel had not reported bruising on his hand.275 When
asked if Mr. Arar could have been subjected to mental torture, the Ambassador
testified that, while he was no expert, he could only imagine that a victim of
mental torture would show some outward signs.276
DFAIT reactions to Mr. Martel’s report
The Embassy sent Mr. Martel’s report to a number of DFAIT divisions and
bureaus, including Consular Affairs, ISD, ISI, Assistant Deputy Minister John
McNee and the Middle East Bureau. Mr. Livermore testified that this made no
difference to the fact that it addressed consular issues.277 Mr. Pardy testified that
the consular reports were sent to ISI because ISI had responsibilities to provide
the Minister and senior DFAIT officials with information about Canadians overseas that could affect national security or international relations.278 The Embassy
did not send the report to CSIS or the RCMP.279
Mr. Pardy testified that notwithstanding the negative aspects indicated in
the report and the fact that it was not the best situation, he could only characterize the news of the consular visit as good — particularly in light of the approach the Syrians had taken with Mr. El Maati and Mr. Almalki. The report
also provided DFAIT with a benchmark of Mr. Arar’s condition, to which consular officials later referred.280 However, Mr. Pardy was not surprised to learn
that Mr. Arar had been resigned and submissive, and had not been free to speak.
He concluded the Syrians had held Mr. Arar incommunicado and had likely subjected him to an abusive interrogation.281 Myra Pastyr-Lupul, the case management officer for the Middle East region, had much the same reaction.282
Mr. Livermore also received the report. He said he reached no conclusion
as to whose version of events was correct — Mr. Arar’s or the Syrians’ — because he had no evidence to account for the period when Mr. Arar was missing.283 When asked whether the Syrians telling Mr. Arar in Arabic not to answer
questions meant they were controlling the discourse, Mr. Livermore responded
that he could not say. He noted that it is the norm that detainees are required
to speak in the local language. Overall, when first referred to the report,
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Mr. Livermore’s evidence was that he simply drew no conclusions beyond
what Mr. Martel had reported. His only opinion, which he qualified as personal,
was that he had no doubt on reading the report that Mr. Arar was having a “difficult time.”284 However, Mr. Livermore later testified:
Right from the very first report that we received from Ambassador Pillarella, and the
subsequent consular reports that we received from Léo Martel, there is not, as I recall, one hint of torture entering the equation.285
Mr. Pardy, however, was far more certain about what had occurred. He
gave credence to Mr. Arar’s words.286 He pointed out that the Syrians’ claim that
Mr. Arar had arrived “without warning” from the United States contradicted
Attorney General Ashcroft’s statement that before sending Mr. Arar to Syria, the
Americans had received assurances he would not be tortured. Mr. Pardy testified that all this information crystallized in his mind on October 23, and he concluded that Mr. Arar had been in Syria from about October 9. He believed that
while senior Syrian officials were promoting a different view, the word did not
get down to the people holding Mr. Arar, or they would have intervened to correct Mr. Arar’s statement.287
DFAIT briefs the Minister’s office
When referred to Mr. Martel’s report, Robert Fry, senior policy analyst for
Minister Graham, testified that “I don’t think anyone really believed that they
only had him for 24 hours. I mean, I think our suspicion all along was that he
had been in Syria longer than 24 hours.” He also testified that he always took
Mr. Arar’s so-called confession with a grain of salt, because he might have provided it to “get people off his back.”
Mr. Fry nonetheless disagreed that there were reasonable grounds to suspect torture, testifying that his initial reading of the report would not support that
conclusion.288 When asked if he was generally aware of the possibility that
Mr. Arar would be subject to mistreatment, he responded that “in the Minister’s
office we have to deal with the facts that are given to us, the specifics. Just because someone says in a general sense that a particular country, a particular
regime, has a bad track record, you know, we couldn’t just go out and start
making accusations.”289
Mr. Fry explained that, throughout this period, he relied extensively on
Mr. Pardy for information with which to brief Minister Graham.290 He testified
that Mr. Pardy briefed him about the consular visit on October 23 or 24. The evidence of that briefing is unclear. According to Mr. Fry, Mr. Pardy told him that
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Mr. Arar basically looked fine, although he appeared disoriented.291 However,
according to Mr. Pardy, he was operating on the working assumption that
Mr. Arar had possibly been tortured, and was reporting this view, horizontally
and vertically, to other officials.292
Whatever happened when Mr. Pardy briefed Mr. Fry, it seems clear that
Minister Graham was not informed of Mr. Pardy’s working assumption. The
Minister testified that Mr. Pardy’s concern that Mr. Arar had been tortured was
not conveyed to him: “I was not told that that was a conclusion that had been
drawn by anybody.”293 Asked if he was aware in October 2002 of Mr. El Maati’s
allegation that he had been tortured by Syrian security officials, the Minister recalled that he did not learn this until after this time.294
On October 23, after receiving Mr. Martel’s report, Mr. Pardy and
Ms. Pastyr-Lupul updated a ministerial backgrounder and question and answer
media lines.295 The backgrounder did not provide a complete or accurate picture of Mr. Arar’s circumstances, and excluded some important information. It
did not note that Mr. Arar contradicted the statement that he had just arrived
from Jordan. It did note that Mr. Arar said his needs were being taken care of
by the Syrians — but failed to state that the Syrians had dictated this answer to
him. It noted that Mr. Arar appeared to be healthy, but excluded Mr. Martel’s
comments that Mr. Arar had looked resigned and submissive.296 It made no reference to concerns about abuse, mistreatment or torture.
Ms. Pastyr-Lupul testified that she was confident Assistant Deputy Minister
McNee would have conveyed the full picture to Minister Graham or his staff, as
it was his responsibility to brief the Minister.297 She explained the lack of qualification of Mr. Arar’s appearance in the backgrounder by saying that DFAIT
wanted to express publicly that Mr. Arar appeared to be in good health, but
could not state all its concerns in the public media lines. However, the backgrounder is entitled “For Minister’s Eyes Only.” Ms. Pastyr-Lupul testified that
documents entitled “For Minister’s Eyes Only” went to many more people than
the Minister, but agreed that this backgrounder was not readily available to the
public, and therefore could have been more candid than a document intended
for public release.298
The backgrounder, which contains personal information about Mr. Arar,
was also given to RCMP Inspector Roy.299 There is no evidence that DFAIT conveyed the fuller picture to Inspector Roy when sharing this document.
The backgrounder also failed to put forward Mr. Pardy and Ms. PastyrLupul’s conclusion that Mr. Arar had been held incommunicado, a factor that increases the risk of torture. Ms. Pastyr-Lupul testified that it was not clear when
Mr. Arar had arrived in Syria — October 9 or another day — because it
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depended on factors like the flight duration and time difference.300 However, she
testified that she had no reason to doubt that Mr. Arar was telling Mr. Martel the
truth about being held in Syria for two weeks.301
When questioned about these briefing materials, Minister Graham testified
that the question and answer comment about Mr. Arar’s good health, in the absence of other information, was “certainly putting a pretty positive gloss on it.”
The Minister agreed that the question and answer was inconsistent with
Mr. Martel’s report; had he seen this report, he would instead have chosen to
say that “we are not in a position at this time to comment on his condition.”302
Mr. Martel’s report is shared with the RCMP
Mr. Martel’s report of his consular visit with Mr. Arar was shared with the RCMP
on three separate occasions, but apparently not with CSIS.303 Inspector Roy was
given the consular report on October 24, to pass on to RCMP CID. Inspector Roy
testified that ISI asked him to distribute this report, and that he did not remember any conditions being placed upon it. He said that, while he did not
personally know who had authorized disclosure of DFAIT documents,
Mr. Heatherington had solid control over information coming into and going
out of ISI.304 He confirmed that he also received a request for a copy of the report from Project A-O Canada, which he delivered to Sergeant Callaghan on
October 25.305 Finally, Mr. Heatherington also faxed the consular visit report
directly to Inspector Cabana on November 4.306 Within a day, it was further distributed within the RCMP, from “A” Division to “C” Division.307
Policies and protocols governing the sharing of consular information
As discussed in Annex 3, consular officials are guided in the exercise of their duties by the Department’s Manual of Consular Instructions.308 Mr. Heatherington
testified that this manual provides general policy guidance, but legislation provides the final answer.309 Policy 2.4.10 of the manual addresses how to resolve
a real or perceived conflict of interest between a mission’s consular program
and its security programs:
Potential conflicts of interest, including perceived precedence of responsibility in police liaison and consular matters, should be adjudicated by the Head of Mission,
who must weigh the merits of any case in the context of relations with the country
concerned and of the rights and interests of the Canadian citizen involved, in consultation as appropriate with Headquarters (Consular Policy Division – JPP, Consular
Operations Division – JPO, Legal Advisory Division – JLA, Security Division – ISS)
…
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There are, in addition, security intelligence officers (CSIS) at a number of missions. Information regarding individual Canadians which is gathered by consular
personnel in the performance of their duties is not to be divulged to Liaison and
Security Intelligence officers without the prior agreement of the person concerned.310
DFAIT also publishes A Guide for Canadians Imprisoned Abroad.311 The
Guide creates a strong expectation of privacy for detainees, particularly with respect to RCMP investigations. Under the heading “Protection, Advice and
Assistance,” it states:
If you are detained or arrested in a foreign country and you choose to talk to
Canadian officials, any information you give them will remain completely confidential and is protected under Canada’s Privacy Act. It will not be passed on to anyone, other than consular officials concerned with your case, without your
permission. You have the right, for example, to determine who will be notified of
your situation, and who may act as your representative. Your family and friends
will not have access to any information without your consent. The Royal Canadian
Mounted Police (RCMP) and other police agencies have their own international contacts, however, and may know of your circumstances through those sources.312
In his testimony, Mr. Pardy noted that the Guide predates consular cases
like Mr. Arar’s, needs to be updated and made more specific, and is being
rewritten.313
Several witnesses testified that the Privacy Act governs the sharing of information gathered in a consular visit.314 Mr. Livermore testified that he believed
that section 8 of the Act governed the disclosure of consular information.
Ambassador Pillarella also testified that, contrary to the plain meaning of the
Guide, the Consular Bureau in Ottawa may share the information given to them
by a detainee in confidence, as long as this decision complies with the Privacy
Act. The Ambassador believed that, of all the information in Mr. Martel’s report,
only Mr. Arar’s letter to his wife should be classified as personal information.315
Mr. Pardy authorized distribution of consular visit reports to the RCMP
Mr. Pardy and Mr. Solomon both testified that when ISI wished to disclose a
consular document to another agency, Mr. Solomon would contact Mr. Pardy
and seek approval. Mr. Pardy testified that it was his responsibility to decide
whether information that could be “broadly categorized as consular” could be
disclosed. In his opinion, the reports of the eight consular visits and the report
of the members of Parliament visit were “exclusive consular information.”316
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Over time, three reports of consular visits with Mr. Arar were shared with
the RCMP. The first was the report of the consular visit of October 23. It is unclear on what date Mr. Pardy authorized sharing this report with the RCMP.
Mr. Pardy testified that he gave permission to share consular reports directly to
Mr. Solomon. Although there is no documentary record, Mr. Pardy testified that
he is certain that Mr. Solomon would have come to him on each occasion to
seek permission. Likewise, Mr. Solomon testified that he always consulted
Mr. Pardy.
Mr. Pardy only granted Mr. Solomon and the ISI permission to release consular information to the RCMP. He testified that Mr. Solomon never consulted
him about disclosing documents to CSIS.317 The report of the October 23 consular visit was not disclosed to CSIS.
There is no evidence that DFAIT had a system to record disclosures of
DFAIT information — including personal information — to other agencies.318
Mr. Pardy’s justifications for sharing consular information with the RCMP
Mr. Pardy testified that he decided to authorize the release of consular reports
to the RCMP for two reasons. First, Mr. Arar had consented to the disclosure of
his personal information. Second, he hoped that disclosing consular information
to the RCMP would assist Mr. Arar, particularly by giving pause to the RCMP’s
desire to travel to Syria, a matter that had been discussed prior to this.319
Mr. Pardy confirmed that consent was the most important basis for his decision to disclose Mr. Arar’s personal information.320 In his view, Mr. Arar gave
consent to DFAIT to disclose the details of his case to anyone who could help
him during Maureen Girvan’s consular visit in New York on October 3.
Specifically, he relied on Ms. Girvan’s October CAMANT note 28 of October 3,
2002, which states:
Mr. Arar gave his verbal approval to discuss case with his brother, mother-in-law,
and wife — anyone who could help him, including his company MathWorks.321
Mr. Pardy testified that he interpreted “anyone who could help him” to include the RCMP and CSIS. He read this as indicating that Ms. Girvan had expressly explained that their meeting was confidential, and that Mr. Arar had
given his consent to waive confidentiality.322 Indeed, Mr. Pardy testified that he
read this as a plea or cry for help to Canadian authorities. He claimed that
Mr. Arar did not need to know the identities of the recipient agencies, so long
as Mr. Pardy judged that those agencies were able to help him.323
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Mr. Arar has not testified. There is no evidence that he and Ms. Girvan discussed sharing his information with the RCMP or CSIS, or with anybody beyond
a circle of family and co-workers noted by Ms. Girvan.
Mr. Martel testified that a Canadian detainee has an expectation of privacy
for consular visits. He expressed surprise that his consular reports were shared
with the RCMP and CSIS at the time of his consular visits to Mr. Arar.324
Ms. Pastyr-Lupul325 and Ms. Girvan326 also testified that it was not normal practice to share consular reports outside DFAIT.
The Consular Bureau did not give Mr. Martel’s consular reports to Mr. Arar’s
family or their supporters. Mr. Pardy was loathe to see Mr. Martel’s written reports turn up in the media, and feared that Dr. Mazigh was not always sensitive to concerns about negative publicity. However, Mr. Pardy wrote to
Dr. Mazigh on the eve of the first consular visit and advised that she could give
information about the first visit to the media after it had occurred.327 Mr. Pardy
never offered Dr. Mazigh the consular reports on the condition that she must
not release them. Instead, DFAIT gave Dr. Mazigh verbal reports only, though
Mr. Pardy testified that she received 80 to 90 percent of the information.328
In explaining his second reason for authorizing disclosure of Mr. Martel’s
consular reports to the RCMP, Mr. Pardy noted that the Privacy Act allows information to be used for the purpose for which it was collected. He testified that
DFAIT was compiling information from the consular visit to assist Mr. Arar.
Therefore, in Mr. Pardy’s view, it was appropriate to pass this consular information to anybody who might be willing to help Mr. Arar. He testified that he
relied on the “consistent use” exception in the Privacy Act.329 When asked if he
thought the RCMP was actually trying to help Mr. Arar, Mr. Pardy said he assessed the information on a case-by-case basis, weighing its potential to injure
Mr. Arar against any potential benefits.330
Mr. Pardy explained that he authorized the disclosure of select consular information to the RCMP to discourage the RCMP from travelling to Syria. In
Mr. Pardy’s mind, disclosure of this consular information to the RCMP would not
cause Mr. Arar any additional difficulties, and might even “have softened a heart
or two” amongst the RCMP. He said he wanted to do anything he could to prevent the RCMP from turning up in Syria, and believed that the price of disclosing Mr. Arar’s personal information was reasonable.331
Mr. Pardy testified at length on this issue over the course of the Inquiry. He
often used language that indicated his process of “weighing” or “balancing” the
potential disadvantages of sharing Mr. Arar’s personal information against the potential advantages.332 He explained at one point that based on his past experiences as a liaison officer, the “basic rule” is that information exchange should
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not create a problem for an individual.333 Mr. Pardy disclosed Mr. Arar’s personal
information where he judged the information was “not prejudicial” to Mr. Arar’s
interests, to determine whether DFAIT could help Mr. Arar.334
DFAIT ISD’s and ISI’s explanation for disclosing consular information
Witnesses from DFAIT ISD and ISI, which handed over Mr. Arar’s consular information to CSIS and the RCMP, explained why, in their view, the reports were
shared. Mr. Heatherington testified that consular reports were shared to brief
ministers and deputies on how detainees were being treated, what was known
about the detainees, and the allegations against them. He acknowledged that
they included personal information that DFAIT would normally protect.
According to Mr. Heatherington, DFAIT shared information about Mr. Arar, and
CSIS and the RCMP accessed that information, for reasons of national security.335
When referred to Mr. Martel’s report of October 23, Mr. Livermore testified that DFAIT ISD “would have been free to share this kind of report with respect to Mr. Arar.” He reasoned that DFAIT was sharing information with the
RCMP to determine Mr. Arar’s location, and that sharing was therefore for the
express purpose of assisting Mr. Arar. However, he confirmed that DFAIT did
not change its position once Mr. Arar had been located.336
Contrary to Mr. Pardy, Mr. Livermore testified that DFAIT continued to disclose Mr. Arar’s personal information to the RCMP after he had been located
because the case involved criminal and national security issues. As mentioned
in Section 3.2, after 9/11 ISD resolved to share more information in these two
categories. However, Mr. Livermore confirmed that ISD did not pass any protocol or policy after 9/11 to govern increased sharing of this information — instead, it tried to establish systems to enable other agencies to acquire DFAIT
information in a timely way. He was unsure whether ISD had notified Consular
Affairs of the two categories. He noted that most of the material ISD shared was
not consular information, the release of which is controlled by Consular Affairs.
It appears from Mr. Livermore’s evidence that increased sharing was in one direction only; he testified that, as a matter of course, the RCMP did not share information with DFAIT, nor was there any reason they should. In his estimation,
only 20 to 40 of 700,000 consular cases involved these issues.337
RCMP reaction to the consular report
Inspector Cabana testified that his interest in using the information in Mr. Martel’s
consular report was to further Project A-O Canada’s investigation of terrorist
threats, rather than to assist Mr. Arar. Inspector Cabana understood that DFAIT
had shared Mr. Martel’s report with the RCMP to further his investigation. When
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he was told that Mr. Pardy decided to disclose the consular report to encourage the RCMP to “stand down” and not travel to Syria, Inspector Cabana responded that this was actually contrary to his discussions with DFAIT ISI and
Ambassador Pillarella on November 6, 2002.338
There was no evidence that the RCMP ever used, intended to use, or indicated that it would use the information disclosed by DFAIT to assist Mr. Arar.
Inspector Cabana was unaware that DFAIT informs Canadians that the information they give to consular officials will be held in strict confidence.339 In
the Inspector’s experience, it was a “precedent” to receive a consular report
from DFAIT. He testified that his concern was not whether Mr. Arar had given
consent to disclose his personal information to the RCMP, but rather whether information reaching Project A-O Canada could be admissible in legal proceedings. He agreed that even if the consular report was not admissible evidence, he
would still want it as intelligence.340
3.4
SECOND CONSULAR VISIT
Continuing consular efforts
By October 25, a range of consular efforts was underway. Officials in Ottawa,
New York, Damascus and Tunis worked to assist Mr. Arar and Dr. Mazigh without regard to the American allegations against Mr. Arar. As Ms. Pastyr-Lupul testified, such allegations were irrelevant to the performance of Canadian consular
duties.341 Mr. Pardy in particular spent a great deal of his time on Mr. Arar’s
case, working on it almost every day over the next ten months, with the consistent objective of returning Mr. Arar to Canada as quickly as possible.342
On October 25, Mr. Pardy and Ms. Pastyr-Lupul updated DFAIT’s media
lines and a backgrounder for the Minister.343 Based on Mr. Pardy’s conclusion
that Mr. Arar had been in Syria since October 8 or 9, they amended the media
material to state that the Jordanian government had advised that Mr. Arar had
been in Jordan, but only “in transit” to Syria.344 They added that Mr. Arar appeared well, but was not allowed to answer all questions asked by the Canadian
consul.345 Consistent with Mr. Pardy’s strategy, the media lines stated that the
government’s goal was to return Mr. Arar to Canada at the earliest possible time.
They also stated that Canadian authorities did not have any information to support the claim that Mr. Arar was a member of al Qaeda.
Canadian officials continued efforts to have the Americans explain their actions regarding Mr. Arar.346 In an attempt to understand American laws independently of U.S. government representations, Consular Affairs at DFAIT
�IMPRISONMENT AND MISTREATMENT IN SYRIA
consulted with the Center for Constitutional Rights.347 DFAIT officials also
maintained a continuing dialogue with the Arar family.348 For example,
Ms. Pastyr-Lupul and Mr. Pardy met with Maher Arar’s brother, Bassam, on
October 25;349 Mr. Pardy e-mailed Dr. Mazigh with an update of their efforts on
October 27;350 and Dr. Mazigh gave him a letter for her husband on October
28.351 Mr. Pardy also tried to put Mr. Arar and his wife in telephone contact, but
was unsuccessful.352
Mr. Pardy’s instructions
By October 28, preparations had begun for a second consular visit, which was
scheduled for the next day. Mr. Pardy e-mailed Ambassador Pillarella and
Mr. Martel, noting that he did not have much to add to his previous instructions.353 He told Mr. Martel what he should look for in the visit, and to determine whether there was any change in Mr. Arar’s appearance or demeanour
since the first visit.
Mr. Pardy also instructed Ambassador Pillarella to try and find out how the
Syrian investigation was proceeding, and if the Syrians had reached any conclusions. Mr. Pardy did not consider that this request might be open to criticism,
explaining that DFAIT needed to understand the Syrians’ intentions if it was to
assist Mr. Arar. He noted that this is a standard instruction to ambassadors and
consular officers because additional information informs future actions.354
Mr. Pardy concluded by requesting that Ambassador Pillarella inform him
about any possible visits by RCMP and CSIS officials to meet with Mr. Arar,
Mr. Almalki or Syrian officials. It is possible that Mr. Pardy may have learned of
potential visits from Mr. Solomon, who had contacted him on October 28, the
same day he began drafting a memorandum concerning RCMP proposals to visit
Syria or send questions for Mr. Almalki.355 Mr. Solomon was aware at this time
that the RCMP and CSIS might visit Syria.356 However he learned of the intended
visits, Mr. Pardy testified that his message was an effort to sensitize the
Ambassador to the risk that CSIS and RCMP LOs posted overseas might attempt
to involve themselves in Mr. Arar’s case. His concern was that CSIS or RCMP personnel might travel to Syria without the knowledge of Consular Affairs or DFAIT
Headquarters.357
Limits on Mr. Martel’s inquiries
Mr. Martel understood that the Syrians had set limits on this visit, just as they did
on all consular visits. Immediately prior to the visit, his SMI interpreter warned
him that he was forbidden to discuss the specifics of the case with Mr. Arar.
The Syrians made it clear that Mr. Martel should confine his conversations to
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family matters and to Mr. Arar’s well-being. Questions were to be very general,
such as “How are you? Are you well? Do you need medical care?”
Mr. Martel claimed that, because his visits were always closely monitored,
he could not inform Mr. Arar of the allegations against him, or ask about the
location or size of Mr. Arar’s cell, or whether he was being held in solitary
confinement.358
In his testimony, Mr. Martel agreed that consular officials have a duty to inquire about detention conditions, including whether the detainee is held in solitary confinement or with the general population, the size of the cell, access to
family members, the ability to move around or exercise, access to a doctor or
nurse, basic hygiene conditions, heating and access to clean water. Moreover,
Canada would launch vigorous protests if these essential needs were not
provided.359
For his part, Ambassador Pillarella was concerned that Mr. Arar be treated
as a Syrian, under Syrian law. That said, the Ambassador agreed that his responsibility was to ensure that a Canadian detainee is treated not merely in accordance with Syrian standards, but with minimum standards under international
law, as articulated in the Manual of Consular Instructions.360
In his testimony, the Ambassador stated that he could not invoke principles
of international law because they would not resonate with the Syrians, who regarded Mr. Arar as a Syrian. In fact, for the Syrians to grant Mr. Arar consular access was extraordinary and unprecedented. In the Ambassador’s words, “What
more could I do?”361
The visit
Mr. Martel visited Mr. Arar at the Palestine Branch on the morning of
October 29.362 When Mr. Arar was brought to the office, Mr. Martel gave him the
letter from Dr. Mazigh.363 Mr. Arar became very emotional for two or three minutes, and then dictated a reply. During the remainder of the visit, which lasted
about 30 minutes, they discussed Mr. Arar’s family and events in Canada.
Mr. Arar asked if there could be a consular visit every week.364
As on each visit, Mr. Martel asked Mr. Arar about his well-being. To this the
Syrians would respond, “You can see he is well,” perhaps in an attempt to influence Mr. Arar’s answers.365 Mr. Martel did not ask Mr. Arar any specific questions about prison conditions, or where he was being detained, 366 reasoning that
it would have been impossible to get a conclusive answer as Mr. Arar could not
speak freely. According to Mr. Martel, it is well known that political detainees
at the Palestine Branch are held in solitary confinement. Notwithstanding, Mr.
Martel acknowledged that he “didn’t know under what conditions he was being
�IMPRISONMENT AND MISTREATMENT IN SYRIA
held,”367 testifying that neither Ambassador Pillarella nor Mr. Pardy had told him
to ask specific questions on this subject.368
Mr. Martel testified that Mr. Arar’s demeanour had changed since the first
visit, in that he no longer seemed disoriented and was noticeably more relaxed
and less frightened.369 He speculated that Mr. Arar had been surprised by and
unprepared for the first visit.370 Mr. Martel’s report also noted that Mr. Arar
seemed able to speak freely, although in testimony he commented that Mr. Arar’s
ability to speak freely was “very difficult to analyse…in an environment as controlled as that.” Moreover, Mr. Martel “couldn’t believe everything that [Mr. Arar]
said because [he] knew that he couldn’t say freely what he wanted.” As in other
visits, the Syrians took notes of both questions and answers.371
Mr. Martel never asked to meet with Mr. Arar alone. He agreed that a consul is normally required to ask for private access to a detainee, and that a diplomatic protest should be lodged if the request is not granted. However, this was
not a normal case, according to Mr. Martel. The Syrians claimed that the Vienna
Convention did not apply to Mr. Arar, and refused requests that he be allowed
to make a phone call.372 Mr. Martel said that the Canadian Embassy could not
take the initiative to request a private interview, as this would require instructions from Mr. Pardy and DFAIT Headquarters.373 He acknowledged the recommendation of the United Nations Committee Against Torture that Canada
should insist on unrestricted consular access to its nationals. However, he did
not seek an unmonitored meeting because he expected that the Syrians would
not agree to it.374
Mr. Martel’s report
Mr. Martel’s report recorded the details of the visit, including Mr. Arar’s appearance and his message to his wife. It also stated that the Syrians would not
provide details on the investigation, as only General Khalil had that authority.
The General had assured the Ambassador that he would do so once the investigation was completed. Colonel Saleh had given this information to Mr. Martel
during their car ride.375
Ambassador Pillarella also testified that General Khalil had promised to provide details on the investigation’s progress.376 The Ambassador did not consider
that seeking the fruits of the Syrian interrogation made Canada complicit in obtaining information that might have been the product of torture. He reasoned
that he did not ask the Syrians to continue interrogating Mr. Arar so that Canada
could obtain information. Furthermore, the Ambassador did not have any evidence that Mr. Arar was being tortured or held incommunicado.377
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Ambassador Pillarella did not attend either the first or second consular visit,
and had no opportunity to assess Mr. Arar’s condition apart from Mr. Martel’s
reporting. However, based on Mr. Martel’s reports, he concluded that there was
no indication or evidence that Mr. Arar had been mistreated or subjected to
physical torture.378 When referred to the report on Mr. Martel’s second consular
visit and asked for his opinion on whether Mr. Arar no longer appeared disoriented because the Syrians had already obtained the information they wanted
through torture, the Ambassador stated:
I can say only one thing, and I am no expert in the matter believe me. But if somebody is being tortured in a way that is very heavy in all sorts of ways do you think
that two weeks would be sufficient to erase every mark and to erase every indication that the person might have been tortured?...I would say that if you are beaten
with electrical wires on the soles of your feet or your hands, I think it would take
a little bit more than two weeks to be able to walk.379
The Ambassador also speculated that there was a “general nervousness in
the air” because the Syrians had never permitted a consular meeting before.
This explained why Mr. Arar might have been disoriented and nervous in his first
visit, and why he “did not know how to act.”380
In Ms. Pastyr-Lupul’s opinion, the second consular visit constituted good
news, because it meant the channels to Mr. Arar were still open. There was still
the opportunity to meet with him, to assess his condition and to provide moral
support. According to Ms. Pastyr-Lupul, Mr. Arar’s letter to his wife was an important step, and transmitting it was part of her role in ensuring ongoing communication between family members.381
As for Mr. Pardy, the report on the second consular visit gave him no cause
for alarm. He testified that the only “unusual” part of the report was the section
addressing whether the Syrians would provide details on their investigation.382
Communications about the second consular visit
After receiving news of the second consular visit, Mr. Pardy briefed the
Minister’s office.383 On this basis, Mr. Fry concluded that Mr. Arar’s condition was
improving and that he was looking better and in good health. Mr. Fry testified
neither he nor the Minister believed that Mr. Arar was being tortured.384
The Embassy also sent this consular report to ISI and ISD. In commenting
on it, Mr. Gould agreed that it was clear the General intended to pass on details to the Ambassador once the investigation or continuing interrogation was
completed.385
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Unlike the report on the first consular visit, this report was not distributed
to CSIS or the RCMP. However, ISI officials did share some of the contents with
the two agencies, including personal information about Mr. Arar’s emotional
state, at a meeting on November 6.386
Next consular steps
Mr. Pardy gave Mr. Arar’s message to Dr. Mazigh in the afternoon of
October 29.387 Mr. Pardy and Dr. Mazigh were in frequent e-mail contact.
Moreover, according to Mr. Pardy, consular officials had detailed conversations
with Dr. Mazigh throughout this period to convey the full flavour of the information available to Consular Affairs.388
At the same time, DFAIT officials in Ottawa and Tunis were working to facilitate Dr. Mazigh’s quick return to Canada, and to obtain an emergency passport for her infant son, Houd.389 Ms. Pastyr-Lupul was particularly active in this
regard, arranging for the senior consular official at the Paris embassy to meet
Dr. Mazigh at the airport.390 Mr. Pardy also began arrangements for Mr. Fry to
meet with Dr. Mazigh. According to Mr. Fry, he relied heavily on Mr. Pardy in
order to keep the Minister briefed on the case, which was evolving on a daily
basis. By the end of October 2002, the case had gained a very high profile, and
was receiving a great deal of media and public attention.391
3.5
THE NOVEMBER 3 MEETING WITH GENERAL KHALIL AND
THE BOUT DE PAPIER
Background to the Meeting
As discussed above, in his instructions for the second consular visit, Mr. Pardy
asked Ambassador Pillarella to find out how the Syrian investigation was proceeding, and also requested that the Ambassador inform him of any possible visits by RCMP and CSIS officials to meet with Mr. Arar or Mr. Almalki or with
Syrian officials.392 In his report on the visit, Mr. Martel advised that “the question of where things are with the Syrians is being investigated by the HOM [Head
of Mission]. Visits by RCMP or CSIS officials could not be discussed at this
level.”393 Mr. Martel explained in his testimony that RCMP and CSIS visits were
not within his mandate and that Ambassador Pillarella might have added this to
the report.394 The Ambassador could not recall what the line dealing with the visits related to.395 He recalled receiving Mr. Pardy’s October 28 instructions, but
did not know what his concern was with respect to potential visits.396 However,
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he did testify that he would have reported back to Mr. Pardy if either CSIS or
the RCMP showed up in Damascus.397
Mr. Pardy sent Damascus another e-mail on October 30 which referred to
this line in the report.398 Mr. Pardy asked if the Ambassador could report any
contact with RCMP and CSIS liaison officers indicating interest in visiting Syria,
or any contact with Syrian officials with respect to Mr. Arar’s case. He stipulated
that “there have been indications of this from RCMP and letter is under consideration by ISI suggesting that this not happen in the current circumstances.”399
In Ambassador Pillarella’s recollection, the RCMP and CSIS liaison officers were
not interested in visiting and he did not recall being approached about a visit.
Mr. Pardy believed that when he sent his October 30 message to Damascus, he
had a phone call from Mr. Solomon of ISI, who said that discussions were continuing and if a letter was needed, one would be prepared.400
A memorandum dated October 30 was drafted by Mr. Solomon, proposing
that a letter be sent to the RCMP on the issue of sending questions that Syria
could put to Mr. Almalki. His memorandum stated that “both ISI and
DMCUS/HOM [Damascus Head of Mission] have pointed out to the RCMP that
if such questioning is carried out by the Syrian security services, there is a credible risk that it would involve torture.”401 Ambassador Pillarella testified that he
had no recollection of having said this to the RCMP and was not aware of the
existence of any draft letter.402
On October 30, Ambassador Pillarella and the DFAIT Special Coordinator
for the Middle East Peace Process met with Syrian Deputy Foreign Minister
Mouallem in Damascus.403 At this meeting, the Deputy Foreign Minister raised
Mr. Arar’s case. Ambassador Pillarella asked to see General Khalil before
November 4 to receive the latest information on the case, since he was travelling to Canada on that day and fully expected to be queried about it.404
Ambassador Pillarella testified that his request for a meeting with General Khalil
was not because the General had promised to give him the fruits of the interrogation,405 but rather because he would be asked in Canada about how things
were evolving and General Khalil was the only person who could tell him this.406
While they were meeting with Deputy Foreign Minister Mouallem, General
Khalil’s office phoned the Embassy to set up a meeting.407
The Meeting with General Khalil
Ambassador Pillarella met with General Khalil for an hour on November 3 to review the Arar case. General Khalil was absolutely positive about Arar’s links
with al-Qaeda and said that he had been recruited with the specific purpose of
recruiting others in Canada.408 The Ambassador was advised by General Khalil
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that Mr. Arar had identified members of sleeper cells in Canada, had clearly
identified El-Maati and Al Malki [sic] and had also undergone training in
Afghanistan where he was also introduced to arms handling.409 During this meeting, Ambassador Pillarella asked General Khalil whether he could get a “résumé
of information obtained so far from Arar that I could take to Canada with me.”
The General promised the Ambassador that he would receive it before his departure for Canada.410
Ambassador Pillarella explained that their goal was to get Mr. Arar back to
Canada because he was not charged with anything; however, since General
Khalil claimed that he was connected to terrorist groups, the Ambassador asked
him for proof of what he was saying, since Canada had nothing against him.411
Ambassador Pillarella testified that he asked for the information because it was
in “our interests to know exactly what it was that the Syrians had against
Mr. Arar.”412 The Ambassador did not believe that the General would keep his
promise and provide him with something.413 However, as discussed below, he
did.
At this same meeting, General Khalil said that “he would agree to have a
Canadian intelligence official (CSIS as opposed to the RCMP) to come to
Damascus to review the info provided by Arar.”414 When Ambassador Pillarella
asked him whether it would be possible for the official to question Mr. Arar directly, General Khalil was “noncommittal,” but said that the “official would be
welcome to attend the interrogation sessions and satisfy himself that everything
was above-board.”415 Ambassador Pillarella testified that he did not ask for a
Canadian official to visit Damascus; rather, General Khalil made this offer, and
that this was “a very important nuance.”416 Ambassador Pillarella explained that
he thought it would be to Mr. Arar’s benefit if a Canadian could ask him questions independently of the Syrians and that this was not a request for Canadian
officials to interrogate him.417 General Khalil “promised that, whether or not the
Canadian official could ask direct questions, he would leave Damascus absolutely satisfied regarding the exact circumstances of Arar.”418
At the request of Mr. Pardy,419 Ambassador Pillarella also raised the case of
Mr. Almalki, and observed that General Khalil “seemed now disposed to accept
that he could meet with a Canadian official.”420 Ambassador Pillarella noted in
his report of this meeting that General Khalil preferred to deal with intelligence
officials rather than with police officers, and that the best way to proceed should
be discussed in Ottawa.421 He also noted that it was the “RCMP that has asked
to have direct access to Almalki.”422 Ambassador Pillarella testified that the two
cases of Messrs. Almalki and Arar could not be collapsed into one with respect
to facilitating access to question detainees.423
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In response to whether it was appropriate for the Ambassador to facilitate
a visit to Syria by the RCMP or CSIS, Ambassador Pillarella stated that an ambassador represents the entire Government of Canada and the role “is very wide
in scope.”424 He was not aware of any DFAIT policies or procedures which
would guide him in a situation where a security intelligence agency or the police force wanted access to a Canadian detained abroad.425 The Ambassador reiterated that they would have not got anywhere without dealing with General
Khalil and there was “no other avenue for me to pursue to see that Mr. Arar
could be set free.”426
The Bout de Papier
Following his meeting with General Khalil, Ambassador Pillarella spoke with
Mr. Pardy, who was in Beirut at the time, and reported to him on his discussion
with the General.427 The two men discussed the allegations made, and the
Ambassador advised Mr. Pardy that he had asked for documentation of those
allegations which he would take back with him to Ottawa.428 Mr. Pardy recalled
that during this phone call, Ambassador Pillarella might have told him of the invitation for a Canadian to visit Damascus, but no specifics were discussed.429
General Khalil did follow through with his promise. Hours before Ambassador
Pillarella was to depart for Canada, someone showed up at his residence with
an envelope from General Khalil containing the information he had promised
the Ambassador.430 Mr. Pardy commented that DFAIT was “totally surprised that
the Syrians provided us with that information,” given DFAIT’s past experience
with Syria.431
Ambassador Pillarella brought the document to Canada with him and gave
it to DFAIT ISI on November 6.432 DFAIT ISI sent it to CSIS for translation and
the undated three paragraph bout de papier433 was translated on November 7.434
The translated bout de papier435 was returned to DFAIT ISI and the information
was then shared with Consular Affairs, the RCMP and CSIS.436
The document provided personal background information on Mr. Arar and then
suggested that Mr. Arar “[had travelled] to Afghanistan in order to join the
Mujahidin camps,” where he underwent military training.437
Appropriateness of Ambassador Pillarella Bringing Back the Information
Ambassador Pillarella testified that he did not solicit the information in the bout
de papier; rather, the General offered to provide information that Mr. Arar was
a terrorist, in response to the Ambassador’s position that Mr. Arar should be returned to Canada.438 The Ambassador testified that he would be “remiss in not
doing my job” if he did not carry back this type of information to Canada, and
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explained that he represented the whole Government of Canada to Syria, not just
DFAIT.439
Ambassador Pillarella explained that it was “very important for me to know
exactly what it was that the Syrians had or suspected that Mr. Arar might be involved in.” Any information which he could send back to Ottawa could be
checked to see whether or not it was true, and this could “be in favour of
Mr. Arar.”440 The information that General Khalil promised to provide would be
“something welcome because we would know everything that we needed to
know if we wanted to defend Mr. Arar’s interests.”441 Ambassador Pillarella stated
that he could not jump to the conclusion during his first meeting with General
Khalil (when the information was promised) that the information gathered during the interrogation was extracted using methods of torture.442 The Ambassador
testified that it did not occur to him that it might have left General Khalil with
a mixed signal in the sense that he was requesting Mr. Arar’s release at the same
time as he was accepting information obtained on him from the interrogation.443
Ambassador Pillarella testified that his purpose in obtaining the information
and providing it to the officials in Canada was to assist Mr. Arar.444 He was also
aware that Mr. Arar was subject to a national security investigation.445 He understood that the purpose of DFAIT sharing the information with the RCMP and
CSIS was to see whether they could verify it and help Mr. Arar.446 However, he
acknowledged that he was not aware of any way in which DFAIT’s sharing of
the information with the RCMP and CSIS assisted Mr. Arar.447 Inspector Cabana
testified that the information provided to the RCMP by DFAIT and Ambassador
Pillarella was to be analyzed and verified to see if it was accurate, but that it was
going to be used in the context of the RCMP investigation against Mr. Arar.448
Inspector Cabana stated that he did not think that DFAIT or Ambassador
Pillarella was under any illusion that they were giving the RCMP the information
in order to assist Mr. Arar.449
The Ambassador explained that it was not his decision whether or not it
should also be shared with Mr. Arar’s family or his lawyer to assist in his defence.450 Once the information was passed to DFAIT Headquarters, it was for
them to decide what to do with the document.451 As an ambassador he could
not “get into the role of being the advocate of the lawyer” and Ottawa would
have decided what documentation to give Mr. Arar’s lawyer.452
Ambassador Pillarella testified that he did not know whether the information in the document was obtained under torture, but he noted that no signs of
torture were evident at the consular visits.453 The Ambassador disagreed that if
the information he obtained from the Syrians and took back to Canada was the
product of torture, Canada might be complicit in the torture, because he never
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asked the Syrians to interrogate him for information and there was no evidence
that Mr. Arar was being tortured.454
Both Ambassador Pillarella and Inspector Cabana testified that there was no
discussion during a November 6 meeting455 between the RCMP, CSIS and DFAIT
ISI about the risk or possibility of torture with respect to the statement that
Mr. Arar had given to the Syrians.456 Ambassador Pillarella testified that during
this meeting “everyone took the contents of that particular message with a certain scepticism because we had no way of knowing whether this was true or
not” or knowing “if Mr. Arar, finding himself in the situation where he was,
thought it might be better to co operate and let the Syrians hear what they
wanted to hear so that … he would be safe.”457 However, according to Inspector
Cabana, there was no discussion about the reliability of Mr. Arar’s statement and
no suggestion that it was in question as a result of the method of interrogation
that the Syrians might have used.458
Mr. Pardy explained that Ambassador Pillarella had two responsibilities in
all his interactions with the SMI, one being his consular responsibility and the
other being the responsibility to report back to the government information that
related to the security of Canada.459 This information would go to DFAIT ISI,
which would then decide whether it should go directly to CSIS or the RCMP.460
Mr. Pardy considered the Ambassador’s efforts to obtain information from the
Syrian investigation to be “appropriate to the circumstances” and that the information might have had “dual use.”461 One of the uses was that the information
could be helpful to Mr. Arar.462 The information might have also been of some
use to the security and police organizations back in Canada, since it gave them
specific information which they could verify independently.463 Mr. Livermore
acknowledged that it was legitimate for Ambassador Pillarella to obtain information on Mr. Arar and to pass this information on to the RCMP and CSIS.464
Minister Graham stated that “the ambassador also had a responsibility to get
as much information as possible so that the ambassador could act with knowledge and information.”465 He explained that “as Foreign Minister, I would be
anxious to know everything so that if, for example, I am meeting with the Syrian
Foreign Minister, I would want to know the bad stuff as well as the good stuff.
Someone has to get the information for me. I cannot be an effective advocate
for Mr. Arar or anybody if I go into a meeting with another Foreign Minister
and I haven’t been given the full goods by my ambassador about the situation
in the country.”466 He would want the whole picture so that he could decide
what to believe and what not to believe.467
Minister Graham continued that “if the ambassador knew that they had information about Mr. Arar and he was seeking to protect Mr. Arar and he didn’t
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try and find out what information they had, he would be derelict in his duty in
trying to help Mr. Arar because he would be boxing in a dark room where he
wouldn’t know what case he had to meet.”468 He acknowledged that it is a fine
line which would be easy to cross if one undermined the principal message that
Mr. Arar should be returned home or tried.469 Minister Graham believed
Ambassador Pillarella’s motivation to be “a sincere desire to try and get Mr. Arar
out of jail” and if “he went too far in doing that, that is a judgment.”470
Distribution of the Ambassador’s report and the Bout de Papier
Both the RCMP and CSIS received copies of Ambassador Pillarella’s report of the
November 3 meeting with General Khalil and the translated bout de papier.
Ambassador Pillarella sent the report of his November 3 meeting with General
Khalil to DFAIT Headquarters471 and on November 4 it was forwarded by
Mr. Heatherington to Mr. Pilgrim in RCMP Headquarters and to Mr. Cabana at
Project A-O Canada.472 Ambassador Pillarella testified that he had nothing to
do with his report being shared with the RCMP and that this was done by DFAIT
Headquarters.473 CSIS also received the report from DFAIT on November 4.474
DFAIT ISI had sent the bout de papier to CSIS for translation and after it was
translated, it was returned to DFAIT ISI and the information was then shared
with Consular Affairs, the RCMP and CSIS.475
3.5.1
Background Information on the Afghanistan Camps
As noted above, the Syrians reported in the bout de papier that Mr. Arar had told
them he had attended a training camp in Afghanistan in 1993. To evaluate the
significance of this information, should it be true, it is necessary to understand
the history of training camps in Afghanistan. What follows is a synopsis of in
camera evidence of the historical and political background of terrorist and
mujahedeen camps in Afghanistan in the 1990s. This background informed the
analysis of the significance of the information on Mr. Arar received from the
Syrians.
In 1979, the Soviets invaded Afghanistan. The ensuing war continued for
nearly a decade, during which the infrastructure of the mujahedeen training
camps in Afghanistan and Pakistan slowly developed.476 Mujahedeen means
“holy warrior,” and an individual who attended a camp solely for mujahedeen
training might not necessarily be interested in terrorism, but only in some form
of “armed defence.”477
The camps evolved over time. The Soviet invasion generated great concern
throughout both the Islamic and Western worlds about Soviet expansion into
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Central Asia. Countries like Saudi Arabia and Pakistan, as well as countries in the
West, supported a drive to recruit many people (mostly young Muslim men) to
go to fight the Soviets in Afghanistan.478
A young Muslim man or woman from Canada who wanted to join this fight
would in most cases be referred to someone in a certain network. The individual would learn where to go and who to contact once in Pakistan. She or he
might have letters of recommendation to present along the way. Within these
networks could be found true extremists from actual terrorist organizations such
as the Egyptian al Jihad.479
Pakistan was the launching point for the recruits. New recruits would stay
at a guest house in Pakistan, of which there were many, with certain organizations having their own. The most famous, used by many recruits and most probably synonymous with the al Qaeda movement, was the Abdullah Azzam guest
house (also known as “Bayt Al Arab” or “Makdabul Kitimat”) in Peshawar. This
is where Mr. Arar reportedly told the Syrians he had stayed.480
Osama Bin Laden fought against the Soviets until 1989. His al Qaeda network would have evolved in the late 1980s as Mr. Bin Laden himself acquired
a more significant role in the fight against the Soviets. The name of his group,
al Qaeda, means “the base.”481
The Soviets left Afghanistan in 1989, with their puppet regime hanging on
to power for a scant 18 months or so thereafter. Many mujahedeen remained
to fight this pro-Soviet regime until it collapsed in 1991.482
In 1993, when Mr. Arar is alleged to have been in Afghanistan, both the
training camps and the guest houses still existed. The difference was that after
the Soviet regime fell, it was unclear who the mujahedeen were fighting. Until
the Taliban rose to power, different warlords fought one another and the remaining Arab mujahedeen had to choose sides. Most mujahedeen would have
joined forces with Gulbuddin Hekmatyar’s Hizb-I Islami party (HII), as Mr.
Hekmatyar seemed most predisposed to them and treated them best during the
Soviet war. Many of the Afghan warlords did not want Arab volunteers around
and saw them as fanatics. However, Gulbuddin Hekmatyar seemed more inclined to extremism, so the Arabs there gravitated to his group.483
Osama Bin Laden was not in Afghanistan when Mr. Arar allegedly trained
there. Mr. Bin Laden left Afghanistan in 1991 for Saudi Arabia, but was soon
forced to leave for Sudan because of his opposition to Western forces on the
ground in Saudi Arabia during the first Gulf War. He remained in Sudan until
1996, when he returned to Afghanistan.484 Mr. Bin Laden’s infrastructure remained in place during his absence.485
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The training camps were diverse in nature. Some could be described as terrorist training camps; others only as mujahedeen training camps. Often, the
camps changed with time. Therefore, the allegation that Mr. Arar had received
his training in 1993 left uncertainty as to Mr. Arar’s terrorist tendencies. A person being trained in Afghanistan in 1993 would not necessarily have been selected for terrorist operations. It would have depended on the training he or
she actually took.486
It was explained that “some very nasty people … came out of that camp at
that particular point in time, including some of the individuals responsible for
the first World Trade Center bombing,” but that other individuals who attended
Khalden were not of that particular stripe. Thus, the motivation for attending
would be unclear. One would also need to know if the individual had received
specific instructions to carry out terrorist activity upon leaving.487
Based on the Syrians’ information, it could not be determined whether
Mr. Arar was a member of al Qaeda or had received specific terrorist training.
He could have gone to Afghanistan as a religious Muslim with a desire to fight
the infidels or he could have had more nefarious intentions.488
3.6
THIRD CONSULAR VISIT
Consular duties to facilitate legal assistance
In his testimony, Mr. Martel agreed that a consul’s mandate is to try to ensure
that a detainee has access to legal counsel if he or she is going to be brought
into a country’s court system. Normally in such cases, an embassy would make
an official request for legal counsel, and Canada would register a protest if it
were not granted. The embassy would help the lawyer obtain access to the files,
and with authorization from Ottawa, would give the lawyer any relevant documents. According to Mr. Martel, “In other words, the counsel for the defence
must be armed and equipped with all the necessary documents to ensure a
sound defence.”489
Ambassador Pillarella agreed that a consul will help obtain legal representation for a detainee, although he believed this assistance is limited to providing a list of lawyers. From his perspective, an embassy’s role was not to get
involved in matters of legal substance, but merely to facilitate access to a
lawyer.490
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Consular Affairs seeks access for a lawyer in Damascus
On November 2, one of Mr. Arar’s brothers called Consular Affairs and provided
the phone number of Anwar Arar, a lawyer in Damascus and a relative of the
Arar family in Canada. He explained that Anwar had tried to locate Maher in detention, but could not find him or obtain any information from the Syrians.
Anwar hoped to meet with Maher by accompanying Mr. Martel on a consular
visit. Consular Affairs sent this information the same day to Mr. Martel for his action.491 Ms. Pastyr-Lupul explained that Consular Affairs does not always try to
facilitate physical access of a lawyer to a detainee, because in places like the
United States, it assumes the lawyer will obtain access directly. As this was Syria,
however, Consular Affairs played a more active role in helping the lawyer gain
access to Mr. Arar.492
On November 3, Ms. Kotrache, a junior embassy official in Damascus, advised by CAMANT that “[t]he Consul will ask the Syrian authorities, in his next
visit to subject, if they are willing to authorize the lawyer to come with him.”493
Mr. Martel knew it was critically important to ensure that every detainee
had access to a lawyer, and that doing so was directly within his mandate and
duties as consul.494 However, there is no documentary evidence that Mr. Martel
or any embassy official ever requested access for Anwar Arar. Asked whether he
had done so, Mr. Martel replied that he had not made a formal request, although
he might have informally asked Colonel Saleh, his SMI contact. Mr. Martel believed that he was the only person the Syrians would allow to visit Mr. Arar.
Further, he believed that it was out of the question for the Syrians to allow
Mr. Arar a lawyer so long as their investigation was incomplete.495
Mr. Martel confirmed that Canada did not make any formal protest to the
Syrian government about Mr. Arar’s deprivation of counsel, either through himself or the Ambassador. He explained that Canada’s first objective was to maintain consular access, and that the Syrians considered themselves to be granting
a substantial favour in doing so.496 When asked whether Consular Affairs actually considered the risks and benefits of making a protest, Mr. Martel said he believed that Consular Affairs already knew that Anwar Arar’s request was
impossible to grant, which is why nobody from Ottawa followed up on it. Given
the broader circumstances of Mr. Arar’s detention, Ottawa did not treat this as
an important request.497
Preparation for the consular visit
On November 1, Mr. Pardy received an e-mail from Dr. Mazigh, attaching a letter to her husband for the next consular visit. Acting in Mr. Pardy’s absence,
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Ms. Pastyr-Lupul sent the letter to Mr. Martel on November 6. Mr. Martel replied
to her with a reminder that Dr. Mazigh should choose her words carefully as her
letters were read by Syrian authorities. He explained that all information he
brought to Mr. Arar, including letters from his wife, would be read and copied
by Syrian officials. If Dr. Mazigh wrote anything negative about the Syrians, they
might not allow her letters through, especially as the Syrians already disliked
her.498
On November 6, Mr. Martel e-mailed Ms. Pastyr-Lupul about his difficulties
in scheduling a consular visit, concluding his e-mail with the comment: “I have
not copied Monia as I would not wish her to be directly in touch with me.” Mr.
Martel explained that Dr. Mazigh was not his client: “I don’t deal with family,
friends, relatives who are outside or even in the country.”499
Two days later, Mr. Pardy and Ms. Pastyr-Lupul telephoned Mr. Arar’s
brother Bassam, who was acting as principal contact for the family in Canada.
They advised him of their hope for a consular visit in the next few days, and told
him that there was nothing new to report on the Syrian investigation. They did
not advise Bassam Arar of the allegations made in the interrogation report given
to Ambassador Pillarella on November 3.500
According to Mr. Martel, he was never shown this interrogation report, and
the Ambassador did not advise him of its contents because it had nothing to do
with his consular mandate. Rather, the interrogation report concerned the criminal aspects of the case.501 As a result, Mr. Martel was preparing for the third consular visit in the absence of information concerning the Syrian allegations against
Mr. Arar. Neither could he provide this information to any lawyer, like Anwar
Arar, who wished to assist Mr. Arar.
On November 10, Mr. Martel advised Consular Affairs that a visit with
Mr. Arar had been scheduled for November 12. Ms. Pastyr-Lupul requested a
summary of the meeting, so that she could update the press lines and provide
information to the Arar family.502
The November 12 consular visit
Mr. Martel’s third visit with Mr. Arar lasted about 15 minutes. Although
Mr. Martel brought Canadian reading material for Mr. Arar, the Syrian officials
did not pass it on to him.503 Mr. Pardy agreed that it would be no surprise if
Mr. Arar never saw a single newspaper or magazine Mr. Martel provided, and
that even if he did, it would be too dark in his cell to read.504
Mr. Arar was permitted to read his wife’s letter, which caused him to become emotional. The Syrians copied the letter. Mr. Arar also dictated a message
for his wife, which he was forced to provide in Arabic. Mr. Martel testified that
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Mr. Arar’s demeanour was the same as on the previous visit, confirming as well
that the Syrians seemed very at ease and willing to continue the practice of consular visits.505
When Mr. Arar asked whether the Prime Minister was going to intervene for
his release, Mr. Martel responded that the purpose of the visit was to provide
consular assistance and moral support, and that Canada was doing what it could.
In his report on the visit, he also said that he “kept to the lines that are public
knowledge as they have appeared in the press. Arar realized he was also a
Syrian national and now in his country of origin.” Asked what he meant,
Mr. Martel testified that he did not want to give Mr. Arar any false hope.
Although he assured Mr. Arar that his request for intervention would be passed
to Ottawa, apart from the passing reference in Mr. Martel’s consular report, it is
unclear whether this was actually done.506
Mr. Martel did not tell Mr. Arar about Anwar Arar’s recent attempt to visit
him. In fact, there is no evidence that Mr. Martel ever told him that Anwar Arar
was in contact with Consular Affairs and was seeking a visit.507
In the car ride following the visit, Mr. Martel tried to obtain information on
the investigation from Colonel Saleh, thinking that he had a chance of learning
more about the case due to his growing relationship with the Colonel. He asked
why Syria was holding Mr. Arar and what they were going to do with him.
However, the reply was only that the Ambassador had already been provided
with a full report.508
DFAIT reactions to Mr. Martel’s report
According to Ambassador Pillarella, he was most likely still in Canada when the
third consular visit took place, which is why he did not approve Mr. Martel’s report as usual. However, he testified that he would certainly have seen the report on his return to Damascus.509
Ambassador Pillarella confirmed that the Syrians’ “full report” was the onepage bout de papier provided to him by General Khalil on November 3.510 At a
November 6 interagency meeting in Ottawa, a CSIS official mentioned that even
if the interrogation report were true, it did not amount to much evidence against
Mr. Arar. Asked whether he went to the SMI with that assessment, the
Ambassador testified that this was merely a comment by a CSIS official present.511 At the same time, the Ambassador disagreed that it was inappropriate for
Mr. Martel to inquire about the investigation, as it was within his consular functions, and any information could only assist Mr. Arar in getting out of jail. Asked
if his opinion would change if Mr. Martel were to share the results of such inquiries with CSIS and the RCMP, the Ambassador testified that the embassy gave
�IMPRISONMENT AND MISTREATMENT IN SYRIA
information like this to Ottawa to determine whether Canada could counter the
allegations. In fact, all decisions to share information beyond DFAIT were made
in Ottawa.512
Mr. Livermore agreed that it would be totally appropriate for Mr. Martel to
try and gather information on the investigation’s progress, as DFAIT needed to
know as much as possible to help get Mr. Arar out of Syria.513
According to Ms. Pastyr-Lupul, a third consular visit within three weeks
was a good sign in terms of access. She testified that the message from Mr. Arar
to his wife was particularly important, as Dr. Mazigh was anxiously awaiting
news from her husband. She observed that these messages were likely crucial
for both Mr. Arar and Dr. Mazigh.514
For his part, Mr. Pardy testified that there was nothing unusual about the
third consular visit. To him, the key information in the report was Mr. Martel’s
statement that he tried to obtain information on the progress of the investigation. Mr. Pardy testified that, at the time of the third consular visit, Canadian officials with whom he was in contact were certainly aware of Ambassador
Pillarella’s discussion with General Khalil the week before.515
Mr. Pardy was also referred to Mr. Arar’s message to his wife, which read:
I hope to be released soon. Thank you for sending me your message. I am asking
you to continue sending me letters as this is the only way for me to know of your
whereabouts. I believe the decision you have taken is a wise one as the family is
returning to Canada. As we had discussed before the chances of working in Tunis
did not turn out to be positive. With God’s will we will be re-united.
Asked whether he was aware, during Mr. Arar’s detention in New York, of
a suggestion that Mr. Arar and his family might have recently moved to Tunisia,
Mr. Pardy testified that he was, although he did not see this as significant information. From his early conversations with Dr. Mazigh, he knew that the family was in Tunis because of an illness in Dr. Mazigh’s family and Mr. Arar’s
diminishing employment options in Canada as a result of the slump in the high
technology industry. He emphasized that it “does not matter one jot” where a
Canadian citizen is located in the world, in terms of Canada’s responsibility to
provide consular services.516
DFAIT assists Dr. Mazigh’s return to Canada
During this time, Consular Affairs assisted Dr. Mazigh’s return to Canada. On
November 4, Dr. Mazigh advised that she would maintain her departure date
of November 14, provided Tunisian authorities allowed her infant son Houd to
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leave the country. Ms. Pastyr-Lupul remained in close contact with Dr. Mazigh
about her travel plans, and made arrangements for an emergency passport for
Houd.517
On November 13, Mr. Pardy instructed embassy officials to assist
Dr. Mazigh’s departure from the airports in Tunis and Paris. Consular officials in
Paris were to ensure that Dr. Mazigh cleared security for her connecting flight
to Montreal. Similarly, a Tunis consular official attended at the Tunis airport and
was prepared to intercede with Tunisian authorities, if necessary. Mr. Pardy explained that these efforts were taken because Consular Affairs anticipated that
Dr. Mazigh and her two young children might face difficulties clearing customs
in both countries. He testified that even in normal times, it can be difficult for a
young woman travelling internationally with two young children, so DFAIT tried
to assist her to the maximum. He further explained that, just prior to Dr. Mazigh’s
departure, she was intercepted with her son at a Tunisian passport office by
Tunisian security agents, who interviewed her for a number of hours about her
husband. Mr. Pardy did not know the reason for the interview and was not
aware of any contact between Canadian or American security officials and the
Tunisians. Nor was he aware if Dr. Mazigh had trouble on arrival at the Montreal
airport, although he later heard that Canada Customs had searched her
luggage.518
Ms. Pastyr-Lupul contacted immigration officials at the airport in Montreal
on November 14 to alert them to a typo on Houd’s emergency passport and to
instruct them that the family should face no problems in re-entering Canada.519
The next day, November 15, Ms. Pastyr-Lupul spoke to Mr. Arar’s brother,
Bassam. He advised that Dr. Mazigh had arrived with her two children, although
it had taken the family one and a half hours to clear Customs as officers searched
her luggage. Ms. Pastyr-Lupul arranged a meeting for Bassam Arar, Dr. Mazigh
and Mr. Pardy for November 19.520
In Ms. Pastyr-Lupul’s phone conversation with Dr. Mazigh that day,
Dr. Mazigh made reference to Mr. Almalki using telephone numbers. However,
Ms. Pastyr-Lupul was not sure from her notes if this referred to numbers from
Mr. Arar’s phone book or from his own. Dr. Mazigh apparently mentioned that
her husband knew Mr. Almalki from the mosque. She apparently called
Mr. Almalki a “big mouth,” saying that he had given people’s names, including
Maher’s, to prison officials during interrogations. Ms. Pastyr-Lupul’s notes also
refer to Dr. Mazigh mentioning that Mr. Arar knew Mr. El Maati’s mother because she had helped them with a plumbing problem in Montreal. However,
Dr. Mazigh had noted that Mr. Arar had never met the rest of the family, and they
were not social acquaintances.521
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3.7
THE ONGOING LOOKOUT ON DR. MAZIGH
When Dr. Mazigh arrived at the Montreal airport on November 14, she was sent
for a secondary examination by Canada Customs officials because the Canadian
lookout on her was still active at the time.522
Customs officials photocopied some of Dr. Mazigh’s belongings, including
her personal identification, ticket stubs, E-311 Traveller’s Declaration Card and
passport, as well as passport information about her children, Baraa and Houd
Arar.523
The same day, a Customs superintendent contacted Officer J.-P. Thériault,
the Canada Customs Regional Intelligence Officer (RIO) seconded to Project
A-O Canada, to inform him of the secondary examination.524 Officer Thériault
directed the superintendent to contact the RCMP. The next day, Officer Thériault
checked the Integrated Customs Enforcement Service (ICES) system, and took
a copy of the Notepad report and travel history to Sergeant Glen Dorion of the
RCMP. The entry indicated that Dr. Mazigh had some American, Canadian and
European funds in her possession.525
Prior to November 14, a Customs official in Montreal had placed an intelligence report on Dr. Mazigh in the Intelligence Management System (IMS),
which is administered by Canada Customs. The official added to that report on
November 21, following Dr. Mazigh’s secondary examination on November 14.
He included information on the secondary examination, as well as “tombstone
data,” including Dr. Mazigh’s driver’s licence, passport and Certificate of
Citizenship. The official also included a reference to Dr. Mazigh’s daughter (five
years old at the time) and son (nine months old at the time), and their passport
information.526
The only IMS policy in force at the time and/or made available to this
Inquiry was the IMS User Policy.527 It describes the IMS as “an automated facility for the reporting and compilation of intelligence information on targets (individuals, businesses, conveyances, commodities, etc.) that are known or
suspected to be a potential border risk.” Otherwise, the policy provides little
guidance in terms of limits on what can be uploaded. The same policy indicates
that information is retained in the system for 10 years, and automatically purged
thereafter.
The IMS User Policy appears to contemplate release of IMS information
pursuant to ss. 107 and 108 of the Customs Act, the Privacy Act, the Access
to Information Act, and related policy. It also appears that other government
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departments and law enforcement agencies may have access to it in certain
circumstances.
Also relevant are policies related to examining and photocopying personal
documents. The policy concerning personal documents was amended on
May 31, 2002.528 It requires that private papers and personal journals only be examined when there has been a substantiated contravention of the Customs Act.
The existence of unreported or falsely reported goods, particularly prohibited
goods, would justify examination of a purse or wallet, daily journal, envelope
or any other reasonable container for evidence in the form of receipts or references to these goods.
The new policy specifically states that photocopying documents constitutes
a seizure under s. 8 of the Canadian Charter of Rights and Freedoms. The
Customs Act does not give Customs officers the authority to copy materials unless they are copied in an enforcement context as permitted under s. 115 of the
Act. The same policy document states that photocopying information not related to enforcing the Customs Act may be interpreted as an unlawful seizure
under s. 8 of the Charter. Further, only the passages or items related to the contravention are to be copied from any record, book or document. Under no circumstances can Customs officials photocopy documents not related to
administering or enforcing the Customs Act, unless they are seized for some
other lawful purpose, or if the owner or person in possession gives permission.
The new policy specifically states that officials may not photocopy the personal
identification of persons entering Canada and pass it to the police for intelligence purposes. In all cases, people must be advised when their documents are
photocopied.
George Webb, who was Director of Intelligence for Canada Customs at the
time, testified that there was significant tension in the organization about the
new policy. For example, from Mr. Webb’s perspective, the policy was written
by people who had never worked in the field. As a result, it seriously impeded
the performance of intelligence officers.529
When Dr. Mazigh was subjected to a secondary examination on
November 14, Officer Thériault was aware of the policy, but considered his actions to be part of a lawful investigation. Officer Thériault’s immediate supervisor had directed him to continue collaborating with and supporting Project A-O
Canada investigators. It is not clear, however, whether Officer Thériault was directed to photocopy documents in breach of a prevailing policy or enforcement
bulletin.
As indicated earlier, the only reason that a lookout was issued on
Dr. Mazigh was that she was married to Mr. Arar, a person of interest to Project
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A-O Canada. Otherwise, there was no information implicating Dr. Mazigh in
suspected terrorist activity. Despite the difficult circumstances facing Dr. Mazigh
at the time (she was a young Muslim woman in a post-9/11 environment who
was travelling with two small children, and whose husband was being detained
in Syria530), Inspector Cabana testified that he did not think that the lookout
should have been lifted. In his opinion, people were subjected to secondary
examinations in Canada on a daily basis. Moreover, the RCMP believed that individuals involved with al Qaeda were using their spouses to transport information or material across borders. For these reasons, Project A-O Canada
considered the lookout on Dr. Mazigh to be appropriate.531
3.8
ACTIVITIES IN CANADA
3.8.1
Mr. Edelson Requests a Letter from the RCMP
On October 24, Michael Edelson, a lawyer in Ottawa who had previously acted
for Mr. Arar,532 telephoned John McNee, DFAIT’s Assistant Deputy Minister for
Africa and the Middle East, and raised the concern that Mr. Arar was being tortured in Syria. Mr. McNee referred him to Mr. Pardy.533 When Mr. Edelson met
with Mr. Pardy on October 29 to discuss what he might do to try to obtain
Mr. Arar’s release, they agreed that Mr. Edelson would ask the RCMP to write a
letter to the Syrians indicating that the RCMP had no interest in Mr. Arar.534
The next morning, Mr. Edelson telephoned Ann Alder, a senior lawyer with
the Department of Justice who was seconded to Project A-O Canada.
Mr. Edelson explained his request for a letter. Mr. Edelson believed that the key
point was to have the RCMP indicate in writing that Mr. Arar was not a suspect
in a terrorist investigation. He also wanted the RCMP to acknowledge that
Mr. Arar was not wanted in Canada — in other words, that there were no outstanding warrants for his arrest. Finally, Mr. Edelson wanted the RCMP to run a
Canadian Police Information Centre (CPIC) check to confirm that he had no
criminal record. Ms. Alder told Mr. Edelson that he should put his request in
writing.535
Mr. Edelson testified that he preferred that the letter come from Canada’s
law enforcement agency. In his view, a letter from the RCMP, sent through diplomatic channels to Syria and stating that Mr. Arar was not wanted in Canada for
any criminal activity, would be more influential with the Syrians than a letter
from any other source.536
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That same morning, Ms. Alder called Project A-O Canada to discuss
Mr. Edelson’s call. One of the Project’s assistant managers advised her that it
would be inappropriate for them to write any letter or attempt to have Mr. Arar
released when it was the Americans who had detained him.537
On October 31, Mr. Edelson wrote to Ms. Alder to make a “formal request
for the RCMP to assist with respect to our ongoing efforts to obtain the release
of Maher Arar from Syria.”538 His request stated that Mr. Pardy had advised that
“in his view, a letter from the RCMP or yourself for that matter, would be of significant assistance in facilitating the return of Maher Arar to Canada.” Mr. Edelson
then listed four points that he wished the RCMP letter to confirm:
1.
2.
3.
4.
That the RCMP made no request to have Mr. Arar “deported” to Jordan or
Syria.
That Mr. Arar did not have a criminal record.
That Mr. Arar was not wanted in Canada for any offence and was not the
subject of any arrest warrant.
That Mr. Arar was not a suspect in connection with any terrorist-related
crime.
Mr. Pardy testified that Mr. Edelson’s letter was a fair representation of their
discussion and that its purpose was to have Mr. Arar returned as quickly as
possible.
The RCMP Response
Mr. Edelson’s letter came to Inspector Cabana’s attention, and on November 1,
Inspector Cabana sent a memorandum to Chief Superintendent Couture, the “A”
Division CROPS Officer, with the letter attached.539 Inspector Cabana advised
Chief Superintendent Couture that:
While at this juncture our project is aloof to Mr. Arar’s status, the suggestions and
comments of Mr. Purdy [sic] are highly problematic in that they seek to shift the responsibility for Mr. Arar’s future status squarely on the RCMP. I believe DFAIT has
to be sensitize [sic] on the possible impact these types of discussions can have on
an ongoing investigation.
Inspector Cabana explained that by “aloof to Mr. Arar’s status,” he had meant
“unaware of his situation.”540 He testified that he did not feel any responsibility
for Mr. Arar’s plight in Syria because it was an American decision to send him
there. He felt no responsibility to assist Mr. Arar, even though Project
A-O Canada had shared its information with American authorities and might
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have provided the FBI with interview questions which led to information included in Mr. Arar’s removal order. Inspector Cabana reasoned that the evidence
on Mr. Arar was insufficient to take legal action against him in Canada. He thus
felt no responsibility for Mr. Arar’s status in Syria.541
Assistant Commissioner Proulx did not agree with Inspector Cabana that
Mr. Edelson’s letter sought to shift responsibility to the RCMP. He agreed that
the letter made it clear that it was DFAIT’s responsibility to bring Mr. Arar home
and that Mr. Edelson was requesting a letter from the RCMP simply to assist in
that process.542 During his testimony, Deputy Commissioner Loeppky was also
referred to Mr. Edelson’s letter, which he had not seen before. When asked if
the RCMP had any responsibility to help with Mr. Arar’s return to Canada, the
Deputy Commissioner answered that DFAIT would ultimately be responsible,
though DFAIT could properly solicit RCMP input.543
Inspector Cabana continued in his memorandum that:
While we had no role to play in Mr. Arar’s initial detention and subsequent deportation from the United States, we are not in a position at this time to categorically
determine Mr. Arar’s role. To be asked to do so at this stage is unreasonable.
Inspector Cabana testified that, as a matter of policy, the RCMP would not
and could not confirm most of Mr. Edelson’s points.544 He was prepared to acknowledge as objective facts that the RCMP had made no request to have
Mr. Arar deported and that Mr. Arar did not have a criminal record. However,
he testified that the third point, that Mr. Arar was not wanted in Canada for any
offence nor was there a warrant for his arrest, might be problematic and would
require consultation, because as a matter of policy, the RCMP was not in the
habit of confirming such information. Inspector Cabana testified that he found
the fourth point the most problematic, because the role of Mr. Arar was still unclear at that point.545
Inspector Cabana and other RCMP witnesses, including Assistant
Commissioner Proulx of CID, testified that it was improper for Mr. Pardy to suggest that defence counsel make this request, and that DFAIT should have made
this request directly.546 However, Assistant Commissioner Proulx testified that
the RCMP’s written response would have confirmed only the first two points.547
On November 6, Chief Superintendent Couture sent a memorandum to
Assistant Commissioner Proulx, enclosing Mr. Edelson’s letter and Inspector
Cabana’s memorandum.548 Chief Superintendent Couture’s memorandum stated
that “Project A-O Canada investigators are not in a position to provide any comment with respect to the status or role of Mr. Arar in connection to the investi-
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gation.” He recommended that the RCMP clarify with DFAIT how to coordinate
appropriate procedures for dealing with such matters.
Chief Superintendent Couture also testified that Mr. Pardy should have
made the request directly. Apart from protocol, Chief Superintendent Couture
testified that confirming the first and second points would not be contentious.
He did not identify any particular concerns with the third point, that Mr. Arar was
not wanted in Canada for any offence. However, he testified that it would be
problematic to confirm that “Mr. Arar is not a suspect with respect to any terrorist-related crime” because, just a few days earlier, DFAIT had provided the
bout de papier with Mr. Arar’s confession of having attended a training camp in
Afghanistan in 1993. Chief Superintendent Couture believed that it was not for
the RCMP alone to assert that Mr. Arar was not a suspect, but that DFAIT and
CSIS should also comment on whether an individual is a suspect in a terrorism
investigation.549
On November 11, Superintendent Wayne Pilgrim at RCMP Headquarters
also briefed Assistant Commissioner Proulx, enclosing a draft letter to Mr. Pardy
for his signature.550 Superintendent Pilgrim wrote: “The suggestion that
DFAIT/Pardy may have advised defence counsel to seek our assistance in the
release and return of this subject is, in my opinion, outrageous and a clear abuse
of the respective office.” He also believed that the matter was Mr. Pardy’s responsibility, and he noted that the RCMP had already provided Mr. Pardy with
all possible information in a memorandum on October 18. Superintendent
Pilgrim assessed that DFAIT could share that memorandum with Mr. Edelson,
instead of directing him to the RCMP.551
Furthermore, Superintendent Pilgrim testified that he would advise any
RCMP officer not to discuss with any defence counsel the request for confirmation that Mr. Arar was not a suspect with respect to any terrorist-related crimes.552
He did not know what legal services Mr. Edelson was providing to Mr. Arar, but
he was concerned that if the RCMP gave responses to Mr. Edelson, he might use
them in a legal process. His practice was to be cautious in responding to defence
counsel on ongoing investigations.553
On November 16, after consulting with Headquarters and senior officers in
“A” Division, Inspector Cabana wrote to Mr. Edelson that he was “not in a position to acquiesce to your request at this time.” He explained that the RCMP
“does not involve itself in subjects of foreign policies,” and that “it would be improper for me to comment on Mr. Arar’s present situation relative to our ongoing investigation.” He advised that the RCMP did not “play any role” in Mr. Arar’s
situation and that Mr. Arar had no criminal record. However, he did not confirm
that Mr. Arar was not wanted for any offence or that there were no warrants for
�IMPRISONMENT AND MISTREATMENT IN SYRIA
his arrest in Canada. Inspector Cabana then referred Mr. Edelson back to
DFAIT.554
When questioned about his letter, Inspector Cabana testified that, at that
time, Project A-O Canada could not confirm whether or not Mr. Arar was a suspect. He agreed that Mr. Arar was not wanted in Canada for any offence and that
there were no warrants for his arrest, but he claimed that, as a matter of policy,
the RCMP does not provide any information, even objective facts, about subjects
in an investigation.555
However, in his later testimony before the Inquiry, Inspector Cabana stated
that Project A-O Canada viewed Mr. Arar merely as a prospective witness. He
agreed that it would not have been misleading for the RCMP to have written a
letter setting out four simple, accurate facts: 1) that Mr. Arar was a prospective
witness in an important Canadian investigation; 2) that there were no warrants
for Mr. Arar’s arrest; 3) that Mr. Arar faced no criminal charges; and 4) that
Mr. Arar had no criminal record.556 The Inspector acknowledged that the RCMP
often writes letters that confirm an individual is not facing criminal charges and
is not the subject of warrants. However, he argued that his letter disclosed more
information than the RCMP was in the habit of disclosing, and that Mr. Edelson
obtained more than he should have from Project A-O Canada.557
Similarly, Inspector Cabana agreed that the RCMP routinely confirms that
individuals, such as applicants for teaching positions, are not wanted for any offence. However, he believed that there was a proper process to request this
confirmation and the investigator would refer someone making such a request
to the proper channels. Asked if he referred Mr. Edelson to the proper channels,
Inspector Cabana replied that he referred him to DFAIT since, in his view,
confirming whether Mr. Arar was wanted for an offence fell within DFAIT’s
mandate.558
None of the RCMP witnesses pointed to any existing formal process for
dealing with a request like Mr. Edelson’s.559
Unlike Inspector Cabana, Chief Superintendent Pilgrim did not have a problem with the third point in Mr. Edelson’s letter, namely, that Mr. Arar was not
wanted for an offence and that there were no warrants for his arrest. He agreed
that this was an objective fact to which the RCMP could respond. However, he
said that the RCMP definitely would not confirm or deny the fourth point —
whether Mr. Arar was a suspect — to defence counsel.560
It was suggested to Assistant Commissioner Proulx that Inspector Cabana’s
letter would have the opposite of the desired effect, which was to assist efforts
to repatriate Mr. Arar. The Assistant Commissioner agreed that the wording of
Inspector Cabana’s letter was definitely not good for that purpose, and he noted
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FACTUAL BACKGROUND: VOLUME I
that RCMP officers are not diplomats. In Assistant Commissioner Proulx’s view,
the real objection of the RCMP was that Mr. Pardy had directed a defence lawyer
to the RCMP. Asked if he advised Mr. Pardy that he should approach the RCMP
directly, Assistant Commissioner Proulx said that he never spoke with Mr. Pardy
about this issue.561
Although Inspector Cabana’s letter was dated November 16, Mr. Edelson
did not receive a response until November 27, the day after he called to request it.562
Mr. Edelson was frustrated with Inspector Cabana’s letter. He expected that
the RCMP would indicate whether Mr. Arar was a suspect, noting that in some
instances, the police will confirm whether an individual is a suspect or just a witness. Mr. Edelson sent a copy of the letter to Mr. Pardy. Because he did not like
the answers, Mr. Edelson immediately phoned Ms. Alder to request another
meeting, in the hope that he could obtain more information than was disclosed
in the letter.563
Mr. Pardy had a different response to the letter. He was encouraged by the
phrase “I am not in a position to acquiesce to your request at this time,” explaining that “at this time” suggested to him that the RCMP might still be persuaded to assist.564
On November 28, Mr. Edelson met with members of Project A-O Canada
and their legal counsel to discuss why the letter had not provided all the information requested. Mr. Edelson also asked whether Project A-O Canada had interviewed Mr. Arar in Syria. He testified that Project A-O Canada members
answered that they would like to interview Mr. Arar in Syria, but had not been
able to obtain access to him. They also expressed the view that Dr. Mazigh
should not pursue press coverage, a view which Mr. Pardy had also expressed
to Mr. Edelson at that time.565
Mr. Edelson believed it was at this meeting that Project A-O Canada explained why Mr. Arar was a person of interest to them. He testified that Project
A-O Canada told him that they had information that Mr. Arar’s name had appeared in the PDAs or phone directories of other persons of interest, and that
Mr. Arar similarly had those persons’ names in his PDA, which they found suspicious. They also told him that Mr. Arar was in the United States on September
11, 2001, and he was rumoured to have been in a training camp in Afghanistan.
They suspected that when Mr. Arar and his family travelled to Tunisia, their departure had been suspiciously hasty, and that they were running away.
Mr. Edelson responded that he understood the family was simply on vacation
in Tunisia. He also recalled that a relative of the family was ill in Tunisia, which
may have kept them there longer than they originally intended. Mr. Edelson
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testified that the final reason Project A-O Canada officials were concerned about
Mr. Arar was that they believed he had a relationship with their target Abdullah
Almalki, a belief which they asked Mr. Edelson to keep confidential from
Dr. Mazigh. However, Dr. Mazigh already knew that Tunisian security officials
believed Mr. Arar knew Mr. Almalki.566
On December 10, the RCMP sent a letter to Dan Livermore of DFAIT ISI.
The letter was drafted by Superintendent Pilgrim for Assistant Commissioner
Proulx’s signature, but was signed by Chief Superintendent Dan Killam.567 It
referred to Mr. Pardy’s advice that Mr. Edelson should seek an official response
from the RCMP that would facilitate Mr. Arar’s return to Canada. The letter stated
that the RCMP had already responded to DFAIT’s concerns about Mr. Arar, and
that it had serious concerns with DFAIT’s obvious misunderstanding of
the RCMP’s role, assuming that Mr. Edelson had correctly depicted Mr. Pardy’s
advice.
Mr. Livermore testified that when he spoke to Mr. Pardy about the letter,
Mr. Pardy told him that he did not want to “get into a big debate” about what
he had said and that the RCMP’s letter represented a misunderstanding.568
Mr. Livermore then phoned the RCMP and said that this was a minor issue and
that DFAIT was not going to answer the letter. He suggested that everybody
should forget about it and move on. For Mr. Livermore, this is where the matter ended.569
However, Mr. Livermore agreed that this matter did not go away and that
the RCMP continued to be concerned with later efforts in 2003 to obtain a letter exonerating Mr. Arar.570
Mr. Pardy testified that the RCMP’s reaction was a disappointment, but he
had to continue with his efforts to move the case forward and to involve the
RCMP. Asked if the identification of Mr. Arar as a “subject of interest” caused him
to reconsider sharing information from consular visits with the RCMP, Mr. Pardy
said he already knew that the RCMP considered Mr. Arar to be a subject of interest.
Mr. Edelson Makes a Similar Request on Behalf of Mr. Almalki
Mr. Edelson testified that he made a similar request for a similar letter regarding Abdullah Almalki when he was detained in Syria. Mr. Edelson noted that,
compared to the RCMP’s response for Mr. Arar, it took a very long time to receive a response for Mr. Almalki. He was told that one of the reasons for the
delay was that the RCMP required legal advice, and that it was a “letter by committee” which went through a number of different government meetings.
Mr. Edelson believed the delay was also related to the “firestorm” that occurred
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in response to Mr. Pardy’s earlier letter. However, Mr. Edelson found the letter
about Mr. Almalki more helpful than the one on Mr. Arar. Mr. Edelson did not
know if the RCMP had a policy for responding to such requests.571
The RCMP response was written by Assistant Commissioner Gessie Clément,
the Commanding Officer of “A” Division, in December 2003.572 She confirmed
that Mr. Almalki had no criminal record and that he was not the subject of any
arrest warrant, and assured Mr. Edelson that the RCMP had not requested
Mr. Almalki’s detention in Syria. She recommended that Mr. Edelson discuss
these comments with the appropriate Canadian government authorities, specifically Citizenship and Immigration Canada and DFAIT, noting that the RCMP
would share its correspondence with those agencies in anticipation of
Mr. Edelson’s request for their assistance.
Assistant Commissioner Proulx testified that he was unaware of this letter
and of Assistant Commissioner Clément’s involvement. He noted that it contained more or less the same information as Inspector Cabana’s letter about
Mr. Arar. However, he agreed that Assistant Commissioner Clément’s letter was
better written than Inspector Cabana’s, and that, in contrast to the earlier letter,
it offered appropriate RCMP co operation in Mr. Edelson’s efforts to repatriate
Mr. Almalki.573
Inspector Warren Coons, the new Officer in Charge of Project A-O Canada,
appeared to have primary responsibility for this letter. He consulted Inspector
Rick Reynolds of RCMP Headquarters on November 7,574 and met with
Mr. Edelson about his request on or about November 19.575 Mr. Livermore was
unaware that the RCMP provided Mr. Edelson with a similar letter about
Mr. Almalki.576
3.8.2
Minister Graham’s Meeting with Secretary Powell
As mentioned above, Minister Graham discussed Mr. Arar’s case with
Ambassador Celluci on October 15. Following that meeting, Minister Graham
told his staff that he needed to be better briefed, as Ambassador Celluci seemed
to have far more information about the case. The Minister decided to raise these
issues with the U.S. Secretary of State, Colin Powell, during his first official visit
to Canada on November 14, in order to learn the reason for the American decision and to impress upon Secretary Powell that Canada wanted Mr. Arar
returned.577
In this period, DFAIT was pursuing a request for a briefing from the Solicitor
General’s department about Mr. Arar and other individuals who might be investigated by the RCMP and of interest to foreign agencies.578 Minister Graham
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testified that he never received this briefing. He was told that such a briefing
would be inappropriate as he could not be briefed on operational details, even
through the Solicitor General. The Minister explained that he could only obtain
very general information from the RCMP, which would only say that Canada
and the United States had shared information about Mr. Arar and that the RCMP
had nothing to do with the decision to deport him.579 Minister Graham had the
impression that ISD officials were given very limited information by the RCMP:
I wasn’t asking to know the specific details myself, but I felt that the security people in our department should be able to get all the information that the police or
others had, and I did not believe that was taking place. I was therefore concerned
about the level of briefing that I was getting.580
The Minister was asked why he could not have received operational information from the RCMP and CSIS in confidence, so that he could meet with
Secretary Powell on a level playing field. The Minister responded that if the
RCMP provided him with specific information about Mr. Arar which it had shared
with the Americans, he would be personally engaged as a minister of the Crown
in operational details, which requires a good deal of caution.
A briefing note was prepared for Minister Graham on November 13, the
day before the meeting. Mr. Arar’s case was one of many issues on the agenda.581
Two main topics of discussion were Iraq and Canada–U.S. border issues, specifically Canada’s concerns with the U.S. National Security Entry-Exit Registration
System (NSEERS).582 The briefing note advised the Minister to raise Canada’s serious concerns about the U.S. handling of Mr. Arar and another consular case.
The additional talking points on Mr. Arar were:
We remain troubled by the decision of the American authorities to deport Mr. Arar
to Syria. While we recognize that we have to work together on these files, such deportations without full consultation undermine public support for the anti-terrorism
campaign.
We would hope if such cases occur in the future that there would be appropriate consultations with Canada before such decisions are taken.
The Meeting with Secretary Powell
On November 14, Minister Graham and Canadian officials had a 45 minute meeting with Secretary Powell and American officials, followed by a working lunch.
A summary of the meeting was written in consultation with Assistant Deputy
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Ministers Jim Wright and John McNee and distributed widely, through DFAIT,
PCO and the Solicitor General’s department.583
In setting the context for the meeting, Minister Graham explained that it
took place around the time that the United Nations had decided to send inspectors to Iraq, so a key issue for Secretary Powell would have been security
issues. When Minister Graham raised Canada’s concerns about American authorities deporting Mr. Arar without consulting Canada,584 he stressed that “We
believe very strongly in security. But security will only come if our own citizens
believe that it is being handled in a way where the right balance is being struck,
and we don’t believe the balance was maintained here.”585 Mr. Wright said that
the Minister was signalling to the Secretary that the two countries needed to ensure this did not happen again.586
Secretary Powell appeared well-briefed by his officials on the Arar case and
on other consular cases.587 The Secretary later told Minister Graham that, prior
to this meeting, he was told that Canadian authorities, principally the RCMP,
had shared information about Mr. Arar.588
In response to the Minister’s comments, Secretary Powell insisted that the
United States was unfairly taking the blame for Mr. Arar.589 He encouraged
Minister Graham and DFAIT to consult Canadian security officials, suggesting
that they had known about American actions all along and had in some fashion
given their blessing to Mr. Arar’s removal.590
In addition, Minister Graham and Mr. Wright testified that Secretary Powell
and the American side emphasized that the American decision to deport Mr. Arar
was based on information provided by Canada.591 Minister Graham said that
when it was emphasized that Canada had in no way countenanced sending
Mr. Arar to Syria, Secretary Powell disagreed by specifically responding that
Canada had shared information on Mr. Arar.
According to Minister Graham, Secretary Powell also stated that the United
States had information about phone numbers and a telephone call that justified
deporting Mr. Arar, although he appeared to provide no more explicit details.592
The Minister agreed that the Secretary was basically saying, “Listen, we’ve
got a lot of stuff on this guy.”593 However, he did not know what information
the Secretary had. He observed that security briefings were less than perfect on
both sides of the border, and noted that on occasion he and Secretary Powell
shared frustration over the level of information they received from their respective security agencies.594
For Minister Graham, it was a difficult exchange. He explained that when
Secretary Powell looked him in the eye and said, “Bill, you don’t know what’s
going on, and I do because I’ve talked to the people that know,” all he could
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do was respond, “Hey, that’s not my advice.” Minister Graham felt a lack of confidence during this exchange, because he had access only to general information about Mr. Arar’s case.595
RCMP Reactions to Secretary Powell’s Comments
Deputy Commissioner Loeppky learned of Secretary Powell’s comments at the
end of that day. He agreed that Secretary Powell had left the clear impression
that somebody in the RCMP knew what was going on and that the RCMP had
approved of Mr. Arar’s deportation. Mr. Loeppky acknowledged that it would
be difficult to exclude completely the possibility that some individual RCMP officers might have implicitly approved the deportation by turning a blind eye to
American action.596 However, he disagreed with the Secretary’s reported comment that the RCMP had been advised by the U.S. government of its reasons for
deporting Mr. Arar.597 The Deputy Commissioner testified that he was disappointed by Secretary Powell’s comments, because he had undertaken a number
of internal reviews and had been assured that the RCMP had given no direction
to its American counterparts. Following this meeting, RCMP CID initiated another internal review.598
Superintendent Killam’s notes of November 15, 2002, state: “Today is the
Arar concern that the Force supported the deportation, not true [sic].” He assumed that he learned of this from the media. Superintendent Killam was aware
that Secretary Powell had given Minister Graham the clear impression that the
RCMP was complicit in Mr. Arar’s deportation. However, Superintendent Killam
testified that, even without making further inquiries in response to the media reports, he was able to exclude the possibility that the allegation of complicity
might be true, because the allegation was inconsistent with the RCMP position.599
In late November, Superintendent Pilgrim had lunch with some CSIS officials. He testified that a discussion of the Arar case arose as a result of media
reports of the Powell–Graham meeting and the fact that the Americans were
aware of the investigation while Minister Graham was not. A CSIS report of the
meeting noted that Mr. Pilgrim defended the RCMP’s failure to give DFAIT information about Mr. Arar as keeping tactical criminal information at arm’s length
from the political process.600
The Ottawa Citizen Article of November 18, 2002
On Monday, November 18, 2002, the Ottawa Citizen published an article entitled “FBI told RCMP Ottawa man had terror link: Embarrassed officials admit
U.S. sent evidence about Maher Arar.”601 As planned on the preceding Friday,
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and in response to the Citizen article, officials began working on new media
lines, which were finalized on November 19.602
Minister Graham clearly recalled the public perception that DFAIT was operating without information held by the RCMP. He also recalled being accused
by opposition politicians, including the Leader of the Opposition, of “going to
bat for a terrorist.” The Minister explained that he had to make a distinction between the allegations and Mr. Arar’s legal and consular rights, which included
working for his release.603
Solicitor General Wayne Easter also recalled the issues raised by the Ottawa
Citizen article, and testified that he disagreed strongly with Secretary Powell’s
comments. The Solicitor General did not recall receiving any specific briefing on
the Arar case at that time, apart from notes for Question Period in October 2002.
These stated that the RCMP had “no input” into any decision made by U.S. authorities. He agreed that he had very limited information and that his only source
of information was the RCMP. When it was pointed out that the Arar case had
become a political problem that he should know more about, Minister Easter
said the political problem was because people believed Secretary Powell instead of him.604
On November 19, a CBC reporter advised Raynald Doiron, a DFAIT media
relations officer, that Dr. Mazigh had told him she had received a statement
from DFAIT saying “there is no serious information linking her husband with a
terrorist organization.” Ms. Pastyr-Lupul advised Mr. Doiron that the statement
given to Dr. Mazigh was that the Consular Affairs Bureau had no information
linking her husband with terrorist organizations. In a phone call with Dr. Mazigh
on November 20, Dr. Mazigh observed that this statement made it look like different parts of the government did not have a united front.605
Mr. Dickenson recalled having frank conversations on November 15 and 18
with Deputy Commissioner Loeppky about Secretary Powell’s comments concerning Mr. Arar, in order to ensure that he had accurate information, should
PCO need to brief the Prime Minister. Mr. Dickenson wanted to show that the
RCMP did not provide the Americans with information which they used as a
basis for deporting Mr. Arar. Mr. Dickenson testified that he did not recall seeking clarification of Mr. Arar’s status from Mr. Loeppky and that he could not
conclude from their conversations whether Mr. Arar was involved in a joint
U.S.–Canada investigation. However, Mr. Dickenson testified that Mr. Loeppky
assured him that the RCMP did not have information which could have led to
Mr. Arar’s arrest. Mr. Loeppky was emphatic that nobody in the RCMP had told
the Americans that the RCMP did not want Mr. Arar returned to Canada.606
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Deputy Commissioner Loeppky testified that he advised Mr. Dickenson
that the RCMP had done a number of reviews and could not find any indication
that the RCMP had given any direction or suggestion regarding the deportation
decision, and that Secretary Powell’s statements were inaccurate. The Deputy
Commissioner was asked to comment on Mr. Dickenson’s e-mail to his staff
about their conversations, which stated:
Also understand that RCMP is/was displeased with US, that Arar was deported before they had a chance to interview him. Garry was emphatic that RCMP had not
met with Arar in New York but had wished to do so. Before arrangements could
be made, Arar was deported.
Mr. Loeppky denied that he made these comments to Mr. Dickenson.
Rather, he testified that he believed he indicated to Mr. Dickenson that the
RCMP had wanted to interview Mr. Arar at one point during his detention in the
United States, but that the RCMP had not made the request, believing that
Mr. Arar was returning to Canada.607
RCMP officials had a different concern about the Ottawa Citizen article.
They focused on Secretary Powell’s statement that the FBI had sent the RCMP
information linking Mr. Arar to al Qaeda some weeks earlier. Staff Sergeant
Callaghan advised Corporal Flewelling early on November 18 that Project
A-O Canada had never received any such document from the FBI. RCMP CID
briefed the Deputy Commissioner verbally.608
On November 21, RCMP CID provided Commissioner Zaccardelli with a
revised version of its November 15 briefing note about media reports of RCMP
involvement in the detention of Messrs. Arar, Almalki and El Maati in Syria.
Most of the briefing note remained unchanged. The briefing note concluded
that the RCMP could be considered complicit in Mr. El Maati’s subsequent detention because of the RCMP’s exchange of information with the Americans prior
to Mr. El Maati’s departure from Canada.609
There is no evidence that Solicitor General Easter was aware of any of the
information from the SITREPS or briefing notes in this period.
3.8.3
“Going Back to the Americans” in Prague
On November 19, Mr. Wright was in Prague for a NATO Summit.610 Before he
departed, he instructed Mr. Livermore to obtain more information on the Arar
case, to check with all the agencies and determine whether Canada was involved in Mr. Arar’s deportation to Syria.611
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Different Views within DFAIT and PCO
On the evening of November 19, Mr. Solomon of ISI sent an e-mail to
Ambassador Pillarella, copying it to Mr. Wright at the Canadian Embassy in
Prague, among others. The e-mail was approved by Mr. Livermore. It referred
to the Powell–Graham meeting and addressed, in large part, CSIS’ impending trip
to Syria (discussed in the following section). It noted that on November 18 the
Minister had requested an assessment of Mr. Arar’s possible involvement in terrorist activities. Mr. Wright testified that ISI copied him to make sure that he
was aware of developments in Ottawa and he explained that officials assumed
that Minister Graham and Secretary Powell might have an opportunity to discuss
the Arar case again in Prague.612
However, senior officials had different opinions about whether Minister
Graham should take advantage of this opportunity. On November 20,
Mr. Dickenson sent an e-mail to Mr. Livermore, advising that he had just spoken with Paul Thibault, the Associate Deputy Minister of DFAIT. Mr. Dickenson
told Mr. Thibault his view (which he had previously expressed to Mr. Wright)
that they should not go to the American Embassy on the Arar case without a
clear understanding of CSIS’ role. Mr. Thibault responded that it was a waste of
time and that they should stop approaching the United States about this.
Mr. Dickenson concluded his e-mail by noting that Mr. Wright and Mr. Thibault
seemed to have differing views.613
Mr. Wright confirmed that Mr. Dickenson had spoken to him, though he
did not recall the discussion well. For Mr. Wright, it was completely appropriate for Canada to continue to pursue the United States for more information on
what it had done, while seeking greater clarity on the involvement of Canadian
agencies.614
On November 21, Mr. Livermore sent an e-mail to Mr. Wright in Prague,
in which he passed along the substance of Mr. Dickenson’s conversation with
Mr. Thibault. He wrote that, in Mr. Thibault’s view, “it was water under the
bridge.” Mr. Livermore advised Mr. Wright that:
I think the PCO view is that ‘timing is everything’. If it’s late in the game, it may not
be useful to go back to the Americans. If the issue is still alive in certain quarters,
it might merit a conversation, but definitely not at a political level. This issue will
still be on the burner when you return.615
The e-mail noted that there seemed to be “absolute certainty among the various agencies […] that neither the RCMP nor anyone spoke to the USA in any
way which might have suggested that any Canadian detained in the USA could
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be deported to Syria, rather than to Canada.” At the same time, he observed
that:
it is impossible to preclude the outside chance that someone in the food chain in
NY or elsewhere might have shrugged, winked or through silence acquiesced in a
USA question or decision. This is, of course, denied at the most senior levels of the
RCMP, but the plain fact remains that someone might either lie to their own senior
management or try to cover up what was a misstep.616
Mr. Livermore testified that his “wink-wink, nod-nod” suggestion was “100
percent speculation” based on “30 years of cynicism.” He added that this was
just an “obvious caveat” and a throwaway line: “I had absolutely no ground for
believing that that was the case.”617
Minister Graham did raise the Arar case with Secretary Powell when he attended the NATO Summit in Prague on November 21 and 22. After reminding
Mr. Powell that they had recently spoken about Mr. Arar in Ottawa, the Minister
advised the Secretary that, according to his information, no one in Canada had
participated in the decision to deport Mr. Arar to Syria and this information had
not changed. He asked the Secretary to investigate further. According to Minister
Graham, Secretary Powell responded: “Bill, my story is exactly the same. You
are not getting the straight goods from your guys. I am telling you my information is there were people involved in this decision in Canada.” As in Ottawa, the
Secretary asserted that his information was that a Canadian official had given the
go-ahead to deport Mr. Arar.618
In response, Minister Graham again emphasized that Canadian inquiries
into the matter did not support this view, and he requested that Secretary Powell
provide him with the actual name of the Canadian official who had allegedly authorized or otherwise sanctioned Mr. Arar’s deportation.619
3.8.4
Proposed Phone Call from Minister Graham to Minister Shara’a
Following his meeting with Secretary Powell on November 14, Minister Graham
decided to telephone the Syrian Foreign Minister, Farouk Shara’a, to discuss Iraq
and the Arar case. The call was scheduled for November 19, and a preparatory
briefing note was sent to the Minister’s office on November 18.620
As background for the Minister, the briefing note stated that Syrian officials
had advised that they were investigating Mr. Arar because of alleged links to al
Qaeda, and that the RCMP had advised that they did not seek or receive warning of his deportation to Syria. It also gave talking points indicating that Canada
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remained very concerned about the circumstances of the deportation and hoped
that it would be possible for Mr. Arar to return to Canada.
The November 19 phone call did not take place, however. A number of different explanations were offered for this.
In his testimony, Minister Graham did not recall why the call did not occur,
but he speculated that it could have been the result of scheduling difficulties. He
recalled that, on one occasion, perhaps at a later time, he had tried to phone
Minister Shara’a, but he was out of the country. He also recalled that, at one
point, there was a decision to speak to Ambassador Arnous before approaching
Minister Shara’a. While he speculated that DFAIT officials might have advised
him to approach the Ambassador first, he did not specifically recall receiving this
advice.621
When asked if the phone call was delayed because of the concurrent visit
by CSIS to Syria, Minister Graham testified that this was not his recollection; he
was certain that he knew nothing about the CSIS visit until after it happened.622
However, on a later occasion, Minister Graham was referred to Jim Wright’s testimony, which was that the Minister wanted a report on CSIS’ trip to Syria before he made this phone call. Minister Graham did not recall this, but testified
that he would defer to Mr. Wright’s recollection of events.623
A November 19 e-mail drafted by Mr. Solomon of ISI indicated that
Minister Graham wanted a report on the CSIS visit before phoning
Minister Shara’a. Mr. Wright said that he was not in Ottawa at that time. As noted,
however, he testified that the Minister “asked at the time that he simply be fully
briefed on the results of the visit immediately thereafter so that this could help
inform our engagement with Syrian authorities, either the Syrian ambassador in
Ottawa or the Syrian foreign minister.”624
Mr. Livermore believed that the phone call was merely “visualized” on
November 18, but that nobody had in fact acted on it. He agreed that, due to
his experience with Secretary Powell, Minister Graham wanted to be fully informed before he called Minister Shara’a.625 When referred to Mr. Solomon’s
e-mail of November 19, which he had approved, Mr. Livermore commented
that he did not recall the entire chronology of the proposed phone call, but
knew that at some point Minister Graham wanted to phone the Syrian Foreign
Minister to discuss Mr. Arar’s consular rights. Mr. Livermore testified that they
were also concerned that this phone call might confuse the Syrians, since it
would happen at the same time as the CSIS visit. Therefore, in the words of
Mr. Livermore, “We took it to Mr. Graham. Mr. Graham thought that it was completely manageable, that he wasn’t worried about it.”626
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Robert Fry of the Minister’s office testified that he believed that the phone
call was postponed because Minister Shara’a was unavailable, or because an
Assistant Deputy Minister advised that Minister Graham should talk to the
Syrian Ambassador before approaching the Foreign Minister. Mr. Fry also noted
Minister Graham’s travel schedule, and the narrow window of opportunity to call
Syria before he departed for Prague.627 In addition, Mr. Fry observed that DFAIT
had regular consular access and was receiving reports that Mr. Arar looked good,
which implied that it was not urgent to call Syria about him.
However, Mr. Fry later clarified this evidence. Asked why the phone call
did not occur, he testified that he spoke with Assistant Deputy Minister McNee,
and also possibly with Mr. Pardy. He was told that he was rushing this phone
call and that Minister Graham should deal first at the ambassadorial level and
take it to the foreign minister later.628
Rescheduling the Call
Subsequently, the phone call was rescheduled for December 16. On
December 11, Michael Chesson, a desk officer with the Middle East Division,629
e-mailed Ambassador Pillarella about the call, after consulting with Mr. McNee.
He wrote: “As you are aware, MINA [Minister Graham] had considered placing
a call to Mr. Shara’a some weeks ago to discuss the Arar case… We would appreciate your assessment of Syria’s continuing interest in Arar and whether
Mr. Shara’a would be receptive to a call from MINA on the subject.”630
The Ambassador responded by e-mail the next day, agreeing that a call
should be arranged between the foreign ministers for December 16, if possible.
He wrote:
My first point relates to the cancelled phone call between MINA and FM Shara’a.
You will recall that when the Syrians were informed that the phone call would not
take place, they were somewhat puzzled and despite our explanation that the call
was not being cancelled but simply postponed, they remained unconvinced.
Therefore, in the interest of our bilateral relations and in order to demonstrate to the
Syrians that no ulterior motive existed at the time we postponed the call, MINA
should indeed call FM Shara’a.631
On December 12, Mr. Chesson contacted James Gould in ISI to ask
whether Mr. Livermore had been briefed about the CSIS visit to Syria.
Mr. Chesson wanted any information about the trip that might bear on Minister
Graham’s projected call to Minister Shara’a.632
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The same day, Mr. Heatherington e-mailed CSIS to request any information
received in respect of Mr. Arar. His e-mail also stated that:
Our Minister is considering a number of options for further action on this case including placing a call to his Syrian counterpart on Monday, December 16. To assist us in briefing our Minister it would be appreciated if you could provide us with
your Damascus trip report by Friday a.m. We want to ensure that CSIS’ views are
factored into our advice to the Minister.633
In his testimony, Mr. Heatherington explained that the purpose of obtaining the information was to ensure that Minister Graham had all the relevant facts
and was not blindsided in his discussion with the Syrian Foreign Minister. The
Minister had been “blown out of the water” in other conversations on the Arar
case, in Mr. Heatherington’s view. To be an effective advocate for Mr. Arar,
Minister Graham needed the information that CSIS had obtained in Syria.
Mr. Heatherington believed that the Minister’s background as a lawyer would
help him put CSIS’ information in the proper context.634 Mr. Pardy agreed that
DFAIT’s responsibility was to provide the Minister with as complete a picture as
possible on the case.635
On December 16, Mr. Solomon e-mailed Ambassador Pillarella, advising
him that he was attaching a draft version of Minister Graham’s briefing for his
phone call with Minister Shara’a, in order to prepare the Ambassador for a conversation with Mr. Heatherington. Mr. Solomon noted that the draft was still
undergoing modifications, and that its final version would not contain language
urging the early release of Mr. Arar, but probably a softer line mentioning the
level of press coverage the issue was receiving. The attached unofficial draft
had been sent to Mr. Solomon by Harold Hickman of the Middle East
Division.636
Ambassador Pillarella testified that he did not remember what Mr. Solomon
was referring to in this e-mail. He recalled receiving a document for comment,
but he testified that he recalled neither the document nor his comments.637 Asked
why ISI was now indicating that the ministerial briefing would recommend a
softer approach on the Arar case, the Ambassador testified that he was not involved in this discussion and he did not know what prompted that language.638
The evidence regarding Mr. Heatherington’s phone call to Ambassador
Pillarella is unclear. Asked why he would speak to Ambassador Pillarella about
the Minister’s phone call, Mr. Heatherington testified that “it was going to be
about the text,” but it appears that the Ambassador was not involved in discussions about the language of the ministerial briefing. Asked if he was setting up
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the Minister’s phone call, Mr. Heatherington said no. It is not known whether
the Ambassador and Mr. Heatherington discussed the information CSIS had recently obtained in Syria or other developments occurring in mid-December
2002.
As events turned out, the proposed phone call for December 16 was cancelled because of scheduling problems.
On December 18, DFAIT changed its advice on the phone call, in a memorandum to the Minister from the Middle East Division.639 It noted that, following discussions between the Middle East Division, ISD and Consular Affairs, their
recommendation was that the Minister meet with Ambassador Arnous instead.640
The following day, the Middle East Division instructed Ambassador Pillarella not
to take any action at that time on any possible phone call to Minister Shara’a.641
The matter of the call to the Syrian Foreign Minister lay dormant over the
Christmas holidays. In January 2003, the subject resurfaced and the phone call
took place on January 16. The circumstances leading to the phone call and its
context are discussed below in Section 6.
4.
THE CSIS TRIP TO SYRIA
4.1
CSIS INQUIRIES INTO MR. ARAR
CSIS’ efforts to obtain further information from American agencies about Mr. Arar
immediately after his removal have been described in Section 4 of the preceding chapter. On October 11, 2002, [***] responded verbally to CSIS’ request for
information about Mr. Arar’s recent activities, the reason for his arrest, his current status and any other information gleaned from Mr. Arar. [***] advised CSIS’
Washington office that Mr. Arar had been detained on September 26; that [***]
had searched him; and that he was subsequently excluded from the US. 642
On November 5, [***] sent CSIS and Project A-O Canada a written response
to CSIS’ October 10 request for information about the circumstances of Mr. Arar’s
removal. Some CSIS witnesses were offended by the “fairly terse” [***] response.
4.1.1 [***]
[***].
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4.2
DISCUSSIONS OF A CSIS TRIP TO SYRIA, NOVEMBER 4 AND 6
On November 4, CSIS, DFAIT ISI and the RCMP met to discuss a CSIS trip to
Syria. Staff Sergeant Callaghan testified that on that morning, Corporal Buffam
came to Project A-O Canada with a fax from DFAIT containing information
from the Syrians and General Khalil. It discussed a potential interview with
Mr. Arar by CSIS.643 Inspector Cabana remembered receiving a call from
Mr. Saunders of DFAIT ISI, suggesting a meeting between CSIS, the RCMP and
DFAIT “to ensure a coordinated approach.”644 Staff Sergeant Callaghan of Project
A-O Canada testified that the meeting was attended by himself and Inspector
Cabana from the RCMP, Messrs. Gould, Heatherington, Solomon and Saunders
from DFAIT ISI, and a CSIS official.645
According to Staff Sergeant Callaghan, Mr. Heatherington discussed their
consular access to Mr. Arar and advised them that Ambassador Pillarella was
going to bring back information from the Arar interviews when he came to
Canada.646 Inspector Cabana noted that at the meeting CSIS agreed that any delegation travelling to Syria for the purpose of interviewing Mr. Arar should be
composed of CSIS and RCMP representatives.647 It was agreed that they would
wait for documentation from the Ambassador before any plan was developed.648
Another interdepartmental meeting of representatives from the RCMP, CSIS
and DFAIT ISI was held on November 6. By now, Ambassador Pillarella was
back in Ottawa from Damascus with the bout de papier, which he handed over
to DFAIT ISI on November 6. The Ambassador also attended this meeting, but
noted that he did not arrange it.649 Inspector Cabana testified that he attended
the meeting with Chief Superintendent Couture and that Superintendent Pilgrim
and CSIS representatives were also in attendance.650 As far as Mr. Pardy knew,
no one from Consular Affairs was invited to attend, but he believed that this
was the kind of meeting where there should have been input from the Consular
Affairs Division.651 Mr. Dickenson of PCO assumed that since no representative
from PCO attended the meeting, PCO was not invited — but he would not have
expected them to be invited either.652
Inspector Cabana testified that the purpose of the meeting was for
Ambassador Pillarella to brief them on the results of his meetings with Syrian authorities and to discuss the information that flowed from those meetings, with a
focus on the need to obtain more detailed information.653 He explained that by
the end of the meeting there was a shared belief that the information was not
specific enough to determine its accuracy and more details were needed.654
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Inspector Cabana noted down that “it was agreed that more detailed information was required from the Syrians relative to [***] Arar before a decision
could be made on whether or not we could attend.”655 They also agreed that before going any further, CSIS would travel to Syria to meet with SMI officials in
order to “try and gain access to their [Syrian] detailed information.”656
The CSIS representative explained that several issues were discussed during this meeting.657 CSIS saw this as an opportunity to obtain information about
Mr. Arar and, even more important, to discuss other matters with the Syrians and
get the wider context.658 DFAIT viewed this as a chance to clarify the issues
around Mr. Arar.659 The CSIS representative said that DFAIT officials were very
interested in having CSIS go, but one of their primary concerns was that CSIS
not take on any consular duties with respect to Mr. Arar.660 The RCMP representatives expressed their view that CSIS should not interview Mr. Arar if
provided the opportunity because it might “taint any possible future evidence”
about Messrs. Almalki and El Maati and the other active criminal
investigations.661
Since CSIS did not want to become involved in the consular process and
risk tainting any criminal investigation, it fully agreed with the concerns expressed by DFAIT and the RCMP.662 At the end of this meeting, there was a consensus from the three agencies that it would be a good idea to send a CSIS
delegation to Syria.663 It was Mr. Heatherington’s understanding that the delegation was to go to Syria and obtain information about international terrorism,
but not interview Mr. Arar or question the Syrians about him.664
4.2.1
The Reliability of the Bout de Papier
As described above in Section 3.5, both Ambassador Pillarella and Inspector
Cabana testified that there was no discussion at the November 6 meeting about
the risk or possibility of torture with respect to the statement that Mr. Arar had
given to the Syrians. Mr. Solomon did not recall any specific discussions about
torture, but believed that at some time during the meeting concern about
Mr. Arar’s treatment would have arisen.665
Mr. Solomon prepared a draft memorandum for the Minister, dated
November 14, which dealt with the upcoming CSIS trip to Syria and stated that
the “reliability of the confession Syrian authorities have obtained from Arar [is]
also uncertain” and “there are concerns as to whether a visit to Arar by Canadian
intelligence officials may make Canada appear complicit in his detention and
possible poor treatment by Syrian authorities.”666 Mr. Solomon testified that the
conclusion about the reliability of the statement would have been that of DFAIT
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ISI, and if it had been removed from the final version of the memorandum, as
it was, then this would have been done by Mr. Livermore.667
In a November 25 draft memorandum intended for Gaetan Lavertu, Deputy
Minister of Foreign Affairs, Mr. Solomon wrote that the “reaction of the RCMP
to [the bout de papier] was to indicate that it confirms what they suspected about
Arar, and therefore they believe it to be credible.”668 Mr. Solomon testified that
he wrote that the RCMP believed it to be credible because “they were confident
in the veracity of the material and they felt it was consistent with material that
they already had.”669
Mr. Solomon went on to write that “CSIS made no comment about the credibility of the document, but said that even if true, it was not necessarily damning evidence against him.”670 Mr. Solomon was unsure whether the statement
about CSIS’ view related to the November 6 meeting about the bout de papier
or came from the CSIS delegate after his return from Syria.671
The November 14 draft memorandum to the Minister prepared by
Mr. Solomon evolved into an information memorandum for Minister Graham
which was sent to his office on December 16 through Messrs. Wright and
Lavertu.672 The December 16 memorandum was to provide the Minister with
information prior to his call with the Syrian Foreign Minister and it focused on
the CSIS trip to Syria.673 As a result of events during that period, the final content of the memorandum, signed a month later, had changed from the draft version, and the comments on the possible unreliability of the confession were not
included.674
Mr. Livermore testified that the original statement about the reliability of the
confession and the possible complicity by Canada if CSIS was to meet with
Mr. Arar was “very much on the speculative side” and “it was anticipating something that we later ironed out with CSIS, namely that they would not seek access to Mr. Arar.”675 He explained that “having ironed out the difficultly, this
memo lost relevance and wasn’t put up.”676 Mr. Livermore commented that he
could not explain why a sentence was put in or left out and that they almost
redid the memorandum from scratch the second time since it was basically a different situation.677 He also noted that he was not certain of the status of the original draft and that he could not “vouch for the fact that anyone other than
Jonathan Solomon agreed with the text of the draft that he prepared himself.”678
Mr. Heatherington was asked about assertions in the final memorandum regarding Mr. Arar’s past activities in Afghanistan and Canada and whether this was
reliable information. He testified that it looked like information originating from
the Syrians and that he thought everyone was aware of the source of the information.679 Mr. Heatherington said that although he did not review the final mem-
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orandum, since Mr. Gould signed it for him, he believed that the reliability issue
was not highlighted in the final version because of information he had received
from CSIS.680
In explaining the inclusion in the December 16 memorandum of information from Mr. Arar’s statement to the Syrians, Mr. Livermore said that ISI relied
on information that had come their way which they took at “face value, not necessarily because he had confessed to it, but it was our understanding that that
information was out there from other sources.”681
The bout de papier did not give Mr. Hooper any cause to suspect that the
statement might have been the product of firm questioning, because his “expectation would have been if he was mistreated, tortured or beaten, there would
have been a lot more stuff in there.”682
Corporal Flewelling could not recall if anyone at the RCMP’s Criminal
Intelligence Directorate was tasked to do a reliability assessment of the information which Ambassador Pillarella had brought back from Syria, although this
was one of the important functions of that branch of the RCMP.683
4.3
PURPOSE OF THE TRIP
Following the interdepartmental meetings, CSIS submitted a briefing note to
Mr. Hooper on November 8 requesting authority to travel to Syria to discuss
Mr. Arar and other matters.684 The briefing note documented the November 6
meeting by highlighting the points agreed upon at that time by the three agencies: CSIS would be meeting with the Syrians to discuss Mr. Arar and other matters and no other Canadian agencies would be included; CSIS would not seek
access to Mr. Arar; the RCMP would seek access to Mr. Arar and the Syrians
through its own liaison channels; and DFAIT had requested that no travel be undertaken until Minister Graham had been apprised and had concurred with the
initiative.685
The briefing note assessed that the trip to Syria would provide a good opportunity for CSIS to meet with the Syrians.686 It would also allow CSIS to acquire
critical intelligence in support of its Sunni Islamic terrorism investigation and
would be an important step in evaluating the information that the Syrians held
on Mr. Arar.687 Mr. Hooper “strongly supported” the request and it was
approved.688
On November 18, CSIS met with Inspector Cabana and Staff Sergeants
Callaghan and Corcoran. They requested that CSIS not interview Mr. Arar
even if given the opportunity, because “this would not be a usable evidentiary
statement.”689
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4.3.1
Request from DFAIT to Delay the Trip
On November 18, DFAIT asked CSIS to delay its trip to Syria because it “had
doubts about the timeliness of the visit, although not about its substance.”690
The timing of the trip concerned DFAIT for two reasons.691 The Arar case was
in the news, and DFAIT was concerned that if the media found out about the
trip, it might connect CSIS going to Syria to talk about international terrorism
with the consular case of Mr. Arar, which might cause “confusion.”692 The second reason for DFAIT’s concern was that Minister Graham planned to phone
Syrian Foreign Minister Shara’a and he wanted to confine that conversation to
the consular issue of Mr. Arar. In Mr. Livermore’s words, the Minister “didn’t
want confusion [in the minds of the Syrians] as to what Foreign Affairs was
saying.” 693
On November 18, DFAIT, the Solicitor General, CSIS and PCO had a conference call on the Arar case.694 Mr. Gould testified that he was instructed by ISD
to call either Mr. Hooper or the Director General of Counter-Terrorism at CSIS
to pass on a message that the “optics are very bad for this week and they should
not plan on an immediate visit, i.e. we recommend you not go in the short
term.”695 Mr. Gould’s notes attribute comments to Mr. Hooper that the issue
would be raised with Mr. Elcock and it would be his decision.696 In an e-mail
to Ambassador Pillarella late on November 18, Mr. Solomon advised him that
“senior DFAIT representatives asked CSIS to delay their visit to Syria,” but that
CSIS intended to continue with the planned visit, although the delegation would
not attempt to visit Mr. Arar.697 Mr. Solomon noted that “PCO chose not to intervene on this debate, so unless the Minister attempts to block this visit,” CSIS
would arrive in Damascus shortly.698
Mr. Livermore testified that CSIS wished to proceed and DFAIT took it to
Minister Graham, who thought that it was “completely manageable” and “he
wasn’t worried about it.”699 According to Mr. Livermore, Minister Graham chose
not to take it up with the Solicitor General.700 Mr. Livermore explained that he
thought that in the end PCO decided that “unless our minister felt strongly
enough about it to intervene, it would proceed.”701 An e-mail sent by
Mr. Solomon to Ambassador Pillarella on November 19 noted that the issue
went before the Minister on November 18, but he did not wish to defer the
CSIS visit. However, the Minister indicated that “he wished to have a full report
on the visit and the discussions with the Syrians before he communicated with
the Syrian Foreign Minister” and he “also requested an assessment of Arar’s possible involvement in terrorist activities.”
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Minister Graham’s testimony that he did not learn about the CSIS trip until
after it happened has been discussed earlier in the context of his planned phone
call to Minister Shara’a.702
According to e-mail exchanges between the Minister’s office and Mr. Pardy,
the Minister’s office was aware by December 3 that CSIS had visited Syria.703
However, Mr. Fry testified that, to his knowledge, the issue of the CSIS trip did
not go before the Minister and the first time Mr. Fry heard about it was in early
January 2003, after which he brought it to the Minister’s attention.704 He recalled
that he learned about it from Mr. Pardy, who framed it as a visit that CSIS had
already planned, where the Arar case just happened to be discussed.705 Mr. Fry
testified that he was briefed that the trip comprised ordinary business between
intelligence agencies.706 When he learned about the trip, he was unhappy and
frustrated.707 In his view, the Arar case was very important and high-profile, and
this was the kind of thing that should have been brought to their attention
sooner rather than two months after the fact.708
Minister Easter testified that he did not become aware of the CSIS trip to
Syria until later in 2003.709 When he was subsequently advised about the visit,
Minister Easter was not told that they also went there to discuss the Arar case.710
Mr. Hooper explained that CSIS was not prepared to delay the visit based
on the rationale provided by DFAIT, since the “Arar case was going to have a
high media profile for a long time and the terrorists weren’t downing tools waiting for us to deal with Arar.”711
Mr. Dickenson of PCO testified that he was aware that the CSIS trip was to
happen, but PCO would not have intervened to prevent it from happening.712
That would not be the role of PCO, since it was an operational issue.713
According to Mr. Dickenson, PCO was aware that DFAIT and CSIS disagreed on
the trip.714 However, he explained that PCO expects departments and agencies
to sort out their differences among themselves.715 Here, DFAIT did what was
expected, in that officials consulted their minister, who made the decision that
the visit was not worth blocking.716
No one informed Consular Affairs that CSIS intended to travel to Damascus
and meet with the SMI. Mr. Pardy did not learn about the trip to Syria until
after it happened, when ISI received a debriefing on November 28.717
Ms. Pastyr-Lupul was also unaware that CSIS was travelling to Syria to meet with
the SMI.718 Mr. Solomon provided Ambassador Pillarella with media lines on
November 19 in the “unlikely event there will be press coverage of the visit”
These included the following statements: “the visit in question was planned
some time ago to discuss terrorism-related issues;” and “the purpose of the visit
is not to deal with the Arar case; he will not be visited by these officers.”719
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On November 21, Mr. Livermore advised Mr. Wright via e-mail that he
had “touched base” with the RCMP, CSIS and Mr. Dickenson in PCO about the
CSIS trip. He noted that CSIS officials had a clear idea of what they could discuss with the Syrians and that they would not accept an opportunity to see the
detained Canadians even if it was offered.720 He also wrote that CSIS would debrief DFAIT on the information received so that the Department could report to
Minister Graham.721 Mr. Livermore’s message noted that the RCMP was concerned about direct contacts with the detainees for investigative purposes.722 He
explained that the RCMP and CSIS agreed on who had the lead responsibility
for questioning, if the issue were to arise, because it would not have been useful if CSIS questioned Mr. Arar before the RCMP.723
Before CSIS visited Damascus, Mr. Livermore e-mailed Ambassador
Pillarella to provide him with some clarification about the trip.724 He explained
that, following the trip, Minister Graham expected to receive a full report on
the involvement of Canadians in international terrorism.725 He advised that the
issue of interviewing the two detained Canadians was an RCMP responsibility
and that DFAIT wanted “to be very clear with respect to separating this mission
from any consular or interview mission which might take place in the future.”726
4.4
THE EVENTS OF THE TRIP — NOVEMBER 19–24
Between November 19 and 24, a CSIS delegation travelled to Damascus to meet
with the SMI. One of the delegates had been to Syria many times before this visit.
4.4.1
CSIS Meets with the Ambassador
The CSIS delegation arrived in Damascus on November 20 and met with
Ambassador Pillarella the next morning. Mr. Martel did not know that the CSIS
delegation was in Damascus.727 Ambassador Pillarella emphasized to the CSIS
delegation that Mr. Arar was a consular case. A CSIS witness testified that the
Ambassador was advised that CSIS would try to obtain information about
Mr. Arar from the SMI.728 The Ambassador testified that the CSIS delegation had
told him that they had come to speak to their counterparts about “terrorist issues.” Contrary to CSIS’ evidence, Ambassador Pillarella testified that CSIS did
not tell him that they would be discussing the Arar case with the SMI.729
However, a message sent from a CSIS representative to Ambassador Pillarella on
November 18 about the trip stated, “As you are aware, discussions will involve
the status of Mr. Arar.”730 The Ambassador wrote to DFAIT Headquarters that he
had informed the CSIS delegation that he was trying to arrange a meeting with
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General Khalil for November 24. However, Ambassador Pillarella confirmed
that he did not facilitate any meetings and that CSIS made contact with the SMI
without his intervention.731
4.4.2
CSIS Meets with the SMI
The CSIS delegation began its meetings with the SMI on November 23. The first
meeting, with General Khalil and four SMI officials, was a general discussion of
security politics, the war on terrorism, and the Middle East. Mr. Arar was not discussed.732 Following this meeting, two SMI officials gave them lengthy briefings
on other matters.733
The first briefing was about Mr. Arar. It lasted for approximately one and a
half hours and was slowed down by the translation process. The entire briefing
was verbal and no paper was exchanged.734 A CSIS representative took notes.
Mr. Hooper did not believe that CSIS would have revealed that Mr. Arar
was of interest to a Canadian investigation and he testified that the CSIS delegation did not provide the SMI with any information about Mr. Arar.735 He explained that CSIS met with the SMI to “elicit information,” not to “exchange
information.”736 SMI officials were not asked any questions at all about their
briefing. The CSIS delegation did not make any comments or provide any assessment about how SMI information compared with CSIS information. No information whatever was shared about Mr. Arar.737
[***].738
The CSIS delegation did not see or interview Mr. Arar during the trip to
Syria, nor did the Syrians offer any opportunity to meet with him or suggest
they would hand him over.739
Mr. Hooper did not agree that CSIS had posed any danger to Mr. Arar by
communicating it had some interest in him.740 Ms. Pastyr-Lupul was not aware
of the CSIS visit before it occurred and was not briefed on it. However, she
agreed that, had she known of the visit, she would have been concerned it
might encourage the SMI to interrogate Mr. Arar further.741
4.4.3
CSIS’ Position on Mr. Arar
One of the CSIS delegates testified that he did not express to the Syrians any position on whether Mr. Arar should be returned to Canada. In his discussions
with SMI officials, he believed that he had made it quite clear that this case was
a consular matter and had advised them that they must deal with the Embassy
and the Ambassador regarding Mr. Arar. According to him, they appeared to
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understand this. He speculated that perhaps he might have overstressed this
point, possibly giving the Syrians the impression that CSIS did not care what
happened to Mr. Arar. In discussions with DFAIT before the trip, nobody had
ever told the CSIS delegates that they should express any position on Mr. Arar’s
release or return to Canada.742
This delegate denied that any member of the CSIS delegation had communicated to any Syrian authority that CSIS did not want Mr. Arar returned to
Canada or that CSIS wanted Syria to keep Mr. Arar.743 At the meeting where
Mr. Arar was discussed, there was no reference to Mr. Arar’s ability to return to
Canada or any insinuation that CSIS did not want him back. Furthermore, the
delegate testified that he would not have said that CSIS had no interest in
Mr. Arar, because one of the reasons he went to Syria was to acquire the information which the Syrians had on him.744
4.4.4
CSIS Did Not Debrief Ambassador Pillarella
The CSIS delegation did not meet with Ambassador Pillarella before they left
Damascus. On November 25, Ambassador Pillarella sent an e-mail to DFAIT ISI
and GMR officials, expressing frustration and annoyance that the delegation did
not return to the Embassy on Sunday, as they had previously agreed to.745 The
Ambassador noted that the delegation did not return several messages that he
left at their hotel on Sunday, and that he learned on Monday morning that they
had departed, without sharing any information they might have learned about
the Arar case.746
The Ambassador testified that he had no idea what the CSIS delegation discussed with SMI officials, because CSIS did not debrief him. This turn of events
upset the Ambassador, who testified that he did not even know whether Mr. Arar
was discussed, at a time when he was working to assist him.747 A member of the
delegation testified that it was not his understanding that he was supposed to
debrief the Ambassador. He claimed that his instructions were to provide a debriefing on Mr. Arar to DFAIT when he returned to Ottawa.748
4.5
CSIS DEBRIEFS DFAIT
CSIS debriefed DFAIT officials about the trip at a meeting on November 28.
Shortly before this meeting, Mr. Solomon was given a personal debriefing on the
phone, apparently also on November 28. He was told that CSIS had had discussions about Mr. Arar with the Syrians. Mr. Solomon recalled that CSIS noted
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that the Syrians would charge Mr. Arar at some point but that the death penalty
was unlikely.749
Referring to his notes of this phone call, Mr. Solomon testified that the CSIS
official stated that the Syrians were holding Mr. Arar for domestic reasons, and
that CSIS had asked the Syrians not to tell Mr. Arar of CSIS’ visit.750 The CSIS official did not recall making this last comment to Mr. Solomon, nor did he recall
asking the SMI to keep quiet about the visit. However, he did not think, if he
had said it, that it would have made a difference one way or another.751
Mr. Pardy attended the debriefing meeting on November 28, and it was
there that he was first advised that CSIS had visited Syria.752 Mr. Pardy sent an
e-mail to Ambassador Pillarella with some of CSIS’ comments on Mr. Arar.
Some of CSIS’ debriefing addressed matters relating to Mr. Arar’s consular
rights. The CSIS official advised that, in his opinion, the Syrians might charge
Mr. Arar.753 According to a DFAIT memorandum to Minister Graham, he also
apparently reported that the Syrians had said it was unlikely that Mr. Arar would
return to Canada in the short term.754 However, the CSIS official testified that following his trip to Syria, he was “expecting him to be released probably before
Christmas.”755
4.5.1
The Muslim Brotherhood Allegation
According to Mr. Pardy’s e-mail to Ambassador Pillarella, DFAIT had been
advised that the Syrians had suggested Mr. Arar was a member of the Syrian
Muslim Brotherhood. CSIS thought it possible that Mr. Arar might be charged for
being a member of this organization. Mr. Pardy therefore sought Ambassador
Pillarella’s assessment of the present significance of the Muslim Brotherhood
in Syria.756
Mr. Pardy testified that Syria had a very draconian law that allowed it to do
whatever it wanted with an individual suspected of any association whatever
with the Muslim Brotherhood. In his view, the Syrian government found it convenient to use the Muslim Brotherhood label as a way to keep people in
prison.757 Mr. Pardy disagreed that the SMI was actually investigating Mr. Arar
for connections to this organization; his assessment was that association with the
Muslim Brotherhood was a catch-all allegation the Syrians used to justify their
actions:
in all of the information that Ambassador Pillarella was able to obtain […], there was
never really any specifics with regard to the Muslim Brotherhood. It was an accusation that stood out there on its own. I think in other areas, and certainly in terms
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of the information the Ambassador picked up and other information that came back
to the Canadian government, it was the Al Qaida connection that was the key one
here. And the Syrians never fleshed out – certainly in my memory, they did not
flesh out any supporting evidence of their concern with respect to the Muslim
Brotherhood...758
Mr. Pardy concluded by describing the Muslim Brotherhood allegation as
a “chimera” which neither CSIS nor the RCMP thought warranted any serious attention or concern.759
Other DFAIT witnesses had different views. Mr. Livermore testified that he
and others developed the opinion that the Syrians were legitimately interested
in Mr. Arar for his “past involvement” with the Muslim Brotherhood, and that this
motivated Syria’s continued detention of Mr. Arar. Mr. Heatherington testified
that Mr. Pardy was sceptical of the Syrians, and did not give sufficient weight
to the idea that the Syrian government might simply be trying to indicate that
Mr. Arar had links to Islamic extremism in general.760
While acknowledging that General Khalil was insistent in October 2002 that
Mr. Arar was an al Qaeda recruiter, Ambassador Pillarella testified that the
Syrians saw al Qaeda and the Muslim Brotherhood as related and that the
Brotherhood remained an obsession of the Syrian government.761 According to
Flynt Leverett, an expert called to testify at the Inquiry on Syrian politics and foreign relations, an allegation of being a member of the Muslim Brotherhood
would be far more serious than being a member of al Qaeda because it would
be viewed as more directly threatening to Syria’s interests.
By December 12, some DFAIT officials had embraced the notion that
the Syrians were detaining Mr. Arar for connections to the Syrian Muslim
Brotherhood. Ambassador Pillarella sent an e-mail to Michael Chesson, a desk
officer with the Middle East Division (GMR) who was seeking advice on Minister
Graham’s upcoming phone call to Minister Shara’a:
One may lament the manner in which Arar found himself in Syria, but the fact is
that he is here now. On that basis, one should not forget that for the Syrians Arar
is first and foremost a Syrian citizen, in Syria, and as such, submitted to Syrian law.
Following his interrogation, Arar is considered to be a case of internal security linked
it seems to the Muslim Brotherhood not to Al-Qaida, (see my reftel on the Muslim
Brotherhood) and therefore the Syrians will act with extreme prudence having in
mind their national interest as the foremost priority. Should they consider that by
releasing Arar and returning him to Canada he could still represent a potential menace for Syria, they will likely refuse to release him. This point was indirectly made
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to Leo Martel by the contact (a colonel) … during his last meeting of only a few
days ago.762
A DFAIT Middle East Division memorandum to Minister Graham dated
December 19, recommending that the Minister call in the Syrian Ambassador,
noted that “indications are that Syria has concerns that Mr. Arar’s links are not
with al Qaeda but with the Syrian Muslim Brotherhood.”763
4.5.2
CSIS’ Position on Torture
During this debriefing, a member of the CSIS delegation advised DFAIT officials
that after reviewing the information received from Syria, he believed that
Mr. Arar had likely not been tortured.
Mr. Pardy did not recall discussing torture at the debriefing, but did remember general comments about the potential unreliability of SMI information
about Mr. Arar.764 The CSIS representative told Mr. Heatherington that Mr. Arar
had not been mistreated by the Syrians, because if the Syrians had mistreated
Mr. Arar, they would have obtained more information from him.765
The CSIS representative agreed that he was not an expert in torture.
However, he explained that, if a detainee had been tortured, there “would be a
lot more damning information.” He testified that the Syrians would have gone
over the same points again and again, and explored in greater detail the information which Mr. Arar provided. In his view, this was not a very complete intelligence report. Based on Ambassador Pillarella’s earlier reports of his meetings
with General Khalil, the CSIS representative expected to learn that Mr. Arar was
a member of al Qaeda.766
Another CSIS representative confirmed that CSIS has no personnel who are
trained in assessing whether intelligence is the product of torture. Rather, CSIS’
assessment focuses on whether the Service can corroborate the information.767
[***].768
Professor Richard Ofshe, an expert who testified at the Inquiry on false
confessions, explained that a statement missing details “wouldn’t necessarily tell
you anything about coercion itself.” Instead, it would tell him something about
the skill of the interrogators and might suggest what they were trying to
accomplish.769
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4.6
DISTRIBUTION OF THE TRIP REPORT
On November 29, CSIS provided a draft copy of the written trip report on
Mr. Arar to Corporal Flewelling in RCMP CID, and on December 3, Project
A-O Canada received a copy.770 This draft was very similar to the final report,
which was distributed to the RCMP and DFAIT electronically on December 13;
however, the significant difference between the two versions was that the final
report included additional analysis and commentary from CSIS.771
On November 28, Mr. Edelson, counsel for Mr. Arar, met with representatives of Project A-O Canada, who advised him that CSIS had travelled to Syria
and obtained some form of statement.772 Mr. Edelson recalled that, at that time,
Project A-O Canada had not been given access to this interrogation information
and they wanted to see it. He testified that he raised concerns about the credibility and reliability of the Syrian information, since Mr. Arar might have been
tortured to obtain it.773
The trip report was not shared with Mr. Edelson. James Lockyer, a criminal defence lawyer, testified that if CSIS or the RCMP had obtained an alleged
confession from Mr. Arar, they had to provide a copy of it to defence counsel
in Canada. In Mr. Lockyer’s view, the fact that it was classified was not a legitimate argument for withholding it from defence counsel. The information came
directly from Mr. Arar, who could provide it directly to his counsel. Moreover,
Mr. Lockyer said that, given the obvious concerns about the reliability of a statement provided under torture, it was all the more important that it be disclosed
to defence counsel.774
4.6.1
Distribution to DFAIT
Unlike the RCMP, DFAIT was not given a preliminary copy of the trip report. As
noted earlier, DFAIT officials requested the report on December 12 in order to
prepare Minister Graham for the projected phone call to Minister Shara’a. CSIS
e-mailed the trip report to the CSIS liaison officer at DFAIT ISI, late on Friday,
December 13, and it was forwarded to DFAIT ISI officials early on Monday,
December 16.775
In explaining why DFAIT had to follow up with CSIS when the report had
been provided to the RCMP two weeks earlier, a CSIS official testified that he
was in no great hurry to send his report to DFAIT. He had already given them
a personal debriefing and he thought that would hold them off until he had an
�IMPRISONMENT AND MISTREATMENT IN SYRIA
opportunity to assess the information fully. In the end, he had to send his trip
report to DFAIT without completing this assessment.776
4.6.2
Advising Minister Graham
An information memorandum from DFAIT ISI went up to Minister Graham on
December 16 to brief him before he called Minister Shara’a.777 The memorandum focused on CSIS’ visit to Syria and advised the Minister that they had received the trip report that day.778
DFAIT ISI also advised the Minister that the “Syrians appear to view these
connections as sufficient grounds to detain Arar [***] and “it is clear that the
Syrian standard of what constitutes a detainable terrorist is lower than ours.”779
It mentioned that the Syrians had indicated that Mr. Arar would face charges,
possibly followed by sentencing and further prison time, and that the charges
“may be linked to his association with the Muslim Brotherhood rather than to
current terrorist activities.”780
Two days later, following consultations between itself, DFAIT ISI and
Consular Affairs, the Middle East Division sent a memorandum to the Minister’s
office on December 18, recommending that as the next step the Minister call in
Syrian Ambassador Arnous to discuss the Arar case.781 It noted that the original
option of having Minister Graham call the Syrian Foreign Minister posed several
difficulties.782 The memorandum advised the Minister that the Syrians had informed both the Embassy in Damascus and the CSIS delegation to Syria that it
was unlikely that Mr. Arar would return to Canada in the short term.783 It commented that “there is a concern that if Canada raises the Arar case persistently
at senior levels or publicity in Canada becomes intensive, Syria may state publicly their security agencies are working with their Canadian counterparts on the
case and that the Canadian agencies are aware of the reasons Mr. Arar is continuing to be held.”784
Mr. Pardy did not know Minister Graham was being advised not to pursue
high-level contacts with the Syrians, and did not have any indication that Minister
Graham had any reluctance in this matter.785 Mr. Heatherington rejected the notion that the Minister was no longer being advised to call the Syrian Foreign
Minister because DFAIT had now received the bout de papier and the CSIS trip
report and was exercising caution and possibly trying to avoid a scenario similar to the Ahmed Said Khadr experience.786 In the latter case, the Prime Minister
had faced embarrassment when Mr. Khadr was found to be clearly connected
with terrorist activities after the Prime Minister had intervened for his release.
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Mr. Wright thought the Syrian Ambassador should be engaged because
Minister Graham was preparing to travel and they needed to send their messages
quickly.787 Minister Graham was not sure if he ever saw this memorandum and
therefore could not recall whether he ever spoke with Mr. Easter, Mr. Elcock or
Commissioner Zaccardelli about whether the RCMP and CSIS were in fact working with their Syrian counterparts on the Arar case.788
4.7
CSIS’ USE OF INFORMATION FROM THE TRIP
Although CSIS may have had some questions about the importance of the information it received from the Syrians, it is clear that it subsequently relied on
this information. One example of this reliance can be found in a May 9, 2003
briefing note to the Solicitor General, which is discussed below in Section 8.789
Other than a passing comment in the trip report, CSIS made no assessment of
whether the information obtained from the SMI might have been the product of
torture. Furthermore, when it relied on this information, CSIS made no reference to Syria’s human rights record or the possibility of torture.
5.
CONSULAR AND OTHER ACTIVITIES —
NOVEMBER 26, 2002–FEBRUARY 2003
5.1
CONSULAR VISITS WITH MR. ARAR
Fourth consular visit
The fourth consular visit with Mr. Arar took place on November 26, 2002.790 In
preparation, Mr. Martel was given several questions that Mr. Pardy and
Ms. Pastyr-Lupul wanted put to Mr. Arar. He was to assess Mr. Arar’s overall
well-being, and attempt to determine if his psychological and physical state had
improved and whether he was more relaxed than on previous visits. On a more
personal note, Ms. Pastyr-Lupul suggested that Mr. Martel 1) get a response
from Mr. Arar to his wife’s letter; 2) let Mr. Arar know that consular officials in
Ottawa had met with his wife (who “was very dedicated to him”); 3) find out
if Mr. Arar could receive pictures; and 4) keep Mr. Arar abreast of news in
Canada.791
The visit was held in the same location, following the same procedure as
previous visits, including an initial discussion with Syrian Military Intelligence officers. Mr. Pardy explained that this was normal practice in countries like Syria,
�IMPRISONMENT AND MISTREATMENT IN SYRIA
and not unproductive: it provided the consular officer with an opportunity to engage in conversation, discuss family issues and perhaps humanize the individual in question.792
Overall, the tenor of the visit appeared more relaxed.793 It was agreed that
Mr. Arar could receive photographs (he asked in particular for photos of
his children). He was also able to receive a letter from his wife and dictate a
response.794
Mr. Martel’s report indicates that Mr. Arar appeared to be “in good physical and mental health.” Mr. Arar said that his only medical problem was a knee
injury that apparently predated his detention, but he also asked for certain
brand-name medications, including “Contact C, Tylenol, Immodium and … anticonstipation medicine.” Mr. Martel questioned him on his diarrhea, but Mr. Arar
said it was not the result of his detention and “was linked to history.”795 Syrian
officials made Mr. Arar stand up to show he was well taken care of. According
to Mr. Martel, the Syrians made a point of this, having Mr. Arar walk around and
turning to the consular official as if to say, “Do you see how well we treat
him?”796
Mr. Martel then asked Mr. Arar about his health as compared to the first consular visit. Mr. Arar replied that he had been afraid at the beginning as the investigation was more intensive, but that he was being treated very well. When
prompted by a Syrian official, he said “My brothers are treating me very well,”
to which Mr. Martel responded with something like, “Really, what do you really
feel?” Mr. Arar replied that he felt as well as anyone would who is being detained
in prison and that these visits were his only joy. Finally, he requested financial
assistance from his wife.797
Mr. Martel explained in testimony that he could not jump to conclusions
about Mr. Arar’s comment that “the investigation was more intensive” in the beginning. He simply wrote down what he heard and let others interpret.
Ms. Pastyr-Lupul took the comment to mean that Mr. Arar must have been
through a pretty rough time in the beginning. Mr. Pardy felt that Mr. Arar’s comment was consistent with his other experiences with the Middle East, and the
possibility that the Syrians had held Mr. Arar incommunicado in the beginning,
extracted the information they needed and then disclosed his whereabouts. He
agreed that it was also consistent with the comments Mr. Arar made publicly on
his return.798
As for the Syrians making Mr. Arar stand up and walk around to show he
was well treated, Mr. Martel agreed that it was laughable. He did not believe
what the Syrians were telling him and felt Mr. Arar would have known that.799
Mr. Pardy concurred that it showed Mr. Arar was following the Syrians’
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instructions, and that they wanted to restrict the amount of information available
to Canada. He added, however, that it was in the context of a certain relaxation
on the part of the Syrians during this visit, with perhaps less overall domination
and control than previously.800
As discussed below, communication with the Arar family was now ongoing. Mr. Martel indirectly provided his impressions of Mr. Arar from this visit
to Dr. Mazigh on December 6, when he asked Ms. Pastyr-Lupul to convey to
Dr. Mazigh that Mr. Arar “looks as fine as anyone should in his situation and I
see no evidence of him not being treated well. I will also see what I can do
about the specific medicine he has asked for.”801
Fifth consular visit
By the time of the next consular visit on December 10, Dr. Mazigh had provided
the funds Mr. Arar had requested during the previous visit. Based on her discussions with Mr. Martel, Ms. Pastyr-Lupul understood at the time that this extra
money might have allowed Mr. Arar to buy special food and service, and generally make his life a little easier.802 Mr. Arar’s daughter also wanted to send her
father something, and Ms. Pastyr-Lupul looked into doing so by an e-mail
attachment.803
Ambassador Pillarella, with Mr. Pardy’s blessing, sought another meeting
with General Khalil prior to the visit to further explore Syrian intentions with respect to Mr. Arar. However, General Khalil was reportedly ill and could not
meet with the Ambassador around this time.804
The day before the visit, Mr. Martel received instructions from Mr. Pardy.
He wanted Mr. Martel to inquire about taking a digital photo of Mr. Arar and ask
whether the Syrians would allow Dr. Mazigh to visit her husband. The Syrians
would deny both requests.805
During the visit, Mr. Arar’s physical condition appeared good — unchanged
from the previous visit, according to Mr. Martel. Mr. Martel provided letters,
photos, US$196 and reading material for Mr. Arar. (The reading materials passed
indirectly through the guards and it is unclear whether Mr. Arar ever received
them or, if he did, whether he was able to read them given the conditions of
his detention.) Mr. Martel was allowed to hand over the letter from Dr. Mazigh,
and Mr. Arar dictated a response.806
According to Mr. Martel’s report, the two talked about “anything and everything.” Mr. Arar asked to be told again about “the Prime Minister’s press attaché
story.”807 About this, Mr. Martel wrote in his report: “He will eventually get to
read about it in the magazines he is being given.” Mr. Arar then asked about
�IMPRISONMENT AND MISTREATMENT IN SYRIA
media interest in his case. Mr. Martel replied that there seemed to be fewer articles in the press, but that consular affairs maintained a keen interest.808
When asked to comment on this visit, Ms. Pastyr-Lupul noted that Mr. Arar
appeared to be in good condition. She felt that the thrust of the visit was to uplift his spirits and give him some sort of moral support or connection to
Canada.809
Mr. Arar’s letter to Dr. Mazigh was sent to Mr. Pardy and DFAIT ISD and
ISI. When asked why he had sent this personal letter to DFAIT, Mr. Martel explained that he was simply given a list of addresses to send information to,
something he viewed as normal procedure.810
Sixth consular visit
Between the fifth and sixth consular visits, Ambassador Pillarella was asked
whether he thought it would be useful to send a special envoy to Syria to plead
Mr. Arar’s case. The Ambassador’s view at the time was that the Syrians saw
Mr. Arar’s case as a matter of internal security. Thus, he thought it doubtful a special envoy would be effective. In fact, he believed it could do some harm by raising the political level of the case, embarrassing the Syrians and possibly
jeopardizing the arrangement Canada had with the SMI that allowed for consular
visits.811 The Ambassador pointed out that of the approximately 70 embassies in
Damascus, he was not aware of another that had this kind of access to a dual
national like Mr. Arar.812
Throughout this whole period, Ambassador Pillarella continued to attempt
to meet with General Khalil, who remained unavailable, reportedly due to
sickness.813
By January 2003, the possibility of a war in Iraq loomed large as a distraction for the SMI.814 Indeed, a theme that emerged in the following weeks was
that the Syrians were somewhat annoyed that with the Iraq war on the horizon,
all that Canadian officials wanted to talk about was Mr. Arar. On the other hand,
the fact that Canada chose not to participate in that war provided a small degree
of leverage to Canadians in their negotiations.815
Another political factor emerged around mid-December 2002 when Canada
listed Hezbollah as a terrorist organization under the Criminal Code.818 The
Syrians were not happy about this development.817
Around the same time, Mr. Arar’s brother Bassam expressed his concern to
Consular Affairs in Ottawa about the “human rights treatment” of his brother in
Syria. He was worried the Syrians might be keeping his brother underground,
letting him see daylight only for consular visits.818 Ms. Pastyr-Lupul assured him
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that her office shared his concern and would express this if they had reason to
believe Mr. Arar was not being treated in a humanitarian way.819
The sixth visit did not take place until January 7, 2003. Mr. Martel explained
that the Syrians had become increasingly coy, not returning his calls as promptly
as before, and making excuses for why a consular visit could not take place. For
example, on December 16, 2002, he spoke with Colonel Saleh, who explained
that his schedule that week was heavy and pointed out that the frequent visits
Canada had been getting were unusual. Mr. Pardy’s observation was that it was
quite clear around this time that the Syrians were backing off from their initial
commitment to allow access to Mr. Arar every three or four days.820
When the visit finally occurred, Mr. Martel noted that “Arar looked in good
health and no noticeable change was observed since last visit.”821 Mr. Arar was
wearing warmer clothes (Mr. Martel seemed to recall a sweater with long
sleeves) and was very pleased to have company.822
The Syrian authorities were unwilling to allow Mr. Arar to place or receive
phone calls, insisting that apart from current consular access, no outsiders were
authorized to speak with him.823 Mr. Martel asked about Mr. Arar’s computer, to
no avail.824 Again, Mr. Arar dictated letters to Mr. Martel — this time separate letters to his wife and his daughter.825
At the end of the meeting, once Mr. Arar had left the room, Colonel Saleh
and Colonel George spent considerable time discussing Mr. Arar’s detention
conditions. They went out of their way to say that Mr. Arar was receiving special treatment, noting he was being kept in a separate room apart from other detainees, given decent clothing, and provided with necessary food and water.826
According to Mr. Martel, it was not necessarily bad news that Mr. Arar was
being kept apart from other detainees. He pointed out that prison conditions in
Syria were very bad, and that it can be bad news to hear that a prisoner is being
held with other detainees.827 Mr. Pardy more willingly agreed that isolation could
be a form of abuse, noting that the longer the time in isolation, the greater the
chances the prisoner would suffer a serious deterioration in mental health and
well-being.828
Mr. Martel did not directly raise with the Syrians Bassam Arar’s concerns
that his brother was being kept underground without access to light. He testified that while he kept this possibility in mind during the visit, they could have
told him anything they wanted in reply. In his view, such a question needed to
be put directly to Mr. Arar, which was impossible in this case. Mr. Martel instead
used a more indirect tactic. Once alone with the Syrians, he mentioned there
were negative articles in the press about Mr. Arar’s situation. This comment led
to prolonged assurances from the Syrians that Mr. Arar was being well treated.829
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Ms. Pastyr-Lupul agreed that it was a judgment call on Mr. Martel’s part
whether to directly ask the Syrians about Mr. Arar’s treatment or use more discretion. She appeared to accept Mr. Martel’s approach. She pointed out that no
specific DFAIT policy requires direct questioning. Each situation requires a caseby-case approach. In this case, there was always the risk that too much pressure
would close the door to future visits.830
When he was alone with Colonel Saleh, Mr. Martel asked about Mr. Arar’s
case. The Colonel said that Mr. Arar would likely be detained for a long time and
prosecuted. He mentioned that the security services of both countries were
working jointly on the matter.831 He also let it slip that Mr. Arar’s wife did not
know everything she should about her husband.832 Mr. Martel suggested to
Colonel Saleh that because the case was attracting significant media attention in
Canada, it would be in both countries’ interests to continue consular visits.
Colonel Saleh replied that they would do their best.833
In testimony, Mr. Martel related that he had developed a good relationship
with Colonel Saleh, stating that he “appeared to be a very decent person ...,” and
Mr. Martel was “pretty close to him.” Still, he understood that the Colonel was
likely telling him things that were untrue.834
Seventh consular visit
Although Canadian officials applied regular pressure to secure a visit, an even
longer period would pass before they saw Mr. Arar again on February 18.
Mr. Martel’s view was that Mr. Arar’s status as a dual national was a problem,
and consular access to him was a significant exception to the rule in Syria.835
The notable delay in having consular access this time created angst within
Consular Affairs. Mr. Martel felt that applying too much pressure risked jeopardizing Canada’s good relations with the Syrians to date. Mr. Pardy indicated
in February 2003 that if a response from the Syrians was not forthcoming, it
might be necessary to put extra pressure on them, if only to find out why Canada
was being denied access.836 News of a visit, when it finally came, was welcome.
In the meantime, Ambassador Pillarella finally secured his meeting with General
Khalil on January 9. According to Ambassador Pillarella, it was a spirited encounter, but nonetheless ended with a handshake and a joke or two.837
During the meeting, the Ambassador raised the possibility of a visit from
Dr. Mazigh with her husband as a way to improve Syria’s image. The General
seemed amenable to this request.838
Ambassador Pillarella pointed out that the Syrians were bending over backwards not to create additional problems for Canada, even though the General
insisted throughout the conversation that Canada was defending a terrorist.839
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The Ambassador noted that this was serious talk from the Syrians, and would
mean the death penalty for Mr. Arar.
In his report on the February 18 consular visit, Mr. Martel noted that “Arar
said he was (and appeared) to be in good health and we have not noticed any
changes since last visit.”840 Again, he was dressed warmly. Mr. Martel commented that if Mr. Arar had lost weight, it must have been prior to his first visit,
because his weight looked constant from then through to August 2003, and this
was something he was on the lookout for.841
Mr. Martel indicated that Mr. Arar was extremely happy to be visited, but
that what he found most difficult was adapting to being detained. He still had
money, his needs were being taken care of and he was receiving privileged
treatment. Again, reading material was left with the authorities842 and family
photos and a letter exchanged.843
The Syrians gave no indication that charges had been laid. In fact, they said
the investigation was ongoing. As related by Colonel Saleh to Mr. Martel in private outside the meeting room, Mr. Arar continued to be interrogated and was
still providing valuable information.844 The Syrians said that if and when charges
were laid, consular access might cease — which was of concern to Consular
Affairs in Ottawa.845
Mr. Martel’s report, approved by Ambassador Pillarella, speculated about
Mr. Arar’s hopes for release:
With regard to MINA’s [Minister Graham’s] statement to Min[ister] Shara’a that the
preferred option of the Canadian government would be that Arar be returned to
Canada, this concept does not seem to find an echo with the Syrian authorities, at
least not for the moment. As long as they consider that their investigation is ongoing, the Syrians will not release Arar. We suspect that the only possibility of a return to Canada could happen only at the end of an investigation that could not
justify the laying of charges against Arar. For the moment, this remains an open
question.846
The Syrians explained that the delay between visits was due to illnesses, absences and holidays. They also made it clear to the consul that no specific commitment could be made for regular visits from then on. Mr. Martel commented
in his report that having to mobilize several people for each visit was perhaps
straining the Syrians’ resources.847
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5.2
COMMUNICATIONS WITH THE FAMILY
Contact between Consular Affairs and Mr. Arar’s family began almost immediately after Dr. Mazigh arrived in Canada on November 14, 2002.848 For example,
as discussed above, Bassam Arar’s concern about his brother’s situation led
Mr. Martel to make inquiries with the Syrians. At another point, Dr. Mazigh
asked about her husband’s laptop, which in turn led to inquiries. There was
also the constant exchange of letters, photos, money and personal information
between Mr. Arar and his family.849
One message consular officials wished to convey to Mr. Arar’s family was
that they were concerned about Mr. Arar’s well-being and wanted to ensure he
was being well treated and had access to legal counsel. As consular officials, they
were not there to investigate him, or reach conclusions on his guilt or innocence.850 This reassurance became relevant a couple of weeks after the January
2003 consular visit. Hassan Arar contacted Mr. Pardy to complain that Consular
Affairs was not controlling the RCMP, which had recently requested a meeting
with him about his brother. (The continuing Project A-O Canada investigation
is discussed in Chapter IV, Section 10.) Mr. Pardy explained that Consular Affairs
was not necessarily informed of the RCMP’s investigative procedures.
Dr. Mazigh’s impression was that the RCMP was intimidating the family, and
lacked good intentions and an understanding of the situation.851
Ms. Pastyr-Lupul made a point of telling Dr. Mazigh when a consular visit
was scheduled, as well as reporting on it after it occurred. The dialogue
between the two was continuous; Mr. Pardy also spoke to Dr. Mazigh
occasionally.852
However, the family did not receive the actual consular reports, which
might have given family members the impression they had not received complete accounts of the visit. According to Ms. Pastyr-Lupul, this was a judgment
call on DFAIT’s part. She added, however, that discussions about Mr. Arar’s situation were full and frank during meetings with the family. She suggested that
the Privacy Act governed what information from Mr. Arar could be relayed to
the family and that in this case, Mr. Arar was not able to provide written authorization to allow full release.853 It is not clear, however, that Mr. Martel was
ever asked or attempted to obtain such authorization. Mr. Arar may already have
given verbal approval to discuss the case with his family when he was in detention in New York.854
At one point, Mr. Martel was asked to contact Dr. Mazigh directly to describe his meetings with Mr. Arar. However, he felt this was not within the
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consular officer’s mandate, and after discussion with Mr. Pardy, the idea was
set aside. As mentioned above, in early December Mr. Martel did ask
Ms. Pastyr-Lupul to pass along a reassuring message about Mr. Arar’s condition.
Likewise, in mid-January, Mr. Martel wrote to Ms. Pastyr-Lupul about Dr.
Mazigh’s concerns of securing another consular visit:
Monia should, in all fairness, be told the truth. We visit her husband when it is possible to do so but we are working in a foreign country and her husband is a national
of this country.
We are doing our best to maintain the excellent relationship we currently have
with the authorities which we hope will continue [to] help us access … Maher on
a regular basis.855
On this same note, consular officials conveyed to the family their increasing difficulties in securing consular visits in early 2003, quite possibly due to
Syria’s preoccupation with Iraq.856 Dr. Mazigh became increasingly concerned
when, in early March 2003, she learned that Canadian diplomatic missions in the
Middle East were being scaled down because of the upcoming Iraq war.
However, Mr. Pardy made it clear to Dr. Mazigh that the key people with respect
to Mr. Arar were staying in Damascus.857
Shortly after the February 18 consular visit, Mr. Pardy and Ms. Pastyr-Lupul
spoke with Dr. Mazigh about whether she would be willing to travel to Syria to
visit her husband. As discussed, the Syrians were indicating that this was a possibility at the time.858 Discussions to this effect continued through to the visit by
members of Parliament in April 2003, and beyond.
In late March 2003, after weeks of delay and no success in recovering
money belonging to Mr. Arar that had never reached him when he was at the
Metropolitan Detention Center in New York, Mr. Pardy took the unusual step
of ordering that a cheque for the equivalent of US$200 be issued to Dr. Mazigh
from a humanitarian assistance fund. Consular officials were aware that, for obvious reasons, Dr. Mazigh was not in good financial shape at the time.859
5.3
PUBLICITY AND THE PUBLIC CAMPAIGN
Dr. Mazigh spoke to the media about her husband’s situation shortly after her
return to Canada on November 14. It appears she told the media that DFAIT officials had said they had no serious information linking her husband to terrorist
organizations. In response, Consular Affairs came out with an official line that
confirmed her statement.860 It was not uncommon for Consular Affairs to field
questions from journalists throughout this whole ordeal.861 Mr. Pardy would
�IMPRISONMENT AND MISTREATMENT IN SYRIA
express concern throughout the year that the increased level of media attention
to Mr. Arar’s case might not be helpful to securing his release, and at one point
at least, requested that Dr. Mazigh consider toning down her public campaign.862
Mr. Arar’s plight would remain the subject of high-profile media attention
throughout his time in Syria.863 In part because of this attention, but also because
of the unique facts of the case, it remained a high-profile issue for Minister
Graham’s office.864 Mr. Arar’s plight also attracted the attention of groups such
as Amnesty International in Canada, which contacted Minister Graham’s office
in January 2002 to try to secure a meeting with the Syrian Ambassador to
Canada. Mr. Fry in the Minister’s office had dealt with Amnesty International
on other cases. He viewed them as a very credible and respected NGO, and
from time to time listened to their advice and suggestions with respect to
Mr. Arar’s situation.865
5.4
HIGH-LEVEL EFFORTS TO OBTAIN RELEASE
Minister Graham’s meeting with the Syrian ambassador to Canada
In the first high-level intervention with Syria on Mr. Arar’s case, Minister Graham
called in Ambassador Arnous, Syria’s Ambassador to Canada, on December 19.
Ms. Pastyr-Lupul described this as an example of “extraordinary efforts on our
behalf which normally do not happen in arrest and detention cases.”866
Before meeting with Ambassador Arnous, Minister Graham spoke with
Mr. Arar’s wife in a conference call that included Marlene Catterall, Mr. Arar’s
Member of Parliament. Mr. Fry, who organized and participated in the call, saw
it as an opportunity to reassure Dr. Mazigh and make her aware that DFAIT
was doing all it could for her and her husband, at the highest levels of the
organization.867
Dr. Mazigh wanted to know how long her husband would be detained.
The Minister explained that he had no control over the length of the process.
Dr. Mazigh expressed concern about her husband being in a state of limbo,
with no charges against which he could defend himself. The Minister explained
that the Canadian Embassy in Damascus was in frequent contact with Mr. Arar,
and that DFAIT was working hard on the case. He also mentioned that he would
call the Syrian Foreign Minister to discuss the situation.868
During his meeting with Ambassador Arnous that day, Minister Graham related that he had spoken with Dr. Mazigh. He added that there was great interest
in the case in Canada and told the Ambassador that in the international war
against terrorism, it was still necessary to respect human rights. He then said he
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was going to make a representation to the Syrian government to return Mr. Arar
at the earliest possible time; if Syria suspected Mr. Arar was guilty, they should
charge him and allow him to defend himself against any accusations. He noted
that Mr. Arar should not be held in limbo without knowing what he was accused
of doing.869
Ambassador Arnous replied that the Arar case was complex. Syrian authorities were still investigating, and had numerous concerns, including
Mr. Arar’s travels to Afghanistan.870
Mr. Fry, who was also present, asked how long the process was going
to take. The Ambassador replied that he would do his best, but the matter was
in the hands of the security services, which do not necessarily share their
information.
On January 15, 2003, Mr. Pardy asked Ambassador Arnous if he would
meet with Dr. Mazigh. He was not prepared to do so.871
Minister Graham’s call to Syrian Foreign Minister Shara’a
As discussed earlier, a call by Minister Graham to his Syrian counterpart had
been contemplated as far back as November 2002. Minister Graham finally spoke
with Syrian Foreign Minister Shara’a on January 16, 2003.
Minister Graham raised several other issues first. The Syrians were worried
at the time about the potential American invasion of Iraq; for them, Mr. Arar’s
case was of minor importance. Thus, despite the fact that for Canada, Mr. Arar’s
plight was front and centre, Minister Graham took his time broaching the subject.872 When he finally raised Mr. Arar’s case, he noted that it had attracted
media and parliamentary attention in Canada and that the manner of Mr. Arar’s
removal from the United States had upset many Canadians. He took the time to
dispel any impression the Syrians might have had that Canada did not want
Mr. Arar returned. He made it clear that Mr. Arar’s return was Canada’s preferred
option.873 He then reiterated his earlier message to Ambassador Arnous that the
alternative option was to charge Mr. Arar so that he could have the opportunity
to defend himself.874 On the question of Mr. Arar’s dual nationality, Minister
Graham said he understood Syria’s position that he was Syrian, but that he was
a Canadian to Canada, and Canada wanted him back.875
Foreign Minister Shara’a assured Minister Graham that if the Syrians’
investigation determined Mr. Arar was an associate of al Qaeda, he would have
a fair trial.876
On January 29, not long after this call, Minister Graham repeated the details
of his conversation with the Syrian Foreign Minister in response to a question
about Mr. Arar during a press scrum.877
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6.
THE POSSIBILITY OF MIXED SIGNALS
6.1
AMBASSADOR PILLARELLA’S JANUARY 15 MEETING
In January, DFAIT learned that the Syrians thought Canada did not want Mr. Arar
back. Ambassador Pillarella and Mr. Martel met with Deputy Foreign Minister
Haddad on January 15 to review the Arar case and discuss the possibility of
Dr. Mazigh visiting her husband. The Ambassador prepared a report to DFAIT
Headquarters in which he stated that the Deputy Foreign Minister had made
two points he considered “rather curious.”878 The first was that “Arar did not
wish to return to Canada;” the second was that “CSIS would have indicated to
military intelligence that they have no wish to see Arar return to Canada and they
were quite content with the way things were.”879 Regarding the first statement,
Mr. Martel told the Ambassador that Mr. Arar had indicated the exact opposite
in his letters to his wife.880 As to not wanting Mr. Arar back in Canada,
Ambassador Pillarella said that that was the first he had heard of it.881
Ambassador Pillarella went on to say that he had heard this same comment
once or twice more from the two other key people with whom he had been
dealing — Deputy Foreign Minister Mouallem and General Khalil.882 No particulars had been provided and no information volunteered to the Ambassador as
to who had given the Syrians this message.883 Nor had he seen the need to ask
the Syrians who had given them this impression and when.884 Ambassador
Pillarella explained that since he had mentioned CSIS by name in his report to
Headquarters, it was possible the Deputy Foreign Minister had said that “CSIS”
did not wish to see Mr. Arar returned to Canada, but that the few times it had
been mentioned, it had been phrased as “we understand from your people that
you don’t want him back in Canada.”885 Mr. Martel could not recall Deputy
Foreign Minister Haddad specifically referring to “CSIS” in his statement. To the
best of his recollection, the official had said something like “Well, we thought
that you didn’t want him back.”886
Ambassador Pillarella stressed that any time the three Syrian officials had
said this to him, he had responded, “I don’t know what people are telling you
that, I am telling you that we want Mr. Arar back in Canada if you have nothing against him.”887 Ambassador Pillarella had not contacted CSIS Headquarters
directly to inform them of what the Syrian officials had been saying because he
had reported it to DFAIT Headquarters and it had been up to them to take care
of it in Ottawa.888 He had subsequently spoken with CSIS Director Ward Elcock
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in Romania in late 2003, about what the Syrians had said almost a year earlier
— that CSIS did not want Mr. Arar back in Canada. Mr. Elcock had said this was
not true.889
After receiving this message from the Syrians, DFAIT contacted people at
different levels of CSIS about the statement. It was always denied.890 When
DFAIT informed him of the Syrian statement, Mr. Hooper met with the CSIS
delegation that had visited Syria in November,891 assuming that this statement
had something to do with that trip.892
The CSIS delegation’s instructions for this trip from their superiors and
DFAIT very clearly stated that CSIS was to make the Syrians understand that the
issue of Mr. Arar’s release was a consular matter and CSIS was not to get involved in that part of it.893 One of the CSIS delegates testified that at no time had
anyone in the delegation told the Syrian authorities that they did not want
Mr. Arar back in Canada.894 He indicated that he would not have said “we have
no interest in Arar”895 because one of the reasons for the trip to Syria was to acquire the information that the Syrians had concerning Mr. Arar. Thus, CSIS did
in fact have an interest in him.896
Mr. Hooper determined that CSIS had said nothing to the Syrians that to his
mind could logically have led to a conclusion that CSIS did not want Mr. Arar
returned, and he informed DFAIT of his finding.897 For various reasons discussed
in more detail below, Mr. Hooper did not instruct anyone to contact the SMI to
rectify the misimpression, the primary reason being that he was aware that
Minister Graham had made a call to his Syrian counterpart on January 16.898
Mr. Livermore of DFAIT ISI explained that DFAIT had feared from the outset that they were dealing with a country where there was reason to believe
that the Foreign Ministry came below the intelligence service both in the power
structure and in terms of influence.899 If CSIS had said something to the SMI, the
CSIS view might be seen in some Syrian circles as more influential than any
view expressed to the Foreign Ministry.900 DFAIT was accordingly “concerned
about the lines of communication and the ability of the Canadian government
to speak with one voice on this [issue].”901 Mr. Livermore speculated that if the
SMI had at any stage understood that Canada did not want Mr. Arar back, that
message would have been more powerful than a message from the Foreign
Ministry saying that the Canadian government wanted him back.902
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6.2
JANUARY 16 CONTACTS WITH SYRIAN FOREIGN MINISTER AND
AMBASSADOR ARNOUS
As described earlier, during his phone call to Foreign Minister Shara’a on January
16, Minister Graham emphasized that the Canadian government’s preferred option was that Mr. Arar be returned to Canada. Mr. Fry of the Minister’s office testified that this message was intended to “dispel any impressions the Syrians had
about mixed messages from Canada.”903
An official with DFAIT’s Middle East Division informed Ambassador Arnous
of Minister Graham’s call904 and relayed the same message to him.905 Ambassador
Arnous was “pleased to hear that Minister Graham had informed his Minister that
it was the position of the Canadian Government that the preferred option is the
return of Arar to Canada.”906 Ambassador Arnous further “volunteered that he
had also been informed that the Syrian security services had been told by their
Canadian counterparts that Canada did not wish to see Arar return to Canada.”907
DFAIT Headquarters instructed Ambassador Pillarella to “convey to Vice
Minister [sic] Haddad and General Khalil that Minister Graham has stated very
clearly that the return of Arar to Canada is the preferred option of the
Government of Canada.”908
Mr. Hooper did not instruct anyone to contact the SMI to rectify the misimpression for a number of reasons. First, he believed Minister Graham’s call to
his Syrian counterpart had been “pre-emptive in terms of what the Service might
do because he has clearly conveyed the message that the Government of Canada
wants Mr. Arar back.”909 Second, Mr. Hooper was aware there had been a call
or meeting between DFAIT and the Syrian ambassador on this issue.910 Third,
CSIS had “information from an independent source that satisfied the Service that
notwithstanding what may have been said, by the time these calls were made,
the discussions were held, there was no misunderstanding on the part of any
Syrian entity as to what the position of the Government of Canada was relative
to Mr. Arar.”911 In summary, by January 16 CSIS understood that there was no
misunderstanding on the Syrian side.912
Ambassador Arnous stated that Deputy Foreign Minister Haddad had mentioned that “there was some confusion between the other position (Canadian security) and the official position (Canadian government) but the Canadian
government position was clear now and it was conveyed to” Minister Shara’a.913
He had requested that the message be conveyed to Deputy Foreign Minister
Haddad.914 When CSIS “saw that, that ‘the position is clear now’ then we felt
fairly confident that the matter had been settled” and from “the Service
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standpoint, that matter had been cleared up and we just moved on and never
heard of it again until some time later when the Commission hearing started.”915
6.3
QUESTIONS FOR MR. ALMALKI
6.3.1
Events and Discussions in July and August 2002
As noted earlier in Chapter I, in the period leading up to Mr. Arar’s detention in
the United States, there were extensive discussions between members of the
RCMP and DFAIT ISI officials regarding the sharing of information with the
Syrian authorities on Messrs. El Maati and Almalki.
In July 2002, Staff Sergeant Fiorido assumed his duties as the RCMP’s liaison officer (LO) in Rome, accredited to ten countries, including Syria.916 His job
was to facilitate the exchange of information in support of Canadian investigative needs.917 As noted above in Section 2.2.3, he did not recall ever receiving
a copy of DFAIT’s annual report on Syria or on any of the nine other countries
over which he had jurisdiction, except possibly Italy.918 He was not given any
training on human rights conditions in Syria, and his personal understanding
from open sources was that “Syria was one of those countries in which the
abuse of human rights was or may be a concern.”919 As LO, Staff Sergeant Fiorido
dealt exclusively with Ambassador Pillarella and no one at DFAIT.920
Upon taking up his duties, Staff Sergeant Fiorido reviewed a memorandum
dated July 10, 2002,921 from his predecessor Steve Covey.922
Inspector Cabana explained that starting in July, Project A-O Canada had
had a number of meetings.923 The issue of sharing information with the Syrian
authorities “had been the subject of numerous discussions” and there had been
“extensive consultation involving Justice, DFAIT, CSIS, the Canadian Ambassador
to Syria, CID and ourselves.”924
On July 29, DFAIT ISI met with Inspector Cabana to discuss the detention
of Messrs. El Maati and Almalki in Syria.925 Mr. Gould recalled discussing information sharing between the RCMP and the Syrians, and the matter of the
Syrians offering to ask Mr. Almalki questions provided by the RCMP.926 Inspector
Cabana explained that “[t]his is where the discussions were initiated with the
prospects of sharing with Syria. These individuals didn’t appear to have any
major issue with the potential sharing…” and “[e]veryone seemed to be in agreement that it was the thing to do.”927 However, Mr. Gould did not recall this
“being the outcome of the meeting, that there was any kind of agreement whatsoever to that.”928
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On August 19, Staff Sergeant Callaghan sent Staff Sergeant Fiorido a fax discussing the El Maati case and Mr. El Maati’s allegations of torture in Syria.929 The
RCMP LO was thus made aware of these concerns early on.
On August 20, Project A-O Canada officials considered the possibility of
inviting the Syrians to Canada to review their investigative material, and to provide them with questions for Mr. Almalki on the RCMP’s behalf.930 However,
they never did so.
6.3.2
September 10 Meeting and Fax to RCMP LO
On September 10, Chief Superintendent Couture and senior officers from Project
A-O Canada met with a number of DFAIT officials, including Ambassador
Pillarella. The meeting dealt primarily with the type of assistance DFAIT could
provide the RCMP, either for sending Mr. Almalki questions, or for arranging an
interview.931 Inspector Cabana summarized Project A-O Canada’s investigation
thus far. For his part, Ambassador Pillarella explained the intricacies of the Syrian
intelligence community, and indicated that a Syrian general (General Khalil) had
finally admitted having Mr. Almalki in custody.932 It is also likely that
Ambassador Pillarella agreed to facilitate future requests to Syrian authorities,
and may have made a comment to the effect that the Syrians would probably
expect something in return for sharing their information with Canada.933
At this same meeting, Mr. Solomon of DFAIT ISI, raised the risk of torture.
On the topic of sending questions for Mr. Almalki to Syria, he said something
to the following effect: “If you are going to send questions, would you ask them
not to torture him.”934 Mr. Solomon had recently completed a posting with the
Human Rights and Humanitarian Law division of DFAIT. He had seen reports
on Syria, and was surprised that the issue of asking questions was even on the
table, given his understanding that Syrian detention practices could involve
aggressive questioning, especially if no one else was present.935
Mr. Solomon described the situation afterwards as awkward, with the RCMP
remaining nonplussed. Mr. Solomon remained quiet as a result of the ensuing
discomfort.936 However, he believed that someone turned to Ambassador
Pillarella to determine whether the statement about torture was accurate, and the
Ambassador made some sort of affirmative gesture or comment.937
Ambassador Pillarella did not recall Mr. Solomon’s comment.938 He was on
vacation at the time, had only dropped by to see friends, and was invited to the
meeting. He did not take notes, and his recollection of the meeting was poor.939
Despite the fact that Mr. Solomon’s comment was made seriously, there
was little, if any, discussion about the possibility of torture. A brief discussion
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may have ensued, in which Mr. Heatherington of ISI also said something about
the possibility of torture, referring to Mr. El Maati’s allegation that he had been
tortured in Syria. Inspector Cabana commented, possibly in response, that it was
possible Mr. El Maati had only claimed torture, but that the torture had not actually occurred.940
Mr. Heatherington had no recollection of the meeting, but he did not dispute that something to this effect was said. According to him, DFAIT was comfortable with the RCMP interviewing Canadian citizens anywhere, but was also
trying to make the RCMP aware of conditions in countries like Egypt and Syria.
At the time, DFAIT knew of Mr. El Maati’s claims in Egypt that he had been tortured by the Syrians.941
Inspector Cabana agreed that discussions of torture possibly took place at
this meeting, although he could not recall specific comments. When shown the
comment he reportedly made, that individuals may claim torture when it has not
actually occurred, he stood by it. His view was that this is always a possibility.942
Mr. Solomon drafted a memorandum dated October 10 for Mr. Livermore’s
signature to update Mr. Lavertu, the Deputy Minister of Foreign Affairs,943 on the
status of Canadians with links to al Qaeda being detained outside Canada.944
Referring to Mr. Almalki, Mr. Solomon wrote that “[t]he RCMP are ready to send
their Syrian counterparts a request that Al-Malki [sic] be asked questions provided by the RCMP, questions relating to other members of his organization.
Both ISI and DMSCUS/HOM [Ambassador Pillarella] have pointed out to the
RCMP that such questioning may involve torture. The RCMP are aware of this
but have nonetheless decided to send their request.”945 Mr. Solomon believed
that this reference to questions for Mr. Almalki was based on the September 10
meeting.946
Although Mr. Solomon could not recall whether there had been any contacts with the RCMP between September 10 and October 10, he could “only assume without remembering the specifics of September 10 that there was no
agreement that they would not” send their request.947 DFAIT officials had stated
their concerns, but had not been given any indication that the RCMP would not
proceed.948 Mr. Solomon could not recall what the statement “the RCMP are
aware of this but have nonetheless decided to send their request” was based
upon.949 Mr. Gould could not recall a discussion with the RCMP on or about
October 10. He did remember regular conversations within DFAIT ISI about it
being a problem and recalled a meeting or occasions, although not the dates,
where it was raised with the RCMP.950
On September 10, Inspector Cabana sent Staff Sergeant Fiorido a fax, with
an information copy to Corporal Flewelling.951 He advised the LO that it was
�IMPRISONMENT AND MISTREATMENT IN SYRIA
their “understanding that the Syrians are prepared to question Almalki on our
behalf” and requesting that he “approach your Syrian contact to see if they will
grant us access to conduct our own interview” of Mr. Almalki. He added that
“[i]n the alternative, we are contemplating providing the Syrian officials with
questions for Almalki.”952
This was the first Staff Sergeant Fiorido had heard about the Syrians being
prepared to question Mr. Almalki on behalf of the RCMP.953 He understood from
Mr. Covey’s July 10 memorandum that he should be dealing directly with
Ambassador Pillarella to facilitate this request since direct access to the SMI was
not possible.954
6.3.3
October Discussions between the RCMP and DFAIT
There were several discussions between the RCMP and DFAIT in October 2002.
On October 21, Mr. Gould called Inspector Cabana to advise him that DFAIT
had received official word that Mr. Arar was in Syrian custody and wanted to determine whether the RCMP was interested in Mr. Arar as well as Mr. Almalki.955
Mr. Gould asked if there were any messages the RCMP would like conveyed to
the Syrians, to which Inspector Cabana replied, “[W]e have
intelligence/evidence in relation to both subjects that we would be prepared
to share with Syrian authorities if they felt it could be of assistance to their
investigation….”956
Mr. Gould did not recall telling Inspector Cabana that in his “personal opinion there could be a risk to the individual” at that point in time.957 Inspector
Cabana testified that “[t]hroughout all the meetings and exchanges we had with
DFAIT, nobody ever said you can’t do that [offer information]. They would have
put a stop to it.”958
Mr. Gould prepared a draft memorandum that same day that stated that
“[t]he RCMP is prepared to share with Syrian authorities the information they
have generated about Arar in the course of their investigation of al-Malki [sic]
(see note about similar offer with regard to al-Malki [sic]).”959 It also stated that
“[t]he RCMP has generated a great deal of information about al-Malki [sic] and
they are prepared to share this information with Syrian authorities is [sic] they
wish to send someone to Ottawa (this offer may already have been passed to
the Syrians by the RCMP LO).”960
On October 24, Staff Sergeant Fiorido spoke to Ambassador Pillarella about
the Almalki file for the first time.961 The Ambassador advised him that General
Khalil did not like to deal with police agencies and there was not much chance
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of the RCMP getting contact, but he offered his continued support of RCMP
efforts.962
6.3.4
October 30 Memo on DFAIT’s Concerns
DFAIT ISI set out its concerns about sending questions for Mr. Almalki in a
memorandum drafted by Mr. Solomon and dated October 30. According to
Mr. Solomon, a meeting between ISI and the RCMP had been held on the morning of Friday, October 25,963 to follow up on the September 10 meeting and the
“possibility of sending questions [for Mr. Almalki] and the issue of torture was
raised for a second time.”964 He recalled that they had come out of the meeting
displeased. A decision had been made “to draft a memo proposing that we send
this fairly strict letter from our Deputy Minister to Proulx.”965 Mr. Solomon had
made himself a note to draft a letter recommending that the RCMP not send
questions. He jotted down the following points to include in the draft: “RCMP
Al-Malki [sic] letter (international law prohibits torture absolutely; there is no
justification that may be invoked as a reason for torture).”966
Mr. Solomon drafted a memorandum dated October 30 for Mr. Livermore’s signature. He gave some initial thought to what to include in the letter, but never
actually drafted it.967 The memorandum stated that:
The RCMP are seeking either to directly interview Al-Malki [sic] or to send their
Syrian counterparts a request that Al-Malki [sic] be asked questions provided by the
RCMP…Both ISI and DMCUS/HOM have pointed out to the RCMP that if such questioning is carried out by the Syrian security services, there is a credible risk that it
would involve torture. Another Canadian citizen who was recently held in a Syrian
prison, Ahmad Al-Maati [sic], has alleged he was tortured by the Syrians. To make
our position clear, we propose that MJW send a letter to Assistant Commissioner
Richard Proulx (draft attached) indicating that DFAIT will not support or assist in this
matter if there is any risk of a Canadian citizen being question[ed] under duress at
the behest of the Government of Canada.968
At the time, DFAIT ISI believed that torture was a “credible risk,” based on
their experience in another matter.969 Inspector Cabana could not recall attending any meetings at which there had been discussion that it was not a good
idea to send questions to Syria for Mr. Almalki because of a credible risk of torture.970 Regarding the reference to “…DMCUS/HOM have pointed out…credible
risk,” Ambassador Pillarella testified that he had no recollection of having said
this to the RCMP and was not aware of the existence of any draft letter.971
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Inspector Cabana testified that the Ambassador had never suggested any such
thing.972
The letter was never sent to Assistant Commissioner Proulx, and it was generally understood by DFAIT ISI that the issue had been resolved and the RCMP
was not going to send questions to Syria. Mr. Solomon generally recalled that
the issue had ended and understood that no questions were going to be sent.973
According to Mr. Livermore, the letter was never sent because the “RCMP eventually agreed with us that they would not submit questions to the Syrians.”974 He
was not aware of anything in writing stating that the RCMP had agreed not to
send the questions.975 He believed the matter had probably been resolved at
Mr. Heatherington’s level, since it had not come to him.976
Mr. Heatherington also believed that the issue had been resolved, with the
RCMP accepting their advice. He could not recall who had been involved in resolving the matter.977 DFAIT ISI had had no reason to believe that the RCMP
would go to Damascus in view of its advice to the RCMP about it not being a
very good idea.978 Had that not been the case, then “we would have sent some
form of the draft letter” since “you go to a final where you think the issue is not
resolved.”979
Inspector Cabana was not aware of DFAIT’s understanding that the questions were not to be sent. He testified that in fact, his “understanding was to the
contrary because Ambassador Pillarella was facilitating the exchange with the
Syrian authorities” and the RCMP had discussed this issue a week later, on
November 6, with the Ambassador and DFAIT officials.980 He had never been involved in any agreement with a DFAIT official to refrain from sending questions and was not aware of any RCMP member in either Headquarters or Project
A-O Canada who had entered into such an agreement.981
6.3.5
Preparation and Delivery of Questions
Decision to Send Questions
Project A-O Canada prepared a package of questions for Mr. Almalki in
December and January. According to Inspector Cabana, it had been decided by
December 11 to send questions (the second option) instead of attempting to obtain an interview with Mr. Almalki,982 at the suggestion of Staff Sergeant Fiorido.
He had advised that it would be futile to try to gain access.983 Ambassador
Pillarella had informed the LO that there was little chance of obtaining contact
with Mr. Almalki.984
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Staff Sergeant Fiorido asked that the questions for Mr. Almalki be sent to
him ahead of time to ensure that the contents were appropriate.985 According to
Inspector Cabana, DFAIT knew that the questions were being translated into
Arabic by the RCMP and that they would then be sent, although he had no notes
as to whom at DFAIT he had spoken in this regard.986
On December 24, Staff Sergeant Fiorido received a fax from Staff Sergeant
Callaghan and Inspector Cabana to which was attached a draft list of questions
for Mr. Almalki in English, along with the Arabic translation.987 An information
copy of the fax was sent to Corporal Flewelling and the International Liaison and
Protective Operations (ILPO) branch at Headquarters,988 and approved by Chief
Superintendent Couture and Superintendent Pilgrim.989 Inspector Cabana testified that his CROPS superiors had been directly involved in this process, starting with taskings by Inspector Clement and Chief Superintendent Couture earlier
in the year.990 Assistant Commissioner Proulx was under the impression that no
questions had been sent.991
Staff Sergeant Callaghan and Inspector Cabana sent the final English version
of the questions to Staff Sergeant Fiorido on January 7.992 Question 16 asked,
“What was your relationship with Maher Arar?”993 There was no caveat on this
list of questions and Staff Sergeant Fiorido explained that he did not “think there
should have been given the nature of these inquiries” and the secrecy in which
agencies in the Middle East operate. It was only when you got “burned” that you
wanted to remind people and start including the caveat, he noted.994
Cover Letter to General Khalil
A draft cover letter to General Khalil was prepared to send with the package of
questions. On January 8 and 9, Staff Sergeant Fiorido e-mailed the draft to
Inspector Cabana and CSIS but not to RCMP Headquarters or his own branch,
the IOB (International Operations Branch).995 He wanted Inspector Cabana to review the wording to ensure it was accurate and consistent with the RCMP investigators’ operational goals. He also wished to show the letter to CSIS because
it was mentioned in it.996
[***].997 Inspector Cabana also approved the cover letter.998 Staff Sergeant
Fiorido did not know if the Inspector had consulted with DFAIT before approving it. He himself had not done so before submitting the questions.999
Inspector Cabana indicated that his notes did not specify that DFAIT had approved sending the questions, but discussions involving DFAIT and the
Ambassador clearly indicated that they would facilitate the process.1000
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The cover letter dated January 10 and sent to General Khalil with the list of
questions contained the following information:
…. Depending on his [Mr. Almalki’s] willingness to answer truthfully and depending on the answers he provides to you, a second series of questions has been prepared for him…. we cannot disclose this second set of questions to him until we
favourably assess the quality and accuracy of his answers…. Once we assess the answers to the first series of questions, we can then inform you if we are prepared to
proceed to the second series of questions…The police unit investigating this matter in Canada is an integrated team composed of personnel from both the law enforcement community and from our intelligence community, the Canadian Security
Intelligence Service…. Both agencies are working together in this matter…. I would
like to propose that during my next visit to Damascus, […] I meet with personnel
from your agency in order to further discuss this matter…. Also be aware that we
are in possession of large volumes of highly sensitive documents and information,
seized during investigative efforts or obtained from confidential informants associated to terrorist cells operating in Canada. Our Service is readily willing to share this
information with your Service….1001
Staff Sergeant Fiorido referred to CSIS in this letter because he was aware
that General Khalil would rather deal with CSIS than the police and was hoping for an exception in this case.1002 Based on his discussions with Project
A-O Canada, the LO indicated that they had a large volume of sensitive documents they were willing to share as a kind of “carrot” or “hook” to get approval
of the request.1003 With respect to the plurality of terrorist cells, Inspector Cabana
explained that although he had not drafted the document using the word “cells,”
they were satisfied that there were terrorist cells operating in Canada.1004 The
RCMP never sent a second set of questions to Syria.1005
The Issue of Torture and Mixed Signals
On January 10, Staff Sergeant Callaghan advised Staff Sergeant Fiorido that in an
interview held in Egypt. Mr. El Maati had stated that the Syrians had tortured
him.1006 These allegations did not raise a red flag for Staff Sergeant Fiorido with
respect to the questions being sent for Mr. Almalki. “[I]t was never a concern because it was never considered.”1007 He testified that he had not thought he
needed to be aware of the issue of torture and mixed signals, especially since
he had been dealing with another international organization on an operational
matter, not expecting “that kind of gross injustice taking place.”1008
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In regard to sharing information with the Syrians despite knowing about allegations that they had tortured a Canadian citizen, Inspector Cabana stated that
it “would be troubling but … required” and “would be appropriate” because
they were still dealing with an imminent threat.1009 Discussions were held between staff sergeants Callaghan and Corcoran and Inspector Cabana “about any
difficulties that Mr. Almalki could face in these questions being asked.”1010 As
Inspector Cabana explained, “[T]hese were troubling decisions to make,” but
they were not made by him alone. After consultation with the “experts” and
with other agencies, the consensus was that given the circumstances facing
Canada at the time, their only choice was to send the questions.1011
There was no discussion about the possibility that sending questions for
Mr. Almalki in which Mr. Arar’s name came up in the context of terrorist cells
and “heavy hitters”1012 might give the Syrians mixed signals: on the one hand,
Canada was trying to get him released and, on the other, terrorist connections
were being suggested.1013 Inspector Cabana stated that the questions had simply asked about his relationship with Mr. Arar. There had been no inference
that he was a terrorist.1014 He indicated that he would rely on the experts at
DFAIT who actually dealt with foreign authorities to determine if mixed messages were being given.1015
Delivery of Questions to Ambassador Pillarella
Staff Sergeant Fiorido was in the Middle East from January 12 through 14, 1016 at
which time he met with Ambassador Pillarella to discuss the Almalki matter.1017
The LO gave the Ambassador a sealed envelope containing the RCMP’s list of
questions for Mr. Almalki and the cover letter.1018 Although he did not open the
envelope,1019 the Ambassador was aware of its contents1020 and continued to be
supportive of the RCMP’s efforts.1021 Staff Sergeant Fiorido stated that it was unusual to have the Ambassador “even show an interest in assisting us at this
level.”1022 It was a “welcomed opportunity,” but “certainly unprecedented” in
his experience.1023
The two men did not discuss the possibility that the questions might send
the Syrians a mixed message about Mr. Arar. Nor did they discuss the possibility of torture.1024 Staff Sergeant Fiorido did not recall advising the Ambassador
that the contents of the sealed envelope had Ottawa’s approval,1025 but the
Ambassador recalled him saying something to the effect that he had “authority
from Ottawa.”1026 When he had received the request to deliver the questions
and been advised by the LO that instructions had come from Ottawa to pass on
the questions, the Ambassador had had no reason to believe that no consultations between the RCMP and DFAIT had taken place.1027
�IMPRISONMENT AND MISTREATMENT IN SYRIA
Assistant Commissioner Proulx testified that the Ambassador in the country had final authority in a situation such as this to say “[n]o way, it’s too dangerous.”1028 Ambassador Pillarella stated that as Ambassador, he could make a
“very strong recommendation” to Ottawa if he considered something too risky
or dangerous, but that DFAIT Headquarters could dismiss his recommendation.1029 In that case, he would have to be given very specific written instructions
as to what was expected of him.1030
Staff Sergeant Fiorido testified that in the time between the decision to send
questions rather than interview and the submission of questions to Ambassador
Pillarella, he had spoken with Inspector Cabana, [***] Staff Sergeant Callaghan
and Ambassador Pillarella on the issue.1031 No one had informed him that there
had been discussion of torture at a September 10 meeting regarding sending
questions for Mr. Almalki.1032 No one with the RCMP or DFAIT had mentioned
to him that there was a “credible risk of torture” if the Syrians conducted the
questioning.1033
Delivery of Questions to the SMI
Ambassador Pillarella saw to the delivery of the questions for Mr. Almalki to the
SMI. His decision to submit the questions was based on the “extraordinary unprecedented cooperation” shown by the Syrians with respect to access to
Mr. Arar and the unlikelihood that the Syrians would then “turn around and mistreat another Canadian.”1034 Since there was no indication from the consular visits that Mr. Arar was being mistreated, there was no reason for the Ambassador
to presume there would be any mistreatment of Mr. Almalki if the questions
were put to him.1034 He did not believe it would put Mr. Almalki in jeopardy.1036
When the questions were submitted, no one from the Canadian Embassy
in Damascus had visited Mr. Almalki, and his condition was unknown.1037
Ambassador Pillarella was unaware that a few months earlier, in October,
Mr. Livermore had stated that there was a credible risk of torture if the questions
were submitted, and so they should not be passed on.1038
On January 15, the day Ambassador Pillarella and Mr. Martel met with
Deputy Foreign Minister Haddad, the Ambassador instructed Mr. Martel to call
his contact, Colonel Saleh, as he wanted the letter and questions delivered to
General Khalil.1039 Mr. Martel delivered them to Colonel Saleh that day.1040
Mr. Martel was not aware, and was not advised by the Ambassador, of the letter’s contents. In fact, his impression was that it might contain further pleas from
Ambassador Pillarella on behalf of his client.1041
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No Reply from the SMI
On August 8, Staff Sergeant Fiorido approached Ambassador Pillarella for his insight into what response, if any, could be expected from the SMI, given the lack
of any reply thus far.1042 He wanted to determine what future action might be
considered.1043 The Ambassador responded on August 11, advising the Staff
Sergeant that the questions had been passed on to the Syrians in late February
and sharing his thoughts on the matter.1044
He explained that co-operation with the SMI seemed to have badly deteriorated since February, with access to Mr. Arar cut off (other than the visit with
the MPs in April).1045 He suspected that it might be related to the Almalki case.1046
He also suspected that the Syrians were annoyed with them for pressing them
about the Arar case when they “keep telling us that we (but who is we?) have
told them that they can keep him as we don’t want him back in Canada.”1047 The
Ambassador moreover believed that “in the case of Al Malki [sic], there is also
the stated fact that military intelligence has a certain aversion to working with a
police organization.”1048
In closing, Ambassador Pillarella noted that “[a]lthough Arar and Al Malki
[sic] are different cases, I am convinced that in the Syrian mind they are linked
when it comes to dealing with Canada.”1049 He believed the Syrians were “really
annoyed with Canada because we were causing problems for them.”1050 In his
view, the Syrians wanted to deal with the Arar case in “a very low key manner”
and “tried to close up” as a result of all the publicity and the potential damage
to their reputation.1051
On August 17, the Ambassador followed up on his earlier message to Staff
Sergeant Fiorido, advising him that he had met with General Khalil on August
14 and raised the issue of Mr. Almalki.1052 General Khalil had told the
Ambassador that he did not wish to interact with a police force.1053
After receiving this update, Staff Sergeant Fiorido briefed Project
A-O Canada and Headquarters on the status of the Almalki matter on August
19.1054 The LO indicated that until DFAIT and the Syrian Foreign Ministry resolved the Arar matter, any further efforts to seek the SMI’s co-operation in the
Almalki case would be futile and serve only to irritate the SMI.1055
The Colonel advised him that General Khalil was “very angry” with the
RCMP LO from Rome for making inquiries about Mr. Almalki Staff Sergeant
Fiorido knew that General Khalil preferred not to deal with the RCMP, but had
never been made aware that he was angry about their attempts to establish a
rapport.1056
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As discussed earlier, ISI officials believed an understanding had
been reached about sending the questions. Neither Mr. Livermore1057 nor
Mr. Heatherington1058 was aware that the RCMP had in fact sent questions
to Syria for Mr. Almalki.
Mr. Pardy was not surprised, stating “[W]e carry on exchanges of information historically with some of the nastiest regimes….[for] a whole variety of reasons,” but he also noted that when “there is a Canadian in detention and those
activities relate to that Canadian, then at an absolute minimum I would expect
to be consulted ….”1059 Mr. Pardy added that “when you are managing consular
cases of this complexity you want to control the agenda and environment to the
maximum [and] [c]learly other people being involved, with what could be very
justifiable reasons, could complicate things.”1060
Dr. Leverett, a former U.S. government official, testified that sending questions for someone other than Mr. Arar would not have affected his consular access because the Arar case had been “sui generis [in a class of its own] for the
Syrians” and they had “carried out their decision-making on the Arar case on a
very case-specific basis.”1061
6.4
PROPOSED RCMP INTERVIEW OF MR. ARAR
There was some evidence that members of Project A-O Canada had discussed
the possibility of interviewing Mr. Arar in Syria amongst themselves and with
members of DFAIT ISI. Leading up to the CSIS visit to Syria, DFAIT acknowledged that CSIS employees would not be meeting Mr. Arar and that interviewing Mr. Arar was seen as an “RCMP responsibility.”1062 DFAIT wanted to ensure
that the CSIS mission was separated from “any consular or interview mission
which might take place in the future”1063 and to avoid any “public perception of
confusion and mixed messages.”1064
This discussion continued until February 2003. At that point, any potential
RCMP visit to Syria to interview Mr. Arar had to be delayed until after the MPs’
visit, which had originally been scheduled for March.1065 On February 28, a meeting was held to obtain clarification from the RCMP on a number of international
proposed visits.1066 The visit with Mr. Arar was to be in the context of him as a
witness; the others were viewed as suspects.1067 Mr. Pardy advised Ambassador
Pillarella that the RCMP had approached them for permission to visit Syria to
meet with Syrian authorities and Mr. Arar, but had agreed to delay their visit until
after the MPs’ visit.1068 Mr. Pardy stated that he could not recall the RCMP ever
revisiting the issue of interviewing Mr. Arar with DFAIT after the MPs visited
Syria in April.1069
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The RCMP did not send the SMI any questions for Mr. Arar, and no members of the RCMP ever travelled to Syria to interview Mr. Arar.1070
7.
THE MPS’ TRIP — APRIL 2003
7.1
PREPARATION
In late 2002, two parliamentarians, Sarkis Assadourian and Marlene Catterall, the
Member of Parliament for Mr. Arar’s riding, discussed the possibility of travelling to Damascus to intervene on Mr. Arar’s behalf.1071 Ms. Catterall then spoke
with Mr. Pardy about this idea in early 2003.1072 Also about this time, Mr. Pardy
and Mr. Fry were trying different approaches to the case on behalf of DFAIT.1073
When Ms. Catterall spoke with Minister Easter in late February 2003 to determine whether CSIS or the RCMP objected to her proposed trip, the Minister
sought confirmation from both agencies. Neither objected, and Minister Easter
gave Ms. Catterall the “green light.”1074
Mr. Pardy wrote to Ambassador Pillarella in early March 2003 to inform
him of the MPs’ pending visit to Damascus, and asked him to lay the groundwork for it.1075 As it was then just prior to the Iraq war, the Syrians were “flabbergasted” when Ambassador Pillarella approached their foreign ministry about
the visit.1076 In fact, Ambassador Pillarella advised that his calls to the Syrian
Deputy Foreign Minister were not being returned.1077 Back in Ottawa, a diplomatic note dated March 5 was sent to the Syrian embassy giving government
sanction to the MPs’ trip and requesting that visas be issued before the parliamentarians left for Damascus on March 11.1078 On March 6, Mr. Fry signed a letter addressed to Ms. Catterall on behalf of the Office of the Minister of Foreign
Affairs, providing support for her visit.1079
DFAIT briefed the two MPs on March 11 in anticipation of their intended
departure that day for Damascus.1080 Dr. Mazigh, who was receiving periodic
updates on the status of the proposed visit, also attended the meeting. However,
as the MPs did not receive their confirmation and visas in time to leave on March
11, the trip was postponed until Parliament recessed in April. On March 12,
Syrian Deputy Foreign Minister Mouallem confirmed that he would meet with
the MPs and arrange for a visit with Mr. Arar.1081
On March 24, Colonel Saleh of the Syrian Military Intelligence advised
Mr. Martel of a change in procedure.1082 In future, all requests for consular access would be directed through the Syrian Ministry of Foreign Affairs, a department that, up to that point, had routinely failed to respond to the diplomatic
�IMPRISONMENT AND MISTREATMENT IN SYRIA
notes sent in regard to Mr. Arar.1083 Ambassador Pillarella believed that the
change in procedure might have been a result of publicity surrounding the MPs’
visit and General Khalil’s dislike of politicians.1084 Mr. Martel judged this latest
Syrian move to be “bad news.”1085 On March 25, the Canadian Embassy sent the
Syrian Ministry of Foreign Affairs a diplomatic note requesting consular access
to Mr. Arar.1086
On April 17, DFAIT was advised that the MPs’ visas had been approved, and
that consular access to Mr. Arar had been confirmed.1087 The same day, Mr. Pardy
sent Mr. Martel a copy of a letter from Dr. Mazigh to her husband to give to Ms.
Catterall.1088 The next day, Mr. Pardy briefed Ms. Catterall on recent developments specific to the case and to the region.1089
7.2
THE CSIS MEMORANDUM
Ms. Catterall and Mr. Assadourian met Ambassador Arnous for lunch on March
21, where they discussed Mr. Arar’s case and made a humanitarian plea for his
release.1090 Ms. Catterall recounted the details of this meeting on March 24 to
Ms. Pastyr-Lupul, who documented that:
They [Catterall and Assadourian] learned that, initially during this case, that CSIS officials told the Syrians that they “have no interest in Arar”. The Syrians took this to
mean that the CSIS have no interest in having Arar back. They may have meant that
they have no security reasons to investigate Arar in Canada. Due to miscommunication, the Syrians believed that CSIS did not want Arar back in Canada, and therefore decided to detain him/keep him in Syria.1091
According to Ms. Catterall, during the conversation with Ambassador
Arnous, Mr. Assadourian said: “I think you misunderstood what they said. They
might have said, ‘This is not a person of interest to us,’ meaning ‘We are not investigating this person.’” Ambassador Arnous conveyed to them that “due to the
miscommunication, the Syrians believed that CSIS did not want Arar back in
Canada and decided to detain him.”1092 Mr. Pardy, who was later advised of this
meeting, understood Ambassador Arnous to be saying “possibly that the Syrians
had misunderstood.”1093 Ms. Catterall and Mr. Assadourian both indicated to
Ambassador Arnous that this was a serious misinterpretation by the Syrians.
Moreover, Canada spoke with one voice about this issue, and the one message
was that it wanted Mr. Arar back in Canada.1094
Recognizing the significance of this information, Ms. Pastyr-Lupul immediately advised her superior, Mr. Pardy, who suggested that she put it in a “note
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to file.”1095 In the note, Ms. Pastyr-Lupul described the actions she believed were
necessary in the circumstances, including sending “a clear message, in writing,
to the Syrians from CSIS that outlines clearly, that we have no information which
has led us to believe that Mr. Arar poses a security threat to Canada” and that
the Syrians needed to hear “(from the Security people and DFAIT), in writing,
that if we do have any information that shows any involvement in terrorist activity, that we will charge him in Canada and deal with his case through the
usual law enforcement channels.”1096
Ms. Pastyr-Lupul believed that it was CSIS’ responsibility to correct the misunderstanding by sending the Syrians a message clarifying the situation. As a
consular officer, she attempted to “get the ball rolling.” However, it was not her
job to convey this message to a security agency once she had advised her immediate supervisor.1097
Mr. Pardy was not aware of any communication in writing by CSIS to the
Syrians disabusing them of this confusion.1098 Minister Easter could not recall if
he was aware of specific discussions between the parliamentarians and
Ambassador Arnous at the time, but he was aware of the Syrians’ position.1099
The Minister did not direct CSIS to send a letter to Syrian authorities, and testified that it is not CSIS’ responsibility to speak for the government in the international arena. According to him, the only voices on the international stage
should be those of the Prime Minister, the Minister of Foreign Affairs and the
head of mission.1100 Mr. Hooper explained that CSIS did not become aware of
the memorandum until after the Inquiry began and that no one from DFAIT had
contacted CSIS and asked them to “fix it.”1101 As far as CSIS was concerned, after
January 16, this was a non-issue.1102
7.3
THE MINISTER’S LETTER
It was DFAIT’s understanding that the MPs, who were not part of the federal
government bureaucracy, were travelling to Damascus as a parliamentary initiative on behalf of a constituent of Ms. Catterall, with DFAIT’s support.1103
Therefore, a letter was sent with them from Minister Graham to the Syrian
Foreign Minister, supporting their visit and echoing their desire to see Mr. Arar
released.1104 Because she was delivering a letter from the Minister, Ms. Catterall
regarded her role as more than that of an MP going on behalf of her
constituent.1105
In the time leading up to her departure for Damascus, Ms. Catterall approached either Minister Easter or Ken Morill in the Solicitor General’s office,
asking for a letter stating that there was no evidence on which to charge
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Mr. Arar.1106 She was also in contact with both Mr. Fry and Mr. Pardy. Mr. Fry,
who had initially suggested to Ms. Catterall that she speak to her colleague, approached the Solicitor General’s office as well, to coordinate efforts on a letter
to Syria.1107 After discussing the matter with his officials, Minister Easter refused
Ms. Catterall’s request. His view was that a letter from the Solicitor General
would be unwise, as he was responsible for law enforcement and national security, not representing Canada’s interests abroad. This was a role better left to
the Prime Minister and the Minister of Foreign Affairs.1108
While the initial draft of Minister Graham’s letter originated with Mr. Pardy’s
office,1109 the Minister’s office drafted the final version.1110 Although not involved
in the drafting herself, Ms. Catterall believed that discussions went back and
forth about the letter’s content.1111 She was aware at the time that the letter originally drafted for Minister Graham was being revised based on input from a security perspective,1112 and that there were objections from the security
community about the wording.1113 Mr. Fry was not aware that either the RCMP
or CSIS had been involved in the drafting process.1114 To his knowledge, only
the Minister’s office and Consular Affairs had an input.1115
The original letter said, in part, that “Canadian officials have determined
that Mr. Arar has not contravened any Canadian laws and since arriving in
Canada with his family many years ago has been a good citizen of this country.”1116 In the final version, this was changed to read “Let me again assure you
that there is no Canadian Government impediment to Mr. Arar’s return to
Canada.”1117 Mr. Fry testified that the intention was not to weaken the language
in this paragraph, but rather to add precision.1118 Mr. Fry would not advise
Minister Graham to say “he [Mr. Arar] has not broken any laws.”1119
Additional changes made to the final version gave the impression the MPs
were not visiting Damascus on behalf of the Canadian government, but as individual members of Parliament.1120 Ms. Catterall hand-delivered the letter1121 to
Syrian Deputy Foreign Minister Mouallem during her Damascus visit.
7.4
BRIEFING WITH AMBASSADOR PILLARELLA
Soon after their arrival in Damascus on April 22, the two parliamentarians were
briefed by Ambassador Pillarella for about one hour.1122 The Ambassador told
them about the consular visits with Mr. Arar and the fact that there had not been
a visit for several months. He also summarized his conversations with Syrian security officials and their concerns about Mr. Arar’s involvement in terrorist activities.1123 Apparently, the Syrians thought Mr. Arar had been involved with al
Qaeda and had perhaps gone for training in Afghanistan.1124 This was new in-
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formation to Ms. Catterall, and she was surprised that she had not known about
it before leaving Ottawa.1125 She had heard previously that there might be concerns about Mr. Arar skipping his military training in Syria, and about his involvement with the Muslim Brotherhood, but she had not heard of him training
in Afghanistan before.1126 Ms. Catterall realized, at this point, that Mr. Arar’s situation was even more serious than she had thought.1127
7.5
MEETING SYRIAN OFFICIALS
On April 22, Ms. Catterall and Mr. Assadourian, accompanied by Ambassador
Pillarella and political counsellor Ian Shaw, met with Syrian Deputy Foreign
Minister Mouallem to discuss Mr. Arar’s case.1128 Mr. Martel did not accompany
them on this occasion as there was a limit to the number of people who could
attend.1129
After discussing regional issues, Ms. Catterall thanked the Deputy Foreign
Minister for the opportunity to discuss the Arar case, and presented him with
Minister Graham’s letter to Foreign Minister Shara’a.1130 She expressed appreciation for the consular access granted, and explained that Mr. Arar was not
wanted in Canada for any criminal activity. Had there been any evidence of
such activity, charges would have been laid against him.1131 She reported as well
that Mr. Arar’s wife and two children were experiencing a very difficult time
since his removal to Syria.1132
Deputy Foreign Minister Mouallem explained that the U.S. decision to remove Mr. Arar to Syria, via Jordan, had taken his government by surprise.
Moreover, the Syrians had not asked for custody of Mr. Arar and had expected
him to be removed to Canada.1133 However, because of Syria’s commitment to
the international campaign to combat terrorism, the government had no choice
but to take custody of Mr. Arar, a dual citizen of Syria and Canada, and question him on his alleged affiliation with al Qaeda.1134 Apparently, the Syrian security services still had concerns that he could be connected to al Qaeda.1135
At the end of the meeting, Deputy Foreign Minister Mouallem telephoned
General Khalil and arranged for the MPs to visit Mr. Arar.1136 Ms. Catterall and
Mr. Assadourian — together with Ambassador Pillarella and Mr. Shaw — were
escorted a short distance in Ambassador Pillarella’s car.1137 They were then taken
to another building where they met with Colonel George and several other security intelligence officials.1138 The Colonel advised them that the Syrians had
concluded their investigation of Mr. Arar, and would shortly be sending him to
stand trial on charges of belonging to al Qaeda and receiving military training
in al Qaeda camps in Afghanistan.1139
�IMPRISONMENT AND MISTREATMENT IN SYRIA
Ms. Catterall explained that the Solicitor General had indicated that Mr. Arar
was not wanted in Canada for criminal activity,1140 and that his young family
was suffering tremendously because of his detention.1141 Despite this, Colonel
George advised that the case was now the responsibility of the Syrian courts,
adding that the courts would determine whether the trial was to be open or
closed.1142 He also advised that Mr. Arar would be moved to another detention
centre once he was handed over to the court authorities. Therefore, the Embassy
would need to go through the Ministry of Foreign Affairs to ensure continued
consular access to Mr. Arar.1143
7.6
MEETING WITH MR. ARAR
Colonel George asked the MPs to confine their questions to matters relating to
Mr. Arar’s health and family, and not to speak about the substance of the case.1144
The visit with Mr. Arar lasted fifteen or twenty minutes and was very controlled.1145 He was told to speak only in Arabic, while the MPs were allowed to
speak to him in English.1146 Mr. Arar appeared to be somewhat disoriented when
he was brought in, possibly because he did not have any advance notice of the
meeting.1147 To Ambassador Pillarella, who had not met Mr. Arar previously, he
looked normal, well-dressed and in good health, albeit somewhat
surprised.1148
Although Ms. Catterall had never met Mr. Arar before either, she found him
to be pale and thin compared to pictures she had seen of him taken during a
holiday in Tunisia.1149 However, he was clean, had on clean clothes, and was not
handcuffed or shackled.1150 Ms. Catterall did not see any visible signs that he had
been mistreated, but qualified her testimony by stating that she was not an expert on the signs of torture.1151
Ms. Catterall explained to Mr. Arar who she was, and that it was because
of his wife’s strong efforts that the two MPs had come to see him. She gave him
pictures of his family, as well as messages from his wife and drawings from his
daughter.1152 Overall, Ms. Catterall found the meeting to be very emotional,
adding that Mr. Arar was happy to see them and know that she had been in
touch with Dr. Mazigh, and that she had met his children and visited his home
in Ottawa.1153 On several occasions, Mr. Arar was close to tears as he received
news of his family.1154
In speaking to Mr. Arar about his wife’s efforts on his behalf, the MPs tried
to reassure him that the Canadian government was doing everything possible for
his return.1155 They did not tell him what they had just learned regarding the
charges and pending trial as Colonel George had made it clear that this was
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not to be discussed.1156 Mr. Arar dictated a letter for his wife in English, the only
copy of which was given to Ms. Catterall to deliver to Dr. Mazigh.1157
After Mr. Arar left the room, the MPs questioned officials further about the
court process, whether the family might attend, whether Mr. Arar would have
legal representation, and whether the Embassy would have access to the
court.1158 Ambassador Pillarella also raised the issue of resuming consular access
to Mr. Arar.1159
7.7
DEBRIEFING
Following the meetings, Ambassador Pillarella held a debriefing with the two
parliamentarians, together with Mr. Shaw and Mr. Martel.1160 Ms. Catterall expressed concern that she had not known the specifics of the Syrian charges or
investigation, or about the conclusions they were reaching.1161 She was concerned that the information from Ottawa was incomplete, and that Minister
Graham had not been fully briefed on the facts of the case.1162 That said, she felt
that both the Minister’s office and Mr. Pardy had been open with her and had
not held back any information.1163
In Ambassador Pillarella’s report on the MPs’ trip, he said that “had [the
MPs] been more fully briefed in Ottawa, they would have reconsidered undertaking their mission to Damascus.”1164 When she was asked about this comment,
Ms. Catterall said she did not know where this impression came from.1165
Ambassador Pillarella concluded the report by commenting on the Syrians’ remarkable level of co-operation, as a foreign country is not obligated to Canada
in any way regarding someone they consider to be a Syrian citizen.1166 On reading about Ms. Catterall’s apparent unhappiness regarding the visit, Mr. Fry asked
Mr. Pardy and Mr. Livermore for a complete report on what the Syrian intelligence agency had told her, and how this corresponded to the government’s
most recent information.1167 Mr. Fry acknowledged that he could not discuss
everything with Ms. Catterall as she did not have top secret security clearance
and was not a government employee.1168 According to Mr. Livermore, however,
Ms. Catterall had been given a full briefing by DFAIT Headquarters.1169
In Mr. Pardy’s view, the Ottawa briefing was complete, and DFAIT had
omitted nothing in its communications with Minister Graham.1170 When he raised
the issue with Ms. Catterall, she advised him that the report was not an accurate accounting of her views, or of what she had said.1171 In the end, Mr. Pardy
believed there had been a genuine misunderstanding.1172 For his part, Minister
Graham acknowledged that he was not in a position to share certain information because of the security aspects of the case.1173 He had done his best to
�IMPRISONMENT AND MISTREATMENT IN SYRIA
convey to Ms. Catterall that there were problems, but did not “try to paint [Mr.]
Arar in a worse position than they believed appropriate.”1174 Minister Graham
stated that he probably did not know some of the information himself, as he did
not have a direct relationship with Syrian security.1175
Ms. Catterall met with Dr. Mazigh on April 25, and repeated what they had
been told by Syrian officials, including the news about the impending charges.
Ms. Catterall could not recall whether she told Dr. Mazigh of the alleged links
to al Qaeda and training in Afghanistan, but could not think why she would not
have done so.1176
7.8
DISTRIBUTION OF THE REPORT TO CSIS AND THE RCMP
The report of the MPs’ visit was subsequently distributed to both the RCMP and
CSIS. DFAIT ISI sent Inspector Richard Roy the report using the normal process
for sharing consular reports.1177 After receiving authorization,1178 Inspector Roy
forwarded the report to Inspector Reynolds at RCMP CID.1179 Inspector Roy
stated that no caveats or conditions were placed on the document, but he added
that “people in the community are aware of third-party caveats.”1180
According to Inspector Roy, ISI decided which documents were to go to the
RCMP; he did not select or request them.1181 He did not know who had been
responsible for authorizing distribution of the documents and could not recall
parameters on how they were to be used.1182 Inspector Roy did state, however,
that Mr. Heatherington had firm control over what was coming in and out
of ISI.1183
DFAIT also provided a copy of the report to CSIS.1184 According to
Mr. Heatherington, a Request for Disclosure to Federal Investigative Bodies
(Treasury Board form 350-56) would not have been completed pursuant to the
Memorandum of Understanding1185 between DFAIT and CSIS as it was a “bootleg copy” of the report, meaning that it was unauthorized.1186
In his earlier testimony, Mr. Pardy acknowledged giving permission for ISI
to share the report with the RCMP and CSIS.1187 Explaining his rationale,
Mr. Pardy said that he had examined the consular reports that Mr. Solomon suggested might be shared, conducted an assessment of the benefit and harm that
might result, and then given Mr. Solomon permission to share a limited number with the RCMP and CSIS.1188
However, Mr. Pardy later revised his account, saying he had never been
asked about the release of a document to CSIS nor consulted on anything that
went to CSIS.1189 Mr. Pardy did acknowledge, however, that he had been
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consulted on documents going to the RCMP, and that he had made a deliberate
decision about those documents.1190
8.
THE PROPOSED “ONE VOICE” LETTER — MAY–JUNE 2003
8.1
OVERVIEW
In February 2003, DFAIT decided to look at ways of improving coordination
and consultation among Canadian government agencies. As a result, a presentation “deck” and an action memorandum were prepared, analyzing how the different mandates within the Government of Canada could conflict and providing
recommendations for a process to minimize the appearance of such conflicts.
This broader discussion was running parallel to DFAIT’s attempts to obtain
a joint letter from the Solicitor General and the Minister of Foreign Affairs, asking the Syrian authorities to release Mr. Arar and send him back to Canada.
Mr. Pardy was instrumental in trying to obtain interdepartmental consensus for
this letter and, as Minister Graham testified, Mr. Pardy “worked extraordinarily
diligently on it.”1191 Mr. Pardy attempted to have CSIS and the RCMP agree on
wording in the letter to state that there was no evidence linking Mr. Arar to terrorist activities. The RCMP and CSIS refused to agree with this and proposed language that would ultimately have resulted in more harm than good to Mr. Arar.
Mr. Pardy eventually went around the RCMP and CSIS and sought a letter from
the Prime Minister to President Assad, stating that there was no Canadian government impediment to Mr. Arar’s return. This letter from the Prime Minister
was the culmination of Mr. Pardy’s efforts to find “one voice” for the
Government of Canada that would send a clear message for Mr. Arar’s release
and return to Canada.
8.2
COORDINATION AND CONSULTATION IN CONSULAR CASES
RELATING TO TERRORIST ACTIVITIES
8.2.1
Balancing Different Mandates in the Government of Canada
By February 4, 2003, DFAIT was well aware of the public perception that the
Government of Canada did not have a coherent voice on Mr. Arar’s case. DFAIT
developed media lines in response to possible questions about confusion among
Canadian agencies when asked about Mr. Arar’s activities. The recommended re-
�IMPRISONMENT AND MISTREATMENT IN SYRIA
sponse for the Minister of Foreign Affairs was: “There is close co operation and
coordination among all Canadian agencies on such matters”.1192
Mr. Livermore testified that it is natural for different parts of the
Government of Canada with different mandates to have different views about
how to approach consular cases when terrorist activities are alleged.1193 In such
cases, DFAIT is the department mandated to deal with divergent interests and
to seek consensus and co operation.1194
While there was room for improvement, Mr. Livermore testified, interdepartmental committees and consultation processes were in place at the relevant
time to arbitrate differences and to seek consensus.1195 Normally, disagreements
are resolved at the divisional level, but when normal interdepartmental contacts
cannot resolve divergent views, the disagreements go to the director general or
the assistant deputy minister. Committees at the assistant deputy minister level
can discuss such issues at their regular meetings. Mr. Livermore explained that
occasionally disagreements go to the level of the deputy minister, the minister
or Cabinet. Cabinet committees and Cabinet itself can set policy for such
matters.1196
8.2.2
The “Deck”
As the controversy around Mr. Arar was unfolding and other consular cases with
national security dimensions were emerging, the Associate Deputy Minister of
Foreign Affairs, Paul Thibault, asked Mr. Pardy to create a “deck” — a series of
overhead slides and talking points — to highlight the various interests in the
Government of Canada when dealing with consular cases that are also associated with alleged terrorist activities. His request was the result of a perceived lack
of coordination and consultation among government agencies in dealing with
these cases.1197 The purpose of the deck was to recommend a process that would
ensure that Canada spoke with one voice.1198
Mr. Pardy prepared and circulated several versions of a deck entitled
“Coordination and Consultation in Dealing with Consular Cases Relating to
Terrorism Activities.” One version of the deck was presented to Mr. Thibault
and other deputy ministers in Foreign Affairs on February 24, 2003.1199 An action memorandum to the Minister of Foreign Affairs, discussed below, states that
he and members of his staff attended this presentation.1200 However, Mr. Fry,
Minister Graham’s senior policy analyst, did not recall attending such a briefing.
In preparation for his testimony, Mr. Fry asked other staff members in the
Minister’s office and no one could recall attending this presentation.1201
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Additional changes were made to the deck, which was subsequently presented to RCMP and PCO officials on February 28. This meeting was chaired by
Mr. Livermore and also attended by Mr. Pardy and ISI officials. The question of
coordination, especially between the Solicitor General and Foreign Affairs, was
the primary focus of the meeting.1202 CSIS has no recollection of any of its personnel attending this meeting.1203 However, Mr. Hooper, CSIS’ Assistant Director
of Operations, testified that he recalled, in general terms, a deck presentation
where issues of coordination and consultation were raised.1204
The deck presented at this meeting highlighted the following key points:1205
•
•
•
Detentions relating to the “war on terrorism” will have a higher public profile than other consular cases, and raise policy issues, because of the attributes often associated with such cases: the extraordinary nature of the
accusation; due-process concerns; allegations of mistreatment and torture;
the death penalty; unusual sentences, including lengthy incarceration or
corporal punishment; and questions about the role of Canadian officials.
Consular responsibilities overlap and sometimes conflict with the roles and
responsibilities of other government agencies and departments such as
CSIS, the RCMP and Justice. Activities of the RCMP or CSIS may have led to
someone’s detention in another country. Despite occasional consultations
on terrorism-related cases, different mandates and associated laws limit the
full exchange of information in some instances.1206 The RCMP will provide
limited information if there is a law enforcement interest in the particular
individual. In such cases, there is a problem of interdepartmental
coherence.
Such cases require a higher level of policy coherence and senior levels of
political engagement (including ministerial consultations when necessary)
to ensure the appropriate balance between consular protection and security requirements. Unless the approach is coordinated, the media exploit
these different mandates to point out contradictions in the Government of
Canada.
8.2.3
Action Memorandum to the Minister
Following presentation of the deck, Mr. Pardy prepared an action memorandum for the Minister of Foreign Affairs with recommendations for improving
coordination across government on security-related consular cases.1207 The
memo was signed by both Mr. Pardy and the Deputy Minister of Foreign Affairs
�IMPRISONMENT AND MISTREATMENT IN SYRIA
on April 7, 2003. Minister Graham testified that he would have read this document or been briefed on its contents.1208
The memo mirrored the issues highlighted in the deck. It stated that since
the February 24 presentation, the Director of CSIS, the Deputy Solicitor General,
the Commissioner of the RCMP, and senior officials at PCO and Justice had been
consulted. There was consensus on the need for closer consultation and co operation to achieve a more coherent, systematic approach to such consular cases.
It was agreed that the following approach would be used in consular cases
deemed to be security-related:
•
•
•
•
Deputy-level consultations will occur between relevant departments to determine the facts of the case and related issues as soon as they arise;
A coordinated response will be developed that considers the policing, security, intelligence and legal dimensions of the case, possible public concerns, and implications for Canada’s international relations, including those
with the United States;
Coordinated media lines will be developed and communication roles and
responsibilities will be clarified;
The offices of the respective ministers and PCO will be informed of the
agreed-upon interdepartmental approach to the case and will be updated
as required.
The memo recommended that Minister Graham concur with the approach
described above. Mr. Pardy understood that Minister Graham did not implement the recommendations, partly because he did not want decisions made
elsewhere in the Government of Canada to override DFAIT’s consular responsibilities. Mr. Pardy shared this concern. In an earlier draft of the action memorandum, he highlighted that DFAIT’s primary responsibility in such cases is the
consular one. Therefore, efforts must be made to prevent the perception that the
responsibilities of other government agencies take precedence over consular
responsibilities.1209
Minister Graham understood that the Arar case and other consular cases
might have brought the security agencies and DFAIT into conflict, but their differing responsibilities had to be accommodated with the right balance.1210 He
was aware that Mr. Pardy was frustrated with the problem of coordination at that
time.1211 He also testified that he would have discussed with his staff two issues
that were then being reviewed: 1) What is the appropriate level of coordination?;
and 2) How could consular cases be managed so that DFAIT could be more effective for Canadians? He agreed that coordination among government agencies
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was necessary to advance the interests of a Canadian abroad suspected of
terrorism.1212
8.3
THE NEED TO SPEAK WITH ONE VOICE
By March 2003, DFAIT, including the Minister and his staff, was aware that
Syrian officials still thought that CSIS did not want Mr. Arar back in Canada, and
there was confusion about whether CSIS had communicated to the Syrians that
Canada did not want Mr. Arar back.1213 Whether true or not, this perception of
mixed messages went to the heart of Mr. Pardy’s concern.
Not only were the Syrians possibly confused about Canada’s stand on
Mr. Arar, but they were becoming more and more preoccupied with events in
their own region. In particular, the American invasion of Iraq on March 17, 2003
complicated Canada’s efforts to have Mr. Arar released.1214
Dr. Mazigh was continuing to pressure DFAIT to do more for Mr. Arar’s release, and Mr. Pardy and other DFAIT officials were increasingly frustrated with
the lack of progress in his case.1215 On April 12, Mr. Pardy sent Dr. Mazigh an
e-mail acknowledging the Canadian government’s lack of consensus on Mr. Arar,
which was sending a mixed signal to the Syrian authorities. His e-mail stated
that: “A major part of the problem here is that not everyone in the government
of Canada agrees with what we are doing in support of Maher. The Syrians are
well aware of that and that undoubtedly influences their willingness to be more
cooperative.”1216
Mr. Pardy testified that he sent this message late at night when he was frustrated, tired and also dealing with the SARS outbreak in Canada.1217 The purpose
of his e-mail was to remind Dr. Mazigh that “a major part of the problem was
that we needed to have the Canadian government speak with one voice”.1218 He
wanted her to know that DFAIT was doing its part, that they were still Mr. Arar’s
champions and that they would not abandon his cause.1219 Dr. Mazigh released
this message to the press in late June 2003.1220 After its release to the public, no
one in the Government of Canada commented to Mr. Pardy that this message
was inaccurate.1221
On April 28, a meeting was held with Ms. Catterall, Mr. Assadourian, and
Mr. Pardy, Ms. Pastyr-Lupul and Don Sinclair of DFAIT.1222 One of the issues
discussed was whether the Syrian officials’ allegation that Mr. Arar had received
training in Afghanistan in 1993 could be refuted. Consular Affairs officials had
previously asked Dr. Mazigh to look for any documentation showing Mr. Arar’s
whereabouts in 1993. Immigration control documents might also have existed
to show his movements during that year.1223 Research of this nature would
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normally be conducted by CSIS rather than Consular Affairs.1224 Ms. Pastyr-Lupul
testified that somebody at the April 28 meeting stated that this channel had already been pursued, but she had no further information about the results of this
check.1225
While Mr. Pardy and others in DFAIT were trying to find ways for the
Government of Canada to speak with one voice for Mr. Arar’s return to Canada,
their efforts were further complicated by statements reportedly made by the
American Ambassador to Canada, Paul Cellucci, on April 29. In a speech at the
Harvard Club in Ottawa that day, he was quoted as saying that Canadian officials told American officials that they did not want Mr. Arar back in Canada,
which was why he was deported to Syria.1226 Minister Graham did not recall
phoning Ambassador Cellucci about these statements immediately after learning
about them on April 30; however, he believed he would have raised the issue
with the Ambassador when he had an opportunity.1227
8.4
DFAIT’S DRAFT ACTION MEMO OF MAY 5
Mr. Pardy prepared a draft action memorandum for the Minister of Foreign
Affairs dated May 5, 2003, attempting again to establish a common understanding within the Government of Canada and to obtain a joint statement
signed by the Solicitor General and the Minister of DFAIT that could be used
with the Syrian authorities to obtain Mr. Arar’s release. The memo was circulated
for comments to other government agencies, including CSIS, the RCMP, the
Solicitor General and PCO. Minister Graham did not see this memo.
This was the third attempt to obtain co operation from the RCMP or CSIS
on a joint letter that would assist in obtaining Mr. Arar’s release. The first attempt was Mr. Edelson’s request on October 31, 2002, at the suggestion of
Mr. Pardy, for a letter from the RCMP confirming that Mr. Arar was not a suspect in any terrorist-related crime. The RCMP refused to provide a letter to this
effect.1228 The second attempt was Ms. Catterall’s request of the Solicitor General
to provide a letter stating that there was no evidence on which to charge
Mr. Arar. Her intention was to deliver this letter to the Syrian authorities during
her visit to Syria. Minister Easter refused the request because he believed that
the Minister of Foreign Affairs and the Prime Minister were the appropriate officials to communicate with the Syrian authorities.
The memo summarized recent activities related to Mr. Arar, including the
MPs’ visit to Syria, when Ms. Catterall had emphasized to Syrian officials that
Mr. Arar was not wanted for any criminal activity in Canada. Mr. Pardy described
the considerations in Mr. Arar’s case, highlighting that the central issue was the
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discrepancies between what the American authorities had told DFAIT and what
the Canadian police and security officials had reported. Mr. Pardy testified that
when speaking of representations from American authorities, he meant
Ambassador Cellucci’s public statements that the U.S. deported Mr. Arar on the
basis of information obtained from Canada.1229
The memo also referred to Consular Affairs’ very limited knowledge of what
the RCMP might have known about Mr. Arar’s activities.1230 It noted that early
on, Canadian police officials had stated that their interest in Mr. Arar was based
on his contacts with persons in Ottawa who were of interest to them (Messrs.
Almalki and El Maati). CSIS initially indicated that it had no interest in Mr. Arar.
Mr. Pardy testified that this assessment of Mr. Arar was based on discussions he
had with the RCMP and CSIS at the meeting on October 16, 2002, and the memorandum from Superintendent Wayne Pilgrim dated October 18, 2002, which
stated that the RCMP maintained “an interest in Arar as part of an ongoing criminal investigation.”1231 The memo notes that after CSIS officials visited Syria,
DFAIT officials learned from the Syrian authorities that Canadian security officials had told them that Canada did not want to have Mr. Arar returned. CSIS denied that they had said this to the Syrians.
Finally, Mr. Pardy outlined the shift in Syrian allegations against Mr. Arar.
Initially, the Syrians advised Canada that Mr. Arar was a member of the Syrian
Muslim Brotherhood, but subsequently told Ms. Catterall that they believed
he was a member of al Qaeda, as the Americans had claimed when he was
deported.
Mr. Pardy outlined two elements which Consular Affairs thought had to be
in place for the Syrians to release Mr. Arar and return him to Canada:
•
•
An unambiguous statement from the Government of Canada, preferably
signed by the Solicitor General and the Foreign Minister, to the effect that
Canada had no evidence that Mr. Arar is or was a member of al Qaeda, and
that Canada did not believe such information existed [emphasis added];
A categorical statement that the information used by the United States in deciding to deport Mr. Arar did not originate with the Canadian authorities,
since Canada did not have information that he was a member of al Qaeda.
In the memo, Mr. Pardy expressed his opinion that there was little expectation that the Syrians would respond positively to the request for Mr. Arar’s release as long as the American claims remained unchallenged and unless it was
denied that Canadian security and police officials did not want to see Mr. Arar
returned to Canada. Tensions between the United States and Syria concerning
the American role in Iraq and the Middle East peace plan probably meant that
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the Syrians would be loath to take positive action on Mr. Arar if they believed
that the United States would be opposed. The decision to link Mr. Arar to al
Qaeda was probably meant as a signal of Syrian co operation on international
terrorism issues.
Deputy Minister Lavertu was to visit Syria on May 19. One of the proposed
recommendations in the memo was to use his visit as an opportunity to again
impress on the Syrians how seriously Canada viewed the Arar case and to appeal to them not to charge him. Mr. Pardy wanted the Syrians to return Mr. Arar
to Canada, not to charge and try him in Syria. Mr. Pardy testified that this preference stemmed from his belief that if Mr. Arar were tried in Syria, he would not
be given due process or a fair trial.1232 Minister Graham testified that he definitely
wanted Mr. Arar returned to Canada. If he was guilty of some terrorism-related
offence in Canada, he should be prosecuted under Canadian law. Suggesting
that Mr. Arar be tried in Syria was a fallback position if the Syrian authorities
were not prepared to release him. This was preferable to Mr. Arar continuing to
be detained indefinitely without trial.1233 Minister Graham’s position was no different than Amnesty International’s: if Mr. Arar was not released, then he should
be charged with a recognized criminal offence and offered a fair trial.1234
Other recommendations in this memo were:
•
•
Minister Graham should call in the Syrian ambassador at an appropriate
time and provide a response to the Syrians’ stated intentions to prosecute;
and
if necessary, Minister Graham should meet with the Solicitor General and
the Deputy Prime Minister to arrive at a common understanding on this
case.
8.5
MEETINGS OF MAY 8 AND 12
The May 5 memo stated that DFAIT intended to convene a meeting of Canadian
officials representing DFAIT, CSIS, the RCMP, PCO and the office of the Deputy
Prime Minister to develop a clear, common Canadian approach to communicate to the Syrian authorities. Meetings were held on May 8 and 12 to discuss
Mr. Pardy’s May 5 memo, attended by officials from the above-mentioned agencies and departments (except the office of the Deputy Prime Minister), as well
as the office of the Solicitor General.1235
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8.5.1
Meeting of May 8
At the May 8 meeting, Mr. Pardy discussed Deputy Minister Lavertu’s coming
visit to Damascus with officials from CSIS, the RCMP and DFAIT ISI. Inspector
Roy’s notes of this meeting state that Mr. Pardy gave an overview and said he
wanted the Government of Canada to ask in unison that Mr. Arar not be charged,
as there was no foundation for such charges. Inspector Roy’s notes also state
that Chief Superintendent Killam wanted to discuss matters raised in the May 5
memo in-house and to schedule another meeting.1236
8.5.2
CSIS Briefing Note to the Solicitor General
CSIS prepared a briefing note for the Solicitor General dated May 9, 2003, which
assessed DFAIT’s request for a joint letter from the Solicitor General and the
Minister of Foreign Affairs to secure Mr. Arar’s release from Syria.1237 It also advised the Solicitor General that CSIS had been in contact with the Syrian authorities and received information from them on Mr. Arar.
The briefing note stated that DFAIT officials had suggested that CSIS and the
RCMP interview Mr. Arar while he was in Syrian custody, but Mr. Pardy testified
that Consular Affairs certainly did not want this to happen.1238
Issues for the Solicitor General’s consideration included the following:
[…] an interview of ARAR by the Service while he is in Syrian custody would
serve no useful purpose. Moreover, if ARAR were to be returned to Canada
after such an interview, it might be interpreted as a “clean bill of health”
for ARAR, which the Service would not be in a position to provide.
Furthermore, the US Government may also question Canada’s motives and
resolve, given that they had deported ARAR to Syria because of concerns
about alleged terrorist connections.1239
CSIS’ recommendation to the Solicitor General was that it would be problematic for him or CSIS to sign the joint letter with Minister Graham, and therefore advised “very strongly” that he decline the request.1240 The Solicitor General,
Wayne Easter, accepted CSIS’ recommendation in this briefing note.1241
Mr. Hooper testified that he did not review Mr. Pardy’s May 5 memo,1242
but he would likely have been consulted on this briefing note to the Solicitor
General. It was suggested that “the American resolve effect”— the suggestion
that returning Mr. Arar might result in the United States questioning Canada’s
motives and resolve in the war against terrorism, given that the U.S. had
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deported him to Syria — was advice to the Solicitor General that went beyond
the letter itself; it argued against Mr. Arar returning to Canada. Mr. Hooper rejected this suggestion.1243 He testified that as a senior bureaucrat, he had an obligation to inform his minister of the political considerations and how signing a
joint letter might affect the Minister’s ability to deal with his American counterparts.1244 Mr. Hooper said that the purpose of this statement was to tell the
Solicitor General that there was some “political jeopardy” in co signing a letter for Mr. Arar’s release and that he should leave this to the Minister of
Foreign Affairs, whose responsibility it was. CSIS was reconciled very early on
to the fact that when the Canadian government took the position that it
wanted Mr. Arar back, his release would be a “political hot potato” with the
Americans.1245
The briefing note did not bring to the Solicitor General’s attention the following points:
1.
2.
3.
4.
Mr. Arar was in custody in a country that tortures people;
[***];
Mr. Arar is a Canadian citizen who had been in Syria for a very long time,
away from his wife and two young children; and
the United States had no right to deport Mr. Arar to Syria.
Mr. Hooper testified that he was absolutely certain that these considerations would have been raised with the Minister of Foreign Affairs.1246 The
Government of Canada has a process and structure for providing ministers with
advice in particular areas of expertise. CSIS’ expertise relates to security intelligence and CSIS was supplying the Solicitor General with information relevant
to his duties, which do not include consular matters.1247
8.5.3
Briefing Note to the RCMP Commissioner: “The Khadr Effect”
RCMP briefing notes leading up to the meeting on May 12 provide some context for the RCMP’s position on a joint letter from the Solicitor General and the
Minister of Foreign Affairs. In particular, they show that the RCMP’s response to
the growing political momentum for Mr. Arar’s release was to highlight the embarrassment that politicians could face if they secured his release from Syrian
custody and his return to Canada.
On April 30, a briefing note to the RCMP Commissioner reviewed media reports of the MPs’ trip to Syria1248 and provided a short description of Mr. Arar’s
status with the RCMP. It included information such as the following: Mr. Arar “refused” an interview with the RCMP; Mr. Arar left for Tunisia “shortly” after being
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approached for an interview; Mr. Arar “volunteered” that he received training at
a camp in Afghanistan; Mr. Arar was a “highly connected individual associated
with several suspected criminal extremists”; [***].
The briefing note raised concerns about members of Parliament and the
public asking the Prime Minister to intervene for Mr. Arar’s release and return
to Canada. The concern related to the potential embarrassment for the Prime
Minister if Mr. Arar was subsequently found to be clearly connected with terrorist
activities. As mentioned above in Section 4.6.2, the Prime Minister faced similar embarrassment when he intervened for the release of Ahmed Said Khadr.
After reading the briefing note, Deputy Commissioner Loeppky asked for
CID’s views about whether a briefing should be prepared on Mr. Arar so that the
Government of Canada would avoid such embarrassment.1249 Deputy
Commissioner Loeppky testified that his objective here was to make sure that
people knew the facts, because the prevailing notion was that Mr. Arar was not
linked to terrorist activities in any way.1250
The Solicitor General recalled discussions about the potential for embarrassment as in the Khadr case, but could not recall if these concerns were expressed by the RCMP or CSIS.1251 Mr. Hooper testified that it would not be
unusual for CSIS to raise the “Khadr effect” with the Solicitor General.1252
8.5.4
Meeting of May 12
At the May 12 meeting, no consensus was reached on language describing
Mr. Arar’s status that could be used in a joint letter from the Solicitor General and
the Minister of Foreign Affairs.1253 Specifically, the RCMP and CSIS would not
agree to a statement that Canada had no evidence that Mr. Arar is or was a member of al Qaeda.
Mr. Pardy described the May 12 meeting as largely a presentation by him
on the status of the Arar case.1254 He testified that there was no consensus at this
meeting “in the largest sense” on the recommendations in the May 5 memo,
but the participants were willing to look at what he was trying to achieve with
his memo and were to comment on it. He also received some immediate suggestions from attendees for changes to the memo.1255
The RCMP’s perspective on the meeting was described to Deputy
Commissioner Loeppky in a subsequent briefing note dated May 14, 2003:
Discussion surrounded the current status of ARAR as well as RCMP and CSIS interest. CSIS and RCMP agreed that at this point the RCMP has the lead in terms of investigating ARAR. Both RCMP and CSIS are of the opinion that while there is
�IMPRISONMENT AND MISTREATMENT IN SYRIA
suspicion surrounding the historical activities of Mr. Arar, there is insufficient evidence to claim he is a member of Al-Qaida or any other group. RCMP was asked
by DFAIT if we were interested in interviewing ARAR. RCMP advised that while we
are interested in interviewing ARAR, it is not a priority at this point. DFAIT advised
that they had earlier indications from Syrian authorities that they would not be open
to law enforcement contact with ARAR (He is being held by military intelligence)
… All parties agreed that it is important that Mr. Arar receive his Consular Rights.1256
According to this same briefing note, CSIS, the RCMP and the Solicitor
General expressed concern over some of the language in the May 5 memo and
Mr. Pardy undertook to redraft the memo and supply all parties with the revised version before he submitted it to his minister. It was agreed that the communication strategy would be for departments to say nothing at this time.1257
Deputy Commissioner Loeppky had asked whether a briefing on Mr. Arar
should be arranged to avoid another embarrassing situation and he was advised
that all affected Canadian agencies were fully aware of the matter and of the
identical position taken by CSIS and the RCMP. Therefore, no further action or
briefing was required by the RCMP at that time.1258
8.6
DFAIT DEPUTY MINISTER’S VISIT TO SYRIA
On May 19, Deputy Minister Lavertu met with the Syrian Foreign Minister in
Syria. Since the May 12 meeting had ended without consensus, he could not deliver a joint letter from the Solicitor General and the Minister of Foreign
Affairs.1259 Mr. Lavertu had intended to raise Mr. Arar’s case but conditions were
such that he could not do so. His meeting with the Deputy Foreign Minister was
cancelled at the last moment and his discussions with the Foreign Minister were
short and preoccupied with the Syrian position on Iraq and the American and
British mandate for Iraq.1260
On May 30, Mr. Pardy sent an e-mail to Ambassador Pillarella, stating that
it was extremely regrettable that the Deputy Minister did not raise Mr. Arar’s situation in his discussions with Syrian officials. He further stated: “Quite clearly it
probably left the wrong message with the Syrian authorities concerning our deep
and abiding interest in the welfare of Mr. Arar.” Ambassador Pillarella disagreed
with Mr. Pardy’s assessment. Ambassador Pillarella stated that he believed that
even if the Deputy Minister had raised Mr. Arar’s case, it would not have registered with the Syrian Foreign Minister, given his preoccupation with pressing
events in the Middle East at the time.1261
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8.7
DFAIT’S DRAFT ACTION MEMO OF JUNE 3
After Deputy Minister Lavertu’s visit to Syria and the realization that he could not
obtain direct support from CSIS or the RCMP for Mr. Arar’s release, Mr. Pardy
drafted a revised action memorandum to the Minister of Foreign Affairs, dated
June 3, 2003. Mr. Pardy abandoned the suggestion of a joint letter from the
Solicitor General and the Minister of DFAIT. The sole recommendation was that
Minister Graham sign a letter to the Syrian Foreign Minister and that he meet
with the Syrian Ambassador to deliver it.1262
The June 3 draft memo was substantially similar to the one of May 5, with
the following differences or additions. First, the June 3 memo characterized the
Syrian position as hardening in the months following the Minister’s phone call
in January and the delivery of the Minister’s letter to Minister Shara’a during
Ms. Catterall’s visit in April; the letter did not elicit a formal response from Syria.
Mr. Pardy concluded that Canada, or at least DFAIT, had little or no leverage
with the Syrian authorities in this case. Second, the June 3 memo summarized
the positions of CSIS and the RCMP on assisting Mr. Arar as follows:
In recent days we have discussed the case with both CSIS and RCMP. They have
maintained their positions that Mr. Arar, while not under investigation in Canada, is
a person of interest to them because of evidence of his connections with others
who are. In these circumstances, they will not provide any direct support in having
Mr. Arar returned to Canada. As such, the best we can do in these circumstances is
to again raise the matter directly with the Syrian Foreign Minister and to that end
we have attached a letter for your signature. We would also recommend that you
call in the Syrian Ambassador and deliver the letter.1263
No draft letter was attached to the memo at that time. It was eventually attached to the final memo of June 5, which will be discussed in more detail
below.1264
8.8
FINAL DFAIT ACTION MEMO AND DRAFT LETTER OF JUNE 5
On June 5, Mr. Pardy finalized the memo for Minister Graham, which he and
Deputy Minister Lavertu signed. The transmittal slip attached to the memo lists
the following government departments and agencies as having been consulted:
DFAIT’s Middle East Division (GMR), Foreign Intelligence Division (ISI) and
Security and Intelligence Bureau (ISD), the RCMP, CSIS and PCO.1265 The final
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memo added a recommendation that Minister Graham meet with Dr. Mazigh,1266
who had been pressing for a meeting with him since March 2003.1267
The June 5 memo was substantially similar to the one of June 3, but the
final memo stated that the RCMP had confirmed that the Americans had consulted them before deporting Mr. Arar. However, it noted that the Americans had
not raised his possible deportation to Syria and the RCMP had not given any indication that such a course of action would be acceptable to them. The wording of the latter statement was provided by the RCMP.1268 Furthermore, the
memo added that should Mr. Arar return to Canada, CSIS and the RCMP had
both indicated that they wanted to question him.1269
Attached to the June 5 memo was a draft letter to Syrian Foreign Minister
Shara’a, for Minister Graham’s consideration and signature.1270 The letter included
a plea for Mr. Arar’s return on humanitarian and compassionate grounds and
made the following statement on Mr. Arar’s status in Canada: “I assure you that
there is no Canadian Government impediment to Mr. Arar’s return to Canada.”
Because CSIS and the RCMP were not prepared to support DFAIT’s effort
directly, the draft letter included language that was virtually identical to that in
Minister Graham’s previous letter to Minister Shara’a, delivered by Ms.
Catterall.1271 As Mr. Pardy indicated in his memo, this earlier letter had not
elicited any response from the Syrians. Mr. Hooper did not see the memos of
June 3 or 5, but was aware that Mr. Pardy had prepared a letter for the Minister
of Foreign Affairs’ signature, including language to which neither CSIS nor the
RCMP objected.1272 Minister Graham testified that his office had come to a conclusion and clearly Mr. Pardy’s advice to his office was that the letter as worded
would not persuade the Syrians. However, Mr. Pardy had no success in getting
different language adopted.1273
8.9
MR. HOOPER’S CALL TO MS. McCALLION
On or about June 5, Mr. Hooper of CSIS phoned Kathryn McCallion, DFAIT’s
Assistant Deputy Minister (ADM) responsible for consular affairs, to discuss
Minister Graham’s letter to Minister Shara’a.1274 Mr. Hooper had no interaction
with Ms. McCallion, but knew she was responsible for consular affairs.1275
Mr. Hooper testified that he wanted to make the following three points to
Ms. McCallion. First, he wanted to make sure she understood the earlier issues
around the wording of the letter and why CSIS preferred that the Solicitor
General not sign it. Second, he wanted to ensure that she knew that Mr. Arar’s
case was not the last case that CSIS and DFAIT would have to deal with. Other
Canadians with a security intelligence link to their case were detained abroad —
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FACTUAL BACKGROUND: VOLUME I
some of them dual nationals. Third, he wanted to make the point that there
needed to be a better process for coordinated, multi-agency government action.
Mr. Arar’s case was not specifically discussed other than as a platform for a
broader discussion.1276
Mr. Hooper was concerned that there might have been some inaccuracies
in briefings sent to senior officials in DFAIT because the discussions around the
language of the proposed letter to the Syrian Foreign Minister were difficult. He
was concerned about messaging that was going up to Ms. McCallion from people at the middle levels of the department.1277
Mr. Hooper testified that he and Ms. McCallion might have discussed the
possibility that Canadians detained overseas would present a threat to Canadian
security upon their return, and what CSIS would have to do to ensure Canada’s
security. He stated that at the end of the day, “CSIS will do whatever CSIS has
to do… if [it’s] confronted with 11 or 15 or 25 new targets on the ground.” It was
understandable that new targets would bring up resource issues for CSIS.1278
It was suggested to Mr. Hooper during questioning that one of CSIS’ concerns about future targets was that its mandate on security certificate cases would
be affected if Mr. Arar returned to Canada and began speaking about his mistreatment in Syria. Mr. Hooper agreed that this consideration had been on his
mind at the time of the call. Allegations of mistreatment by Mr. Arar would make
it difficult for CSIS to engage the full process to be applied in a security certificate case. Mr. Hooper testified that he had not discussed this consideration with
Ms. McCallion.1279
Mr. Hooper explained that there was no discussion about whether or not
CSIS wanted Mr. Arar to stay in Syria because of resource issues. As he recalled,
resource issues were not a part of their conversation.1280 However, he acknowledged that their discussion of other possible security-related cases involving Canadians detained abroad might have given Ms. McCallion the
impression that these cases could pose a resource problem for CSIS.1281
What Mr. Hooper did not agree with was any suggestion that Ms. McCallion
might have been left with the impression that CSIS did not want Mr. Arar back.
From the outset of the conversation, one of the very clear messages he wanted
to communicate to Ms. McCallion was that CSIS had never told the Syrians it did
not want Mr. Arar back. Furthermore, CSIS accepted the Government of Canada’s
position that Mr. Arar had to be brought home.1282
According to Mr. Hooper, there was never an official CSIS position that
CSIS did not want Mr. Arar back in Canada, or that CSIS did not want the Minister
of Foreign Affairs to send a letter to his Syrian counterpart.1283 It was suggested
to Mr. Hooper during testimony, however, that CSIS did not have to say outright
�IMPRISONMENT AND MISTREATMENT IN SYRIA
that it did not want Mr. Arar back if it brought forward only negative considerations to the Solicitor General about the need to send a letter to help bring
Mr. Arar home. Mr. Hooper responded that he did not believe Ms. McCallion
was aware of what the Solicitor General had been advised, apart from the fact
that CSIS’ position had always been a preference for the Minister of Foreign
Affairs to send a letter and that the language in the letter be accurate. Mr.
Hooper’s understanding was that the negotiations around the language of the
letter would have been finished sometime around the middle of May. Therefore,
at the time of his call to Ms. McCallion, he believed the letter to be “a done
deal.”1284
As mentioned earlier, Mr. Hooper also wanted to discuss with
Ms. McCallion the need for better coordination across the Canadian government
on future cases involving different government agencies. This issue had already
been raised in the April 7 memorandum prepared by Mr. Pardy for the Minister
of Foreign Affairs that referred to the “deck” presented in February 2003. Thus,
it would seem Mr. Hooper was raising an issue with Ms. McCallion that
Mr. Pardy had previously raised with the Minister of Foreign Affairs. Mr. Hooper
testified that, in his opinion, there had been no tangible difference in coordination as a result of the February 2003 discussions.1285
Ms. McCallion’s testimony about the call did not differ significantly from
Mr. Hooper’s recollection of events. She described her conversation with
Mr. Hooper as non-confrontational and non-adversarial — a dialogue between
two ADMs representing two different mandates who were obliged to work together. They did not discuss the specifics of the Arar case. Rather, they spoke
about the global situation, relations with the United States and other states post9/11, and DFAIT’s and CSIS’ mandates.1286
As to the mandates of the two departments, Ms. McCallion interpreted the
discussion as CSIS and DFAIT reassuring themselves that the other was aware
of the issues surrounding the Arar case within the context of their respective
mandates. Both Ms. McCallion and Mr. Hooper acknowledged that in some instances the two departments’ mandates were not necessarily 100 percent complementary. There was a need to resolve how to speak with one voice.
Ms. McCallion felt that Mr. Hooper wanted to confirm that she was aware that
the discussions that had taken place among mid-level officials had not always
been easy, but that the wording of the letter had been resolved.1287 She in turn
made it clear that the memo was going forward.1288
Ms. McCallion testified that Mr. Hooper also conveyed that CSIS’ mandate
above all is the security of Canadians in general; individual cases are looked at
within that context. She did not believe he made these comments to dissuade
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DFAIT from its efforts to bring Mr. Arar back to Canada.1289 Nor did she believe
the resource issue was raised when they discussed other possible cases involving Canadian dual nationals detained overseas who might return to Canada.1290
According to Ms. McCallion, Mr. Hooper did not ask her either to change
the wording of the letter to be signed by the Minister of Foreign Affairs or to refrain from sending the memo and letter up the chain of command to the
Minister’s office. The letter was not specifically discussed.1291
After Ms. McCallion finished speaking with Mr. Hooper, she did not discuss
the content of the call with anyone. There was nothing more to be said: the
memo was going forward.1292 She believes, however, that she told someone in
Consular Affairs that she had spoken to Mr. Hooper and signed the memorandum, and that it had gone forward. At the time of her testimony, she believed
that the person she would have spoken with was David Dyet, Director of Case
Management in Consular Affairs, because Mr. Pardy was away.1293
Other DFAIT witnesses testified about what they had heard concerning the
call between Mr. Hooper and Ms. McCallion. The information they had received
was second- or third-hand.
Of these witnesses, only Mr. Dyet testified to having contact with either of
the two participants in the call. Mr. Dyet met with Ms. McCallion in the morning of June 5 to brief her on the memo to be sent to the Minister. As he recalled, he was asked to come to her office to discuss the memo before Ms.
McCallion returned Mr. Hooper’s phone call. After he finished his briefing, she
told him that she would be signing off on the memo and it would be going forward.1294 Ms. McCallion did not recall meeting with Mr. Dyet before her call
with Mr. Hooper. Nonetheless, she did not dispute Mr. Dyet’s recollection of
events. She testified that it would be customary for her to receive such a briefing for background purposes prior to a meeting or, in this case, a phone call.1295
After the meeting, Mr. Dyet returned to his office where he retrieved a message from Mr. Gould of ISI concerning the status of the June 5 memo.1296
Mr. Dyet met with Mr. Gould that same day. He could not remember how much
time passed between his meeting with Ms. McCallion and his meeting with Mr.
Gould, but speculated it was not long.1297
During the meeting, Mr. Dyet told Mr. Gould he had met with
Ms. McCallion, and that she had indicated she was going to sign off on the
memo and it was going forward. He also told Mr. Gould that Ms. McCallion
had received a call from CSIS.1298
Mr. Gould’s notes of their meeting referred to the Hooper-McCallion call.
According to Mr. Gould’s notes and testimony, Mr. Hooper called Ms. McCallion
and told her that CSIS did not want Mr. Arar back in the country because it
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would have to devote too many resources to watching him. Mr. Gould was unsure of the source of Mr. Dyet’s information concerning the call.1299
In his testimony, Mr. Dyet was not clear about the source of the information in Mr. Gould’s note. While he was confident he would not have shared
this statement concerning resources with Mr. Gould unless someone had mentioned it to him, he could not confirm that he had heard this information from
Ms. McCallion. He was sure the information had come to him from someone
within DFAIT, possibly Ms. McCallion.1300 More importantly, he was unsure
whether this statement concerning resources indeed derived from the HooperMcCallion call.1301
When Ms. McCallion was shown the entry in Mr. Gould’s notes, she said
she did not recall Mr. Hooper mentioning either CSIS’ lack of resources for
watching Mr. Arar if he came back to Canada or CSIS not wanting to see Mr. Arar
return.1302
Mr. Livermore, Director General of ISD, was aware that at times representatives of various organizations had expressed the view that it was perhaps
preferable that some individuals stay outside of Canada; if they returned they
would become a drain on the organization’s resources, because they would
have to be watched, involving a lot of time and trouble. Therefore, it would be
better if they did not come back. However, from the outset that was never
DFAIT’s preference. This is why he did not pursue rumours that Mr. Hooper did
not want Mr. Arar back — it simply was not an option.1303
Mr. Gould wrote a draft memorandum on June 24, in which he stated that
CSIS’ preference was to have Mr. Arar remain in Syria. He stated that this view
was not the result of any single event, but rather the result of weeks and months
of dealing with CSIS, and a collection of conversations, discussions and innuendo.1304 Mr. Hooper categorically denied that this was CSIS’ position and expressed surprise that Mr. Gould was left with this impression.1305
8.10
THE MINISTER’S RESPONSE — JUNE 17
On June 12, Minister Graham met with Dr. Mazigh and representatives of nongovernmental organizations assisting her in her campaign for Mr. Arar’s return.1306 At this meeting, Dr. Mazigh requested a coherent and clear statement
from the Government of Canada that it had no evidence linking Mr. Arar to terrorism and that it wanted Mr. Arar returned to Canada immediately.1307 She also
told the Minister that she knew that not everyone in the government, security
agencies in particular, agreed with Consular Affairs’ efforts. When she suggested
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that a letter from CSIS would have more clout with Syrian security officials than
a letter from a politician, Minister Graham did not disagree.1308
As a result of this meeting, Minister Graham’s office pursued Dr. Mazigh’s
request for stronger language in his letter to Minister Shara’a.1309 On June 17,
Mr. Pardy learned that the Minister’s advisers had reviewed the draft letter to
Minister Shara’a attached to the June 5 memo and wanted the following changes
to the letter, as indicated below in italics.1310
(…) I assure you that there is no evidence he is involved in terrorist activity nor is there any Canadian Government impediment to Mr. Arar’s return
to Canada (…)
Mr. Fry tried to negotiate with the office of the Solicitor General for stronger
language in the letter because he believed there was no use in sending another
letter from Minister Graham with the “no impediment” language when the
Minister had sent a similarly worded letter just two months earlier.1311 Minister
Graham testified that his office was attempting to find language that would recognize that while Mr. Arar might have been a person of interest, which anyone
could be for all sorts of reasons, this must not lead to a conclusion that he was
guilty of a terrorist offence in Canada.1312
Mr. Pardy was asked to seek concurrence from the Solicitor General, the
RCMP and CSIS on the text.1313 Mr. Pardy testified that this proposed language
“sparked a reaction” from these agencies.
8.10.1
CSIS’ Position
On June 13, Mr. Hooper met with Peter Harder, who had succeeded Gaetan
Lavertu as the Deputy Minister of Foreign Affairs, to discuss consular cases with
national security implications. Mr. Hooper learned there that a protocol was
being developed to deal with such cases. Subsequently, Mr. Hooper stated in
an e-mail: “They [DFAIT] already went too far on Arar, as far as we’re concerned.”1314 Mr. Hooper explained that this statement did not refer to DFAIT
going too far in its attempts to have Mr. Arar returned to Canada but rather to
DFAIT’s approach.1315 He believed that DFAIT acted inappropriately by releasing information to Dr. Mazigh and the media without consulting CSIS.1316 He
also believed that Mr. Pardy acted inappropriately by attempting to have the
Solicitor General sign a letter.1317
Mr. Hooper believed that DFAIT’s Consular Affairs Bureau was too far
ahead of the rest of the Canadian government. For lack of strong high-level coordination, different government departments with different interests in the Arar
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case were acting on their own and not communicating enough with each other.
Mr. Hooper wanted to see clearer direction given to everyone concerned and
more frequent consultations on a case involving several government departments.1318 Mr. Hooper believed that the creation of the position of National
Security Advisor to the Prime Minister in November or December 2003 was a
good move, since this was a senior official who could ensure harmonization
among government agencies on these issues.1319
On June 18, the CSIS Liaison Officer to DFAIT wrote to CSIS Headquarters
that Mr. Pardy’s memo was discussed at length at interdepartmental meetings on
May 8 and 12, and it was agreed not to use the language suggesting that there
was no evidence to link Mr. Arar to terrorist activities. She asked for strong language to remind DFAIT that their suggestion was not acceptable to CSIS.1320
CSIS Headquarters responded to the CSIS LO by e-mail:
We have told them [DFAIT] on a number of occasions that we cannot support this
statement … In the end if they go ahead with this nonsense we will not stand behind it and they will be on their own on this one. We told DFAIT in the past that
this could go down the same road as Ahmed Said KHADR; people run to his defense only to find out later he was one of the major players within the AL-QAIDA
network.1321
Mr. Pardy received an e-mail from Scott Heatherington on June 18, advising him that the RCMP and CSIS had concerns about wording proposed by
the Minister. Both the RCMP and CSIS agreed that the following would be more
accurate:1322
Mr. Arar is currently the subject of a National Security Investigation in Canada.
Although there is not sufficient evidence at this time to warrant Criminal Code
charges, he remains a subject of interest. There is no Canadian government impediment to Mr. Arar’s return to Canada.1323
Mr. Pardy testified that this was “a major step backwards to put in the language ‘national security investigation in Canada.’”1324 This language was “clearly
unacceptable to the efforts that were under way.”1325 Minister Graham recalled
that he thought the language which the RCMP and CSIS came back with would
have made matters worse rather than better.1326 Deputy Commissioner Loeppky
also testified that this language would be counterproductive to efforts to have
Mr. Arar returned to Canada.1327
Mr. Pardy and Mr. Fry noted that previously Mr. Arar was described as “a
person of interest” and suddenly he became “the subject of a national security
investigation.”1328 This was the first time that Mr. Pardy had seen this language
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in any communication from the RCMP.1329 Mr. Pardy and Mr. Fry testified that
CSIS and the RCMP were hardening their position in the aftermath of the previous memos.1330 Mr. Pardy believed that the growing momentum of the public
campaign to free Mr. Arar was one factor leading the RCMP and CSIS to harden
their position.1331 Mr. Hooper disagreed that CSIS was hardening its position;
rather, it was attempting to ensure that the language in the letter was accurate.1332
According to Mr. Livermore, DFAIT had long known that some CSIS officials were uncomfortable with DFAIT’s level of ministerial engagement in the
Arar case. Mr. Livermore testified that they were aware that CSIS thought these
actions imprudent, but from DFAIT’s perspective, the political momentum building on the Arar case made DFAIT’s actions appropriate.1333
Mr. Hooper testified that CSIS did nothing to try to have any government
department or agency prevent Mr. Arar’s lawful return to Canada. The
Government of Canada had been clear that it wanted Mr. Arar returned. CSIS
could not and did not disagree with this position.1334 CSIS’ position was that the
Minister of Foreign Affairs should send the letter and that its content should be
accurate.1335
8.10.2
The Solicitor General’s Position
The Solicitor General’s office coordinated the response for the RCMP and CSIS,
and in so doing sought comments and advice from these agencies that would
eventually be forwarded to DFAIT.1336
In May, Mr. Fry was negotiating the wording of a joint statement with the
Solicitor General’s office, in addition to Mr. Pardy’s efforts. He testified that
many wordings were discussed, but by the end of May he realized no consensus could be achieved, except to say there was “no impediment.”1337 While the
Solicitor General’s office was at first willing to issue a joint statement with
Minister Graham, it changed position as a result of the RCMP and CSIS advising
that Mr. Arar was the subject of a national security investigation. Once this
happened, Mr. Fry described the effect as follows: “It is basically a way of bringing down the veil and then the Minister’s office basically has to be hands-off
because there is now an investigation and from a political point of view you
need to stay away.”1338
Solicitor General Easter testified that “we wanted to do everything
we could to get Mr. Arar back to Canada;” however, the spokespersons for
the Government of Canada in this matter were the Prime Minister, the Minister
of Foreign Affairs and the Canadian Ambassador in Syria.1339 The
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Solicitor General saw the goal as doing everything possible to return Mr. Arar
to Canada, without in any way compromising the integrity of law enforcement
or intelligence agencies.1340
The office of the Solicitor General’s advice to Minister Graham around June
18 was that he should not “walk out on a limb” for Mr. Arar and say that the
Government of Canada had no evidence against him: “We may have something
[now] or have something in a few months.”1341 Commission counsel asked
Minister Graham whether he was being warned about his efforts to have Mr. Arar
returned, given the Prime Minister’s experience in making representations to
Pakistan for the release of Mr. Khadr.1342 Minister Graham testified that he
recalled people warning him about the “Khadr effect,” and this was a legitimate caution. He did not believe that CSIS or the RCMP were deliberately
frustrating his department’s efforts to have Mr. Arar returned to Canada; rather,
they were trying to make sure that he did not say anything that would inhibit their investigation. He had to be very careful not to stray into their
territory. As Minister of Foreign Affairs, he did not have unfettered ability to
write whatever he wanted to a foreign government1343 and his communications to a foreign state must be informed by the best interests of the
Government of Canada as a whole, which would include the security interests of Canada.1344
8.10.3
The RCMP’s Position
On June 24, RCMP Deputy Commissioner Loeppky received a memo from the
Solicitor General’s office, requesting his views on the appropriateness of the
draft letter from Minister Graham to the Syrian Foreign Minister with the
”no evidence” wording.1345 The Solicitor General’s office wanted to know if
the Deputy Commissioner 1) supported sending the letter as currently drafted;
2) wanted changes made to it; or 3) simply recommended not sending it at
all. In addition to the draft letter, the memo attached a copy of a letter from
Dr. Mazigh to Minister Graham dated June 16, 2003, wherein she expressed her
concern that mixed messages were preventing Mr. Arar’s release.1346
On June 26, Deputy Commissioner Loeppky sent a letter to the Solicitor
General’s office in response to the June 24 memo. While the RCMP had no
intention of interfering with Mr. Arar’s consular rights, the Deputy Commissioner
expressed “major concerns with the misleading statement” in the draft letter that
there was no evidence of Mr. Arar being involved in any terrorist activities.1347
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He then characterized Mr. Arar’s status as follows:
Mr. Arar is currently subject of a national security investigation in Canada. Although
there is insufficient evidence to warrant any charges under the Criminal Code at
this time, he remains a subject of great interest and our investigation would resume
if he returned. Circumstantial evidence links Mr. Arar to several known and
high-profile suspected terrorists in Canada and abroad. Given this situation, we do
not believe it would be advisable for Mr. Graham to send this letter to his Syrian
counterpart.1348
Deputy Commissioner Loeppky also stated in the letter that the RCMP was
very concerned about Mr. Pardy releasing information to Dr. Mazigh with respect to the divergence of opinion on Mr. Arar’s release in the Government of
Canada.1349
The Deputy Commissioner testified that this letter was prepared in consultation with CID, where it was decided that some information on file could be
evidence if the RCMP pursued criminal charges; he therefore felt that using the
words “no evidence” was inappropriate, inaccurate and misleading.1350
Deputy Commissioner Loeppky testified that generally if the RCMP gave
information on a Canadian to a foreign agency and it was learned subsequently
that the foreign agency used that information to violate that Canadian’s rights,
the RCMP and the Government of Canada were obliged to register their concern
and protest.1351 When he was later asked whether the RCMP had any responsibility under its mandate to assist in bringing Mr. Arar back to Canada, he responded that this would be a matter for DFAIT. DFAIT might solicit input from
the RCMP, but that department would ultimately be responsible for any assistance to Mr. Arar.1352 He later stated that DFAIT was doing its utmost to have
Mr. Arar returned to Canada and the RCMP was providing as much assistance
as it could.1353
8.11
THE OUTCOME
On June 24, Mr. Gould drafted a memo reviewing DFAIT’s difficulties in
reaching consensus at an institutional level. This memo remained in draft form
only; however, Mr. Gould testified that he might have shared it with
Mr. Heatherington and Mr. Livermore to provoke discussion.1354 Mr. Pardy testified that he agreed with the sentiments expressed in Mr. Gould’s draft memo,
which stated:
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It is very clear there has not yet been, on the institutional level, a meeting of the
minds between the Department of Foreign Affairs on the one hand and CSIS and
the RCMP on the other with regard to the case of Maher Arar. Recent exchanges
have been almost testy and there is a fear that the working relationship between
DFAIT and CSIS, in particular, might be poisoned if agreement is not reached on a
government-wide approach to this case.
The draft memo provides additional insights into the problem of obtaining
consensus among the various government agencies:
CSIS has made it clear to the Department that they would prefer to have him remain
in Syria, rather than return to Canada. CSIS officials do not seem to understand that
guilty or innocent, Maher Arar has the right to consular assistance from the
Department and that in the circumstances in which he presently finds himself, the
best outcome might be his return to Canada. Even though there is a risk that Arar
might later be found to have been involved in extremist activities of one sort or another, his right to consular assistance must be honoured.
Mr. Gould testified that this description of CSIS’ preference to have Mr. Arar
remain in Syria was the result not of any single event but rather of weeks and
months of dealing with that agency and many conversations, discussions and innuendoes.1355 Mr. Hooper testified that he was surprised that Mr. Gould was
left with an impression that CSIS did not want Mr. Arar back. He said: “I can say
categorically that this was never the position of the Canadian Security
Intelligence Service. Never. So how Mr. Gould arrived at this conclusion, I don’t
know.”1356
Eventually, no letter went from Minister Graham. It was made unnecessary
by a letter from the Prime Minister to President Assad. By this time, Mr. Pardy
had shifted his focus from front-line government personnel and appealed to the
Prime Minister to become involved.1357 Mr. Pardy never saw the Deputy
Commissioner’s letter dated June 26, 2003, nor was he concerned about it.1358
Mr. Pardy testified that when he read the CSIS e-mail on or about June 18, he
immediately decided that he would step around CSIS and go directly to the
Prime Minister and see if he would sign a letter.1359 Attempts to obtain consensus or assistance from the RCMP or CSIS were abandoned, as efforts were underway to forge a consensus at the top level of the Canadian government.
Mr. Fry testified that Mr. Pardy and he decided to pursue a letter from the Prime
Minister because they had “run into a bit of an obstruction” on a letter from the
Minister of Foreign Affairs.1360
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Mr. Pardy’s efforts were spurred by two things. The first was the Prime
Minister’s letter to Dr. Mazigh on June 13, 2003, in which he stated: “I want to
take this opportunity to reiterate the determination of the Canadian government
to provide all possible consular assistance to Mr. Arar, as well as to yourself and
other members of his family, and to press the Syrian government for his release
and return to Canada as soon as possible. We will not relent.”1361
The second impetus was an upcoming trip to Saudi Arabia by a prime ministerial envoy, Senator Pierre De Bané. Mr. Pardy talked to PCO officials and
they agreed that Senator De Bané would add Damascus to his itinerary and deliver a letter from the Prime Minister to President Assad.1362 This trip and the letter are described in the following section.
Mr. Pardy testified that he believed the Prime Minister’s decision to become
directly involved in Mr. Arar’s case was due to the inability of front-line officials
in the various Canadian government agencies and departments to reach consensus and the only way out was for the Prime Minister to intervene.1363
Coherence was achieved only when this was done.1364
Mr. Pardy testified that the “mixed messages” could have affected Mr. Arar’s
return, but he had no direct information to confirm it. He was always striving to
achieve consensus on this issue in the Canadian government and it was difficult.
In the end, the Prime Minister had to intervene.1365 However, Mr. Pardy was
quoted in Juliet O’Neill’s article of November 8, 2003 in the Ottawa Citizen as
saying: “The RCMP and the security people, that’s where the division came
down. They were saying we have our responsibilities and we don’t agree. I
think it delayed our efforts to get him out of there to some extent, although I
don’t think by a heck of a lot, quite frankly.” He testified that this quote was certainly consistent with what he had been saying.1366
9.
THE PRIME MINISTER’S LETTER
9.1
THE IDEA
As mentioned above, in June 2003 DFAIT was preparing to send a special envoy
to Saudi Arabia on behalf of Prime Minister Jean Chrétien. The subject of the
visit was William Sampson, another Canadian citizen in detention overseas.
Senator Pierre De Bané was selected to undertake this mission because he was
considered to be knowledgeable about the region and a very able diplomat.1367
During discussions between Mr. Pardy and the Minister’s office about the Saudi
Arabia mission, the idea arose to extend Senator De Bané’s trip to include Syria.
�IMPRISONMENT AND MISTREATMENT IN SYRIA
Mr. Fry testified that sending a letter from the Prime Minister to Syria’s head of
state was seen as an effective way of “ratcheting up” the effort on the Arar
case.1368
By July 7 Senator De Bané had accepted the invitation from the Minister of
Foreign Affairs’ office to go to Syria on the Prime Minister’s behalf.1369 However,
due to prior commitments, he was unable to leave until mid-July.1370
9.2
JULY 11 BRIEFING
The Senator’s understanding from the outset was that he would travel to Saudi
Arabia and Syria to meet with the heads of state of both countries, carrying a personal message to each from the Prime Minister.1371 The aim of both trips was to
deliver letters from the Prime Minister and, ideally, obtain the release of Messrs.
Sampson and Arar.1372
On July 11 Senator De Bané was briefed about his upcoming trip. The
briefing, held at DFAIT Headquarters, was attended by about a dozen DFAIT officials, including Mr. Pardy, who chaired the meeting. It lasted about an hour
and a half and covered both the Sampson and Arar files.1373
Senator De Bané was given a copy of the letter, dated July 11, 2003, from
Prime Minister Chrétien to His Excellency Bashar Al Assad of Syria.1374 In the letter, the Prime Minister asked that Mr. Arar be released and returned to Canada.
The Prime Minister also stated: “I can assure you there is no Canadian government impediment to his return.”1375 Essentially, the wording favoured by CSIS
and the RCMP for the letter from the Minister of Foreign Affairs had been
adopted in the Prime Minister’s letter.
The Senator was also briefed on the deterioration of consular access to
Mr. Arar1376 and informed about a discussion between the RCMP and the
American authorities during Mr. Arar’s detention in the United States. Although
the evidence varied somewhat, it appears he was told that the RCMP said that
they could not detain and charge Mr. Arar.1377
9.3
SENATOR DE BANÉ’S TRIP
As planned, Senator De Bané first travelled to Riyadh, Saudi Arabia, to meet
with the Saudi head of state on the Sampson case. He was scheduled to travel
to Beirut, Lebanon, at the end of his trip via a connecting flight from Jeddah,
Saudi Arabia.
On July 15 Canada’s ambassador to Saudi Arabia drove Senator De Bané
to the Jeddah airport to catch his flight. While waiting at the airport,
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Senator De Bané called Mr. Pardy to update him on his trip thus far. Mr. Pardy
informed the Senator that Ambassador Pillarella was having difficulty arranging
a meeting between the Senator and President Assad. As a result, a second letter dealing with Syrian–Canadian bilateral interests would be delivered to the
President. It was thought that a message from the Prime Minister indicating that
the visit by the special envoy concerned more than one subject would improve
the chances of the Senator meeting with the President.1378 This second letter was
delivered to Damascus prior to Senator De Bané’s arrival.1379
Senator De Bané spent a few days in Beirut awaiting word from
Ambassador Pillarella on the meeting with the Syrian authorities. On July 21
Ambassador Pillarella confirmed that a meeting had been arranged between
Senator De Bané and Syria’s Deputy Minister of Foreign Affairs, Mr. Mouallem,
for the following day. That same day, a representative from the Canadian
Embassy drove Senator De Bané to the Lebanese–Syrian border to meet
Ambassador Pillarella. The Ambassador and Senator De Bané continued their
journey by car to Damascus. During the one-hour ride, Ambassador Pillarella
briefed the Senator on the Arar file.1380
Senator De Bané was not perturbed to learn that he would be meeting
with the Deputy Foreign Minister rather than the President. He knew
Mr. Mouallem from the Deputy Foreign Minister’s days as Syria’s Ambassador to
the United States, and was aware of Mr. Mouallem’s considerable influence.1381
On July 22 Senator De Bané met with Mr. Mouallem and presented the
Prime Minister’s letter concerning Mr. Arar. Ambassador Pillarella was also present. One of the first things Mr. Mouallem did was extend the President’s apologies for not being able to receive the Senator, explaining that it had not been
possible to organize a meeting with the President at such short notice.1382
The meeting was cordial. Senator De Bané impressed upon the Deputy
Foreign Minister the importance of the Arar case to Canada. He noted that
Mr. Arar was a Canadian citizen and that the Canadian government had a duty
to intervene on his behalf. He also raised the fact that the Canadian consul had
not been permitted to visit Mr. Arar since April 2003 and that Mr. Arar had not
been put on trial. He made it clear that the Prime Minister was asking the
President to give his urgent attention to this matter and, further, that Mr. Arar
should be released and permitted to return to Canada on humanitarian and compassionate grounds.1383
In response, Mr. Mouallem stated that the Ministry of Foreign Affairs was
following the case very closely, but that new elements had widened the scope
of the Syrian investigation. As a result, Mr. Arar had not been put on trial and
the Canadian Embassy had not been permitted access.1384 Mr. Mouallem did not
�IMPRISONMENT AND MISTREATMENT IN SYRIA
specify what “new elements” had arisen.1385 He assured Senator De Bané that the
Prime Minister’s letter would be brought directly to the attention of the President
and that he would personally support the Prime Minister’s request.1386
Senator De Bané returned to Canada on July 28 and briefed Mr. Pardy on
his meetings in Saudi Arabia and Syria. He believed the Prime Minister’s message had been well received.1387
10.
THE AUGUST 14 CONSULAR VISIT
10.1
THE SHRC REPORT
In the summer of 2003, the Syrian Human Rights Committee (SHRC), a human
rights organization based in London, England, issued its 2003 annual report on
human rights in Syria. The report covered such topics as freedom of expression, civil rights and unlawful detentions. In particular, the chapter dealing with
unlawful detentions briefly mentioned Mr. Arar. According to the report:
Security Forces continue to hold Maher Arrar [sic], who is also a Canadian national,
and who was forcibly deported by American Immigration Authorities to Syria whilst
passing by a Transit lounge on his way back to Canada. SHRC had received confirmed reports that Mr. Arar has been subject to severe torture and intensive interrogation and charged with cooperating with Al-Qaeda.1388
A member of the Arar family brought the report to the attention of Myra
Pastyr-Lupul, at DFAIT Headquarters. On or about July 29, Ms. Pastyr-Lupul
downloaded the report and asked Gar Pardy to take a look at the reference to
Mr. Arar.1389
The contents of the report pertaining to Mr. Arar set off no alarm bells for
Mr. Pardy. For one thing, he assumed from the beginning that Mr. Arar had
been subjected to harsh treatment in the early days of his detention. Secondly,
although he had no prior experience with the SHRC, he understood it to be an
émigré organization1390 run by Syrian expatriates. He was aware that other
groups that track human rights issues around the world had expressed confidence in the SHRC; however, he was sceptical of émigré organizations in general due to uncertainty about the reliability of their information and whether
they were serving more than one purpose. The report was noted by DFAIT, but
it did not lead to further action.1391 This changed once they learned of a July 29,
2003 letter the SHRC sent Dr. Mazigh.
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The SHRC’s letter to Dr. Mazigh provided more details about Mr. Arar’s detention than were found in the 2003 annual report. Among other things, the letter stated: “Mr. Arar has received heavy and severe torture at the initial stage of
interrogation. At present, he receives torture and abuse from time to time as a
daily routine of the Syrian prisons practices against political detainees.”1392
Dr. Mazigh forwarded the letter to DFAIT on August 6, one day before a
scheduled press conference where she would be discussing the contents of the
letter with the media and calling for further action on her husband’s case by the
Canadian government.1393 Unlike the SHRC report, the details in the letter fuelled
DFAIT to continue to push for immediate consular access to Mr. Arar.1394
10.2
PUBLICITY
Dr. Mazigh began speaking to the Ottawa-based media about the SHRC letter’s
allegations of torture the same day she forwarded the letter to DFAIT. Media outlets then began contacting DFAIT’s communications branch for a response. The
communications branch asked Ms. Pastyr-Lupul to produce updated press lines
as soon as possible.1395
Late in the afternoon of August 6, Ms. Pastyr-Lupul e-mailed DFAIT’s communications branch and Minister Graham’s office with the following press line
suggested by Mr. Pardy:
We are equally troubled by the statements regarding the use of torture as noted in
the report for SHRC, and are very concerned that we have not had consular access
to Mr. Arar since April, despite repeated efforts by our Embassy in Damascus to obtain access. We will not relent in our efforts to seek consular access to Mr. Arar.
The e-mail was copied to Ambassador Pillarella and Mr. Martel in
Damascus, as well as to DFAIT ISI.1396 Ms. Pastyr-Lupul also drafted a question
and answer document for Minister Graham to assist him with inquiries stemming from the SHRC report.1397
On the morning of August 7, Dr. Mazigh attended the press conference as
planned. Alex Neve from Amnesty International accompanied her. She outlined
the allegations of torture contained in the letter from the SHRC. She also requested that the Canadian government step up its pressure on the Syrian authorities to release her husband by recalling Canada’s ambassador to Syria.1398
Both DFAIT and the Prime Minister’s Office quickly rejected Dr. Mazigh’s
request to have Ambassador Pillarella recalled. It was believed that recalling the
Canadian ambassador to Syria would do little to either increase consular access
to Mr. Arar or help secure his release. As the Ambassador had been dealing with
�IMPRISONMENT AND MISTREATMENT IN SYRIA
the Syrian authorities on the Arar matter from the beginning, it was seen to be
in Mr. Arar’s best interests that the Ambassador remain engaged in Damascus.
Furthermore, the Ambassador was trying to look into the SHRC
allegations.1399
A few hours after the press conference, Minister Graham’s office contacted
Ambassador Pillarella with the instructions that, due to intense media pressure
and the troubling allegations of torture, he should again try for consular access
to Mr. Arar. The Ambassador pointed out that it could be frustrating dealing
with the Syrian authorities because they were often slow to respond to requests,
but that this was something he had to live with.1400
While Ambassador Pillarella was trying to investigate the SHRC revelations,
DFAIT officials in Ottawa were doing their part to communicate their concerns
to the Syrian government. On August 7, John McNee, DFAIT’s Assistant Deputy
Minister for the Africa and Middle East Branch, called in Syria’s ambassador to
register Canada’s concerns. Ms. Pastyr-Lupul also attended the meeting.
Mr. McNee informed the ambassador that the Canadian government was extremely concerned about the reports of torture and expected him to convey its
concerns — including the need for a response to the allegations — to the Syrian
authorities. He also stated that DFAIT wanted consular access to Mr. Arar as
soon as possible and that Mr. Arar should be returned to Canada. The Syrian ambassador agreed to communicate Canada’s concerns to the Syrian Ministry of
Foreign Affairs.1401
In Ms. Pastyr-Lupul’s opinion, this visit with the Syrian ambassador led to
the final consular visit with Mr. Arar on August 14.1402
At the same time as its concerns were being registered with the Syrian ambassador, DFAIT was trying to arrange a call between Minister Graham and
Syrian Foreign Minister Shara’a about the torture allegations. On August 7, DFAIT
Headquarters e-mailed Ambassador Pillarella to instruct him to assist in arranging the call.1403
10.3
AMBASSADOR PILLARELLA’S MEETING WITH GENERAL KHALIL
Over June, July and August, Ambassador Pillarella had repeatedly requested the
resumption of consular access to Mr. Arar. No Canadian official had seen
Mr. Arar since April 22. The SHRC’s allegations only increased the urgency for
consular officials to make a breakthrough with the Syrian authorities on this
matter.1404
The Syrian government finally agreed to a visit. On August 12, Ambassador
Pillarella e-mailed DFAIT Headquarters to inform them that his Syrian “parlia-
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mentarian” contact had told him that the consul would be able to meet with
Mr. Arar. The arrangements would be sorted out with General Khalil at a meeting scheduled for 10 o’clock in the morning on August 14. Ambassador Pillarella
also commented that “a meeting with Arar should help us rebut the recent
charges of torture.”1405
The choice of the word “rebut” would seem to suggest an interest in disproving the SHRC’s allegations of torture, although Ambassador Pillarella flatly
denied this was the case. While acknowledging that “rebut” was not the best
choice of words, the Ambassador testified that he was “not acting for the
Syrians.” He said that he was trying to communicate to DFAIT Headquarters that
the allegations of torture in the SHRC’s letter to Dr. Mazigh did not conform to
what Canadian officials had observed on the previous eight visits with Mr. Arar.
There was thus a concern to meet with Mr. Arar to find out if the allegations
were true.1406
During his testimony, it was pointed out to Ambassador Pillarella that he
seemed to have interpreted the SHRC’s reference to “torture and abuse” to mean
only physical beatings or physical mishandling. The Ambassador replied that he
could also have referred to mental torture, but that this did not change his observation that Mr. Arar did not seem to exhibit visible symptoms of torture.
Nonetheless, he stated that Mr. Arar had probably been subjected to some form
of abuse while in Syrian custody.1407
The Ambassador also added that while there may be general allegations
that torture occurs in a particular country, there can be instances where torture
does not occur. He cited a case where an individual had been detained in Syria
for political reasons but not tortured. However, he was unable to confirm
whether this person had faced charges related to involvement with al Qaeda or
terrorist activity.1408
Mr. Martel testified that he had never received instructions from
Ambassador Pillarella or anyone else to rebut the charges of torture. In his view,
his role as consul was to visit the detainee, observe the state the detainee was
in and report back to his superiors. He agreed that a consul’s role involved investigating any allegation of torture and ensuring that Canadian detainees were
not being mistreated. He stated: “If the press and the human rights groups are
saying this person is being tortured… it would be certainly of great concern to
me and I would certainly be looking for such traces on my next visit, if I am allowed one.”1409
Mr. Martel testified that he met with Ambassador Pillarella prior to August
14 and discussed the Ambassador’s efforts to re-establish the consular visits. The
consul was aware at the time of Ottawa’s concerns about the report of Mr. Arar
�IMPRISONMENT AND MISTREATMENT IN SYRIA
being tortured. He seemed to suggest that it was not customary for the
Ambassador to speak to him about the details of an upcoming visit with a detainee. He did not mention if in this particular instance Ambassador Pillarella had
specifically instructed him on the next consular visit, if granted. Mr. Martel made
it clear during his testimony that he knew his responsibilities on consular visits:
he was to look for signs that the detainee was not being held in good conditions
or was being mistreated and, with respect to reports of mistreatment, to investigate what was going on.1410
On August 14, Ambassador Pillarella met with General Khalil as planned.
The meeting lasted for over two hours. The Ambassador received the good news
that the Canadian consul would be permitted to meet with Mr. Arar that very
same day; however, he was also informed that Mr. Arar would be put on trial
within the week.1411
General Khalil told the Ambassador that Mr. Arar’s situation had not been
helped by the publicity generated by Mr. Arar’s wife the previous week and the
accusations of torture. The plan had been for Mr. Arar to be released within a
few weeks and to return to Canada if he so wished. However, because of the
negative publicity about Syria, this plan was no longer possible. If Mr. Arar were
released now, it would appear that the Syrian authorities were bowing to international pressure, and Mr. Arar would probably no longer wish to co-operate
with them. As a result, Mr. Arar was going to be put on trial.1412
When he learned the consular visit was to take place that day, the
Ambassador contacted Mr. Martel. He believed the consular visit took place
within a half hour of his meeting with the General.1413 Ambassador Pillarella did
not have time to speak with Mr. Martel before the visit, although he thought that
he and Mr. Martel might have crossed paths as he was returning to the Canadian
Embassy and the consul was leaving to see Mr. Arar.1414 Neither did Mr. Martel
recall meeting with Ambassador Pillarella prior to his visit with Mr. Arar.
However, he found it plausible that he and the Ambassador had “crossed
paths.”1415
10.4
THE CONSULAR VISIT
Mr. Martel was shown to General Khalil’s office at the Palestine Branch for the
visit with Mr. Arar. This was the consul’s first meeting with the head of the
SMI.1416 In addition to General Khalil, two officials, two colonels and an interpreter were present.1417
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Before Mr. Arar was brought in, Mr. Martel spent about a half hour with the
General and his entourage, and was lectured on the Middle East, Israel and issues of concern to the region.1418
The actual meeting with Mr. Arar lasted approximately 30 minutes.
According to Mr. Martel’s consular report, Mr. Arar seemed pleased to see him
and thanked all concerned, including the Syrian authorities, for making the visit
possible. The report notes that Mr. Arar was “questioned as much as possible on
his detention conditions” and asked if he needed anything from the consul.1419
Mr. Martel explained that because of the SHRC allegations, he felt it necessary
to go beyond the customary “How are you doing?” asked at every visit. He therefore tried to question Mr. Arar as much as he could under the circumstances.1420
Mr. Arar made no special request but was pleased to learn that an abundant
supply of reading materials had been brought for him.1421
Mr. Martel recorded in his report that Mr. Arar was “able to express himself freely at times.”1422 He explained in his testimony that because several officials, including General Khalil, were present throughout the meeting, he had to
gauge whether what Mr. Arar was saying to him were his own words. He sometimes found this difficult to determine. On the one hand, Mr. Arar seemed to
look around the room before speaking to see if he was permitted to speak. On
the other hand, it seemed to Mr. Martel that Mr. Arar expressed himself more
freely because of General Khalil’s presence — as though to give the consul a
good impression.1423
Mr. Arar mentioned that prison conditions had been more difficult in the
past than now.1424 When Mr. Martel told him that press reports about him had
caused some concern,1425 Mr. Arar said that he did not wish to have adverse
media publicity because this would harm his case. He also told the consul, “The
Press will know the truth when I return home.”1426
Mr. Martel seemed uncertain during his testimony whether to take
Mr. Arar’s statement about media publicity at face value. In early testimony, he
appeared to attach more credibility to the statement, saying that Mr. Arar had
not been prompted to say this by the Syrian authorities present in the room.1427
In later testimony, he questioned whether Mr. Arar had spoken freely or had
been pushed to say what he did.1428 He was convinced, however, that the comment about the press knowing the truth came directly from Mr. Arar, as the
Syrians had nothing to gain by giving him this line.1429 More importantly, this
comment signalled to the consul that Mr. Arar would likely be unable to respond if asked for more details.1430
During the discussion on the press reports, the meeting turned to the pivotal issue of Mr. Arar’s treatment by his Syrian jailers. As recorded in the consular
�IMPRISONMENT AND MISTREATMENT IN SYRIA
report, Mr. Arar confirmed he had not been beaten, tortured or paralyzed. (When
Mr. Martel asked him to explain what he meant by “paralyzed,” Mr. Arar said
he could not think of a better word.) However, he also said that his long detention had destroyed him mentally. As far as he was aware, his treatment was
no worse than that of other prisoners.1431
Mr. Martel believed he had used the word “treatment” when raising the
subject of the press reports,1432 as he generally used this word to elicit information from detainees. He was adamant that he never used the term “torture” or
“physical beating.” In his opinion, it was too risky to use such language; he
“could have been cut off from seeing [his] client” as a result.1433
He testified to being sceptical about Mr. Arar’s statements concerning his
physical treatment. Again, he was uncertain whether Mr. Arar’s words had been
said of his own accord, at one point speculating that the Syrian authorities might
have dictated the statements to Mr. Arar before the visit. He was unsure whether
Mr. Arar would have faced repercussions had he openly stated he had been tortured or physically beaten. He was certain, however, that had he himself used
those words in questioning Mr. Arar, consular visits might well have ceased.1434
During the meeting, Mr. Martel took notes for his consular report.1435 His
handwritten notes stated: “present condition – I have not been paralyzed — not
beaten — not tortured,”1436 and below those words, “very beginning very little.”1437 According to Mr. Martel, “very beginning very little” was unrelated to
Mr. Arar’s comments about not being beaten, tortured or paralyzed. He said
that, following their conversation about the media reports, he had asked Mr. Arar
whether the Syrian authorities were causing problems for him or making life
difficult for him. Mr. Arar replied, “At the beginning, but very little.”1438
As mentioned above, Mr. Arar had stated that he had been destroyed mentally. When asked during his testimony whether mental or psychological harm
amounted to torture, in his opinion, Mr. Martel pointed out that he is not an expert in torture. He questioned whether he could have determined Mr. Arar had
been tortured simply from his statement that his long detention had mentally destroyed him. He testified that he did not know at that point all the details of the
conditions under which Mr. Arar was being held.1439
Mr. Martel was aware, however, of certain aspects of Mr. Arar’s conditions
of detention. Months earlier, DFAIT Headquarters had sent him a CAMANT note
concerning allegations that Mr. Arar was being held in an underground cell without access to natural light.1440 Then, during the August 14 visit, Mr. Arar revealed
to Mr. Martel that he was being held in a cell that was three feet wide, six feet
long and seven feet high — essentially the size of a grave.
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The information about his cell emerged during a lengthy exchange in Arabic
between Mr. Arar and General Khalil. Mr. Arar seemed to be either making a request or expressing his displeasure about something. After conversing with the
General for four or five minutes, he suddenly interrupted himself, turned to the
consul and said in English: “My cell is very small. It’s only 3’ x 6’ x 7’, and I’m
sleeping on the ground.” He then continued to speak to the General in
Arabic.1441
Mr. Martel did not deny that Mr. Arar’s outburst could have resulted from
his earlier question to Mr. Arar about prison conditions. His notation about the
cell dimensions was recorded halfway through his notes, and could be seen as
part of the discussion about Mr. Arar’s treatment. He said that, as his notes were
taken in difficult circumstances, he could not confirm they were in chronological order.1442
The consul did not believe that, based on his information from Mr. Arar, he
could have concluded at the time that he was being kept in a cell under inhumane conditions. His understanding was that detainees in Syrian prisons were
generally held in small cells — sometimes with more than one person — and
slept on the ground, perhaps with a mattress and a few covers. He said he did
not know Mr. Arar was deprived of natural light or that the cell was underground. When he asked Mr. Arar how other detainees were being treated,
Mr. Arar responded that as far as he knew everyone was being treated the
same way.1443
Mr. Martel explained that when he learned about Mr. Arar’s cell conditions,
he put the information in the context of other prisoners held in Syrian detention.
He noted that while the size of the cell and sleeping on the floor were unacceptable by Canadian standards, this was the situation in Syria. Many others
were being detained in similar circumstances.1444 He said his consular guidelines do not direct consular officials to ask for special treatment for Canadian
detainees.1445
DFAIT’s Manual of Consular Instructions directs officials to do what they
can to protect Canadians against the violation of human rights under international law. With regard to intervening with local authorities, the manual states:
The right of a consular officer to intervene with local authorities on behalf of a
Canadian who appears to have been the victim of unlawful (under domestic or international law) discrimination or denial of justice is well established in international law. Consistent with Canada’s commitment to fundamental human rights,
consular officers do what they can to protect Canadians against violation of these
rights. It is a basic principle of international law that whatever a state’s treatment of
�IMPRISONMENT AND MISTREATMENT IN SYRIA
its own subjects, aliens must be accorded an international minimum standard of
treatment, including…respect for human rights generally.1446
Mr. Martel knew he was obligated to provide full consular services to
Mr. Arar, irrespective of Mr. Arar’s dual nationality. He noted, however, that
his options would have been limited to protesting Mr. Arar’s conditions of detention. He had no power to change the situation. He said that had the facts led
him to conclude that a Canadian detainee was being treated inhumanely, he
would have conveyed his concerns to the Ambassador and Headquarters officials, who would have taken the action necessary.1447
Although he had recorded the information about the cell size in his meeting notes, Mr. Martel did not include it in the consular report sent to DFAIT
Headquarters.1448 He testified that in hindsight he could see that the actual cell
measurements would have been useful to Headquarters and should have been
included in the report.1449 As for not including the information about sleeping
on the ground, he said it was standard for inmates to sleep on the floor and the
situation could not have been improved even with the intervention of Minister
Graham. He agreed that including this information might have helped ensure
that the Minister of Foreign Affairs had the maximum information possible on
Mr. Arar’s conditions of detention.1450
Henry Hogger, the British Ambassador to Syria during the period of
Mr. Arar’s detention, provided expert testimony on the role and functions of an
ambassador, and the means and measures at the disposal of an ambassador and
consul in dealing with consular issues. He testified that being held in a threeby six- by seven-foot cell would constitute ill-treatment of an unacceptable nature.1451 Mr. Hogger said that while he would have difficulty categorically stating that Mr. Martel’s omission was serious, he would have been surprised not
to have been informed of this information had it been relayed to his consul. He
agreed that he would want to inform his foreign ministry if a citizen was being
held in a cell of this size, and that was the type of information that should be
included in a consular report.1452
During the meeting, General Khalil informed Mr. Martel that Mr. Arar’s case
would be going to civilian court within a week and Mr. Arar could choose his
own lawyer. Mr. Arar indicated to the General that he wished to know what law,
if any, he had broken in Syria. He reaffirmed that he did not belong to any kind
of organization.1453
Following the visit with Mr. Arar, Mr. Martel stayed behind for 15 or 20
minutes to continue speaking with General Khalil. When Mr. Martel asked about
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future visits, the General indicated that he would have to seek a higher authority. Mr. Martel did not know to whom General Khalil was referring.1454
On his return to the Embassy, Mr. Martel drafted a consular report. The report was approved by Ambassador Pillarella and sent to DFAIT Headquarters.
Mr. Martel’s consular report did not lead Ambassador Pillarella to conclude
that Mr. Arar had been tortured physically or mentally. The Ambassador testified
that, in his opinion, Mr. Arar had at times talked back boldly to General Khalil
— as when he demanded to know what law he had broken and reaffirmed that
he did not belong to an organization. The Ambassador did not believe that anyone who spoke back to General Khalil was a person easily intimidated by the
General or anyone else. He was looking for evidence of Mr. Arar being tortured
and, in his mind, the evidence was not there. While he agreed that being destroyed mentally could amount to torture, he said he needed facts to reach this
conclusion about Mr. Arar.1455
The Ambassador testified that he was not aware of the dimensions of
Mr. Arar’s cell. He did not recall seeing them in the draft of the consular report
he had approved nor did he recall Mr. Martel discussing them with him. He
saw Mr. Martel’s notes for the first time at the Inquiry hearings.1456 Once aware
of the cell dimensions, Ambassador Pillarella refused to say whether being held
in a three- by six- by seven-foot cell would amount to torture.1457
After completing his consular report, Mr. Martel realized he should have
told DFAIT Headquarters that he had also observed Mr Arar’s physical appearance. As a shortcut to the complex process of redoing communications, he emailed Ms. Pastyr-Lupul with these details.1458
His e-mail stated that Mr. Arar looked much the same as when the consul
had last seen him — noting that this should be taken in the context of someone
detained for a long period of time. He noted Mr. Arar’s comment about his
mental condition. He said Mr. Arar looked physically normal, walked normally
and was mentally alert. He was wearing a t-shirt and trousers. Mr. Martel had
seen no trace of violence on the visible parts of his body.1459
The consular report was copied to DFAIT ISI1460 and eventually found its
way to the RCMP.1461
10.5
THE MINISTER’S COMMENTS TO THE MEDIA
Coincidentally, on August 14, the day of the consular visit, the Minister of
Foreign Affairs participated in a press scrum in Toronto addressing the case of
William Sampson, the Canadian citizen who had recently been released from
prison in Saudi Arabia. Mr. Sampson had been detained for almost three years,
�IMPRISONMENT AND MISTREATMENT IN SYRIA
and had allegedly been tortured by his Saudi jailers. Not surprisingly, Minister
Graham was asked about the case of Mr. Arar and the issue of torture. He
replied:
I’ve just been speaking to my officials in Ottawa, who have been on the phone to
Damascus this morning. Mr. Ararr [sic] has been visited by our consular officials in
jail. Our consular officials have assure [sic] us that he’s in good physical condition.
He personally, totally rejects all allegations of torture. He was interviewed independently by our consular officials and he has stated that his condition is better
than it was before we started to intervene on his behalf.1462
Some of Minister Graham’s statements were inaccurate. He stated that
Mr. Arar had been “interviewed independently,” although a number of Syrian officials had also attended the visit. In his testimony, Minister Graham acknowledged that he may have gone too far in saying Mr. Arar had been interviewed
independently. However, his impression on receiving the information was that
the consul’s conversation with Mr. Arar had taken place in much freer circumstances than in previous visits and that Mr. Arar had not been under any
inhibitions.1463
Minister Graham said he told the assembled media that Mr. Arar “rejects all
allegations of torture” because he believed this is what he had been told prior
to the scrum.1464 The SHRC had suggested that Mr. Arar was being tortured, and
during the press scrum someone submitted to Mr. Graham that Mr. Arar was
being tortured. Based on the information he had received, Minister Graham believed he was able to disagree and point to the consular visit and say that
Mr. Arar was not being tortured. He was clear that the purpose of this statement
was to relay what he had been told. He was not necessarily commenting on
what had happened to Mr. Arar four months ago or even the day before.1465
Minister Graham’s statement regarding torture was confined to the information he had received. He did not disagree that torture can extend beyond
physical mistreatment. However, he had been told that consular officials had
had a good meeting with Mr. Arar, that Mr. Arar was not being tortured and that
he could say this at the scrum. The information was communicated to him very
quickly — in a conversation of about 30 seconds1466 — as he was heading to
the scrum. Under the circumstances, he did not have time to analyze it.1467
It is not entirely clear how the information concerning the consular visit
made its way to Minister Graham. He testified that a member of his office staff
would have received the news about the August 14 visit. As he was on his way
to the press scrum, someone with him received a call on their cell phone. This
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person then turned to the Minister and told him there was up-to-date information on Mr. Arar.1468
Minister Graham testified that he was not told that Mr. Arar had spoken
during the consular visit about the size of his cell and being mentally destroyed.
The Minister’s only information was what he shared with the press. He said he
was given an impression of the visit but no details.1469
According to the Minister, had he had more details, he would have been
more “cautious” in the language he used that day. What he was trying to convey at that particular moment was that Mr. Arar was in good condition at that
time. This did not change the fact that he was relying on the information he
had been given. He was told that Mr. Arar had not been tortured.1470
None of the witnesses who were questioned on how the information on the
consular visit reached Minister Graham could identify the member of his office
staff who would have received the news and contacted Minister Graham in
Toronto. Neither Ambassador Pillarella nor Mr. Martel spoke to officials in
Ottawa after the consular visit.1471 A record of the consular report was e-mailed
to the Consular Affairs Bureau, the Minister’s office and others.1472
Ms. Pastyr-Lupul recalled speaking to a member of Minister Graham’s staff and
providing either a copy of the consular report or the substance of the report contents, in particular that Mr. Arar said he had not been beaten, tortured or paralyzed.1473 She could not remember the name of the individual with whom she
had spoken, but said she had spoken with at least one person from the Minister’s
office that day. The conversation about the consular report occurred prior to
the Minister’s press scrum.1474
The Minister’s office had been copied on the consular report. They would
have seen the entire message, including Mr. Arar’s comment that he was destroyed mentally. Ms. Pastyr-Lupul believes she probably read the entire paragraph summarizing what Mr. Arar had to say about his treatment to the person
with whom she spoke. She was unsure to what extent the Minister’s staff were
aware of the definition of torture.1475
11.
THE PROPOSED TRIAL IN SYRIA
In his account of his August 14 meeting with General Khalil, Ambassador
Pillarella wrote that the “commitment from the General to have Arar presented
to the court within one week appeared very strong.” Further, General Khalil
“seemed to imply that with what they had on him [Mr. Arar], it would be surprising if he were not found guilty and the sentence might not be a lenient
one.”1476 That said, the Ambassador recalled the General telling him that Mr. Arar
�IMPRISONMENT AND MISTREATMENT IN SYRIA
would be tried in a civil court because he risked the death penalty if he was
tried before a military court, and General Khalil reportedly did not want that to
happen.1477
Mr. Martel received the same news of a trial and civil court for Mr. Arar
during his consular visit that day. General Khalil also said that Mr. Arar could
have the lawyer or lawyers of his choice. Mr. Arar wanted his wife to take care
of his defence, and mentioned a paternal cousin of his father who should represent him.1478
Back in Canada that same day, Ms. Pastyr-Lupul told Dr. Mazigh the news
of the visit and pending trial. She also informed Dr. Mazigh that Mr. Arar could
have a lawyer of his choice, and that he had suggested his father’s cousin and
asked that there be no adverse media publicity.1479
Underlying these developments was the extremely poor reputation of
Syria’s judicial system. The 2002 U.S. State Department Country Report on
Human Rights in Syria highlighted the inherent unfairness of the Syrian judicial
system, especially for security-related detainees. The judicial system includes
civil and criminal courts, military courts, security courts and religious courts.
While regular courts, such as the civil courts, generally display independence,
the security courts are clearly subject to political influence and other serious
procedural shortcomings.
Syria’s two security courts are the Supreme State Security Court (SSSC),
which tries political and national security cases, and the Economic Security
Court, which tries cases involving financial crimes. Both operate under the state
of emergency and martial law,1480 not ordinary law, and neither observes constitutional provisions safeguarding defendants’ rights. Regarding the process
meted out by the security courts, the Report states that:
Charges against defendants in the SSSC were vague. Many defendants appeared to
be tried for exercising normal political rights, such as free speech.
… defendants are not present during the preliminary and investigative phase
of the trial, during which the prosecutor presents evidence. Trials usually were
closed to the public. Lawyers were not ensured access to their clients before the trial
and were excluded from the court during their client’s initial interrogation by the
prosecutor. … The State’s case often was based on confessions, and defendants
have not been allowed to argue in court that their confessions were coerced. There
was no known instance in which the court ordered a medical examination for a defendant who claimed that he was tortured. The SSSC reportedly has acquitted some
defendants, but the Government did not provide any statistics regarding the conviction rate. Defendants do not have the right to appeal verdicts, but sentences are
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reviewed by the Minister of Interior, who may ratify, nullify, or alter them. The
President also may intervene in the review process.1481
Ambassador Pillarella knew of the reputation of the security courts in Syria,
and had read the State Department report.1482
Against this background, the following is a chronological account of the
actions of Canadian officials from the news of the trial to Mr. Arar’s release on
October 5, 2003.
August 15, 2003
The news of a trial spurred Canadian officials to take immediate steps. The next
day, Mr. Pardy issued instructions to Mr. Martel, Ms. Pastyr-Lupul and others.
The Syrians’ decision to charge Mr. Arar in civil court, as soon as the following
week, required the mission in Damascus to take urgent action. Mr. Pardy called
for the following steps to be taken:
1)
2)
3)
urgent efforts to contact the appropriate officials in the Syrian government
to identify when the trial of Mr. Arar would take place and what the specific charges were;
urgent efforts to identify a local lawyer willing to take the case and provide
a defence for Mr. Arar; and
immediate contact with the Ministry of Foreign Affairs seeking authority for
the issuance of visas for Dr. Mazigh and a Canadian lawyer who would
observe the trial.
Mr. Pardy also indicated that the Syrian ambassador in Ottawa would be
called in to register the same requests.1483
Dr. Mazigh suggested two possible lawyers: Haytham Al Maleh and Anwar
Al Bouni.1484 Her preference was Mr. Al Maleh.1485 Mr. Martel was to contact
them on behalf of the family.1486
The Canadian lawyer Mr. Pardy had in mind as DFAIT’s official observer
at Mr. Arar’s trial was James Lockyer of the Association in Defence of the
Wrongfully Convicted (AIDWC). Mr. Lockyer and Mr. Pardy had worked together on other cases, including the Sampson case. When Mr. Pardy approached
him to attend as an observer on behalf of DFAIT, Mr. Lockyer willingly
agreed.1487
Over the next weeks, Mr. Lockyer would remain very much in the dark
about the details of Mr. Arar’s supposed trial. Like everyone else, he did not
know if Mr. Arar was charged with anything, where the trial would be held,
whether it would be public, or other important details.1488 He was not shown the
�IMPRISONMENT AND MISTREATMENT IN SYRIA
human rights report prepared by the Canadian Embassy in Damascus, although
he was aware of Syria’s human rights record. He said it “was hard not to be,”
and was specifically aware that the Syrian Military Intelligence was known to use
torture to extract information from detainees.1489 He was never told of Mr. Arar’s
alleged statement to Syrian authorities, which had been passed along to
Canadian authorities.1490
That day, Mr. Pardy called in the Syrian Ambassador to Canada to inquire
about Mr. Arar’s impending legal proceedings. He asked Ambassador Arnous
what the charges against Mr. Arar were, when the proceedings would begin,
whether Dr. Mazigh could have a visa to attend the proceedings, and whether
the Syrians would also issue a visa for an official legal advisor.1491
August 16, 2003
On August 16, a diplomatic note was sent to the Syrian Ministry of Foreign
Affairs. The note sought further consular access to Mr. Arar, permission to have
a Canadian official present as an observer at the trial and the Foreign Ministry’s
assistance with Syrian visas in this respect.1492 No one ever answered this diplomatic note, and no visa was ever issued for Mr. Lockyer despite further efforts
by Canadian officials.1493
August 17, 2003
On August 17, Mr. Pardy instructed Mr. Martel to establish whether the lawyers
Dr. Mazigh had suggested were willing to take on the work. Mr. Martel was
also to provide the names of other lawyers he thought appropriate, establish
their availability and willingness, and inquire about costs. He was then to provide Headquarters with a recommendation of the person he believed most appropriate. Finally, he was to seek Syrian permission to consult with Mr. Arar on
selecting his lawyer.1494
August 18, 2003
On August 18, Ms. Pastyr-Lupul and Mr. Pardy met with Dr. Mazigh and Kerry
Pither (Coordinator of the Solidarity Network, a network for Canadian social
justice organizations). They discussed events as they were unfolding, the legal
process Mr. Arar likely faced, lawyers and the possibility of Mr. Lockyer acting
as an observer. Mr. Pardy emphasized the importance of having the best possible lawyer to try for the best possible outcome of the court case. Dr. Mazigh
made no commitment about funding for a lawyer.1495
Mr. Pardy said he had given the names of the two lawyers Dr. Mazigh had
requested to the Canadian Embassy in Syria. However, he suggested that it might
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not be wise to engage these lawyers, especially Mr. Al Maleh, because they
were human rights lawyers who might aggravate the Syrian government. The
Canadian Embassy in Syria supported his opinion.1496 Mr. Pardy thought the
whole process was designed to allow the Syrians to wash their hands of the
case, save face by legitimizing what they done to Mr. Arar, and then kick him
out of Syria. He therefore asked Dr. Mazigh to think hard about how much trouble they wanted to make at the trial.1497 He pointed out that if Mr. Arar was
found guilty, his lawyer might need to appeal to the president for executive
clemency, as had happened with Mr. Sampson in Saudi Arabia.1498 In testimony,
Mr. Pardy clarified that he wanted to avoid a situation where the trial became
an opportunity for people with other agendas to attack the Syrian government.1499
Mr. Pardy suggested that they might be able to guess the nature of the
process once they knew the charges against Mr. Arar. For example, if Mr. Arar
was charged with entering Syria illegally, it would strongly indicate that the trial
was just a way to get rid of him. If, however, he was charged with being a member of a terrorist organization, it would create a different scenario. He thus felt
that the choice of lawyers should wait until the charges were known.1500
Throughout the meeting, Dr. Mazigh expressed her clear preference to not
have a trial in Syria, given the lack of due process and transparency. She worried that playing along with the Syrians would somehow legitimize the process,
allowing the Syrians to later claim that Mr. Arar had had a fair trial. Mr. Pardy
responded that it might be necessary to participate in the sham to get Mr. Arar
out. He focused repeatedly on the objective of getting Mr. Arar out.1501 In testimony, he clarified that a “force majeure” was at work in Syria. Although he, too,
would have preferred to avoid a trial in Syria, he thought that the notion of
doing something outside of the Syrian system was a “chimera.”1502
Dr. Mazigh expressed concerns about her own safety if she went to Syria,
and wanted some kind of protection. While acknowledging that there were no
guarantees, Mr. Pardy assured her that someone from the Embassy would be
with her at all times, and that Ambassador Pillarella and Mr. Martel would be
present throughout any proceedings.
Dr. Mazigh asked Mr. Martel several questions about the conditions of
Mr. Arar’s detention, his medical state and summaries of consular visits. She and
Ms. Pither asked which prison he was in, and whether it was Sednaya.1503
After an inquiry by Dr. Mazigh, Ms. Pastyr-Lupul read select portions from
the latest consular report, in particular, that “Arar was able to express himself
freely and said the press will know the truth when he gets home, and that the
long detention had destroyed him mentally. He said that he was not being
�IMPRISONMENT AND MISTREATMENT IN SYRIA
treated worse than the other prisoners.” Reportedly, this was the first Dr. Mazigh
had heard of this and it came as a shock to her. Ms. Pither found the selective
reading of the report to be “outrageous.” She wrote as follows:
Note: this was the first time Monia was informed he said any of this and it came as
a shock to her — it is quite outrageous how they selected the bits to tell her — and
the bits to withhold. It also is not clear if, when asked if he had been tortured, he
replied “no” as was reported by the minister to the media, or he replied “I am not
being treated any worse than the other prisoners. … the press will know the
truth when I get home.” These are very different answers with very different
implications!1504
Ms. Pastyr-Lupul also read the part of the report where Mr. Arar asked that
Dr. Mazigh find him a lawyer, and that she do this discreetly, given adverse
media attention. Ms. Pither asked how Mr. Arar knew there had been media attention to the case.1505
Dr. Mazigh wanted to know whether Mr. Arar had been able to speak
English during the August 14 consular visit. According to Ms. Pither’s report,
“Pardy and Myra seemed to initially want to tell us yes, but then had to say that
if there was an interpreter there, maybe not — so they would ask. (I am surprised they did not know this).” Ms. Pastyr-Lupul also related that Mr. Arar had
asked what law he had broken in Syria, if any, and had affirmed that he was not
a member of any organization.1506
That was the extent to which the consular report for August 14 was shared
with Dr. Mazigh and Ms. Pither.1507 Mr. Pardy explained in testimony that he
did not release the consular reports to Dr. Mazigh because he was worried about
press coverage, although he claimed that most of the reports were shared
verbally.1508
The four also discussed strategies to secure Mr. Arar’s release. Ms. Pither inquired about the United States intervening on Mr. Arar’s behalf. Mr. Pardy responded that the preference was to do this bilaterally, between Canada and
Syria. As the United States had sent Mr. Arar to Syria, U.S. intervention might
give the Syrians the wrong message. He did not think the United States could
be trusted to do anything positive for Mr. Arar.1509 Dr. Mazigh asked about using
bilateral relations. Mr. Pardy noted that although trade relations were insignificant, Syria saw Canada as positive on the Middle East generally and had an
overall sense that Canada was trying to be balanced.1510
Towards the end of the meeting, Mr. Pardy added that the larger an issue
made of this, the less likely it was that Mr. Arar would be released.1511
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August 20, 2003
On August 20, Mr. Martel sent Mr. Pardy a note detailing his efforts to find a
lawyer for Mr. Arar. He first mentioned the two lawyers whose names Mr. Pardy
had provided. Mr. Al Maleh was willing to take the case for US$10,000;
Mr. Al Bouni, was apparently willing to take the case on a voluntary basis, but
would accept any compensation the Canadian government offered.1512
As directed, Mr. Martel had attempted to contact other lawyers. Chief
among these was a lawyer from the law firm of Mr. El-Hakim, a prominent
lawyer with whom Mr. Martel had been discussing Mr. Arar’s case. Although
Mr. El-Hakim did not usually do “criminal affairs” work, he was willing to help
find out more about Mr. Arar and where his trial might take place. He would
recommend a good lawyer if he himself did not take the case.1513
Mr. Martel attempted to reach yet another prominent lawyer that day.1514
The day before, he had even contacted the Dean of Faculty (presumably of the
Faculty of Law at Damascus University), to see if he would represent Mr. Arar.1515
Canadian officials learned from a Syrian contact on August 20 that Mr. Arar’s
file might have been transferred to the Supreme State Security Court.1516 They
again asked for consular access and attempted to find out more about the file,
but to no avail.1517
Mr. Martel would learn from Mr. Arar on the trip home that it was around
this date that he was transferred from the Palestine Branch to Sednaya prison,
where conditions were much better and he was placed with the general population. General Khalil had promised to improve Mr. Arar’s prison conditions
during the August 14 consular visit, and had followed through.1518
August 21, 2003
On August 21, Mr. Pardy spoke with Steven Watt, from the Center for
Constitutional Rights in New York, who planned to soon file a civil suit against
the United States. The suit would allege that the United States deported Mr. Arar
to Syria knowing full well that torture was practised there, and contrary to U.S.
obligations under the Convention Against Torture. Apparently, Mr. Watt was
willing to delay filing the case for two reasons: to allow Mr. Arar to give testimony if released; and to avoid a situation where the Americans might put pressure on the Syrians not to release Mr. Arar, thus ensuring he was unavailable for
the case.1519
�IMPRISONMENT AND MISTREATMENT IN SYRIA
August 25, 2003
On August 25, Bassam Arar and Monia Mazigh met with Gar Pardy and Myra
Pastyr-Lupul. Mr. Pardy raised the issue of the allegations that Mr. Arar had
been in Pakistan and Afghanistan for seven and a half months in 1993.1520 If the
family had any records that would establish where Mr. Arar had been in 1993,
Consular Affairs needed to have them quickly. These included bank transactions and proof of attendance at McGill University.1521 Bassam Arar agreed to see
what they could come up with to refute the Afghanistan claim.1522
This was an issue of particular concern for Mr. Pardy. He wanted to know
if there was a financial or academic record that would demonstrate that during
the seven and a half months it was alleged Mr. Arar was in Afghanistan, he had
actually been in downtown Montreal.1523
However, Mr. Pardy testified that he was not aware of Dr. Mazigh’s difficulty in getting transcripts of Mr. Arar’s attendance at McGill at the time. She required a power of attorney, signed by Mr. Arar, which would have been
impossible without access to him. Nor could she get a letter from Mr. Arar for
access to academic institutions. As for Mr. Arar’s financial records, Mr. Pardy acknowledged during testimony that bank records are kept for only seven
years.1524
In the end, Mr. Pardy did not follow up on his request for this type of information. He would not have had much time to do so, as he retired on
August 30, 2003.
September 2, 2003
By September 2, the law firm of Jacques El-Hakim had emerged as the first
choice of representation from Mr. Martel’s (and presumably Ambassador
Pillarella’s) perspective, even though Mr. Martel acknowledged in a note to Mr.
Pardy that “the decision should rest with the client’s family.” Mr. Martel stated
as follows in his note:
We believe Cabinet d’avocats El-Hakim is the most prominent law firm and is in the
best position to take the client’s interest. We do not normally recommend any particular firm (as per consular instructions). We understand this case is different and
that JPD wishes to identify law firm that can provide the best defense. We, however,
believe the decision should rest with the client’s family.
Mr. El-Hakim’s law firm was willing to take the case. They had already
been asked to do some research, but Mr. Martel was still looking for specific instructions on retaining them for Mr. Arar. He needed to know whether the
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Government of Canada or Mr. Arar’s family would be paying the legal fees. He
was also seeking Mr. Pardy’s authority to retain Mr. El-Hakim’s services, unless
Dr. Mazigh had another choice.1525
Mr. Martel also mentioned several other points in this note, in particular,
that any lawyer would require a power of attorney to defend the case.
Responding, apparently, to questions from Dr. Mazigh, he related that Mr. Arar
was indeed detained in Sednaya prison, but was unable to say whether he was
in solitary confinement or with other prisoners. (It is unclear how he learned that
Mr. Arar was in Sednaya.) The charges remained unknown.1526
September 3, 2003
The next day, September 2, Mr. Martel and the Embassy lawyer sent an inquiry
to Mr. Dahdouh from the El-Hakim law firm, seeking legal advice for Mr. Arar
on the process for appealing a guilty verdict. Mr. Martel had information, likely
from the U.S. State Department report, that defendants had the right to appeal
verdicts, but that sentences were reviewed by the Minister of the Interior with
possible intervention by the President.1527 Information would later come from Mr.
Dahdouh that Mr. Arar’s verdict could not be appealed, but was not official
until signed off by the President or his representative.1528
Also this day, the news came from Canada via Ms. Pastyr-Lupul that
Dr. Mazigh had decided on Mr. Al Maleh as the lawyer. Ms. Mazigh asked if
Canada could contribute to Mr. Al Maleh’s fee. She was told this could not be
done and that she would have to find the funds for the legal fees. Although she
was not happy with the news, Dr. Mazigh said she would try to find money.1529
Dr. Mazigh also had numerous questions for Mr. Martel concerning
Mr. Lockyer’s observer status, the charges against Mr. Arar, notification of trial,
whether consular access had again been sought, and whether Mr. Arar was allowed family visits at Sednaya prison. Ms. Pastyr-Lupul asked Mr. Martel to attempt to answer these questions and to continue to apply pressure for consular
access. He was also to contact Mr. Al Maleh, tell him that Dr. Mazigh wanted
him to take the case, and try to negotiate a lower fee in view of her financial
difficulties.1530
September 7, 2003
Mr. Martel attempted to locate Mr. Arar through Colonel Saleh. The Colonel
would only say that Mr. Arar had been transferred to Sednaya and was no
longer in his jurisdiction, and that he would do his best to give a contact name
to arrange for a consular visit.1531
�IMPRISONMENT AND MISTREATMENT IN SYRIA
September 9, 2003
On September 9, rumours circulated through unofficial channels that Mr. Arar
might appear before a court the following day or in the very near future.
Mr. Martel was still not certain whether the Arar family had formally retained
Mr. Al Maleh. He wished to inform the lawyer of this news and ensure his presence in court.1532 The word quickly came back that Mr. Al Maleh had been retained and that a fundraising effort was apparently in the works for his legal fees.
However, no lawyer to date had been able to access Mr. Arar’s files.1533
Ms. Pither, who was assisting Dr. Mazigh with her husband’s case, also inquired
through Ms. Pastyr-Lupul whether the Ambassador or someone from the
Embassy would attend the hearing, and whether such a formal request should
be made.1534
September 10, 2003
On September 10, the Canadian Embassy in Damascus sent a formal diplomatic
note to the Syrian Ministry of Foreign Affairs. The note stated that the Embassy
had learned that Mr. Arar’s hearing was about to begin and “request[ed] the intervention of the Ministry with the Syrian competent authority to obtain permission for the Ambassador or, should the case arise, for the Chargé d’affaires
a.i. or for the Consul to be present during the trial.”1535
September 11, 2003
Mr. Arar’s lawyer met with the Prosecutor of the Supreme State Security Court
on September 11, but was unable to obtain any information on his case.1536
That afternoon in Ottawa, Amnesty International and other human rights
groups met with U.S. Embassy officials, seeking answers about Mr. Arar’s removal and U.S. support in upholding Mr. Arar’s rights and securing his release.
Minister Graham’s office prepared for a barrage of media calls on the matter.1537
September 12, 2003
The next day, Mr. Al Maleh informed Mr. Martel that Mr. Arar’s trial was not expected to take place for at least a week or two. Mr. Martel asked him to tell the
Prosecutor that Canadian officials wished to be present at the hearing.1538
The news from American officials was that they took full responsibility for
the removal process, but refused to intervene on behalf of Mr. Arar because he
was a Canadian citizen and therefore not their responsibility. Media coverage of
Mr. Arar’s situation was intense.1539
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September 12 was Ambassador Pillarella’s last day as Ambassador to Syria.
On his way out of the country, he had an interesting encounter at the airport.
At about midnight, he was seated in the VIP lounge for departing ambassadors
at the Damascus International Airport. To his great surprise, Syrian Deputy
Foreign Minister Haddad arrived, approached him, embraced him four times in
the Arab custom, and spoke to him about Mr. Arar. He told the Ambassador that
he was not to worry: the case would be over within the next few weeks.1540
Ambassador Pillarella described the conversation as very cryptic, with nothing specific to report, but said it was clear to him that as far as Deputy Minister
Haddad was concerned, Mr. Arar’s case would be completed to Canada’s satisfaction. About three weeks later, Mr. Arar was released.1541
September 22, 2003
On September 22, Canadian officials were once again told that Mr. Arar’s trial
would take place in a week or so.1542 The delay this time was apparently due to
missing documents and the need to complete the file before the trial.
Mr. Al Maleh’s opinion was that a consular official would not be allowed in
court, as Mr. Arar was considered a Syrian national. Nonetheless, he would put
pressure on the prosecutors to allow this.1543 Mr. Martel testified that his presence would have been an unusual step, and something he had not done before,
although he would later for Mr. Almalki.1544
September 24, 2003
Around this time, the Minister’s office reactivated a media campaign pushing
for a fair and transparent trial for Mr. Arar, and Minister Graham issued a statement that caused some concern. He told the media he was pleased the trial was
going forth, and that Mr. Arar would have an opportunity to defend himself.
Ms. Pastyr-Lupul wrote the following in a note to a member of Minister Graham’s
staff:
Monia was very concerned about the Minister’s comments this week that “We are
pleased that the trial is going forth, as this will give an opportunity for Maher Arar
to defend himself in court.”
In reality, his lawyer cannot get ahold of the case files to defend his client, we
have not been informed of a court date, nor the charges, and all signs indicate the
trial will be a closed one. This could very well mean our Embassy officials will not
be allowed in the courtroom when the charges are announced, or to hear Mr. Arar’s
lawyer when given the opportunity to defend his client.1545
�IMPRISONMENT AND MISTREATMENT IN SYRIA
As it turns out, this was a strategy the Minister’s office used to prepare for
a meeting with the Syrian Foreign Minister. However, Ms. Pastyr-Lupul felt the
Minister’s comments had far-reaching implications. She wrote that, although
everyone hoped for a fair and transparent judicial process, the Supreme State
Security Court, where Mr. Arar was supposed to be tried, was known for its secretive procedures and lack of appeal once a decision has been rendered.1546
Mr. Martel was also not completely happy with the Minister’s strategy. On
September 24, he wrote to Ms. Pastyr-Lupul that he required specific instructions
from Headquarters if he was to formally convey Canada’s concern that Mr. Arar’s
case be fair and transparent. He expected, though, that this action might be
taken as interference in Syrian internal affairs.1547
Robert Fry of the Minister’s office explained the strategy in his testimony.
Their first preference was always to bring Mr. Arar home. If that was not going
to work, the secondary choice had always been to ask what the charges were
and insist that Mr. Arar have a chance to defend himself in a transparent judicial process.1548
September 25, 2003
In a CBC news report dated September 25, Minister Graham was reported to
have stated that Mr. Arar could get a fair trial in Syria. An excerpt from the article reads as follows:
A Canadian who has been held for a year in a Syrian prison can get a fair and open
trial, Canadian Foreign Affairs Minister says.
“They have taken the position that he is guilty of offences under Syrian law,
in which case the proper thing to do is to prosecute him and enable him to defend
himself,” Bill Graham said about the case of Maher Arar.
“I have been given assurances by them that it will be a civil process, not a military process, and that this will be open.”
Also on this day, Dr. Mazigh and Liberal MP Irwin Cotler appeared before
the Standing Committee on Foreign Affairs and International Trade. According
to Ms. Pastyr-Lupul, Dr. Mazigh gave a “very human and poignant presentation,” urging action for the sake of Canadians, Arab/Muslim Canadians, and for
her sake and that of her children. She made the following three formal requests
of the Committee:
1)
That they ensure Prime Minister Chrétien urgently tell the Syrian President
that the upcoming trial was not acceptable, that Maher Arar does not belong in Syria and must be returned to Canada immediately. She asked that
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2)
3)
Prime Minister Chrétien clearly state that if Syrian authorities do not comply with this demand that there would be consequences for Syria. Returning
Mr. Arar immediately would be a win-win situation for both Canada and
Syria as it would be grounds to allow co-operation and trade relations to
grow on.
That the Committee ask the United States to take responsibility for what
they have done. She added it was beyond her comprehension that the U.S.,
which had acknowledged that Syria is not a state which respects human
rights, would deport a Canadian citizen in complete disregard for Canada,
Mr. Arar’s personal rights and its own policy on sending individuals to such
places where they knew his life would be in danger.
That the Government of Canada immediately launch an inquiry into the
contradictory statements from the Solicitor General and the RCMP. The
RCMP had that day reportedly deflected the question of whether they had
provided information to the U.S. prior to Maher Arar’s arrest, yet there were
allegations that “rogue elements” within the RCMP might have communicated evidence on Mr. Arar to the U.S. She said, whether or not this was the
case, the evidence should be made public, in order to remove suspicions
about Mr. Arar.
In closing her submission, Dr. Mazigh acknowledged efforts to date to help
her husband, but noted that much more could and should be done.1549
Mr. Cotler then outlined a nine-point program of “strategic diplomacy for
Canada” that included respect for the Vienna Convention on Consular Affairs,
trade and economic sanctions, and calling on the good offices of “friends.” He
also detailed a “grocery list” of specific next steps to be taken by the Canadian
government to rapidly bring back Mr. Arar:
1)
2)
3)
4)
Involve the U.S.
Demand that Syria return Mr. Arar to Canada immediately and not after
some unfair trial.
Ask Canada’s allies to intervene through their good offices.
If these first three actions led to no results, apply economic and trade sanctions against Syria.
Mr. Cotler also noted that Mr. Arar’s disturbing narrative began while he
was in transit in the United States. In Mr. Cotler’s words, the Americans were
the “precipitating factor” and therefore should immediately be called to act for
the return of Mr. Arar to Canada. He believed the United States was in breach
of a number of its national and international obligations.1550
�IMPRISONMENT AND MISTREATMENT IN SYRIA
On the same day that the House of Commons committee considered the
Arar case, Foreign Affairs Minister Graham met with Syrian Foreign Minister
Shara’a at the U.N. General Assembly in New York. They discussed various subjects, including bilateral trade, Iraq and the proper observance of human rights.
Minister Graham might have said something to the effect that investment in Syria
could not occur if people had the impression that they would not be treated
fairly.1551
Minister Graham made it clear that Canada wanted Mr. Arar back. The
Syrian Foreign Minister assured him they would do their best to bring Mr. Arar’s
situation to a positive conclusion. However, according to Minister Graham, an
intelligence official at the meeting commented that the media attention, including Dr. Mazigh’s recent press conference, was counterproductive and making
things more difficult. Mr. Fry, who was also present, said it was clear to him that
the Syrians were not happy about all the publicity, and this official’s message
was that if they were not happy, they would be in no mood to help. In effect,
the intelligence official contradicted Foreign Minister Shara’a and was not admonished for doing so.1552
October 1, 2003
Back in Syria, Mr. Al Maleh met on October 1 with one of the judges at the
court [presumably the Supreme State Security Court], who advised that Mr. Arar’s
file was still incomplete.1553
In Ottawa, Minister Graham met with Secretary General Amir Moussa of
the Arab League, seeking his assistance to have Mr. Arar released. Mr. Arar’s
case was raised forcefully. Minister Graham noted that consular cases in the
Middle East were seen as a serious problem in Canada, and affected Canadians’
perceptions about Middle Eastern governments. He mentioned Messrs. Sampson
and Arar, and Zahra Kazemi,1554 saying that these cases reflected badly on the
Arab world in the Canadian press. The Minister secured a promise that the
Secretary General would inform the Foreign Minister of Syria that the Arar case
had to be settled. He added that if Mr. Arar was sent to Canada and was guilty
of an offence, he would be tried.1555
October 2, 2003
Mr. Pardy’s retirement party took place on October 2. Mr. Lockyer was invited
to speak at the Foreign Affairs building, and agreed to also meet that day with
the new Director General of the Consular Affairs Bureau, Konrad Sigurdson.1556
At least four people from various sectors of DFAIT were present at the meeting.
Mr. Lockyer explained what he thought should be done in the Arar case. He
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knew from Mr. Pardy about the MPs’ visit, the Prime Minister’s letter, Senator
De Bané’s visit, Minister Graham’s visit with his counterpart at the United Nations
and perhaps other steps taken, but felt it wasn’t enough. In his view, cases like
this required more effort from the top and more political involvement because
that is what gets the attention of authorities.1557
Mr. Lockyer had heard from Mr. Pardy about the lack of unanimity on this
case within the government and, in particular, about the problems with the
Solicitor General’s office and the agencies he supervised. The agencies, he knew,
were not keen on getting Mr. Arar back to Canada.1558
Regarding further suggestions to help Mr. Arar, Mr. Lockyer focused on
getting to Syria for the potential trial. He wanted the government to push a bit
harder because he did not yet have a visa, and suggested that he meet with the
Syrian Ambassador to Canada, to show that he was a decent person. In his experience, similar meetings had proved useful in the past with both the
Vietnamese and the Saudi Arabians.1559
Mr. Lockyer then mentioned recent media leaks, which he said took the
side of the RCMP and presented Mr. Arar as a terrorist. In his opinion, the leaks
had the clear purpose of blackening Mr. Arar’s reputation. Given Mr. Arar’s humanitarian situation, the leaks and media reports were “outrageous” and irresponsible, and put Mr. Arar’s security at risk.1560
That same day, Mr. Lockyer met with Dr. Mazigh after Mr. Pardy’s retirement party. Given his potential role as an observer, he tried to remain neutral;
he had previously agreed that AIDWC would cease to actively advocate for
Mr. Arar when he became an observer. Still, he wanted to meet with Dr. Mazigh
and perhaps set her at ease. He encouraged her to come to Syria with him if they
could get visas. Dr. Mazigh was still concerned for her safety in Syria, and
Mr. Lockyer gave his personal opinion that she would be safe if they were
together.1561
The next significant event in this chronology was Mr. Arar’s release on
October 5, 2003, which is discussed in the following chapter.
Issues Related to Mr. Arar’s Prospective Trial
Three issues that arose during this Inquiry’s hearings should be discussed. They
concern Mr. Arar’s prospective trial in Syria and Canadian officials’ actions to
prepare for that trial, and are as follows: 1) the question of whether Canadian
officials should have tried to secure a lawyer for Mr. Arar before August 14,
2003; 2) the media campaign that Minister Graham and his staff reactivated
to push for a fair trial; and 3) the process by which Canadian officials retained
�IMPRISONMENT AND MISTREATMENT IN SYRIA
counsel for Mr. Arar after August 14, 2003, and assisted the counsel once
retained.
It should be noted that where a Canadian detained abroad is going to trial,
consular officials have the general responsibility to assist by providing the family with a list of lawyers and helping to ensure that the accused obtains counsel,1562 without recommending one lawyer over another. They must also try to
determine why the person is being detained, i.e., what the charges are, if any.
However, Canadians officials will not pay legal expenses, provide legal advice
or interpret local laws, or attend trials unless a demonstrable need exists.1563
When pressed in testimony, Mr. Martel agreed that if Mr. Arar was facing trial,
he, as consul, should also ensure to the degree possible that Mr. Arar’s lawyer
had the tools to promote a fair trial. However, Mr. Martel might have somewhat
overstated the duties of consular officials. The Manual on Consular Instructions
states that consular officials “WILL attempt to obtain case-related information to
the extent that this cannot be obtained directly by the prisoner (or the prisoner’s
representatives) and provided the prisoner so requests;” but “WILL NOT become involved in matters of substance between prisoners and their lawyers.”
Ambassador Pillarella’s testimony was perhaps more in accordance with this
policy. He said that consular officials do not get involved in matters of substance
between prisoners and their lawyers except to facilitate access.1564
Ms. Pastyr-Lupul found that Canadian officials had taken extraordinary actions to prepare for Mr. Arar’s trial. She stated that in the 300 arrest and detention cases she had handled in the United States, she had not gone through the
steps that Canadian officials went through in Mr. Arar’s case. According to
Ms. Pastyr-Lupul, the consular official usually identifies the charges, suggests
possible lawyers and perhaps helps find out information about the status of the
person’s case.1565 Particularly after the August 14, 2003 news of a trial, Canadian
officials took various additional steps to assist Mr. Arar’s case.
Turning first to the debate around whether Mr. Arar could have benefited
from a lawyer prior to August 14, it has been mentioned in previous sections
that there was some discussion in November 2002 about asking the Syrian authorities to allow a lawyer to come with Mr. Martel on his consular visits.1566
Shortly after the MPs’ April 22, 2003 visit, further discussion took place about
legal representation for Mr. Arar, should he be charged.1567 In neither case were
attempts made to actually find him a lawyer.1568
Mr. Martel testified that such attempts would have been pointless prior to
August 2003. Even with a list of lawyers, Mr. Arar could not have contacted
one himself,1569 nor would Syrian authorities have allowed the lawyer to see
Mr. Arar.1570 Thus, it was not until they received serious news of an impending
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trial from the Syrians on August 14, coupled with General Khalil’s statement
that Mr. Arar could have a lawyer, that Canadian officials actively sought one.1571
Mr. Martel was asked if he had sought legal advice on whether a lawyer
could nonetheless have helped Mr. Arar while in detention. He testified that he
had spoken to a lawyer connected to the Canadian Embassy in Damascus about
Mr. Arar’s situation on different occasions; the lawyer always responded that in
Syria, nothing could be done to get Mr. Arar released. It is unclear, however,
whether Mr. Martel sought specific legal advice on whether a lawyer could do
anything for Mr. Arar while he was in prison,1572 even without direct access to
the client.
The second issue concerns the media campaign that Minister Graham and
his staff conducted to push for a fair and open trial in the event Mr. Arar’s release was not possible. At different points, different people questioned the wisdom of doing so.
Dr. Mazigh and Ms. Pastyr-Lupul were very concerned that a fair trial was
a virtual impossibility. Mr. Martel could not see the strategic sense of the
Minister’s actions.1573 Mr. Pardy made a point throughout the year of pushing for
Mr. Arar’s release because he was fully aware of Syria’s judicial track record.
Back in May 2003, for example, he noted that if a trial were to take place, one
would assume it would be in secret. Mr. Arar would not have appropriate representation, and would certainly be convicted and sentenced to a lengthy period
of imprisonment.1574
However, Mr. Pardy felt that it might still have been advisable to call for
both Mr. Arar’s release, and, in the alternative, a fair, transparent and open trial,
if only to bring Mr. Arar’s case into the public eye. Mr. Lockyer supported this
view, suggesting that a trial, however unfair, might have given an identity and
existence to an individual who was basically unknown until the end of his
time in Syria. On the other hand, when told that Mr. Arar could potentially
have faced the death penalty, Mr. Lockyer agreed that it was “a terrible
conundrum.”1575
Minister Graham testified that the push for a trial was a fallback position,
even in light of the clear public record that Syria’s judicial system was corrupt
and lacking independence. As far back as December 19, 2002, he had asked
the Syrian Ambassador to Canada to either release Mr. Arar, or, if they suspected
he was guilty, to charge him and give him a chance to defend himself against
the accusations.1576 Defending this strategy, he pointed first to evidence around
the time of the December 19 request to the Syrian Ambassador that Dr. Mazigh
herself was saying that Mr. Arar should not be left in limbo, and that he should
have a chance to defend himself against charges.1577 He also pointed to an open
�IMPRISONMENT AND MISTREATMENT IN SYRIA
letter from Alex Neve, Secretary General of Amnesty International Canada, dated
May 9, 2003, in which that organization also called for the Syrians to “immediately release [Mr. Arar] unless he is charged with a recognizably criminal offence.” Further along in the letter Amnesty International stated the following:
Any trial of recognizably criminal charges, must meet international standards for a
fair trial and should not be conducted in secret by a military court or tribunal. Mr.
Arar’s right to legal counsel and to visits with his family must be scrupulously respected. If Syrian authorities are not prepared to respect Mr. Arar’s right to a fair
trial, he should be released or returned to stand trial in Canada.1578
Minister Graham argued that this position was similar to the Department of
Foreign Affairs’, and that his strategy therefore had the agreement of both
Dr. Mazigh and Amnesty International.1579
The final issue involved retaining a lawyer for Mr. Arar after the August 14
news, and then providing that lawyer with the tools necessary for a proper trial.
Counsel for Mr. Arar argued that Canadian officials did not immediately respect
the Arar family’s choice of lawyer. Further, they did not provide that lawyer,
once chosen, with the material they had that could have aided in Mr. Arar’s defence, such as the alleged confession passed to Canadian officials by the SMI.
Mr. Arar’s counsel also argued that the Canadian observer, Mr. Lockyer, should
have received full disclosure of the file against Mr. Arar to properly do his job.
Regarding the choice of a lawyer, as noted earlier, the policy for Canadian
consular officials worldwide is that the consul provides a list of lawyers, but
leaves the choice up to the detainee.1580 Yet, despite the fact that the two lawyers
chosen by Mr. Arar’s family agreed to take the case, Mr. Martel contacted other
lawyers. Mr. Martel explained that he was merely conducting research to see if
other lawyers would also take the case, even though he knew the ultimate decision was Dr. Mazigh’s.1581
As mentioned, Canadian officials were hesitant about Dr. Mazigh’s choice
of lawyer because Mr. Al Maleh, although a good lawyer, was a human rights
activist who had just been released from prison on a presidential pardon.
Knowing how the Syrian authorities worked, they were concerned that he might
end up back in prison, leaving Mr. Arar without a lawyer on his trial day. Thus,
Mr. Martel, at least, felt that although Dr. Mazigh had decided on a lawyer,
nothing was stopping the Canadian Embassy from seeing who else was available, even if the final decision rested with the client.1582
Mr. Pardy explained his concerns about high-profile, human rights-oriented
lawyers in Syria. Mr. Al Maleh, for example, was also the Chairman of the Syrian
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Human Rights Committee. He had been charged with spreading false news, belonging to an international political association, and publishing material that
caused sectarian friction. To Mr. Pardy, this indicated that he was not greatly admired by the Syrian government. Mr. Pardy wanted to avoid this type of person,
who might, in his opinion, have objectives other than simply the best outcome
for Mr. Arar, and who might “disappear” during the process. Also, should it become necessary to seek a presidential pardon for Mr. Arar, a lawyer like
Mr. Al Maleh might do more harm than good, given the recent charges the Syrian
state had levelled against him. Mr. Pardy agreed, though, that it was a balancing act. The objective was to seek a lawyer who had the courage to act, and
could do so without losing his or her life in the process.1583
A further question is whether Canadian officials should have provided
Mr. Arar’s counsel with the alleged confession of November 3, 2002 , and/or
other information relevant to his case. Canadian officials knew that Syrian officials had initially connected Mr. Arar to the Muslim Brotherhood, but had later
stated he was connected to al Qaeda. They maintained they had the details of
his alleged confession, placing him at a training camp in Afghanistan in 1993,
among other things. It appears that Mr. Arar’s lawyer never received this information. However, Mr. Pardy did tell Mr. Arar’s family of the suspicions that
Mr. Arar had trained in Afghanistan in 1993, and his comments might have found
their way to Mr. Al Maleh.1584
Mr. Pardy said he was unaware of the November 3, 2002 bout de papier
and did not know if it had ever been given to Mr. Al Maleh. He maintained that
Consular Affairs would have given information to assist Mr. Arar’s defence directly to his counsel, via the Embassy, once they had a sense of the allegations.
Mr. Pardy felt his role was to ensure that defence counsel had the materials essential to Mr. Arar’s defence. When he retired on August 31, 2003, however, the
file had not yet progressed to that point, and Consular Affairs was still discussing
retaining a lawyer.1585
Mr. Martel also agreed that if there was relevant and helpful information in
Canada, those documents might be transmitted to the defence lawyer.1586 Like
Mr. Pardy, Mr. Martel did not know of the information about Mr. Arar back in
Ottawa. He acknowledged that if Ottawa had a copy of Mr. Arar’s interrogation,
he should have received it to pass on to Mr. Arar’s lawyer, who would need all
available documents relative to the defence.1587 He added that the situation never
got to the point where the lawyer was actually looking at Mr. Arar’s file and able
to determine whether something was missing. The Syrians might also have had
a summary of Mr. Arar’s interrogation in their file.1588
�IMPRISONMENT AND MISTREATMENT IN SYRIA
Minister Graham agreed with Mr. Pardy’s expectation that the Embassy
would furnish Mr. Arar’s lawyer with Mr. Arar’s alleged confession and other information that might be of assistance to defence counsel.1589
Ms. Pastyr-Lupul contradicted her colleagues somewhat. She said that normally the consular role does not include providing information to the lawyer retained by the Canadian detainee abroad. The role is to ensure that the Canadian
has legal counsel, not to act as a conduit for information. It would be legal counsel’s responsibility to obtain information on the client’s file. Her understanding
was that Mr. Al Maleh pursued only the usual legal channels in Syria for information about Mr. Arar’s case and did not directly ask the Embassy for information. She agreed, though, that he wouldn’t have known what information the
Embassy had. She would not comment on the fact that the Embassy’s information on Mr. Arar — his alleged confession — was purportedly obtained to assist him, and yet was not provided to his lawyer.1590
While agreeing that he shared Mr. Arar’s statement with other Canadian officials to help Mr. Arar, Ambassador Pillarella said he was not responsible for
passing along the alleged confession to Mr. Arar’s lawyer. Once he gave the information to Headquarters officials, they decided what to do with it; it was not
his job to act as Mr. Arar’s lawyer once he had his own. Mr. Al Maleh might
have come to him at some point to ask for the Embassy’s information on
Mr. Arar’s case and, in time, might well have been given the alleged
confession.1591
While he was waiting to be sent to Syria as an official observer at the trial,
Mr. Lockyer had some idea of the allegations against Mr. Arar from his discussions with Mr. Pardy. He was never told, however, about Mr. Arar’s statements
while he was detained by the SMI. He agreed that evidence of such a statement
needed to go to defence counsel in anticipation of a trial, and that he, as an observer, should also have had it.1592 He added that there might have been a plan
to provide him with this information once he obtained a visa, despite certain security issues surrounding its release.1593
Notes
1
2
3
Exhibit C-206, Tabs 57 and 61.
Ibid.
[IC] Martel testimony (April 25, 2005), pp. 15686–15688; Exhibit C-206, Tab 81. Mr. Martel testified that Thursday is the beginning of the weekend in Syria, and that they were entering the
Thanksgiving weekend with the holiday falling on Monday Oct. 14 [The diplomatic note is
dated Monday October 14]. Ambassador Pillarella explained that the sentence in the diplomatic
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4
5
6
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8
9
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note “…Maher Arar is believed to have entered the Syrian territories during the second week
of the month of October 2002” did not mean that Mr. Martel believed or knew that Mr. Arar
was in Syria at that time. However, Ottawa had told them that “we think he may be in Syria.”
[IC] Pillarella testimony (March 30, 2005), pp. 13462–13470.
[P] Pillarella testimony (June 14, 2005), pp. 6756–6761.
[IC] Solomon testimony (April 4, 2005), pp. 13980–13983; Exhibit C-206, Tab 61.
Exhibit C-206, Tab 61.
[IC] Livermore testimony (March 7, 2005), pp. 12193–12198.
[P] Pillarella testimony (June 14, 2005), pp. 6756–6761; Exhibit C-206, Tab 106.
[P] Pardy testimony (June 17, 2005) pp. 7699-7701. Mr. Pardy testified that, at this point, the
sense they had was that Mr. Arar was in Syria. The possibility that he was in Jordan came up
as a result of a conversation with an INS official, who said to try Jordan in response to Mr.
Pardy’s comment that they were having trouble [finding Mr. Arar in] Syria. Mr. Pardy explained that Amman was a way station for the United States for moving people.
Exhibit C-206, Tab 63. Mr. Pardy testified that in his “dance” with the INS official he was trying to draw out information. The official suggested that they look in Jordan when Mr. Pardy
told him that they could not find Mr. Arar in Syria. Mr. Pardy passed on this information to
Ms. Harris, and it could have been that the official said Mr. Arar was in Jordan on his way to
Syria. Mr. Pardy testified that he was not sure of the actual recording of the information. [P]
Pardy testimony (May 24, 2005) pp. 3367-3368.
[IC] Testimony (September 21, 2004) pp. 1334-1336.
[IC] Testimony (September 21, 2004), pp. 1338–1340. Ambassador Pillarella testified that he
had no idea where Mr. Arar was on October 14 and 15. (Exhibit C-1, Tab 72. The document
assumes that Ambassador Pillarella knew General Khalil had Mr. Arar, when the Ambassador
did not know that Mr. Arar was in Syria and was not even tasked to go see General Khalil at
this time. [IC] Pillarella testimony (March 30, 2005), pp. 13464–13466; Exhibit C-1, Tab 72.
[IC] Pillarella testimony (March 30, 2005), pp. 13472–13480 and [P] (June 14, 2005),
pp. 6770–6774; Exhibit C-206, Tab 106. Mr. Pillarella did not elaborate on the inquiries he
made on this date, and there is little evidence how they were made, or on their results.
[P] Pillarella testimony (June 14, 2005), pp. 6761–6765; Exhibit C-206, Tab 96.
Ibid.; ibid.
[IC] Pardy testimony (August 4, 2005), pp. 16848–16852.
Exhibit C-206, Tab 105. Mr. Pillarella confirmed that this was the initial indication from Mr.
Pardy that he wanted Mr. Arar returned as soon as possible. [P] Pillarella testimony (June 14,
2005), pp. 6761–6765.
[IC] Pardy testimony (August 4, 2005), pp. 16824–16825.
Exhibit C-206, Tab 109.
[IC] Pillarella testimony (March 30, 2005), pp. 13472–13480 and [P] (June 14, 2005),
pp. 6765–6770; Exhibit C-206, Tab 109.
[IC] Pillarella testimony (March 30, 2005), pp. 13472–13480. Exhibit C-206, Tab 109, also
notes that Ambassador Pillarella confirmed Mr. Arar did not have American citizenship, as
there seemed to be some confusion when he raised the issue with Deputy Foreign Minister
Haddad at a reception the previous week. The Ambassador was told that the matter did not
concern Canada since Mr. Arar was a Syrian-American citizen. This particular issue of citizenship was not canvassed with Ambassador Pillarella, and there is no evidence regarding the
reception at which he had discussed it with Deputy Foreign Minister Haddad. However,
Ambassador Pillarella recalled that when he met with Deputy Foreign Minister Haddad, he was
asked whether Mr. Arar might have American citizenship. He replied that, to his knowledge,
this was not the case. [IC] Pillarella testimony (March 30, 2005), pp. 13474–13475.
�IMPRISONMENT AND MISTREATMENT IN SYRIA
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62
[P] Pillarella testimony (June 14, 2005), pp. 6765–6770; Exhibit C-206, Tab 109. On
October 21, Ambassador Arnous advised John McKinney (actually John McNee of DFAIT as
per Exhibit C-372) that Mr. Arar was not in Syria. Exhibit C-303.
Exhibit C-206, Tab 109.
[IC] Pardy testimony (August 4, 2005), pp. 16852–16855; Exhibit C-206, Tab 123, p. 3.
Ibid.; ibid. [IC] Testimony (August 5, 2005), pp. 17052–17054; Exhibit C-303.
[IC] Pillarella testimony (March 30, 2005), pp. 13472–13480 and [P] (June 14, 2005),
pp. 6770–6774.
[IC] Pillarella testimony (March 30, 2005), pp. 13472–13480.
Ibid.
Exhibit C-206, Tab 119.
Ibid., Tab 123, p. 7.
Ibid.
[IC] Pardy testimony (May 24, 2005), pp. 3421–3424.
[IC] Gould testimony (March 21, 2005), pp. 12659–12660 and 12663–12665; [IC] (March 24,
2005), pp. 12915–12918; [P] (August 24, 2005), pp. 10334–10336 and 10392–10400.
[IC] Pillarella testimony (March 30, 2005), pp. 13472–13480.
[P] Fry testimony (June 13, 2005), p. 6400.
Exhibit C-206, Tab 74
[P] Graham testimony (May 30, 2005), pp. 4097–4102
Ibid.
Ibid
[IC] Graham testimony (August 3, 2005), pp. 16705–16706.
Exhibit C-206, Tab 84.
[P] Graham testimony (May 30, 2005), p. 4102.
Ibid., pp. 4120–4122; Exhibit C-206, Tab 106. Exhibit C-206, Tab 144 notes that the Syrian
Ambassador intervened with the Syrian Deputy Minister of Foreign Affairs on October 18, following the Ambassador’s discussion with Minister Graham. However, there is no evidence
about this meeting.
Exhibit C-206, Tab 106.
Ibid.
[IC] Pardy testimony (August 4, 2005), pp. 16834–16836.
[P] Pardy testimony (May 24, 2005), pp. 3381–3385.
[IC] Solomon testimony (April 4, 2005), pp. 13994–13999.
Exhibit C-206, Tab 84.
Ibid.
Ibid.
[P] Pardy testimony (May 24, 2005), pp. 3381–3385.
Exhibit C-206, Tab 104.
Ibid.
Ibid.
[P] Pardy testimony (May 24, 2005), pp. 3386–3392; Exhibit C-206, Tab 104.
Ibid., pp. 3412–3413; ibid., Tab 110.
[P] Pardy testimony (May 24, 2005), pp. 3417–3421; Exhibit C-206, Tab 121.
Exhibit C-206, Tab 123, p. 7.
Ibid., p. 9.
Ibid., p. 7.
Exhibit P-48, Tab 3; Exhibit C-221, Tab 3.
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FACTUAL BACKGROUND: VOLUME I
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According to a memorandum prepared by a policy analyst dated October 22, the October 8
document seemed to have been prepared on October 22, the printed date of October 8
notwithstanding. Exhibit C-221, Tab 8, without the signatures; Exhibit P-240, Tab 8, with the
signatures.
Exhibit P-240, Tab 6.
As noted in footnote 64, this document may actually have been produced on October 22.
Exhibit P-240, Tab 6.
[P] Dickenson testimony (August 29, 2005), pp. 10902–10911. Mr. Dickenson, a public witness, was examined on the public version of the document only (Exhibit P-240, Tab 6,
pp. 6–8) and not on the unredacted version (Exhibit C-221, Tab 3).
Exhibit P-240, Tab 8; Exhibit C-221, Tab 8. Again, Mr. Dickenson was examined on the public version of this document only and not on the unredacted version, which further explained
the reasoning for the differences.
Exhibit C-221, Tab 8. The policy advisor’s name is redacted from the public version of the
document. Exhibit P-240, Tab 8.
Exhibit C-221, Tab 8.
[IC] Livermore testimony (March 7, 2005), p. 12133.
[P] Livermore testimony (May 17, 2005), pp. 2446–2447.
[IC] Livermore testimony (March 7, 2005), p. 12133.
[P] Livermore testimony (May 17, 2005), p. 2407; [P] Livermore testimony (May 18, 2005),
p. 2748.
Exhibit C-379.
[IC] Livermore testimony (March 7, 2005), pp. 12183–12187. The reports are supposed to be
received in the department before DFAIT’s annual consultations with the Canadian NGO community. Mr. Livermore testified that DFAIT does exchange frank views privately in consultations with NGOs about human rights. However, DFAIT often tries to keep judgments about a
country’s human rights record out of the public domain if it might cause difficulties for Canada
down the road.
[IC] Livermore testimony (March 7, 2005), pp. 12186–12187.
Ibid., p. 12186.
Exhibit C-228.
Exhibit C-229.
Exhibit C-230.
Exhibit C-231.
[IC] Pillarella testimony (March 31, 2005), p. 13723.
Exhibit C-228, p. 6.
Exhibit C-229, p. 5.
Ibid.
Ibid.
Mr. Livermore testified that if he was asked to give advice to someone in Consular Affairs
about the human rights situation in Syria, he would do so in a number of ways. First, he would
pass on DFAIT’s classified materials about the situation for the person’s review. Second, he
would refer the person to documents such as Amnesty International, Human Rights Watch and
U.S. State Department reports. [P] Livermore testimony (May 17, 2005), p. 2563, see also pp.
2535–2536, 2560; [IC] Pillarella testimony (March 30, 2005), pp. 13356–13357; [P] Pastyr-Lupul
testimony (July 29, 2005), p. 8956.
[IC] Livermore testimony (March 7, 2005), p. 12203; [P] Graham testimony (May 30, 2005),
pp. 4114–4115; [P] Pastyr-Lupul testimony (July 29, 2005), pp. 8956, 8988 and 9195; [P] Martel
testimony [ET] (August 30, 2005), pp. 11010–11011 and 11023–11024.
�IMPRISONMENT AND MISTREATMENT IN SYRIA
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[P] Pardy testimony (May 24, 2005), pp. 3300 and 3317; [IC] Pillarella testimony (March 30,
2005), pp. 13343–13344 and 13355; [P] Pastyr-Lupul testimony (July 29, 2005), p. 8957–8958;
[P] Martel testimony [ET] (August 30, 2005), pp. 11010–11011 and 11024.
[IC] Livermore testimony (March 7, 2005), p. 12203; [IC] Pillarella testimony (March 30, 2005),
pp. 13360–13363 and [IC] (March 31, 2005), pp. 13713–13714; [P] Pardy testimony (May 24,
2005), pp. 3400–3403.
[P] Graham testimony (May 30, 2005), pp. 4114–4115. See also [P] Graham testimony (June 2,
2005), pp. 4875–4877 and 4879–4880. Mr. Martel also testified he knew of political detainees
detained arbitrarily and imprisoned in conditions that might be extremely difficult. [P] Martel
testimony [ET] (August 30, 2005), pp. 11011–11012.
[P] Livermore testimony (May 17, 2005), p. 2540; [P] Pardy testimony (May 24, 2005), pp.
3400–3403; [P] Martel testimony [ET] (August 30, 2005), pp. 11011–11012 and 11023–11024.
[P] Pillarella testimony (June 14, 2005), pp. 6738–6740.
[P] Pillarella testimony (June 15, 2005), pp. 7049–7050.
[IC] Pillarella testimony (March 30, 2005), p. 13361. See also [P] Pillarella testimony (June 14,
2005), pp. 6724–6725. Ambassador Pillarella testified that when he was appointed ambassador to Syria, he would have made an effort to inform himself about the human rights situation by going to the U.S. State Department reports, the classified DFAIT human rights reports
and perhaps the Amnesty International reports. He could not recall specifically if he had reviewed Amnesty International’s 2002 report entered as Exhibit P-29. [P] Pillarella testimony
(June 15, 2005), pp. 7047–7049.
[P] Pillarella testimony (June 14, 2005), p. 6725.
[P] Pardy testimony (May 24, 2005), p. 3398.
Exhibit P-192
Details of Mr. El Maati’s allegations can be found in Chapter I, Section 3.6.2. The issue of torture in relation to Mr. Almalki is described in Section 6.3 of this chapter. [P] Livermore testimony (May 17, 2005), pp. 2584–2587; [P] Pardy testimony (May 24, 2005), pp. 3297–3300,
and [P] (May 26, 2005), p. 3858; [P] Pastyr-Lupul testimony (July 29, 2005), pp. 8949–8952
and 8954.
[IC] Pillarella testimony (March 30, 2005), pp. 13412–13413, and [P] (June 14, 2005), pp.
6745–6747 and 6789; [P] Martel testimony [ET] (August 30, 2005), 11024–11026.
[IC] Pillarella testimony (March 30, 2005), pp. 13412–13413, and [ET] (June 14, 2005), pp.
6745–6747 and 6789.
[P] Pillarella testimony (June 14, 2005), pp. 6745–6747.
[P] Graham testimony (May 30, 2005), pp. 4115–4116.
[P] Pillarella testimony (June 14, 2005), pp. 6871–6872.
Exhibit C-206, Tab 159; Exhibit C-30, Tab 290; [IC] Livermore testimony (March 7, 2005),
p. 12222. See Section 6.3.4 below.
Exhibit C-21, Tab 13; [IC] Livermore testimony (March 7, 2005), pp. 12242–12251.
[P] Livermore testimony (May 17, 2005), pp. 2536, 2538 and 2561–2562; [P] Pillarella testimony (June 14, 2005), pp. 6720–6724, 6727 and 6730–6737.
[P] Livermore testimony (May 17, 2005), pp. 2537 and 2587–2589.
Ibid., pp. 2589–2590.
[P] Pillarella testimony (June 14, 2005), pp. 6786–6787. See also [P] Pastyr-Lupul testimony
(July 29, 2005), p. 9201.
[P] Pillarella testimony (June 15, 2005), pp. 7016–1017 and 7059.
[P] Pillarella testimony (June 14, 2005), p. 6790.
[IC] Pillarella testimony (March 30, 2005), pp. 13375–13376, [P] (June 14, 2005), p. 6861, and
[P] (June 15, 2005), pp. 7062–7063.
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[P] Pillarella testimony (June 15, 2005), pp. 7013–7014 and 7062–7063.
[P] Pillarella testimony (June 14, 2005), pp. 6786–6787.
[IC] Pillarella testimony (March 30, 2005), pp. 13375–13376, [P] (June 14, 2005), p. 6861, and
[P] (June 15, 2005), pp. 7062–7063.
[P] Pillarella testimony (June 14, 2005), pp. 6728–6730.
[P] Pardy testimony (October 24, 2005), pp. 12188–12189.
[P] Pardy testimony (May 26, 2005), pp. 3979–3980, 3861 and 3895–3896, and [P] (June 2,
2005), p. 5055. Throughout Mr. Arar’s detention, there was an increasing level of confidence
that the abuse did not continue beyond the initial period, but that confidence fell off dramatically after January 7, 2003, when consular visits were almost closed down. Ibid., p. 5056.
[P] Pardy testimony (May 25, 2005), p. 3748, and [P] (May 26, 2005), pp. 3861 and 3895–3896.
[P] Pardy testimony (May 24, 2005), p. 3362, [P] (May 26, 2005), pp. 3885–3886 and [P]
(June 17, 2005), pp. 7702–7706. Mr. Pardy noted that equally germane in Mr. Arar’s case
were the experiences of other Canadian detainees in Syria because the public record reported
mostly on the experiences of Syrian citizens. [P] Pardy testimony (May 24, 2005), p. 3403.
[P] Pardy testimony (May 24, 2005), p. 3362.
[P] Pardy testimony (October 24, 2005), pp. 12187–12188. Mr. Pardy understood that detainees of military intelligence were more vulnerable to abuse or degrading conditions of confinement or torture. He understood that when people found themselves detained by
intelligence organizations, not infrequently they were outside of any existing rule of law in a
given country. [P] Pardy testimony (May 26, 2005), pp. 3856–3857.
[P] Pardy testimony (May 25, 2005), pp. 3749–3750 and [P] (June 2, 2005), pp. 5084–5085. See
also [P] Pastyr-Lupul testimony (July 29, 2005), p. 9249.
[P] Pardy testimony (May 26, 2005), pp. 3885–3886, [P] (June 2, 2005), pp. 5078–5081, and
[P] (June 17, 2005), p. 7708.
[P] Pardy testimony (May 26, 2005), pp. 3982–3984.
[P] Pardy testimony (May 26, 2005), p. 3983 and [P] (June 17, 2005), pp. 7701–7702.
[P] Pardy testimony (June 17, 2005), pp. 7701–7702.
[P] Pardy testimony (May 26, 2005), p. 3985 and [P] (June 17, 2005), p. 7699.
Mr. Pardy testified that he was most frequently in contact with Robert Fry (senior policy analyst for Minister Graham), Michelle Lobo (media liaison for Minister Graham) and one other
person. There were only two or three direct meetings between Mr. Pardy and Minister Graham
during Mr. Arar’s detention in Syria. [P] Pardy testimony (June 2, 2005), pp. 5078–5081; [P]
Graham testimony (May 30, 2005), pp. 4088–4089.
Ibid.
[P] Pardy testimony (June 2, 2005), pp. 5078–5080 and 5085–5087.
Ibid., pp. 5075–5076.
[P] Graham testimony (May 30, 2005), pp. 4132–4135.
[P] Graham testimony (June 2, 2005), pp. 4875–4877.
[P] Graham testimony (May 30, 2005), pp. 4135–4137.
[P] Pillarella testimony (June 14, 2005), pp. 6806–6807; [P] Pastyr-Lupul testimony (July 29,
2005), pp. 8987–8988; [P] Martel testimony [ET] (August 30, 2005), pp. 11010–11012.
Ibid.
Ibid., p. 11022.
Ibid., pp. 11010–11011 and 11023–11024.
[P] Pillarella testimony (June 14, 2005), p. 6830; [P] Pillarella testimony (June 15, 2005),
pp. 7063–7066; [P] Martel testimony [ET] (August 30, 2005), pp. 11021 and 11070.
[P] Martel testimony [ET] (August 30, 2005), pp. 11018–11020 and [P] [ET] (August 31, 2005),
pp. 11307–11308.
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[P] Pillarella testimony (June 14, 2005), pp. 6828–6830.
Ibid., pp. 6806–6808.
[P] Martel testimony [ET] (August 30, 2005), pp. 11018–11020.
Exhibit P-197; [P] Martel testimony [ET] (August 30, 2005), pp. 11012–11015.
Exhibit P-198.
[P] Elcock testimony (June 21, 2004), pp. 152–153; [IC] testimony (September 13, 2004), pp.
221–223; [IC] Hooper testimony (September 22, 2004), pp. 1517–1518; [IC] Testimony
(September 20, 2004), p. 1198; [IC] Testimony (September 21, 2004), pp. 1320–1331 and
1345–1346.
[P] Elcock testimony (June 21, 2004), pp. 247–248; [P] Hooper testimony (June 23, 2004), p.
560; [IC] Hooper testimony (September 23, 2004), pp. 1846–1847.
[P] Elcock testimony (June 21, 2004), pp. 152–155, 243–245.
Ibid., pp. 247–248.
Ibid., pp. 236–237 and 245–248.
[P] Elcock testimony (June 22, 2004), pp. 291–292.
Exhibit P-10; [P] Hooper testimony (June 23, 2004), pp. 568–570.
Ibid., Tab 53.
Ibid., Tab 314; [IC] Testimony (September 29, 2004), pp. 2069–2076.
[IC] Testimony (September 29, 2004), pp. 2150–2153.
[IC] Hooper testimony (September 22, 2004), pp. 1715–1717.
[IC] Hooper testimony (September 23, 2004), p. 1781.
[P] Elcock testimony (June 22, 2004), pp. 291–292
[IC] Hooper testimony (September 23, 2004), pp. 1779–1782.
Ibid., pp. 1780–1781.
CSIS Summary, p. 8, para. 9.
Exhibit C-379. CID periodically receives such reports to address specific situations with heightened security concerns (e.g., G-8 Summits, international sports events, visits of foreign dignitaries, etc.), or in response to major incidents that threaten peace and safety (e.g., terrorist
attacks, large-scale demonstrations, political instability, etc.).
[P] Loeppky testimony (June 30, 2004), p. 908.
[P] Loeppky testimony (July 6, 2004), pp. 1384–1385.
Exhibit P-12, Tab 31, para. M.3.b.
[P] Loeppky testimony (July 6, 2004), p. 1374.
[P] Loeppky testimony (July 28, 2005), p. 8807–8811.
[IC] Loeppky testimony (April 19, 2005), pp. 14940–14941, and [P] (July 28, 2005),
pp. 8805–8807.
[P] Loeppky testimony (July 28, 2005), pp. 8756–8758.
Deputy Commissioner Loeppky testified that consultation with DFAIT would not be undertaken when sharing information with the United States. See [P] Loeppky testimony (July 27,
2005), pp. 8462–8463 and Exhibit P-12, Tab 50, p. 2, para. 5. [IC] Cabana testimony (October
27, 2004), p. 2924.
[P] Loeppky testimony (June 30, 2004), p. 908, [IC] (April 19, 2005), p. 14936, and [P] (July
27, 2005), pp. 8462–8463 and 8517–8518.
Exhibit P-12, Tab 50.
[P] Loeppky testimony (July 27, 2005), pp. 8462–8463; [IC] Pilgrim testimony (January 26,
2005), p. 10521. The Ministerial Directive on RCMP Agreements provides that advice from
DFAIT on Canadian foreign policy considerations must accompany any RCMP agreement with
a foreign entity. (Exhibit P-12, Tab 23, p. 2, para. II.A.1–3). While Deputy Commissioner
Loeppky testified that this directive did not apply to day-to-day criminal law enforcement in-
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formation exchanges, Mr. Livermore believed that the RCMP was obliged to consult with
DFAIT about any issue that might bear upon foreign policy, which would include any arrangement with Syrian intelligence agencies. See [P] Loeppky testimony (June 30, 2004), pp. 894,
[P] (July 6, 2004), pp. 1107–1109; [IC] Livermore testimony (March 7, 2005), p. 12220.
Ibid., pp. 12217–12218.
[IC] Loeppky testimony (April 19, 2005), pp. 14982–14984; [P] Flewelling testimony
(August 22, 2005), p. 9759; [IC] Pilgrim testimony (January 28, 2005), pp. 10551–10552 and
10787.
[P] Flewelling testimony (August 22, 2005), p. 9759.
[P] Flewelling testimony (August 23, 2005), pp. 9836–9837; [P] Lauzon testimony (August 23,
2005), pp. 10177–10178; [IC] Proulx testimony [ET] (December 9, 2004), pp. 7834–7835.
[IC] Pilgrim testimony (January 26, 2005), pp. 10406 and 10495–10496. Superintendent Pilgrim
specifically stated that there were no discussions in November and December 2001 about the
possibility of torture when the RCMP became aware of Mr. El Maati’s detention in Syria.
[IC] Pilgrim testimony (January 28, 2005), pp. 10719–10720.
[P] Loeppky testimony (July 27, 2005), pp. 8517–8518.
[IC] Cabana testimony (October 26, 2004), pp. 2591–2593 and 2663, [IC] (November 1, 2004),
p. 3487, [IC] (November 2, 2004), p. 3752, [P] June 29, 2005), pp. 8009–8010, and [P]
(June 30, 2005), pp. 8093, 8097 and 8351.
[IC] Cabana testimony (October 26, 2004), pp. 2679–2680, and [P] (August 9, 2005),
pp. 9339–9342 and 9345–9346.
[IC] Cabana testimony (November 1, 2004), pp. 3491–3492 and [P] (June 29, 2005), pp. 7836
and 8067.
[P] Cabana testimony (June 29, 2005), pp. 7836 and 8009–8011 and [P] (June 30, 2005),
p. 8094.
[IC] Loeppky testimony (April 19, 2005), p. 14936 and [P] (July 27, 2005), pp. 8517–8518; [IC]
Pilgrim testimony (January 26, 2005), p. 10521 and [IC] (January 28, 2005), pp. 10551–10552
and 10719–10720.
[IC] Pilgrim testimony (January 28, 2005), pp. 10719–10720.
[IC] Fiorido testimony (November 3, 2005), pp. 17947–17948.
Ibid., pp. 17960–17963, 18054–18055 and 18134.
Ibid., pp. 17976 and 18052.
Ibid., pp. 18052–18053 and 18135.
[IC] Pillarella testimony (March 31, 2005), pp. 13804 and [IC] (March 30, 2005), 13371–13373.
[IC] Pillarella testimony (March 31, 2005), pp. 13804–13807.
[P] Pillarella testimony (June 14, 2005), p. 6703.
[IC] Pillarella testimony (March 31, 2005), p. 13813.
[P] Pillarella testimony (June 14, 2005), p. 6703.
[IC] Pillarella testimony (March 30, 2005), pp. 13340–13344 and [IC] (March 31, 2005), p.
13622.
[IC] Pillarella testimony (March 30, 2005), pp. 13354–13356; Exhibit C-21, Tab 30. See also the
U.S. Department of State publication Syria – Country Reports on Human Rights Practices –
2003, Exhibit P-28.
[IC] Pillarella testimony (March 30, 2005), p. 13444.
[IC] Pillarella testimony (March 31, 2005), pp. 13616–13621.
Ibid., pp. 13814–13816.
[P] Hogger testimony (November 10, 2005), p. 12647.
[IC] Martel testimony (April 26, 2005), pp. 16053–16054.
[P] Pillarella testimony (June 14, 2005), p. 6780.
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Ibid., p. 6765 and [IC] (March 30, 2005), p. 13482; [P] Pardy testimony (May 24, 2005),
pp. 3422–3424.
[IC] Pillarella testimony (March 30, 2005), pp. 13371 and 13480–13481, [IC] (March 31, 2005),
pp. 13621–13623, [P] (June 14, 2005), pp. 6738–6741 and 6779–6781 and [P] (June 15, 2005),
pp. 7051–7054. See also Exhibit P-29, Amnesty International’s 2002 report describing the torture and ill-treatment used routinely against political prisoners, particularly during incommunicado detention at the Palestine Branch.
[P] Pillarella testimony (June 14, 2005), pp. 6794–6798 and [IC] (March 30, 2005),
pp. 13483–13486.
Exhibit C-206, Tab 123, pp. 1–2.
[P] Pillarella testimony (June 14, 2005), pp. 6781–6791.
When referred to this report, Mr. Martel testified that “the Ambassador is already assuming that
the client is well.” [P] Martel testimony [ET] (August 31, 2005), p. 11481.
[P] Pillarella testimony (June 14, 2005), pp. 6791–6794.
[IC] Pillarella testimony (March 30, 2005), pp. 13484–13485.
[P] Pillarella testimony (June 14, 2005), pp. 6835–6836 and [IC] (March 30, 2005), p. 13484.
[IC] Pillarella testimony (March 30, 2005, pp. 13488–13489.
[P] Pillarella testimony (June 14, 2005), pp. 6798–6801.
[IC] Pillarella testimony (March 30, 2005), pp. 13326 and 13501.
Ibid., pp. 13313–13314 and 13327.
[P] Pardy testimony (May 26, 2005) pp. 4004–4005.
[IC] Livermore testimony (March 7, 2005), pp. 12206–12208.
Ibid., p. 12209.
[P] Livermore testimony (May 17, 2005), pp. 2482–2484.
[IC] Heatherington testimony (April 21, 2005), pp. 15462–15466.
[IC] Gould testimony (March 24, 2005), pp. 12924–12926.
[IC] Pardy testimony (August 4, 2005), pp. 16853–16855 and [P] (May 24, 2005),
pp. 3424–3428. Mr. Pardy’s best estimate was that Mr. Arar had been in Syria since October 8
or 9, 2002, despite contrary statements from the Syrians. [IC] Pardy testimony (August 4, 2005),
pp. 16858–16860.
[IC] Pillarella testimony (March 30, 2005), pp. 13327–13328.
[IC] Livermore testimony (March 7, 2005), p. 12211. The copy that went to CSIS is Exhibit C001, Tab 71. The copy that went to the RCMP is Exhibit C-30, Tab 321.
[P] Pardy testimony (May 26, 2005), pp. 4007–4008.
Ibid., p. 4006.
The October 23, 2002 consular visit and report discussing it is addressed in the next section
of this Report.
[IC] Livermore testimony (March 7, 2005), pp. 12211–12212.
[P] Livermore testimony (May 17, 2005), pp. 2581–2584.
[IC] Solomon testimony (April 4, 2005), pp. 13959–13960.
Ibid., pp. 14055–14057.
[IC] Corcoran testimony (November 15, 2004), pp. 4918–4919; [IC] Roy testimony
(December 6, 2004), pp. 6924–6925; Exhibit P-216.
Exhibit C-1, Tab 71.
[P] Roy testimony (August 22, 2005), pp. 9577–9580.
Exhibit C-30, Tab 321.
[IC] Roy testimony (December 6, 2004), pp. 6934–6935. There is documentary evidence that
Mr. Solomon left a voice mail for Mr. Pardy on November 7, 2002. See Exhibit P-88, Tabs 1
and 2.
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[P] Pardy testimony (June 2, 2005), pp. 5041–5047.
Exhibits C-307 and C-372.
[P] Pardy testimony (May 26, 2005), pp. 3983–3984 and [P] (June 17, 2005), pp. 7701–7702.
[P] Martel testimony [ET] (August 30, 2005), pp. 10996–11004, 11010, [IC] (April 25, 2005), pp.
15661–15671, 15702 and [P] [ET] (August 31, 2005), pp. 11308-11309. Mr. Martel’s CV is Exhibit
P-85, Vol. 5, Tab 37.
[P] Martel testimony [ET] (August 30, 2005), pp. 11077–11078, [P] [ET] (August 31, 2005),
pp. 11327–11333, [IC] (April 25, 2005), pp. 15702–15703, 15710–15711, [IC] (April 26, 2005),
pp. 15969–15970 and [IC] (April 25, 2005), pp. 15850-15851.
[P] Livermore testimony (May 18, 2005), pp. 2705–2708.
Exhibit C-206, Tab 131.
[IC] Martel testimony (April 26, 2005), pp. 16089, [P] [ET] (August 30, 2005), pp. 11032 and
[P] [ET] (August 31, 2005), pp. 11465–11466; Exhibit C-206, Tab 61.
[P] Martel testimony [ET] (August 31, 2005), pp. 11609–11611.
[P] Martel testimony [ET] (August 30, 2005), pp. 11033–11035; Exhibit C-206, Tab 80.
Exhibit C-206, Tab 106.
[IC] Martel testimony (April 25, 2005), pp. 15712, [P] [ET] (August 30, 2005), pp. 11056–11058
and 11061.
[IC] Martel testimony (April 25, 2005), pp. 15695–15704, [P] [ET] (August 31, 2005), pp.
11598–11599, [P] [ET] (August 30, 2005), pp. 11042–11047 and 11059; Exhibit C-206, Tab 130.
Mr. Martel testified that Syrians are terrified by the Palestine Branch and by all security services.
Mr. Livermore, discussing his own past consular experience in Chile, testified that “when you
are on the ground, you basically tailor your activity, how you do your job, to local customs
and the way it has to be done locally. And if that means you sit down and have a cup of coffee and chat for an hour before the meeting starts, that’s what you do.” [P] Livermore testimony (May 18, 2005), pp. 2755–2756.
[P] Martel testimony (August 31, 2005), pp. 11603–11604 and [P] (August 30, 2005), p. 11046.
[IC] Martel testimony (April 26, 2005), pp. 16126–16127 and [IC] (April 25, 2005), pp. 15706.
[IC] Martel testimony (April 26, 2005), pp. 16122–16126, [IC] (April 25, 2005), pp. 15705–15706
and [P] [ET] (August 30, 2005), pp. 11047–11048 and [P] [ET] (August 31, 2005), p. 11494.
[IC] Martel testimony (April 25, 2005), pp. 15708, 15728, [IC] (April 26, 2005), pp. 16125–16130
and [P] [ET] (August 30, 2005), p. 11051.
[IC] Martel testimony (April 26, 2005), pp. 16140–16141.
Ibid., p. 16126.
[IC] Martel testimony (April 25, 2005), pp. 15706–15707, [P] [ET] (August 30, 2005), pp.
11048–11049 and 11052–11053.
[IC] Martel testimony (April 25, 2005), pp. 15708–15709, 15715 and [P] [ET] (August 30, 2005),
pp. 11054–11055.
[P] Martel testimony [ET] (August 31, 2005), pp. 11495–11497.
[IC] Martel testimony (April 25, 2005), pp. 15709–15711 and [P] [ET] (August 31, 2005),
pp. 11525–11527.
[IC] Martel testimony (April 25, 2005), pp. 15706, [IC] (April 26, 2005), pp. 16142,
16126–16133 and [P] [ET] (August 31, 2005), pp. 11499–11502.
[P] Martel testimony [ET] (August 30, 2005), p. 11069.
[P] Pillarella testimony (June 14, 2005), pp. 6809 and [IC] (March 30, 2005), p. 13492.
[P] Pillarella testimony (June 14, 2005), pp. 6809–6811.
Ibid., p. 6825.
Ibid., pp. 6815–6816.
[P] Pillarella testimony (June 15, 2005), pp. 7080–7081
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[P] Pillarella testimony (June 14, 2005), p. 6820.
[IC] Pillarella testimony (March 30, 2005), p. 13494.
[P] Pillarella testimony (June 14, 2005), pp. 6818–6824. However, at an earlier point in the
Inquiry, Ambassador Pillarella had testified that Mr. Arar has a gentle handshake. [IC] Pillarella
testimony (March 31, 2005), p. 13840.
[P] Pillarella testimony (June 14, 2005), pp. 6829–6830.
[P] Livermore testimony (May 17, 2005), pp. 2485–2487.
[P] Pardy testimony (May 26, 2005), pp. 4004–4005.
[IC] Pillarella testimony (March 30, 2005), pp. 13490–13492.
[P] Pardy testimony (June 17, 2005), pp. 7707–7708.
[P] Pardy testimony (May 24, 2005), pp. 3456–3459.
[P] Pastyr-Lupul testimony (July 29, 2005), pp. 9202–9203, 8972–8983 and 9169.
[P] Livermore testimony (May 17, 2005), pp. 2485–2489 and 2540–2541.
Ibid., pp. 2674–2677.
Ibid., p. 2539.
[P] Pardy testimony (May 24, 2005), pp. 3424–3433.
[IC] Pardy testimony (August 4, 2005), pp. 16852–16855, [P] (May 24, 2005), pp. 3456–3459
and [P] (October 24, 2005), pp. 12162–12163.
[P] Fry testimony (June 13, 2005), pp. 6650–6653.
Ibid., pp. 6417–6418.
Ibid., pp. 6401–6404.
Ibid., p. 6638.
[P] Pardy testimony (June 17, 2005), pp. 7708–7709; Exhibit C-206, Tab 137.
[P] Graham testimony (June 2, 2005), p. 4899.
[IC] Graham testimony (August 3, 2005), pp. 16708–16709.
[P] Pardy testimony (May 24, 2005), pp. 3460–3461; Exhibit C-206, Tabs 129 and 132.
Exhibit C-206, Tab 129, p. 7.
[P] Pastyr-Lupul testimony (July 29, 2005), p. 8983.
Ibid., pp. 9173–9174.
Exhibit C-350.
[P] Pastyr-Lupul testimony (July 29, 2005), pp. 9175–9177.
Ibid., p. 9169.
[P] Graham testimony (June 2, 2005), pp. 4901–4906.
[P] Pardy testimony (May 24, 2005), pp. 3469 and [P] (June 2, 2005), p. 5032.
[P] Roy testimony [ET] (August 22, 2005), pp. 9546–9550.
Exhibit P-217.
[P] Roy testimony [ET] (August 22, 2005), pp. 9580–9584; Exhibits P-93, C-285, C-288, C-350.
[P] Cabana testimony (June 30, 2005), pp. 8117–8119; Exhibit C-285.
Exhibit P-11, Tabs 21 and 22.
[IC] Heatherington testimony (April 27, 2005), pp. 16278–16279.
Exhibit P-11, Tab 22, p. 13.
Ibid., Tab 14.
Ibid., p.4.
[P] Pardy testimony (May 26, 2005), pp. 3985–3986.
The Privacy Act, R.S. 1985, c. P-21, provides at section 8 that
s. 8 (1) Personal information under the control of a government institution shall not, without
the consent of the individual to whom it relates, be disclosed by the institution except in accordance with this section.
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(2) Subject to any other Act of Parliament, personal information under the control of a government institution may be disclosed
(a) for the purpose for which the information was obtained or compiled by the institution or
for a use consistent with that purpose;
…
(e) to an investigative body specified in the regulations, on the written request of the body,
for the purpose of enforcing any law of Canada or a province or carrying out a lawful investigation, if the request specifies the purpose and describes the information to be disclosed;
…
(m) for any purpose where, in the opinion of the head of the institution,
(i) the public interest in disclosure clearly outweighs any invasion of privacy that could
result from the disclosure; or
(ii) disclosure would clearly benefit the individual to whom the information relates.
[IC] Pillarella testimony (March 31, 2005), pp. 13818–13819.
[P] Pardy testimony (May 26, 2005), pp. 4001–4008.
[P] Pardy testimony (June 2, 2005), pp. 5097–5101.
With respect to DFAIT disclosing information to CSIS, Mr. Heatherington testified that DFAIT
did not use the Treasury Board form required under the Department of External Affairs–CSIS
memorandum of understanding for disclosure of DFAIT information to CSIS. [IC]
Heatherington testimony (April 27, 2005), pp. 16285–16288 and 16304–16305.
[P] Pardy testimony (May 24, 2005), pp. 3470–3478.
[P] Pardy testimony (June 2, 2005), pp. 5028–5029.
Exhibit C-206, Tab 30.
[P] Pardy testimony (May 26, 2005), pp. 3989–4008.
[P] Pardy testimony (June 2, 2005), pp. 5021–5036.
[IC] Martel testimony (April 25, 2005), pp. 15730–15731 and [P] [ET] (August 31, 2005),
p. 11427.
[P] Pastyr-Lupul testimony (July 29, 2005), pp. 9233–9234.
[P] Girvan testimony (May 16, 2005), pp. 2375–2377.
Exhibit P-91; [P] Pardy testimony (May 24, 2005), pp. 3449–3450.
[P] Pardy testimony (June 2, 2005), pp. 5116–5121.
See Privacy Act, R.S. 1985, c. P-21, section 8(2)(a).
[P] Pardy testimony (May 24, 2005), pp. 3470–3478.
[P] Pardy testimony (June 2, 2005), pp. 5094–5097.
Ibid., pp. 5021–5036, [P] (May 26, 2005), p. 4008, [P] (May 25, 2005), pp. 3515–3518, [P]
(June 2, 2005), pp. 5094–5097 and [P] (May 24, 2005), pp. 3470–3478.
[IC] Pardy testimony (August 4, 2005), pp. 16845–16846.
[P] Pardy testimony (May 25, 2005), pp. 3515–3518.
[IC] Heatherington testimony (April 27, 2005), pp. 16301–16303.
[P] Livermore testimony (May 17, 2005), pp. 2554 and 2574–2582.
Ibid., pp. 2496, 2574–2584, [IC] (March 7, 2005), p. 12328 and [P] (May 18, 2005),
pp. 2770–2780.
[P] Cabana testimony (June 30, 2005), pp. 8153–8155 and 8307–8310.
Ibid., pp. 8138–8139. The Chief of the CSIS Sunni Islamic Terrorism section also testified that
he did not understand that discussions in consular visits were private or confidential. [IC]
Testimony (August 5, 2005), pp. 17033–17034.
[P] Cabana testimony (June 30, 2005), pp. 8138–8145.
[P] Pastyr-Lupul testimony (July 29, 2005), pp. 8990–8991.
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[P] Pardy testimony (May 24, 2005), pp. 3478–3480 and 3482–3483. Mr. Pardy testified that he
spent more time on this case than on that of any other Canadian detained abroad, and that
he was directly involved every day, seven days a week. [P] Pardy testimony (June 17, 2005),
pp. 7718–7720.
[P] Pardy testimony (May 24, 2005), pp. 3485–3486; Exhibit C-206, Tab 138.
[IC] Pardy testimony (August 4, 2005), pp. 16859–16860; Exhibit C-206, Tab 137.
Exhibit C-206, Tab 138.
[P] Pardy testimony (May 24, 2005), pp. 3483–3485 and [IC] (August 4, 2005), p. 16858.
Ibid., pp. 3489–3491; Exhibit C-206, Tabs 139, 140 and 149.
[P] Pastyr-Lupul testimony (July 29, 2005), p. 8992.
[P] Pardy testimony (May 24, 2005), p. 3493; Exhibit C-206, Tab 136.
Exhibit C-206, Tab 141.
Ibid., Tab 152.
[P] Pardy testimony (May 25, 2005), pp. 3521–3522.
Exhibit C-206, Tab 145; Exhibit P-98.
[P] Pardy testimony (May 24, 2005), pp. 3496–3498.
Exhibit P-88, Tab 1, p. 8. Mr. Solomon’s draft memorandum is Exhibit C-206, Tab 159.
[IC] Solomon testimony (April 4, 2005), pp. 13933–13934 and 14005–14006.
[P] Pardy testimony (May 25, 2005), pp. 3508–3509 and [P] (June 2, 2005), p. 5092. The evidence relating to the possibility of visits to Syria by the RCMP and CSIS at this time, and the
sending of questions for Mr. Almalki, is discussed below in Sections 4 and 6.3.
[P] Martel testimony [ET] (August 31, 2005), pp. 11401–11406, 11483–11487 and 11598–11601.
Ibid., pp. 11317–11324 .
The Manual states: “The right of a consular official to intervene on behalf of a Canadian who
appears to have been the victim of unlawful (under domestic or international law) discrimination or denial of justice is well established in international law. Consistent with Canada’s
commitment to fundamental human rights, consular officials do what they can to protect
Canadians against violations of these rights. It is a basic principle of international law that
whatever a state’s treatment of its own subjects, aliens must be accorded an international minimum standard of treatment, including freedom from arbitrary arrest, due process in the determination of legal rights, and respect for human rights generally.” Exhibit P-11, Tab 22, p.
8.
[IC] Pillarella testimony (March 31, 2005), pp. 13877–13884.
Mr. Martel’s report of the second consular visit is Exhibit C-206, Tab 147.
Exhibit C-206, Tab 152.
[IC] Martel testimony (April 25, 2005), pp. 15725–15728 and [P] (August 30, 2005),
pp. 11070–11074 and [P] [ET] (August 31, 2005), p. 11320.
[P] Martel testimony [ET] (August 30, 2005), pp. 11133.
[P] Martel testimony [ET] (August 31, 2005), pp. 11483–11487. Mr. Martel testified that the
Syrians allowed him to ask questions about “conditions of detention.” Mr. Martel clearly
equated “conditions of detention” with “well-being.”
[P] Martel testimony [ET] (August 30, 2005), p. 11139.
[P] Martel testimony [ET] (August 31, 2005), pp. 11601–11603 and 11612.
[IC] Martel testimony (April 25, 2005), p. 15728.
[P] Martel testimony [ET] (August 31, 2005), pp. 11604–11605.
[P] Martel testimony [ET] (August 30, 2005), p. 11072.
[P] Martel testimony [ET] (August 31, 2005), pp. 11483–11487.
Ibid., pp. 11510–11512 and 11490–11492.
Ibid., pp. 11487–11491; Exhibit P-246.
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[IC] Martel testimony (April 25, 2005), p. 15727.
[IC] Pillarella testimony (March 30, 2005), pp. 13506–13507.
[P] Pillarella testimony (June 14, 2005), pp. 6831–6834.
[IC] Pillarella testimony (March 30, 2005), pp. 13505–13511 and [P] (June 14, 2005), p. 6834.
[IC] Pillarella testimony (March 30, 2005), pp. 13508–13509.
Ibid., p. 13507.
[P] Pastyr-Lupul testimony (July 29, 2005), pp. 8992–8994.
[P] Pardy testimony (May 25, 2005), pp. 3519–3520.
[P] Fry testimony (June 13, 2005), pp. 6639–6640; [P] Pardy testimony (June 17, 2005), pp.
7706–7707.
[P] Fry testimony (June 13, 2005), pp. 6639–6640.
[IC] Gould testimony (March 24, 2005), pp. 12927–12928.
[P] Cabana testimony (June 30, 2005), pp. 8312–8314. The November 6, 2002 meeting is discussed below in Section 4.2.
Exhibit C-206, Tab 155.
[P] Pardy testimony (May 25, 2005), pp. 3525 and 3531; Exhibit C-206, Tab 181.
[P] Pardy testimony (May 25, 2005), pp. 3520 and (May 26, 2005), p. 3838; [P] Pastyr-Lupul
testimony (July 29, 2005), pp. 8998–8999; Exhibit C-206, Tabs 148, 150 and 155.
[P] Pastyr-Lupul testimony (July 29, 2005), pp. 8995–8996; Exhibit C-206, Tab 156.
[P] Fry testimony (June 13, 2005), pp. 6419–6423; [P] Pardy testimony (May 25, 2005), p. 3552;
Exhibit C-206, Tabs 137, 172 and 181.
Exhibit C-206, Tab 145. Mr. Hooper confirmed that a possible CSIS visit to Syria was under
discussion when Mr. Pardy sent this message to Damascus. [P] Hooper testimony (August 25,
2005), pp. 10610–10613.
Exhibit C-206, Tab 147.
[IC] Martel testimony (April 25, 2005), pp. 15728–15729.
[P] Pillarella testimony (June 14, 2005), pp. 6836–6839.
Ibid. When asked if he had conducted his own investigation of possible visits by the RCMP
or CSIS, Ambassador Pillarella replied that he did not recall that anything had been done about
it. [P] Pillarella testimony (June 14, 2005), p. 6840. However, Ambassador Pillarella testified
in camera that he thought this was raised during the next meeting he had with General Khalil.
[IC] Pillarella testimony (March 30, 2005), pp. 13511–13512.
[IC] Pillarella testimony (June 14, 2005), p. 6839.
Exhibit C-206, Tab 158.
Ibid. and [P] Pillarella testimony (June 14, 2005), p. 6840. Ambassador Pillarella did not know
what Mr. Pardy meant by his comment and did not recall discussing the issue of a letter with
Mr. Pardy. [IC] Pillarella testimony (March 30, 2005), pp. 13512–13515.
[IC] Pardy testimony (August 4, 2005), pp. 16860–16864 and Exhibit C-294, p. 8.
Exhibit C-206, Tab 159. Mr. Pardy testified that the reference to a letter in his October 30 email was “generic” and that he had not seen Mr. Solomon’s memorandum until shortly before
he testified at the Inquiry. However, he explained that the memorandum did “accurately reflect the kind of discussions that we were having and our concerns with questions and visits
by either CSIS or the RCMP.” [IC] Pardy testimony (August 4, 2005), pp. 16860–16864. The
memorandum drafted by Mr. Solomon is discussed extensively below in Section 6.3.4.
[IC] Pillarella testimony (March 30, 2005), pp. 13519–13522.
Exhibit C-206, Tab 160 and [IC] Pillarella testimony (March 30, 1005), pp. 13523–13527 and
[P] (June 14, 2005), pp. 6842–6846.
Exhibit C-206, Tab 160 and [P] Pillarella testimony (June 14, 2005), pp. 6842–6846. The
Deputy Foreign Minister committed to calling General Khalil to facilitate the meeting.
�IMPRISONMENT AND MISTREATMENT IN SYRIA
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Exhibit C-206, Tab 123. In his first meeting with General Khalil on the Arar case on October
22, the General promised to pass on to Ambassador Pillarella any information which the
Syrians might gather on Mr. Arar’s “implication in terrorist activities.”
[P] Pillarella testimony (June 14, 2005), pp. 6842–6846. Ambassador Pillarella explained that
“the pressure is on us to get Mr. Arar back to Canada, but we need to have all the facts, and
that is the reason why I asked for the meeting” with General Khalil.
Exhibit C-206, Tab 160.
Ibid., Tab 164.
Ibid.
Ibid.
[IC] Pillarella testimony (March 30, 2005), pp. 13527–13529 and [P] (June 14, 2005),
pp. 6847–6849.
[P] Pillarella testimony (June 14, 2005), pp. 6847–6849.
[IC] Pillarella testimony (March 30, 2005), pp. 13486–13488 and 13527–13529 and [P] (June 14,
2005), pp. 6847–6849.
Exhibit C-206, Tab 164.
Ibid.
[P] Pillarella testimony (June 15, 2005), pp. 7132–7134.
Ibid., pp. 7140–7147.
Exhibit C-206, Tab 164. General Khalil also advised that “he would do this for us only” and
other countries had not been granted “such privilege” “despite repeated requests.”
Exhibit C-206, Tab 105 and [IC] Pardy testimony (August 4, 2005), pp. 16824–16825 and
16848–16849.
Exhibit C-206, Tab 164 and [IC] Pillarella testimony (March 30, 2005), pp. 13516–13517.
Exhibit C-206, Tab 164.
Ibid.
[P] Pillarella testimony (June 15, 2005), pp. 7140–7147.
[IC] Pillarella testimony (March 30, 2005), pp. 13532–13534.
Ibid.
Ibid.
[IC] Pardy testimony (August 4, 2005), pp. 16954–16956 and 16866–16867.
Ibid.
Ibid., pp. 16866–16867.
[IC] Pillarella testimony (March 30, 2005), pp. 13486–13488 and [P] (June 14, 2005), pp.
6849–6850. General Khalil had advised him during their meeting that the information he would
receive would be in Arabic. Exhibit C-206, Tab 164.
[P] Pardy testimony (May 25, 2005), p. 3523.
Exhibit C-206, Tab 165 and [IC] Pillarella testimony (March 30, 2005), pp. 13534–13536.
Bout de papier (literally, “scrap of paper”) is a term used in diplomacy to describe a relatively
informal communication or record of a meeting.
Exhibit C-206, Tab 165, Exhibit C-1, Tab 103 and [IC] Heatherington (April 21, 2005),
pp. 15487–15489.
Exhibit C-1, Tab 97.
Exhibit C-206, Tab 165.
Exhibit C-1, Tab 97.
[IC] Pillarella testimony (March 30, 2005), pp. 13488–13489.
Ibid.
[P] Pillarella testimony (June 14, 2005), pp. 6798–6799.
Ibid.
427
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FACTUAL BACKGROUND: VOLUME I
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Ibid., pp. 6798–6800.
Ibid., p. 6801.
[P]Pillarella testimony (June 15, 2005), pp. 7147–7149.
Ibid.
Ibid.
Ibid., pp. 7147–7148.
[P]Cabana testimony (June 29, 2005), pp. 8032–8034.
Ibid.
[P]Pillarella testimony (June 15, 2005), pp. 7149–7158.
Ibid.
Ibid.
[P] Pillarella testimony (June 14, 2005), pp. 6851–6852.
Ibid., pp. 6830–6833.
Ambassador Pillarella attended this meeting in Ottawa. This meeting is discussed in greater detail below in Section 4.2.
[IC] Cabana testimony (November 1, 2004), pp. 3288–3290 and [P] (June 29, 2005), pp.
8030–8035; [IC] Pillarella testimony (March 30, 2005), pp. 13536–13544.
[P]Pillarella testimony (June 14, 2005), pp. 6853–6859.
[P] Cabana testimony (June 29, 2005), pp. 8030–8035.
[P] Pardy testimony (May 26, 2005), pp. 4001–4002.
Ibid.
[P] Pardy testimony (June 2, 2005), pp. 5103–5107.
Ibid.
Ibid.
[P] Livermore testimony (May 17, 2005), pp. 2482–2484. According to Mr. Livermore,
Ambassador Pillarella was head of all Canadian programs and not acting solely as a DFAIT individual, and it would be natural for a head of mission to wish to pass on to Canadian authorities any information he had on terrorist activities.
[P] Graham testimony (June 2, 2005), pp. 4864–4870.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Exhibit C-206, Tab 164. Ambassador Pillarella also sent his report to Mr. Pardy via the DFAIT
office in Beirut.
Ibid.
[IC] Pillarella testimony (March 30, 2005), pp. 13527–13528.
Exhibit C-1, Tab 82 and [IC] Testimony (September 14, 2004), pp. 396–398.
Exhibit C-206, Tab 165.
[IC] Testimony.
Ibid.
Ibid. There was apparently some confusion as to who exactly the Americans were supporting, a point that is still debated to this day. Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
�IMPRISONMENT AND MISTREATMENT IN SYRIA
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Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
[P] Martel testimony [ET] (August 31, 2005), pp. 11325–11327.
[IC] Pillarella testimony (March 31, 2005), pp. 13799–13802.
[P] Martel testimony [ET] (August 31, 2005), pp. 11363–11364; Exhibit C-206, Tab 163. See
also Exhibit P-242, Tab 2.
[P] Pastyr-Lupul testimony (July 29, 2005), pp. 8996–8997.
Exhibit C-206, Tab 166.
[P] Martel testimony [ET] (August 31, 2005), pp. 11361–11362 and 11370, and [IC] (April 25,
2005), pp. 15731–15732.
[P] Martel testimony [ET] (August 31, 2005), pp. 11366–11367.
Ibid., pp. 11367–11368. Mr. Martel had agreed earlier in his testimony that Canada’s objective
was to secure Mr. Arar’s release as quickly as possible. [P] Martel testimony [ET] (August 30,
2005), pp. 11036–11038.
[P] Martel testimony [ET] (August 31, 2005), pp. 11370–11371.
Exhibit C-206, Tabs 181 and 187; Exhibit P-242, Tab 4; [P] Pardy testimony (May 25, 2005),
pp. 3530–3531; [IC] Martel testimony (April 26, 2005), pp. 16099–16100 and [IC] (April 25,
2005), p. 15734.
Exhibit C-206, Tab 185; [IC] Martel testimony (April 25, 2005), pp. 15732–15733.
Exhibit C-206, Tab 189; [P] Pardy testimony (May 25, 2005), pp. 3569–3570.
[P] Martel testimony [ET] (August 30, 2005), pp. 11074–11076 and [IC] (April 25, 2005),
pp. 15733–15734.
Exhibit C-206, Tab 191; [IC] Martel testimony (April 25, 2005), p. 15735.
Ibid., Tab 192; ibid., pp. 15735–15737.
[P] Pardy testimony (May 26, 2005), pp. 3889–3992.
Exhibit C-206, Tab 192; [IC] Martel testimony (April 25, 2005), p. 15737 and [P] [ET]
(August 30, 2005), pp. 11079–11080.
[IC] Martel testimony (April 25, 2005), pp. 15737–15738.
[P] Martel testimony [ET] (August 31, 2005), pp. 11364–11365 and 11368.
[IC] Martel testimony (April 25, 2005), pp. 15738–15739 and [P] [ET] (August 30, 2005), pp.
11078–11079.
[P] Pillarella testimony (June 14, 2005), pp. 6866–6867 and [IC] Pillarella testimony (March 30,
2005), pp. 13548–13549.
[IC] Pillarella testimony (March 30, 2005), pp. 13548–13549.
[P] Pillarella testimony (June 14, 2005), pp. 6858 and 6862–6869 and [IC] Testimony
(September 20, 2004), pp. 1109–1115. Mr. Hooper, CSIS Assistant Director of Operations,
was similarly dismissive of the interrogation report.
[P] Pillarella testimony (June 15, 2005), pp. 7129–7131.
[P] Livermore testimony (May 17, 2005), pp. 2498–2499.
[P] Pastyr-Lupul testimony (July 29, 2005), pp. 9001–9003.
[P] Pardy testimony (May 26, 2005), pp. 3833–3834.
Ibid., pp. 3834–3838.
Exhibit C-206, Tabs 171, 185 and 190; [P] Pastyr-Lupul testimony (July 29, 2005),
pp. 8998–8999.
Exhibit C-206, Tab 196; [P] Pardy testimony (May 25, 2005), pp. 3570–3574. This is further discussed below in Section 3.7.
429
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FACTUAL BACKGROUND: VOLUME I
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Exhibit C-206, Tab 206; [P] Pastyr-Lupul testimony (July 29, 2005), pp. 9009–9010.
Ibid., Tab 210; Ibid., pp. 9013–9014.
Exhibit P-195; [P] Pastyr-Lupul testimony (July 29, 2005), pp. 9010–9015.
Exhibit C-30, Tab 369.
In the opinion of George Webb, Director of Intelligence for Canada Customs, these items did
not constitute core biographical data, which he viewed as comprising information about
lifestyle preferences and health. The photocopied items were merely general travel and identification documents. According to Mr. Webb, it is within Canada Customs’ authority to verify and copy identification documents to establish a person’s identity. [IC] Webb testimony
(February 3, 2005), pp. 11585–11588.
Thériault notes, p. 110.
Exhibit C-30, Tab 331.
Exhibit C-190, Tab 35.
Exhibit C-371; Exhibit P-274.
Exhibit C-188, Tab 17 “Enforcement Bulletin 02-02.”
[IC] Webb testimony (February 3, 2005), p. 11543.
As noted in the previous section, Dr. Mazigh had apparently already been interviewed for
several hours by Tunisian intelligence before she returned to Canada. [IC] Cabana testimony
(November 1, 2004), p. 3296.
[IC] Cabana testimony (November 1, 2004), pp. 3294–3295.
See the discussion of the RCMP’s negotiations with Mr. Edelson regarding an interview with
Mr. Arar in Chapter I, Section 3.10.
[P] Edelson testimony (June 16, 2005), pp. 7294–7298; and Exhibit P-140, Tabs 4 and 5.
[P] Pardy testimony (May 25, 2005), pp. 3531–3534; and [P] Edelson testimony (June 16,
2005), pp. 7294–7304, 7522–7525 and 7326. See also Exhibit C-206, Tab 137; Exhibit P-140,
Tab 5; and Exhibit P-142.
[P] Edelson testimony (June 16, 2005), pp. 7309–7311, 7473 and 7474; and Exhibit P-142.
[P] Edelson testimony (June 16, 2005), p. 7306.
[IC] Callaghan testimony (November 8, 2004), pp. 4233–4234; Exhibit P-140, Tab 1; Exhibit
C-72; and Exhibit C-30, Tab 345.
Exhibit P-140, Tab 10, pp. 2–3.
[P] Cabana testimony (June 29, 2005), p. 8019; Exhibit P-140, Tab 10, p. 4; Exhibit C-30,
Tabs 350 and 504; and Exhibit P-83, Tab 1, p. 230.
[P] Cabana testimony (June 29, 2005), p. 8020.
Ibid., pp. 8019–8027.
[IC] Proulx testimony [ET] (December 9, 2004), pp. 7892–7902.
[IC] Loeppky testimony (April 19, 2005), pp. 15007–15009.
[P] Cabana testimony (June 29, 2005), pp. 8019–8027.
[IC] Cabana testimony (November 1, 2004), pp. 3273–3275.
[P] Cabana testimony (June 29, 2005), pp. 8019–8027.
[IC] Proulx testimony [ET] (December 9, 2004), pp. 7884–7886 and 7892–7896.
Exhibit P-83, Tab 1, p. 232; Exhibit P-140, Tab 10, pp. 5–6.
[IC] Couture testimony (December 7, 2004), pp. 7260–7264.
Exhibit C-30, Tabs 361 and 504; Exhibit P-84, pp. 65–66.
[IC] Pilgrim testimony (January 26, 2005), pp. 10523-10529 and [IC] (January 28, 2005), pp.
10699-10702 and 10759-10761.
[IC] Pilgrim testimony (January 28, 2005), pp. 10701–10702 and 10754–10758.
Ibid., pp. 10751–10753.
Exhibit C-30, Tabs 370 and 504; Exhibit P-140, Tab 10, p. 7; Exhibit P-83, Tab 1, p. 233.
�IMPRISONMENT AND MISTREATMENT IN SYRIA
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579
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[IC] Cabana testimony (November 1, 2004), pp. 3296–3302.
[P] Cabana testimony (June 30, 2005), pp. 8170–8173.
Ibid., pp. 8165–8169 and 8170–8173.
[IC] Cabana testimony (November 1, 2004), pp. 3296–3302.
[P] Cabana testimony (June 30, 2005), p. 8169.
[IC] Pilgrim testimony (January 26, 2005), pp. 10525–10529.
[IC] Proulx testimony [ET] (December 9, 2004), pp. 7892–7902.
[P] Edelson testimony (June 16, 2005), pp. 7340–7341; Exhibit P-150.
[P] Edelson testimony (June 16, 2005), pp. 7327–7331, 7476 and 7482.
[P] Pardy testimony (May 25, 2005), pp. 3541–3543.
[P] Cabana testimony (June 29, 2005), pp. 8028 and 8050–8054; [P] Edelson testimony (June
16, 2005), pp. 7341–7354, 7484–7485 and 7508–7509; Exhibit P-142; Exhibit P-140, Tabs 2
and 7.
[P] Edelson testimony (June 16, 2005), pp. 7352–7354, 7535–7536 and 7468–7471.
Exhibit C-206; Tab 248; Exhibit C-30; Tab 404; Exhibit C-28, Tab 2, pp. 2–3; [IC] Pilgrim
testimony (January 28, 2005), pp. 10758–10759.
[IC] Livermore testimony (March 7, 2005), pp. 12317–12319, [IC] (March 9, 2005), p. 12528
and [P] (May 17, 2005), pp. 2515–2516.
[IC] Livermore testimony (March 7, 2005), pp. 12317–12319 and [P] (May 17, 2005), pp.
2515–2516.
[P] Livermore testimony (May 18, 2005), pp. 2728–2731.
[P] Edelson testimony (June 16, 2005), pp. 7529–7532.
Exhibit C-140.
[IC] Proulx testimony [ET] (December 13, 2004), pp. 7908-7915.
[IC] Reynolds testimony (February 1, 2005), pp. 11005–11006.
[IC] Coons testimony (December 8, 2004), pp. 7496–7498; Exhibit C-138.
[IC] Livermore testimony (March 9, 2005), p. 12582.
[P] Graham testimony (May 30, 2005), pp. 4103–4106; see also Exhibit P-117, Tab 7.
Exhibit P-117, Tab 7.
[P] Graham testimony (May 30, 2005), pp. 4107–4108.
Ibid., p. 4109.
Ibid., pp. 4144–4146; Exhibit C-206, Tab 199.
[P] Graham testimony (May 30, 2005), pp. 4146–4147; Exhibit C-206, Tab 213. See Chapter
II, Section 5.4 for a description of NSEERS.
Exhibit C-206, Tab 213.
[IC] Wright testimony (March 24, 2005), pp. 13004–13005; Exhibit C-206, Tab 213.
[P] Graham testimony (May 30, 2005), pp. 4147–4149.
[IC] Wright testimony (March 24, 2005), pp. 13007–13008.
Exhibit C-206, Tab 213.
[IC] Wright testimony (March 24, 2005), pp. 13081–13082 and 13101; Exhibit C-220, Tab 1,
pp. 11–12; Exhibit C-206, Tab 650.
[IC] Wright testimony (March 24, 2005), pp. 13009–13010; [IC] Graham testimony (August 3,
2005), pp. 16710–16713; [P] Fry testimony (June 13, 2005), p. 6599; Exhibit C-206, Tab 213.
[IC] Wright testimony (March 24, 2005), pp. 13007 and 13079–13080; [P] Graham testimony
(May 30, 2005), pp. 4108–4109, 4148–4149, 4297 and 4311, [IC] (August 3, 2005), pp.
16713–16714.
[IC] Wright testimony (March 24, 2005), p. 13007; [IC] Graham testimony (August 3, 2005),
pp. 16713–16714.
[P] Graham testimony (May 30, 2005), pp. 4148–4152.
431
�432
FACTUAL BACKGROUND: VOLUME I
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629
Ibid., p. 4266.
Ibid., pp. 4152–4153.
[P] Graham testimony (May 30, 2005), pp. 4109–4110.
[P] Loeppky testimony (July 28, 2005), p. 8788.
[P] Loeppky testimony (July 27, 2005), pp. 8530–8531.
[IC] Loeppky testimony (April 19, 2005), pp. 15010–15011 and [P] (July 27, 2005), pp.
8524–8525; Exhibit C-259, pp. 24–25.
[P] Killam testimony (August 2, 2005), pp. 9301–9303 and 9273; Exhibit P-204.
[IC] Pilgrim testimony (January 28, 2005), pp. 10569–10577; Exhibit C-001, Tab 119.
Exhibit C-206, Tab 209.
[IC] Solomon testimony (April 4, 2005), pp. 14030–14031; Exhibit C-206, Tabs 217 and 241.
[P] Graham testimony (May 30, 2005), pp. 4154–4157; Exhibit C-206, Tab 241.
[P] Easter testimony (June 3, 2005), pp. 5153–5163.
Exhibit C-206, Tabs 220 and 221.
[P] Dickenson testimony (August 29, 2005), pp. 10922–10926.
[P] Loeppky testimony (July 27, 2005), pp. 8532–8535.
[IC] Callaghan testimony (November 8, 2004), pp. 4245–4248; [IC] Loeppky testimony (April
19, 2005), pp. 15011–15013; Exhibit C-30, Tab 372; Exhibit C-259, p. 25.
Exhibit C-30, Tab 383.
[IC] Wright testimony (March 24, 2005), pp. 13011–13012; [P] Livermore testimony (May 17,
2005), p. 2506; Exhibit C-206, Tab 218. Mr. Wright did not recall the exact dates of his trip
to Prague, but he arrived in Prague in advance of Minister Graham, to participate in some of
the preparatory meetings for the Summit.
[IC] Livermore testimony (March 7, 2005), p. 12305 and [IC] (March 9, 2005), pp.
12547–12548.
[IC] Wright testimony (March 24, 2005), pp. 13011–13012; [IC] Livermore testimony (March 7,
2005), p. 12284; Exhibit C-206, Tab 218.
[IC] Livermore testimony (March 7, 2005), pp. 12300–12301 and [P] (May 17, 2005), pp.
2509–2510; Exhibit C-206, Tab 219.
[IC] Wright testimony (March 24, 2005), pp. 13018–13022.
Exhibit C-206, Tab 223.
Ibid.
[P] Livermore testimony (May 17, 2005), pp. 2508–2509, [IC] (March 7, 2005), pp.
12308–12309 and [IC] (March 9, 2005), pp. 12523–12524.
[P] Graham testimony (May 30, 2005), pp. 4165–4167 and 4108, [IC] (August 3, 2005), pp.
16724–16725; [IC] Wright testimony (March 24, 2005), pp. 13079-13080.
[P] Graham testimony (May 30, 2005), pp. 4149–4150 and 4167, and [IC] (August 3, 2005), pp.
16724–16725 and 16759.
Exhibit C-206, Tabs 212 and 241; [P] Graham testimony (May 30, 2005), pp. 4157–4159.
[P] Graham testimony (May 30, 2005), pp. 4159–4161.
Ibid., pp. 4161–4162. Minister Graham’s awareness of the CSIS trip to Syria is discussed below
in Section 4.
[IC] Graham testimony (August 3, 2005), pp. 16714–16723; Exhibit C-206, Tab 218.
[IC] Wright testimony (March 24, 2005), p. 13013 and [IC] (March 29, 2005), p. 13268.
[IC] Livermore testimony (March 9, 2005), pp. 12563–12566 and [P] (May 18, 2005), p. 2761.
[IC] Livermore testimony (March 7, 2005), pp. 12284–12288; Exhibit C-206, Tab 218.
[P] Fry testimony (June 13, 2005), pp. 6428–6429.
Ibid., pp. 6657–6662.
[IC] Pillarella testimony (March 30, 2005), p. 13496.
�IMPRISONMENT AND MISTREATMENT IN SYRIA
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[P] Pillarella testimony (June 14, 2005), pp. 6903–6904; Exhibit C-206, Tab 250.
Exhibit C-206, Tab 253.
[IC] Gould testimony (March 21, 2005), pp. 12685–12687; Exhibit C-215, p. 5.
Exhibit C-206, Tab 252.
[IC] Heatherington testimony (April 27, 2005), pp. 16416–16418.
Ibid., pp. 16334–16337.
[IC] Heatherington testimony (April 21, 2005), pp. 15539–15540; Exhibit C-206, Tab 260.
[IC] Pillarella testimony (March 30, 2005), p. 13580; Exhibit C-206, Tab 260.
[P] Pillarella testimony (June 14, 2005), pp. 6907–6909; Exhibit C-206, Tab 260.
Exhibit C-206, Tab 261.
The meeting between Minister Graham and Ambassador Arnous is discussed below in Section
5.4.
Exhibit C-206, Tab 262.
[IC] Testimony (September 14, 2004), pp. 352-355 and [IC] (September 16, 2004), pp. 880-884;
Exhibit C-1, Tab 57.
Exhibit C-30, Tab 355 and [IC] Callaghan testimony (November 8, 2004), pp. 4234–4237.
[IC] Cabana testimony (November 1, 2004), pp. 3275–3278.
Exhibit C-30, Tab 355 and [IC] Callaghan testimony (November 8, 2004), pp. 4234–4237.
[IC] Callaghan testimony (November 8, 2004), pp. 4234–4237.
[IC] Cabana testimony (November 1, 2004), pp. 3275–3278.
Ibid.
[IC] Pillarella testimony (March 30, 2005), pp. 13536–13544.
[IC] Cabana testimony (November 1, 2004), pp. 3288–3290.
[IC] Pardy testimony (August 4, 2005), pp. 16865–16867. Mr. Pardy was overseas at this time.
He was not made aware of the CSIS trip before it happened and only learned about it when
the CSIS delegation debriefed DFAIT about it on November 28.
[P] Dickenson testimony (August 29, 2005), pp. 10927–10931. Mr. Dickenson explained that
“there is almost an allergic reaction to providing the political level with operational information. It is inappropriate.” Mr. Dickenson had no recollection of having seen the bout de papier and PCO was not involved in assessing the reliability of the contents of this document
because they do not work at that operational level.
[P] Cabana testimony (June 29, 2005), pp. 8030–8035.
[P] Cabana testimony (June 30, 2005), pp. 8108–8112.
[IC] Cabana testimony (November 1, 2004), pp. 3288–3290.
Ibid. and [IC] (November 4, 2005), pp. 18258–18259.
[IC] Testimony (September 14, 2004), pp. 399–403.
Ibid.
Ibid.
Ibid.
Ibid. and [IC] Testimony (September 20, 2004), pp. 1284–1288. The CSIS representative did
not know how it would “taint” the investigation but thought that RCMP officials were hoping
at some point to interview Mr. Arar themselves.
[IC] Testimony (September 14, 2004), pp. 399–403.
[IC] Testimony (September 20, 2004), pp. 1284–1288.
[IC] Heatherington testimony (April 27, 2005), pp. 16396–16403. It was Mr. Heatherington’s
understanding that “we are going to pick up the RCMP interviews at a later stage.”
[IC] Solomon testimony (April 4, 2005), pp. 14006–14009.
Exhibit C-206, Tab 201.
[IC] Solomon testimony (April 4, 2005), pp. 14023–14025.
Exhibit C-206, Tab 226. This draft memorandum was never finalized.
[IC] Solomon testimony (April 4, 2005), pp. 14039–14044.
433
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FACTUAL BACKGROUND: VOLUME I
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Exhibit C–206, Tab 226. Ambassador Pillarella testified that he never went back to the Syrians
to say that Mr. Arar’s statement did not prove anything, because even though “it doesn’t prove
anything for us [that] does not mean that it doesn’t prove anything for them.” [ P ] Pi l l a re l l a
testimony (June 14, 2005), pp. 6862–6865.
[IC] Solomon testimony (April 4, 2005), pp. 14039–14044.
Exhibit C-212. Exhibit C-206, Tab 257 contained the unsigned final version, whereas Exhibit
C-212 was the final signed version with the transmittal copy attached.
Exhibit C-212.
[IC] Solomon testimony (April 4, 2005), pp. 14023–14025 and 14144–14148. Mr. Solomon acknowledged that by the time of the December 16 memorandum CSIS had conveyed to him
its opinion that Mr. Arar was not tortured. And there was also a great deal more context to
report to the Minister at that time.
[IC] Livermore testimony (March 7, 2005), pp. 12274–12276.
Ibid.
Ibid.
Ibid., pp. 12274–12280.
[IC] Heatherington testimony (April 21, 2005), pp. 15491–15500. Mr. Heatherington noted
that he did not know if Mr. Solomon used only Syrian information or whether he also drew
on the CSIS trip report when he drafted this memorandum. He thought it possibly drew on
different documents, including what came from the Syrians.
[IC] Heatherington testimony (April 21, 2005), pp. 15491–15522. The trip report can be found
at Exhibit C-206, Tab 255.
[IC] Livermore testimony (March 7, 2005), pp. 12274–12280.
[IC] Hooper testimony (September 22, 2004), pp. 1516–1571.
[P] Flewelling testimony (August 23, 2005), pp. 9898–9901. Corporal Flewelling testified that
the reliability assessment could have been done by the RCMP CID or an individual in Project
A-O Canada familiar with the file.
Exhibit C-1, Tab 93.
Ibid. CSIS noted that DFAIT advised that a briefing note on this issue was being prepared for
the Minister.
Ibid.; [IC] Testimony (September 20, 2004), pp. 1284–1287.
Ibid.; ibid.
Exhibit C-1, Tab 93; [IC] Testimony (September 14, 2004), pp. 404–405.
Ibid.; [IC] Testimony (September 20, 2004), pp. 1293–1294.
Exhibit C-206, Tab 218; [IC] Livermore testimony (March 7, 2005), pp. 12282–12288. Mr.
Solomon was aware that there was some debate about the timeliness of CSIS’ trip, but he
could not recall the substance of the debate and noted that there was an issue with the sequencing of a phone call with the Syrian Foreign Minister. [IC] Solomon testimony (April 4,
2005), pp. 14030–14034.
[IC] Livermore testimony (March 7, 2005), pp. 12282–12288.
Ibid.
Ibid. Mr. Livermore testified at a later date that at this time DFAIT was not concerned about
sending mixed messages to the Syrians and was more worried about mixed messages to the
Canadian public. [IC] Livermore testimony (March 9, 2005), pp. 12574–12577. However, Mr.
Wright testified that DFAIT was concerned that, given the public attention to the Arar case,
there was an opportunity here for mixed signals to the Syrians. [IC] Wright testimony (March
24, 2005), pp. 13010–13014.
Exhibit C-215; [P] Hooper testimony (August 25, 2005), pp. 10621–10626.
Exhibits C-215 and C-215A; [IC] Gould testimony (March 21, 2005), pp. 12677–12685.
�IMPRISONMENT AND MISTREATMENT IN SYRIA
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Ibid.; ibid. Mr. Hooper testified that these are things he would have said, but he did not know
whether they were said in the context of the conference call (which he did not participate in)
or whether they were said by others attributing them to him. [P] Hooper testimony (August
25, 2005), pp. 10621–10626.
Exhibit C-206, Tab 208. Mr. Heatherington recalled that it might have been Mr. Livermore
who spoke with CSIS, requesting that the trip be delayed. [IC] Heatherington testimony (April
21, 2005), pp. 15522–15525.
Exhibit C-206, Tab 208.
[IC] Livermore testimony (March 7, 2005), pp. 12282–12288.
Ibid.
[IC] Livermore testimony (March 9, 2005), p. 12577.
See Section 3.8.4 above. Minister Graham’s understanding of the CSIS trip was that it was
about a general sharing of information and that the Arar case was a collateral matter and not
the purpose of the trip. [IC] Graham testimony (August 3, 2005), pp. 16725–16727.
Exhibit C-206, Tabs 238 and 243.
[P] Fry testimony (June 13, 2005), pp. 6429–6438 and 6618. Mr. Fry explained that some staff
in the Minister’s office might have learned about the trip before the Christmas break, but the
first time their office was made aware was when Mr. Pardy advised Mr. Fry in early January
2003.
[P] Fry testimony (June 13, 2005), p. 6430.
Ibid., pp. 6429–7439.
Ibid., p. 6438.
Ibid., pp. 6618–6620 and 6437–6438.
[P] Easter testimony (June 3, 2005), pp. 5156–5158.
[IC] Easter testimony (August 11, 2005), pp. 17738–17741.
[P] Hooper testimony (August 25, 2005), pp. 10621–10625.
[P] Dickenson testimony (August 29, 2005), pp. 10931–10935.
Ibid., p. 10935.
Ibid., p. 10936.
Ibid., p. 10937.
Ibid., p. 10938.
[IC] Pardy testimony (August 4, 2005), p. 16867; Exhibit C-206, Tab 242.
[P] Pastyr-Lupul testimony (July 29, 2005), p. 9021.
Exhibit C-206, Tab 218.
Ibid., Tab 223.
Ibid.
Ibid.; [IC] Livermore testimony (March 7, 2005), pp. 12304–12307.
Ibid.
Exhibit C-206, Tab 216.
Ibid.; [IC] Livermore testimony (March 7, 2005), pp. 12289–12291 and 12295–12298.
Ibid.; ibid., pp. 12288–12291 and 12295–12298.
[P] Martel testimony [ET] (August 30, 2005), p. 11080.
[IC] Testimony (September 21, 2004), pp. 1360–1361.
Ibid.; [IC] Pillarella testimony (March 30, 2005), p. 13561 and [P] (June 14, 2005), pp.
6883–6889; Exhibit C-206, Tab 227.
Exhibit C-1, Tab 110.
[P] Pillarella testimony (June 14, 2005), pp. 6875–6876; Exhibit C-206, Tab 227.
[IC] Testimony (August 5, 2005), pp. 17081–17085; Exhibit C-1, Tabs 307 and 441.
Ibid., p. 17086.
435
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FACTUAL BACKGROUND: VOLUME I
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Ibid., pp. 17086–17092; [IC] (September 29, 2004), pp. 2231–2232, 1975–1977 and 1982.
[P] Hooper testimony (August 25, 2005), p. 10825.
Ibid., pp. 10816–10817.
[IC] Testimony (September 20, 2004), p. 1253 and [IC] (August 5, 2005), pp. 17086–17087.
[IC] Ibid., pp. 2141-2145; Exhibit C–1, Tab 224.
[IC] Ibid., p. 1975; [IC] Livermore testimony (March 7, 2005), p. 12270; [P] Hooper testimony
(August 25, 2005), p. 10655; [P] Cabana testimony (June 29, 2005), p. 8049; [IC] Hooper testimony (September 23, 2004), p. 1919
[P] Hooper testimony (August 25, 2005), pp. 10828–10829.
[P] Pastyr-Lupul testimony (July 29, 2005), pp. 9219–9220 and 9225–9227.
[IC] Testimony (September 29, 2004), pp. 2276–2278
[IC] Testimony (August 5, 2005), p. 17098.
Ibid., pp. 17100 and 17102.
Exhibit C-206, Tab 227.
Ibid.
[P] Pillarella testimony (June 15, 2005), p. 7137, [P] (June 14, 2005), pp. 6883–6885 and
6927–6930 and [IC] (March 30, 2005), pp. 13561–13563.
[IC] Testimony (August 5, 2005), pp. 17159–17161 and 17080–17081; Exhibit C-206, Tab 227.
[IC] Solomon testimony (April 4, 2005), pp. 14044–14047; Exhibit C-233, pp. 37–38; see
Exhibit C-206, Tab 242.
[IC] Solomon testimony (April 4, 2005), p. 14048; Exhibit C-233, pp. 37–38.
[IC] Testimony (August 5, 2005), p. 17167.
[IC] Pardy testimony (August 4, 2005), p. 16867; Exhibit C-206, Tabs 242, 227 and 238. It appears that Mr. Hooper and another CSIS official may have also been present, along with an
unidentified female representative from PCO.
Ibid.
Ibid., Tab 264.
[IC] Testimony (September 29, 2004), pp. 2087 and 2235–2236.
Exhibit C-206, Tabs 233 and 240.
[IC] Pardy testimony (August 4, 2005), pp. 16868–16871 and [P] (May 25, 2005), pp.
3676–3677. The history of the Muslim Brotherhood in Syria is long, complicated and bloody.
According to Mr. Pardy, it originated in Egypt 75 to 80 years ago, and spread from there to
other countries. He understood that a key event occurred in the late 1970s or early 1980s,
when people assumed to be part of the Muslim Brotherhood attacked cadets attending a military college. The Syrian government came down hard in the aftermath, and in 1982, attacked
the town of Hama, considered to be the heart of the Muslim Brotherhood. According to published reports, they killed somewhere between 5,000 and 40,000 people. This was seen as the
date when the Muslim Brotherhood diminished as a serious threat to the stability of the Syrian
government.
It remains a capital offence in Syria to be a member of the Brotherhood. Mr. Pardy agreed that
since Mr. Arar left Syria when he was 17 years old, and would have been 12 or 13 years old
at the height of the campaign against the Muslim Brotherhood, linking Mr. Arar to this organization was highly suspect. [P] Pardy testimony (May 26, 2005), pp. 3916–3924.
[P] Pardy testimony (October 24, 2005), pp. 12167–12170.
Ibid., pp. 12174–12175.
[IC] Livermore testimony (March 7, 2005), pp. 12291–12295 and 12279–12280; [IC]
Heatherington testimony (April 21, 2005), p. 15576; Exhibit C-206, Tab 247. Mr. Livermore
thought that Mr. Arar was probably too young to have had much involvement with the Muslim
Brotherhood, but believed that Mr. Arar’s family had some associations with the organization.
�IMPRISONMENT AND MISTREATMENT IN SYRIA
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[IC] Pillarella testimony (March 30, 2005), pp. 13565–13567 and [P] (June 14, 2005), p. 6954;
Exhibit C-206, Tab 247.
Exhibit C-206, Tab 253. Mr. Martel recalled hearing that the Syrians had alleged that Mr. Arar
was a member of the Muslim Brotherhood. However, he testified that he did not recall Colonel
Saleh ever making this allegation to him directly; rather, he believed he may have learned of
it through the Ambassador. [P] Martel testimony [ET] (August 31, 2005), pp. 11395–11399 and
[IC] (April 25,
2005),
pp. 15750–15753.
Exhibit C-206, Tab 264.
[IC] Pardy testimony (August 4, 2005), pp. 16867–16871.
[IC] Heatherington testimony (April 21, 2005), pp. 15509–15510.
[IC] Testimony (September 29, 2004), pp. 2061–2068.
[IC] Coghlin testimony (September 16, 2004), pp. 923–928; Exhibit C-1, Tab 384.
[IC] Testimony (August 5, 2005), p. 17168.
[P] Ofshe testimony (June 8, 2005), pp. 6024–6025.
[IC] Testimony (August 5, 2005), pp. 17169–17170; [IC] Hooper testimony (September 13,
2004), pp. 55–56; [IC] Flewelling testimony (January 20, 2005), pp. 9581–9582; [IC] Cabana
testimony (November 1, 2004), pp. 3346–3347; Exhibit C-1, Tab 122; Exhibit C-30, Tabs 397,
399 and 410.
[IC] Testimony (August 5, 2005), pp. 17173–17176.
[P] Cabana testimony (June 29, 2005), pp. 8050–8053.
[P] Edelson testimony (June 16, 2005), pp. 7341 and 7344–7345.
[P] Lockyer testimony (June 17, 2005), pp. 7671–7673.
[IC] Testimony (September 16, 2004), pp. 814–819; Exhibit C-206, Tab 255.
[IC] Testimony (August 5, 2005), pp. 17170–17171.
Exhibit C-212.
Ibid.
Ibid.
Ibid.
Exhibit C-206, Tab 261.
Ibid. The difficulties listed included scheduling issues and the need for more information about
Syrian concerns, something Ambassador Pillarella was attempting to obtain from General
Khalil, who was ill at the time.
Ibid.
Ibid.
[IC] Pardy testimony (August 4, 2005), pp. 16881–16884.
[IC] Heatherington testimony (April 21, 2005), pp. 15547–15554. Mr. Heatherington testified
that he did not believe this was the issue and saw no change in approach from calling the
Syrian Foreign Minister to calling in the Syrian Ambassador instead. Rather, the problem was
one of scheduling.
[IC] Wright testimony (March 24, 2005), pp. 13037–13038.
[IC] Graham testimony (August 3, 2005), pp. 16725–16728.
Exhibit C-28, Tab 4.
Mr. Martel and Ms. Pastyr-Lupul were not aware that only days before, CSIS visited the Syrian
Military Intelligence. [P] Martel testimony [ET] (August 30, 2005), pp. 11080–11081; [P] PastyrLupul testimony (July 29, 2005), pp. 9020–9021.
Exhibit C-206, Tab 228.
[P] Pardy testimony (May 25, 2005), pp. 3583–3587.
[P] Pillarella testimony (June 14, 2005), pp. 6894–6896.
437
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FACTUAL BACKGROUND: VOLUME I
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Exhibit C-206, Tab 229; [IC] Martel testimony (April 25, 2005), pp. 15740–15742; [P] PastyrLupul testimony (July 29, 2005), pp. 9020–9021.
Exhibit C-206, Tab 229; [IC] Martel testimony (April 25, 2005), pp. 15740–15742; [P] PastryLupul testimony (July 29, 2005), pp. 9020–9022. Mr. Martel said there was no indication that
medicine would have been difficult to take, given the conditions Mr. Arar was living under.
He also understood that Mr. Arar was getting all the medicine he wanted — it was just a question of preference for Canadian brands. In the end, Mr. Martel was not able to find the Tylenol
Mr. Arar wanted, but Mr. Arar said in subsequent visits that it was not important, as all his
needs were taken care of. [IC] Martel testimony (April 26, 2005), pp. 16133–16134.
Exhibit C-206, Tab 229; [IC] Martel testimony (April 25, 2005), pp. 15740–15742.
Ibid.; ibid., pp. 15740–15744.
[P] Martel testimony [ET] (August 30, 2005), pp. 11085–11087; [P] Pastyr-Lupul testimony (July
29, 2005), pp. 9020–9024; [P] Pardy testimony (May 25, 2005), pp. 3583–3586; [P] Pardy testimony (May 26, 2005), pp. 3861–3864. At no time, to Mr. Martel’s best recollection, did he
and Ambassador Pillarella discuss the possibility that Mr. Arar had been tortured or mistreated
during the initial days of his detention. [P] Martel testimony [ET] (August 30, 2005), pp.
11089–11090.
[P] Martel testimony [ET] (August 30, 2005), pp. 11085–11087.
[P] Pardy testimony (May 26, 2005), pp. 3887–3890.
Exhibit C-206, Tab 245; [IC] Martel testimony (April 25, 2005), pp. 15745–15746.
[P] Pastyr-Lupul testimony (July 29, 2005), pp. 9024–9026.
Ibid., pp. 9026–9027.
[P] Pillarella testimony (June 14, 2005), pp. 6901–6904; [P] Pardy testimony (May 25, 2005),
pp. 3587–3590.
[IC] Martel testimony (April 25, 2005), pp. 15746–15747; Exhibit C-206, Tab 246.
[IC] Martel testimony (April 25, 2005), pp. 15747–15748.
This was a reference to a disparaging comment about President George W. Bush made by
Françoise Ducros, the Prime Minister’s press secretary.
Exhibit C-206, Tab 248.
[P] Pastyr-Lupul testimony (July 29, 2005), pp. 9028–9029.
[P] Martel testimony [ET] (August 30, 2005), pp. 11092–11094 and 11115–11118.
Exhibit C-206, Tab 253.
[P] Pillarella testimony (June 15, 2005), p. 7176.
[IC] Pillarella testimony (March 30, 2005), pp. 13571–13573; Exhibit C-206, Tab 253.
[P] Pillarella testimony (June 14, 2005), pp. 6909–6910.
Ibid., pp. 6910-6915.
[P] Pardy testimony (May 26, 2005), pp. 3830–3831.
[P] Graham testimony (May 30, 2005), pp. 4220–4221.
Exhibit C-206, Tab 254.
[P] Pastyr-Lupul testimony (July 29, 2005), pp. 9029–9034.
[P] Pardy testimony (May 25, 2005), pp. 3603–3606.
[IC] Martel testimony (April 25, 2005), pp. 15763–15765; Exhibit C-206, Tab 276.
[IC] Martel testimony (April 26, 2005), pp. 16104–16108; Exhibit C-206, Tab 276.
[IC] Martel testimony (April 25, 2005), pp. 15765–15766; Exhibit C-206, Tab 276.
[IC] Martel testimony (April 25, 2005), pp. 15775–15776. Dr. Mazigh had been asked about Mr.
Arar’s laptop prior to the visit. [IC] Martel testimony (April 26, 2005), pp. 16134–16135.
Exhibit C-206, Tab 276.
[IC] Martel testimony (April 25, 2005), pp. 15772–15773; Exhibit C-206, Tab 276.
[P] Martel testimony [ET] (August 30, 2005), pp. 11098–11100.
�IMPRISONMENT AND MISTREATMENT IN SYRIA
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[P] Pardy testimony (May 26, 2005), pp. 3893 –3895.
[P] Martel testimony [ET] (August 30, 2005), pp. 11099–11101; Exhibit C-206, Tab 276.
[P] Pastyr-Lupul testimony (July 29, 2005), pp. 9029-9034 and 9037–9039.
[IC] Martel testimony (April 25, 2005), pp. 15763–15769; Exhibit C-206, Tab 276.
[P] Martel testimony [ET] (August 30, 2005), pp. 11101–11104.
Exhibit C-206, Tab 276.
[IC] Martel testimony (April 25, 2005), p. 15775.
Exhibit C-206, Tab 290.
[P] Pastyr-Lupul testimony (July 29, 2005), pp. 9046–9048.
[IC] Pillarella testimony (March 30, 2005), pp. 13586–13594; Exhibit C-206, Tab 281.
[P] Pillarella testimony (June 14, 2005), pp. 6916–6917.
[IC] Pillarella testimony (March 30, 2005), pp. 13595–13598.
Exhibit C-206, Tab 313.
[IC] Martel testimony (April 26, 2005), pp. 16129–16130.
Exhibit C-206, Tab 313.
Ibid.
[IC] Martel testimony (April 25, 2005), pp. 15804–15805.
[P] Pardy testimony (May 25, 2005), p. 3629.
Exhibit C-206, Tab 313.
Ibid.
[P] Pastyr-Lupul testimony (July 29, 2005), pp. 9010–9013. Contact between Minister Graham’s
office and the Arar family is discussed below.
As discussed, some of these personal letters were circulated more widely than the Consular
Affairs, albeit still within DFAIT.
[P] Pastyr-Lupul testimony (July 29, 2005), pp. 9017–9019.
Exhibit C-206, Tab 294.
[P] Pastyr-Lupul testimony (July 29, 2005), pp. 9024 and 9026–9027.
Ibid., pp. 9039–9044.
Ibid., pp. 9052-9053; Exhibit C-206, Tab 30.
Exhibit C-206, Tab 290.
[P] Pastyr-Lupul testimony (July 29, 2005), pp. 9062–9065.
[P] Pardy testimony (May 25, 2005), pp. 3651–3653; Exhibit C-206, Tab 331. Dr. Mazigh’s
worries about this scaling-down in the Middle East led to several requests from Dr. Mazigh to
meet in person with Minister Graham.
Exhibit C-206, Tab 322.
[P] Pastyr-Lupul testimony (July 29, 2005), pp. 9062–9065.
Exhibit C-206, Tab 220; [P] Pastyr-Lupul testimony (July 29, 2005), pp. 9017–9019.
[P] Pardy testimony (May 25, 2005), pp. 3594–3595.
Ibid., p. 3617. One example of the ongoing public campaign was the vigil held for Mr. Arar
on December 16, 2002, attended by his wife, children, several supporters and members of
Parliament. The event attracted media attention. Exhibit C-206, Tab 261.
[P] Fry testimony (June 13, 2005), p. 6421.
Ibid., p. 6615.
Ibid., pp. 6451-6453.
[P] Pastyr-Lupul testimony (July 29, 2005), pp. 9048–9049.
[P] Fry testimony (June 13, 2005), pp. 6440–6444.
Exhibit C-206, Tab 262.
Ibid.
Ibid.
439
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[IC] Pardy testimony (August 4, 2005), pp. 16889–16890.
[P] Fry testimony (June 13, 2005), pp. 6447–6451.
Exhibit C-206, Tab 288; [P] Graham testimony (May 30, 2005), pp. 4182–4185.
Exhibit C-206, Tab 293.
[P] Graham testimony (May 30, 2005), pp. 4189–4192.
Exhibit C-206, Tab 293.
[P] Graham testimony (May 30, 2005), pp. 4192–4194.
Exhibit C-206, Tab 285.
Ibid.
Ibid.
[IC] Pillarella testimony (March 30, 2005), pp. 13558–13561. However, Ambassador Pillarella
also testified that he was given the same message by General Khalil before the January 15
meeting, but could not recall how long before. [P] Pillarella testimony (June 14, 2005), pp.
6925–6933.
[IC] Pillarella testimony (March 30, 2005), pp. 13558–13561. Mr. Pardy also testified that they
had received “this information from the Syrians on three occasions,” from the Deputy Foreign
Minister, General Khalil and Ambassador Arnous, and that “it was a consistent message, but
it was spread over 6–8 weeks.” [P] Pardy testimony (June 2, 2005), pp. 4964–4968.
[IC] Pillarella testimony (March 31, 2005), pp. 13626–13633.
[P] Pillarella testimony (June 14, 2005), pp. 6925–6833.
[IC] Pillarella testimony (March 30, 2005), pp. 13558–13561 and [IC] (March 31, 2005),
pp. 13626–13633.
[IC] Martel testimony (April 25, 2005), pp. 15776–15783. Mr. Martel testified that this was the
only time a Syrian official had made a comment like this in his presence. [P] Martel testimony
[ET] (August 30, 2005), pp. 11104–11109.
[IC] Pillarella testimony (March 30, 2005), p. 13559. Mr. Pardy testified that “from the very
first message we sent the embassy, that message was that we wanted Mr. Arar back,” and
there was not one message that “would indicate any hesitation on that issue.” [P] Pardy testimony (June 2, 2005), p. 4966.
[IC] Pillarella testimony (March 31, 2005), pp. 13630–13631.
Ibid., p. 13632 and [P] (June 15, 2005), p. 7195.
[IC] Heatherington testimony (April 21, 2005), pp. 15554–15559.
[P] Hooper testimony (August 25, 2005), pp. 10636–10646.
[IC] Testimony (August 5, 2005), pp. 17102–17110.
[IC] Testimony (September 29, 2004), p. 2084.
[IC] Testimony (August 5, 2005), pp. 17092–17098. One of the other delegates also testified
that he would never have said that CSIS did not want Mr. Arar back in Canada. [IC] Testimony
(September 21, 2004), pp. 1382–1383.
See Exhibit P-99, a memorandum documenting the MPs’ lunch with Ambassador Arnous, for
this wording.
[IC] Testimony (August 5, 2005), pp. 17100–17102.
[P] Hooper testimony (August 25, 2005), pp. 10639–10646. Mr. Hooper explained that he
“found this allegation quite surprising” because he had been involved in the initial tasking
around the visit to Syria and there had been strict admonitions as to what they would and
would not do while over there. This was not in accord with those instructions.
Ibid., pp. 10638–10640.
[IC] Livermore testimony (March 9, 2005), pp. 12403–12406.
Ibid., p. 12404.
Ibid.
�IMPRISONMENT AND MISTREATMENT IN SYRIA
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903
904
905
906
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911
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933
934
Ibid., p. 12405.
[P] Fry testimony (June 13, 2005), pp. 6444–6449.
Exhibit C-206, Tab 293.
[IC] Wright testimony (March 24, 2005), pp. 13043–13048.
Exhibit C-206, Tab 293.
Ibid.
Ibid.
[P] Hooper testimony (August 25, 2005), pp. 10636–10646.
Ibid., p. 10642.
Ibid., pp. 10644–10645
Ibid., p. 10645
Ibid.
Ibid.
[IC] Testimony (August 5, 2005), p. 17105.
He reported to RCMP Headquarters through the International Operations Branch (IOB), which
subsequently became known as the International Liaison Branch and was within the
International Policing Operations Branch. His direct reporting relationship was to
Superintendent Mike Saunders, Director of the IOB. [IC] Fiorido testimony (November 3, 2005),
pp. 17947–17950.
His position was governed by the Memorandum of Understanding between the RCMP and
DFAIT dated October 12, 1998. Exhibit P-12, Tab 50.
[IC] Fiorido testimony (November 3, 2005), pp. 17959–17961.
Ibid., pp. 17962–17963.
Ibid., p. 17955.
Exhibit C-356.
[IC] Fiorido testimony (November 3, 2005), pp. 17966–17967.
[IC] Cabana testimony (October 28, 2004), pp. 3088–3089.
[IC] Cabana testimony (November 1, 2004), p. 3245.
[IC] Gould testimony (March 21, 2005), p. 12630.
Exhibit C-215A; [IC] Gould testimony (March 21, 2005), pp. 12636–12638.
[IC] Cabana testimony (November 2, 2004), pp. 3755–3756.
[IC] Gould testimony (March 21, 2005), pp. 12638–12641.
Exhibit C-357; [IC] Fiorido testimony (November 3, 2005), pp. 17975-17976.
[IC] Flewelling testimony (January 20, 2005), pp. 9480–9482.
[IC] Corcoran testimony (November 15, 2004), pp. 4860–4861; Roy notes, p. 11. Chief
Superintendent Couture, Inspector Cabana and Staff Sergeants Callaghan and Corcoran were
present from Project A-O Canada, as were Ambassador Pillarella, Don Saunders, Scott
Heatherington, James Gould and Jonathan Solomon from DFAIT. The RCMP LO to DFAIT,
Inspector Richard Roy, was also present, and perhaps others.
Callaghan notes, p. 279. A series of questions had been prepared for the Syrians to put to Mr.
Almalki if Project A-O Canada officials were not permitted direct access.
Ibid.
[IC] Pillarella testimony (March 30, 2005), pp. 13416–13420 and [IC] (March 31, 2005),
pp. 13768–13771.
Mr. Solomon’s comment was not recorded in the contemporaneous notes of the Project A-O
Canada officers present. It is mentioned in Staff Sergeant Callaghan’s notes for November 23,
2003, more than a year later, after Mr. Arar’s return to Canada and his press conference. In
November 2003, Inspector Cabana had asked about any discussions Project A-O Canada may
have had about sending questions for Mr. Arar to Syria. Staff Sergeant Callaghan could not re-
441
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FACTUAL BACKGROUND: VOLUME I
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call any such discussions, but reminded Inspector Cabana of the September 10, 2002 meeting and the comment by Mr. Solomon.
[IC] Solomon testimony (April 4, 2005), pp. 13912–13916.
Ibid., pp. 14078–14082.
Ibid., pp. 13915–13916.
[IC] Pillarella testimony (March 30, 2005), pp. 13413–13414 and 13427.
[IC] Pillarella testimony (March 31, 2005), pp. 13749–13750.
[IC] Roy testimony (December 6, 2004), pp. 6815–6822.
[IC] Heatherington testimony (April 27, 2005), pp. 16164–16171.
[IC] Cabana testimony (August 8, 2005), pp. 17291–17296.
Exhibit C-30, Tab 290; [IC] Solomon testimony (April 4, 2005), pp. 13983–13991.
Exhibit C-30, Tab 290.
Ibid. Ambassador Pillarella testified that to his knowledge, he had never pointed out to the
RCMP that the questioning might involve torture. [IC] Pillarella testimony (March 30, 2005), p.
13460.
[IC] Solomon testimony (April 4, 2005), pp. 13987–13991. Mr. Livermore was not aware of the
September 10 meeting and so could not confirm whether this referred to that meeting. He testified that it was information Mr. Solomon had brought to their attention based on his contacts interdepartmentally. [IC] Livermore testimony (March 7, 2005), pp. 12201–12204.
[IC] Solomon testimony (April 4, 2005), pp. 14115–14117.
Ibid.
Ibid.
[IC] Gould testimony (March 24, 2005), pp. 12951–12952.
See Exhibit C-219, Tabs 2 and 3, for Corporal Flewelling’s acknowledgement of the fax to
Staff Sergeant Fiorido.
Exhibit C-219, Tab 1.
[IC] Fiorido testimony (November 3, 2005), pp. 17981–17982. Inspector Cabana also proposed
extending an invitation to the Syrians “to come to Canada and meet with our team to share
information of common interest,” because the Syrian authorities had expressed an interest in
the information the RCMP had concerning Mr. Almalki. Exhibit C-219, Tab 1; [IC] Cabana
testimony (November 4, 2005), pp. 18251–18253. See Exhibit C-219, Tabs 3 and 4, for exchanges between Inspector Cabana and Corporal Flewelling on the issue of RCMP policy regarding invitations to foreign agencies for operational purposes.
[IC] Fiorido testimony (November 3, 2005), pp. 17984–17985.
[IC] Cabana testimony (November 1, 2004), pp. 3241–3245.
Exhibit C-31, p. 287; [IC] Cabana testimony (November 1, 2004), pp. 3241–3245 and [IC]
(November 4, 2005), pp. 18254–18255. Mr. Gould did not recall asking whether there were
any messages the RCMP would like conveyed. [IC] Gould testimony (March 21, 20005), pp.
12666–12668.
[IC] Gould testimony (March 21, 2005), pp. 12666–12670.
[IC] Cabana testimony (November 4, 2005), pp. 18254–18255.
Exhibit C-206, Tab 112.
Ibid.
[IC] Fiorido testimony (November 3, 2005), pp. 17995–17996.
Exhibit C-359, Tab 1.
[IC] Solomon testimony (April 4, 2005), pp. 13923–13927. Mr. Solomon did not have any
notes on this meeting and could not recall who attended.
Ibid.
Ibid., pp. 14166–14167.
�IMPRISONMENT AND MISTREATMENT IN SYRIA
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Exhibit C-233, p. 24; [IC] Solomon testimony (April 4, 2005), pp. 13923–13927. The draft letter was the one referred to in the October 30 memorandum. Exhibit C-206, Tab 159. Mr.
Solomon testified that he did not know if the comments he had written down had come from
what he had “picked up” himself or from discussions with colleagues in the Legal Affairs
Bureau. Ibid., pp. 13923–13927.
[IC] Solomon testimony (April 4, 2005), pp. 14163–14168.
Exhibit C-206, Tab 159.
[IC] Livermore testimony (March 7, 2005), p. 12222.
[IC] Cabana testimony (August 8, 2005), pp. 17287–17298.
[IC] Pillarella testimony (March 30, 2005), pp. 13519–13521.
[IC] Cabana testimony (November 4, 2005), pp. 18315–18317.
[IC] Solomon testimony (April 4, 2005), pp. 13931–13933 and 14118–14122.
[IC] Livermore testimony (March 7, 2005), pp. 12224–12225.
[IC] Livermore testimony (March 9, 2005), pp. 12521–12522.
[IC] Livermore testimony (March 7, 2005), pp. 12222–12225.
[IC] Heatherington (April 21, 2005), pp. 15472–15479. Mr. Heatherington explained that, all
along, DFAIT ISI had tried to tell the RCMP their concerns with respect to Syria and expressed
the view that it would be preferable for them to interview him. [IC] Heatherington testimony
(April 27, 2005), pp. 16174–16177.
[IC] Heatherington (April 21, 2005), pp. 15472–15479.
Ibid.
[IC] Cabana testimony (November 4, 2005), pp. 18255–18257.
[IC] Cabana testimony (August 8, 2005), pp. 17357–17360.
Exhibit C-98, Tab 2, pp. 11–12; [IC] Fiorido testimony (November 3, 2005), pp. 17996–18002.
[IC] Fiorido testimony (November 3, 2005), pp. 18002–18003. Staff Sergeant Fiorido testified
that the strategy of submitting questions had been initiated by Project A-O Canada and he had
merely reported to them that the first option of interviewing Mr. Almalki was not going to
work. Ibid., pp. 18080–18081.
Ibid., p. 18003.
Ibid., p. 18008.
[IC] Cabana testimony (November 4, 2005), pp. 18265–18275. Inspector Cabana did not know
if the comment “DFAIT was aware” was the result of a conversation he or Staff Sergeant Fiorido
had had with DFAIT. Staff Sergeant Fiorido testified that he never had any dealings with DFAIT
Headquarters and had dealt only with Ambassador Pillarella.
Exhibit C-359, Tab 3; [IC] Fiorido testimony (November 3, 2005), pp. 18010–18011.
[IC] Fiorido testimony (November 3, 2005), pp. 18083–18085. Corporal Flewelling stated that
anything going to the LOs from Project A-O Canada should have gone through him. [IC]
Flewelling testimony (January 21, 2005), pp. 9611–9612. He confirmed that CID had been
copied on this, but could not recall if he had sent any communication to the LO advising him
to hold off until CID decided what to do. Corporal Flewelling testified that he had had discussions with Project A-O Canada later regarding matters of that type coming through CID,
but could not recall whether he had discussed the issue of content. [IC] Flewelling testimony
(January 21, 2005), pp. 9611–9612.
Exhibit C-219, Tab 7. The copy of this document that Staff Sergeant Fiorido received on
December 24 (Exhibit C-359, Tab 3) did not contain Superintendent Pilgrim’s signature, but
did contain Chief Superintendent Couture’s. Superintendent Pilgrim was examined on the
January 7 version of this document (Exhibit C-30, Tab 418, which is the same as Exhibit C219, Tab 8), which did not contain his signature. He was not shown the December 20 version (Exhibit C-219, Tab 7) with his signature because it was filed after his testimony. With
443
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FACTUAL BACKGROUND: VOLUME I
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reference to the January 7 version, he explained that his preference was that CID be the funnel for information like this to ensure a central coordinating role; however, he did “relax to
some degree where the divisions were permitted to deal directly with the LO with notification
and also simultaneously going through CID.” Superintendent Pilgrim confirmed that CID had
been kept in the loop here by being faxed a copy of the questions sent directly to the LO. He
indicated that if CID had had a concern, they would have acted on it and communicated with
both the investigators and the LO. [IC] Pilgrim testimony (January 28, 2005), pp. 10703–10706
and 10786–10790.
[IC] Cabana testimony (August 8, 2005), pp. 17357–17360.
[IC] Proulx testimony (December 14, 2004), pp. 8333–8337.
Exhibit C-359, Tab 4; [IC] Fiorido testimony (November 3, 2005), pp. 18008–18009. An information copy of this version was also sent to Corporal Flewelling and the ILPO branch, as
well as to Steve Fedor at “O” Division INSET. Ibid., pp. 18083–18085. The only difference between the final version and the draft version is that the word “Draft” was removed. [IC] Cabana
testimony (November 4, 2005), p. 18274.
Exhibit C-359, Tab 4.
[IC] Fiorido testimony (November 3, 2005), pp. 18015–18017.
Exhibit C-359, Tab 5.
[IC] Fiorido testimony (November 3, 2005), pp. 18025–18026 and 18137.
Exhibit C-359, Tab 8; [IC] Fiorido testimony (November 3, 2005), pp. 18023–18025. [***]. [IC]
Testimony (November 3, 2005), pp. 18166–18168.
[IC] Fiorido testimony (November 3, 2005), pp. 18025–18026; [IC] Cabana testimony
(November 4, 2005), pp. 18280–18281.
[IC] Fiorido testimony (November 3, 2005), pp. 18027–18029. Staff Sergeant Fiorido explained
that, in his dealings with unit OICs, as long as requests did not cause him alarm with respect
to hindering his relations with the agency in question, he was comfortable with them. Ibid.,
p. 18082.
[IC] Cabana testimony (August 8, 2005), pp. 17360–17361.
Exhibit C-359, Tab 10.
[IC] Fiorido testimony (November 3, 2005), pp. 18027–18030. Ibid., pp. 18157–18158.
Ibid., pp. 18032–18033.
[IC] Cabana testimony (November 4, 2005), pp. 18282–18284.
[IC] Fiorido testimony (November 3, 2005), pp. 18027–18034. The second set of questions for
Mr. Almalki (Exhibit C-365), entitled “Abdullah Almalki: Questions for the Syrian Authorities”
and dated August 14, listed Mr. Arar under the heading “Associates” and provided some background information.
Exhibit C-359, Tab 9; [IC] Fiorido testimony (November 3, 2005), pp. 18034–18035.
[IC] Fiorido testimony (November 3, 2005), pp. 18051–18052.
Ibid., pp. 10853–10854.
[IC] Cabana testimony (August 8, 2005), pp. 17314–17315.
[IC] Callaghan testimony (November 8, 2004), pp. 4252–4254.
[IC] Cabana testimony (August 8, 2005), pp. 17315–17319.
This term was used by Commission Counsel. [IC] Cabana testimony (November 4, 2005),
pp. 18285–18291. The list of questions for Mr. Almalki included references to numerous people, some of whom were under investigation and suspected of being involved in terrorist activities.
[IC] Cabana testimony (November 4, 2005), pp. 18286–18291.
Ibid.
Ibid., pp. 18328.
�IMPRISONMENT AND MISTREATMENT IN SYRIA
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1017
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1019
1020
1021
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1023
1024
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1026
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1031
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1033
1034
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1036
1037
1038
1039
1040
1041
1042
1043
1044
1045
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1047
1048
1049
1050
Exhibit C-361; Exhibit C-219, Tab 15; Exhibit C-359, Tab 11; [IC] Fiorido testimony
(November 3, 2005), pp. 18037–18038; [IC] Testimony (November 3, 2005), pp. 18205–18207.
[IC] Fiorido testimony (November 3, 2005), pp. 18039–18040.
Exhibit C-359, Tab 11; [IC] Fiorido testimony (November 3, 2005), pp. 18039–18040. He could
not recall whether he had also provided the Ambassador with a copy of the cover letter as a
courtesy.
[IC] Pillarella testimony (March 30, 2005), p. 13439.
[IC] Pillarella testimony (March 31, 2005), pp. 13771–13774.
Exhibit C-359, Tab 11.
[IC] Fiorido testimony (November 3, 2005), p. 18044.
Ibid., p. 18044.
Ibid., p. 18040.
Ibid., p. 18042.
[IC] Pillarella testimony (March 30, 2005), pp. 13440–13442.
Ibid., pp. 13423–13426.
[IC] Proulx testimony (December 14, 2005), pp. 8336–8337.
[IC] Pillarella testimony (March 30, 2005), pp. 13431–13433.
Ibid., pp. 13441–13442.
[IC] Fiorido testimony (November 3, 2005), pp. 18135–18136.
Ibid., p. 18136.
Exhibit C-219, Tab 6 (same as Exhibit C-206, Tab 159); [IC] Fiorido testimony (November 3,
2005), pp. 17997–17998.
[IC] Pillarella testimony (March 30, 2005), pp. 13409–13411 and 13427–13433.
Ibid., pp. 13408–13411.
Ibid., pp. 13421–13422 and [IC] (March 31, 2005), pp. 13761–13762.
Ibid., p. 13426.
Ibid., p. 13423.
[IC] Martel testimony (April 25, 2005), pp. 15788–15790.
Ibid., and [IC] (April 26, 2005), pp. 16149–16150. Ambassador Pillarella believed that the letter had been delivered by Mr. Martel during the February consular visit with Mr. Arar (Exhibit
C-219, Tab 11), but Mr. Martel testified that he was mistaken about the date and there was
“no question in my mind” that the letter had been delivered on a separate occasion. Mr. Martel
recalled meeting Colonel Saleh at the Carleton, not the detention centre, and asking Colonel
Saleh at that time when he would be able to see his client again. [IC] Martel testimony (April
26, 2005), pp. 16149–16150.
[IC] Martel testimony (April 25, 2005), pp. 15787–15793.
Staff Sergeant Fiorido testified that he and Ambassador Pillarella likely had other informal contact between January and August. [IC] Fiorido testimony (November 3, 2005), pp.
18055–18058.
Exhibit C-362; [IC] Fiorido testimony (November 3, 2005), pp. 18056–18058.
Exhibit C-219, Tab 11; [IC] Fiorido testimony (November 3, 2005), pp. 18057–18058.
Exhibit C-219, Tab 11.
Ibid. However, Ambassador Pillarella testified that, in his view, it was coincidence that the relationship with the SMI deteriorated after the questions were submitted. [IC] Pillarella testimony
(March 31, 2005), p. 13684.
Exhibit C-219, Tab 11.
Ibid.
Ibid.
[IC] Pillarella testimony (March 31, 2005), pp. 13684–13691.
445
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FACTUAL BACKGROUND: VOLUME I
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1055
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Ibid., pp. 13690–13691.
Exhibit C-219, Tab 12.
Ibid.; [IC] Fiorido testimony (November 3, 2005), pp. 18061–18062.
Exhibit C-30, Tab 488; [IC] Fiorido testimony (November 3, 2005), pp. 18063–18069.
Exhibit C-30, Tab 488.
[IC] Fiorido testimony (November 3, 2005), pp. 18062–18069.
[IC] Livermore testimony (March 9, 2005), pp. 12577–12578.
[IC] Heatherington testimony (April 27, 2005), p. 16178.
[IC] Pardy testimony (August 4, 2005), pp. 16826–16827.
Ibid., pp. 16827–16828.
[P] Leverett testimony (November 9, 2005), pp. 12287–12288.
Exhibit C-206, Tab 216.
Ibid.
[IC] Livermore testimony (March 7, 2005), pp. 12295–12297.
Exhibit C-221, Tab 15.
Ibid. In attendance were representatives of DFAIT, the RCMP and PCO, including Messrs.
Reynolds, Roy, Lauzon, Pardy, Sinclair, Gould and Ritchie. [P] Dickenson testimony (August 29,
2005), pp. 10947–10948.
Exhibit C-221, Tab 15.
Exhibit C-206, Tab 324. Mr. Pardy testified that in terms of the impact on consular access, it
made no difference whether Mr. Arar was to be interviewed as a witness or a suspect. [IC]
Pardy testimony (August 4, 2005), pp. 16901–16902.
[IC] Pardy testimony (August 4, 2005), pp. 16901–16902.
[P] Cabana testimony (June 30, 2005), p. 8269.
[P] Catterall testimony (May 31, 2005), pp. 4474–4477; Exhibit P-42, Tab 264; Exhibit C-206,
Tab 264.
Ibid.; Exhibit P-88, p. 17.
[P] Fry testimony (June 13, 2005), p. 6458.
[P] Catterall testimony (May 31, 2005), p. 4482; Exhibit P-42, Tab 327; Exhibit C-206, Tab 327;
Exhibit P-88, p. 17.
[IC] Pillarella testimony (March 31, 2005), pp. 13640–13641; Exhibit P-42, Tab 324; Exhibit
C-206, Tab 324.
[IC] Pillarella testimony (March 31, 2005), pp. 13641–13643.
Ibid.
[P] Pardy testimony (May 25, 2005), pp. 3653–3654; Exhibit P-42, Tab 333; Exhibit C-206,
Tab 333.
[P] Fry testimony (June 13, 2005), pp. 6458–6459; Exhibit P-42, Tab 336; Exhibit C-206, Tab
336.
[P] Catterall testimony (May 31, 2005), pp. 4500–4501; Exhibit P-42, Tab 343; Exhibit C-206,
Tab 343.
[P] Pardy testimony (May 25, 2005), pp. 3657–3659; Exhibit P-42, Tab 345; Exhibit C-206,
Tab 345.
[IC] Pillarella testimony (March 31, 2005), pp. 13643–13645; [IC] Martel testimony (April 25,
2005), pp. 15811–15812; Exhibit P-42, Tab 356; Exhibit C-206, Tab 356.
Ibid.
[IC] Pillarella testimony (March 31, 2005), pp. 13643–13645.
[IC] Martel testimony (April 25, 2005), pp. 15811–15812.
[IC] Pillarella testimony (March 31, 2005), pp. 13645; [IC] Martel testimony (April 25, 2005),
pp. 15812–15813; Exhibit P-42, Tab 357; Exhibit C-206, Tab 357.
�IMPRISONMENT AND MISTREATMENT IN SYRIA
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1129
[P] Pardy testimony (May 25, 2005), pp. 3670–3671; Exhibit P-42, Tab 389; Exhibit C-206,
Tab 389; Exhibit P-48, Vol. 1, Tab 16.
[P] Pardy testimony (May 25, 2005), p. 3670; Exhibit P-42, Tab 384; Exhibit C-206, Tab 384.
[P] Catterall testimony (May 31, 2005), pp. 4539–4540; Exhibit P-42, Tab 389; Exhibit C-206,
Tab 389.
[P] Catterall testimony (May 31, 2005), pp. 4512–4514.
Ibid., pp. 4512–4515; [P] Pastyr-Lupul testimony (July 29, 2005), pp. 9057–9059; Exhibit P-99
[P] Catterall testimony (May 31, 2005), pp. 4514–4517; [P] Catterall testimony (June 1, 2005),
pp. 4739–4740; Exhibit P-99.
[IC] Pardy testimony (August 4, 2005), p. 16929.
[P] Catterall testimony (May 31, 2005), pp. 4521–4522.
[P] Pastyr-Lupul testimony (July 29, 2005), pp. 9060–9061.
Ibid.; Exhibit P-99.
[P] Pastyr-Lupul testimony (July 29, 2005), pp. 9059–9061.
[IC] Pardy testimony (August 4, 2005), pp. 16903–16904.
[P] Easter testimony (June 3, 2005), pp. 5180–5182. Minister Easter testified that he was aware
the Syrian ambassador had said the Syrians believed that CSIS did not want Mr. Arar back, but
was not sure where he had heard this. Ibid., pp. 5325–5327.
Ibid., pp. 5180–5184.
[P] Hooper testimony (August 25, 2005), pp. 10646–10653.
Ibid. See Section 6.2 above for an explanation of CSIS’ position about this matter.
[P] Fry testimony (June 13, 2005), pp. 6457–6459; Exhibit P-42, Tabs 332 and 336; Exhibit C206, Tabs 332 and 336.
Exhibit P-42, Tab 385; Exhibit C-206, Tab 385.
[P] Catterall testimony (May 31, 2005), p. 4491.
Ibid., pp. 4506–4509.
[P] Fry testimony (June 13, 2005), pp. 6466–6467.
[P] Easter testimony (June 3, 2005), pp. 5172–5175.
[P] Fry testimony (June 13, 2005), p. 6465; Exhibit P-42, Tab 388; Exhibit C-206, Tab 388.
Ibid., pp. 6467-6468; Exhibit P-42, Tabs 366 and 385; Exhibit C-206, Tabs 366 and 385.
[P] Catterall testimony (May 31, 2005), p. 4485.
Ibid., p. 4533.
[P] Catterall testimony (June 1, 2005), pp. 4773–4774.
[P] Fry testimony (June 13, 2005), pp. 6470–6471.
Ibid.
Exhibit P-42, Tab 388; Exhibit C-206, Tab 388.
Exhibit P-42, Tab 385; Exhibit C-206, Tab 385.
[P] Fry testimony (June 13, 2005), pp. 6468–6469.
Ibid.
[P] Catterall testimony (May 31, 2005), pp. 4533–4536.
Exhibit P-42, Tab 385; Exhibit C-206, Tab 385.
[P] Catterall testimony (May 31, 2005), pp. 4541–4542.
Ibid.
Ibid., p. 4545.
Ibid., pp. 4546–4547.
Ibid., p. 4546.
Ibid., pp. 4547–4548.
Exhibit P-117, Tab 20.
[IC] Martel testimony (April 25, 2005), p. 15814.
447
�448
FACTUAL BACKGROUND: VOLUME I
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[P] Catterall testimony (May 31, 2005), pp. 4550–4551; Exhibit P-117, Tab 20.
[P] Catterall testimony (May 31, 2005), p. 4553.
Ibid., pp. 4550-4551; Exhibit P-117, Tab 20.
[P] Catterall testimony (May 31, 2005), pp. 4555–4557; Exhibit P-117, Tab 20.
[P] Catterall testimony (May 31, 2005), pp. 4555–4558; Exhibit P-117, Tab 20.
Ibid.; ibid.
[P] Catterall testimony (May 31, 2005), p. 4553; Exhibit P-117, Tab 20.
[P] Catterall testimony (May 31, 2005), p. 4554.
Ibid., pp. 4558-4561; Exhibit P-117, Tab 20.
Ibid; ibid.
Ms. Catterall testified that she would not have made this comment had she not heard this
from Minister Easter. [P] Catterall testimony (May 31, 2005), pp. 4562–4563. When asked
whether he was aware that Ms. Catterall would be advising the SMI that this was the case,
Minister Easter testified that he would have probably said to Ms. Catterall that “we operate
under the presumption of innocence.” When asked whether he thought Ms. Catterall went too
far with her comment or was just asserting a fact, Minister Easter acknowledged that Mr. Arar
was not wanted for criminal activity in Canada, he was a person of interest, and stated that
there are different slants on that fact [that Mr. Arar was not wanted in Canada for criminal activity] and he would rather have used the words “presumption of innocence.” [P] Easter testimony (June 3, 2005), pp. 5187–5189.
[P] Catterall testimony (May 31, 2005), pp. 4558–4561; Exhibit P-117, Tab 20.
Ibid.; ibid.
Ibid.; ibid.
Exhibit P-117, Tab 20.
[P] Catterall testimony (May 31, 2005), p. 4564.
Ibid.; Exhibit P-117, Tab 20.
[IC] Pillarella testimony (March 31, 2005), pp. 13654–13656.
Ibid.
[P] Catterall testimony (May 31, 2005), p. 4566.
Ibid., pp. 4566–4567.
Ibid., p. 4567.
[P] Catterall testimony (May 31, 2005), pp. 4566 and 4571; Exhibit P-117, Tab 20.
[P] Catterall testimony (May 31, 2005), p. 4566.
Ibid.; Exhibit P-117, Tab 20.
[P] Catterall testimony (May 31, 2005), p. 4568.
Ibid., pp. 4568–4569.
Ibid., pp. 4570 and 4572–4573; Exhibit P-117, Tab 20.
[P] Catterall testimony (May 31, 2005), pp. 4575–4577.
Ibid., p. 4575.
[IC] Pillarella testimony (March 31, 2005), pp. 13659–13660.
[P] Catterall testimony (June 1, 2005), pp. 4681–4682.
Ibid., pp. 4682–4684.
Ibid., p. 4684.
Exhibit P-117, Tab 20.
[P] Catterall testimony (June 1, 2005), pp. 4682–4683.
[P] Pillarella (June 14, 2005), pp. 6966–6968.
[P] Fry testimony (June 13, 2005), pp. 6471–6473; Exhibit P-42, Tab 395; Exhibit C-206,
Tab 395.
[P] Fry testimony (June 13, 2005), pp. 6473–6474.
�IMPRISONMENT AND MISTREATMENT IN SYRIA
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[IC] Livermore testimony (March 7, 2005), pp. 12335–12336.
[P] Pardy testimony (May 25, 2005), p. 3680.
Ibid.
Ibid.
[P] Graham testimony (May 30, 2005), pp. 4221–4223.
[P] Graham testimony (June 2, 2005), pp. 4936–4937.
[P] Graham testimony (May 30, 2005), pp. 4221–4223.
[P] Catterall testimony (June 1, 2005), pp. 4692–4694.
See above, Section 3.3.
[P] Roy testimony [ET] (August 22, 2005), pp. 9605–9606; Exhibit P-94; Exhibit C-286; Exhibit
P-208; Exhibit C-288.
[P] Roy testimony [ET] (August 22, 2005), pp. 9605–9606; Exhibit P-208; Exhibit C-288.
[P] Roy testimony [ET] (August 22, 2005), p. 9607.
Ibid., pp. 9545.
Ibid., pp. 9546–9547.
Ibid., p. 9546.
[P] Pardy testimony (May 24, 2005), pp. 3469–3470.
Exhibit C-2, Tab 62.
[IC] Heatherington testimony (April 27, 2005), pp. 16297–16305; Exhibit C-1, Tab 178. Mr.
Heatherington also explained that when reviewing the consular reports distributed to both
CSIS and the RCMP, he may have been aware that some were “passed across” to CSIS and the
RCMP, but not aware that others may have been. Ibid., p. 16301.
[P] Pardy testimony (May 26, 2005), pp. 4007–4008.
Ibid., pp. 4003–4004.
[P] Pardy testimony (June 2, 2005), pp. 5097–5100.
Ibid., p. 5099.
[P] Graham testimony (June 2, 2005), p. 4885.
Exhibit P-42, Tab 307, p. 2; [P] Graham testimony (May 30, 2005), p. 4195.
[IC] Livermore testimony (March 7, 2005), p. 12326.
Ibid., pp. 12131–12132; [IC] Pardy testimony (August 4, 2005), p. 16938.
[IC] Livermore testimony (March 7, 2005), p. 12326.
Ibid., p. 12132. Minister Graham testified that it is the role of the Privy Council Office to resolve interdepartmental differences at the bureaucratic level and it is the role of the Cabinet
and personal relationships between the Prime Minister and ministers to resolve them at the political level. The objective is to resolve differences at the bureaucratic level, if possible, before
taking them to meetings between ministers and the Prime Minister, but this may be done in
the normal course of government. [P] Graham testimony (June 2, 2005), p. 4940.
Mr. Livermore disagreed with Mr. Thibault’s underlying perception that there was a problem
of coordination or consultation in these cases, for the reasons discussed above. [IC] Livermore
testimony (March 7, 2005), p. 12325.
[IC] Livermore testimony (March 7, 2005), pp. 12324–12326; [P] Pardy testimony (May 25,
2005), p. 3631.
Exhibit P-42, Tab 317.
Ibid., Tab 325; Exhibit C-206, Tab 325; Exhibit P-238; Exhibit C-290.
[P] Fry testimony (June 13, 2005), pp. 6641–6642.
[IC] Livermore testimony (March 7, 2005), p. 12333.
Exhibit C-213; Exhibit P-183; Exhibit P-42, Tabs 317 and 317A. [IC] Livermore testimony
(March 7, 2005), p. 12331; [P] Livermore testimony (May 17, 2005), p. 2526; [P] Dickenson
testimony (August 29, 2005), pp. 10947–10948.
449
�450
FACTUAL BACKGROUND: VOLUME I
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[P] Hooper testimony (August 25, 2005), pp. 10706–10707.
Exhibit P-42, Tab 317A; Exhibit C-206, Tab 317A. Later versions of the deck were also entered
as exhibits: Exhibit C-237 (dated March 6, 2003) and Exhibit P-42, Tab 419; Exhibit C-206,
Tab 419 (undated); however, all of these versions were substantially similar. Mr. Pardy testified that the recommendations in the deck did not go beyond DFAIT. [P] Pardy testimony
(May 25, 2005), p. 3644.
For example, the Privacy Act protects consular information except in certain specified circumstances. Mr. Pardy testified that these exceptions were consistent use and disclosure, individual consent to share information with other agencies, and sharing information with
members of Parliament. [P] Pardy testimony (May 25, 2005), p. 3640.
A draft version of this memo was entered as Exhibit P-42, Tab 325; Exhibit C-206, Tab 325.
The final signed memorandum that went to the Minister was entered as Exhibits P-238 and
C-290.
When Minister Graham testified publicly, he was only shown a draft of the action memorandum, and therefore he could not confirm whether or not he had seen it. [P] Graham testimony
(May 30, 2005), pp. 4198, 4201, and 4204. The final signed memo of April 7, 2003 was presented to the Commission on July 28, 2005, after Minister Graham completed his public testimony. See Commission counsel comments during Graham’s testimony [IC] (August 3, 2005),
p. 16737. When Minister Graham later testified in camera and was shown the final signed
memo, he said that he would have seen it or been briefed on its contents. Ibid., p. 16739.
Exhibit C-206, Tab 325; Exhibit P-42, Tab 325.
Minister Graham testified that he discussed these issues a couple of times with Solicitor General
Wayne Easter. [P] Graham testimony (June 2, 2005), p. 4859.
[P] Graham testimony (May 30, 2005), p. 4202.
Ibid., p. 4204.
See Exhibit P-99. [P] Graham testimony (May 30, 2005), pp. 4208–4209; [P] Fry testimony
(June 13, 2005), pp. 6461–6462, 6626 and 6628.
[P] Graham testimony (May 30, 2005), pp. 4218–4219.
[P] Pardy testimony (May 25, 2005), p. 3665; [P] Fry testimony (June 13, 2005), pp. 6461 and
6463.
Exhibit P-42, Tab 376.
[P] Pardy testimony (May 25, 2005), p. 3665.
Ibid.
Ibid., p. 3666.
Exhibit P-42, Tab 452; Exhibit C-28, Tab 10.
[P] Pardy testimony (May 25, 2005), p. 3666.
Exhibit P-196; [P] Pastyr-Lupul testimony (July 29, 2005), p. 9067.
[P] Pastyr-Lupul testimony (July 29, 2005), pp. 9070–9071.
Ibid., p. 9070.
Ibid., pp. 9070–9071.
[P] Graham testimony (May 30, 2005), p. 4225 and Exhibit P-107 entry for April 30, 2003;
Exhibit P-48, Tab 21.
[P] Graham testimony (May 30, 2005), p. 4227.
Exhibit C-28, Tab 2.
[P] Pardy testimony (May 25, 2005), p. 3692.
It is standard practice for the RCMP to provide few details about ongoing investigations. [P]
Pardy testimony (June 2, 2005), p. 5008.
Ibid., p. 4959.
[P] Pardy testimony (May 25, 2005), p. 3691.
�IMPRISONMENT AND MISTREATMENT IN SYRIA
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[P] Graham testimony (May 30, 2005), pp. 4179–4182, and [P] (June 2, 2005), pp. 4931–4936.
Exhibit P-42, Tab 505; [P] Graham testimony (May 30, 2005), pp. 4278–4279 and [P] (June 2,
2005), pp. 4931–4936.
[P] Dickenson testimony (August 29, 2005), pp. 10957–10958; [P] Pardy testimony (May 25,
2005), pp. 3696–3697. Attendees at the May 12 meeting included officials from PCO (Glenn
Robinson), DFAIT (Gar Pardy, Scott Heatherington, Myra Pastyr-Lupul), the Solicitor General’s
office (Helen Banalescu), CSIS and the RCMP (Inspector Rick Reynolds, Maury Medjuck, Diane
Gagnon). Exhibit C-379; [P] Dickenson testimony (August 29, 2005), pp. 10955–10956; Exhibit
P-19, pp. 40–41.
Exhibit C-288; Exhibit P-85, Vol. 5, Tab 45, p. 4.
Exhibit C-28, Tab 4.
Ibid.; [IC] Pardy testimony (August 4, 2005), p. 16913.
Exhibit C-28, Tab 4.
Ibid.
[P] Easter testimony (June 3, 2005), p. 5201.
[P] Hooper testimony (August 25, 2005), p. 10660.
Ibid., p. 10669.
Ibid., p. 10670.
Ibid., pp. 10671–10672.
Ibid., p. 10676.
Ibid., pp. 10677–10678.
Exhibit C-271.
Ibid.
[IC] Loeppky testimony (April 19, 2005), p. 15030.
[P] Easter testimony (June 3, 2005), p. 5207.
[P] Hooper testimony (August 25, 2005), p. 10674.
[P] Dickenson testimony (August 29, 2005), p. 10958; [P] Pastyr-Lupul testimony (July 29,
2005), pp. 9073–9074.
[IC] Pardy testimony (August 4, 2005), p. 16914.
[P] Pardy testimony (May 25, 2005), p. 3699.
Exhibit C-272.
Ibid.
Ibid.
Exhibit P-42, Tab 443, p. 2.
Exhibit P-102.
Exhibit P-42, Tab 417; Exhibit C-206, Tab 417.
Exhibit P-102.
Ibid.
Exhibit P-42, Tab 426.
Exhibit C-28, Tab 5. Mr. Heatherington recalled that all of these government departments
and agencies were involved in developing a draft of the Minister’s letter. [IC] Heatherington
testimony (April 21, 2005), pp. 15597–15598.
Exhibit P-103.
Exhibit P-42, Tab 404. Monia Mazigh wrote to Minister Graham on May 1, 2003, stating that
she had been trying for two months to meet with him.
[P] Pardy testimony (May 25, 2005), pp. 3715–3716.
Exhibit P-103.
Exhibit P-42, Tab 439. [P] Pardy testimony (May 25, 2005), pp. 3710–3711.
Exhibit P-42, Tab 385. [P] Graham testimony (May 30, 2005), p. 4245.
451
�452
FACTUAL BACKGROUND: VOLUME I
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[P] Hooper testimony (August 25, 2005), pp. 10681–10682.
[P] Graham testimony (May 30, 2005), p. 4246.
Exhibit P-85, Tab 15, p. 1; [IC] Burns testimony (April 18, 2005), pp. 14818–14819. Mr.
Hooper had first tried to reach Jim Wright, his ADM counterpart at DFAIT. When Mr. Wright
was not available, he called Ms. McCallion. Mr. Hooper testified that he called her instead of
Mr. Pardy because Ms. McCallion was a fellow ADM. Mr. Hooper assumed that the ADM responsible for consular affairs would have been engaged in the issues around the Arar case at
this point [P] Hooper testimony (August 25, 2005), pp. 10698–10699.
His explanation was supported by Ms. McCallion when she testified that she was not surprised to receive a call from Mr. Hooper. She assumed that the directors general in each government department would have been informed that the June 5 memorandum had been
finalized and was making its way up to the ADM level. If someone wanted to speak to an ADM
about the matter, he or she would be free to do so. [P] McCallion testimony (August 24, 2005),
p. 10518. At the same time, she testified that, to her recollection, a member of CSIS had never
before called her about a consular case. Ibid., pp. 10524–10525.
[P] Hooper testimony (August 25, 2005), pp. 10695.
Ibid., pp. 10697–10698.
Ibid., pp. 10725–10726.
Ibid., pp. 10700–10703.
Ibid., pp. 10703–10704.
Ibid., p. 10850.
Ibid., pp. 10708–10709.
Ibid., pp. 10709–10710.
Ibid., p. 10848.
Ibid., pp. 10710–10712.
Ibid., pp. 10704–10707.
[P] McCallion testimony (August 24, 2005), pp. 10507–10508.
Ibid., pp. 10511–10514.
Ibid., p. 10516.
Ibid., pp. 10549–10550 and 10563.
Ibid., pp. 10556 and 10563–10565.
Ibid., pp. 10519–10520 and 10555.
Ibid., pp. 10528–10529.
Ibid., pp. 10525–10528.
[IC] Dyet testimony (April 18, 2005), pp. 14700, 14701, 14703, and 14754.
[P] McCallion testimony (August 24, 2005), p. 10506.
[IC] Dyet testimony (April 18, 2005), p. 14710–14711.
Ibid., pp. 14719–14720 and 14724.
Ibid., pp. 14710–14711 and 14714–14715.
Exhibit P-236, Tab 1, p. 9; [P] Gould testimony (August 24, 2005), pp. 10339–10340.
[IC] Dyet testimony (April 18, 2005), pp. 14715–14717 and 14722.
Ibid., pp. 14722, 14749–14754 and 14756–14759. Mr. Dyet was clear that someone had given
him this information, and he believed that it was tied into the Hooper-McCallion call. At the
same time, his testimony was unclear as to whether the call between Mr. Hooper and Ms.
McCallion had already taken place at the time of his meeting with Mr. Gould and what discussions, if any, he had had with Ms. McCallion after the call. His testimony also left open the
possibility that whoever had shared this information with him might have been referring to internal discussions among DFAIT officials about CSIS’ position on the return of Mr. Arar.
[P] McCallion testimony (August 24, 2005), pp. 10523–10524.
�IMPRISONMENT AND MISTREATMENT IN SYRIA
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[IC] Livermore testimony (March 7, 2005), pp. 12359–12361.
[P] Gould testimony (August 24, 2005), pp. 10420–10421.
[P] Hooper testimony (August 25, 2005), pp. 10723–10724.
Exhibit P-42, Tab 443. The minutes of the meeting were drafted by Ms. Pastyr-Lupul, who attended the June 12 meeting. [P] Pastyr-Lupul testimony (July 29, 2005), p. 9079.
Exhibit P-42, Tab 443. See also Mazigh letter to Minister Graham delivered at this meeting:
Exhibit P-42, Tab 438. Subsequent to this meeting, Alex Neve, Secretary General for Amnesty
International (Canada), also sent an e-mail to Mr. Fry, advocating stronger “no evidence” language: Exhibit P-42, Tab 442.
Exhibit P-42, Tab 443.
[P] Graham testimony (May 30, 2005), p. 4246.
Exhibit C-28, Tab 6; Exhibit P-110. Minister Graham testified that this proposed language was
an attempt to strengthen the letter. [P] Graham testimony (May 30, 2005), p. 4251.
[P] Fry testimony (June 13, 2005), pp. 6483–6484 and 6486.
[P] Graham testimony (May 30, 2005), pp. 4252 and 4255–4256, and [P] (June 2, 2005),
pp. 4885–4886. See also [P] Fry testimony (June 13, 2005), pp. 6486–6488 and 6503–6504.
Exhibit C-28, Tab 6; Exhibit P-110.
Exhibit C-1, Tab 199.
[IC] Hooper testimony (August 26, 2005), pp. 17929–17932.
Ibid.
Ibid., p. 17933.
[IC] Hooper testimony (September 22, 2004), p. 1610 and [P] (August 25, 2005), pp.
10712–10714.
[IC] Hooper testimony (August 26, 2005), pp. 17935–17936.
Exhibit C-28, Tab 7.
Ibid.
Mr. Heatherington testified that he thought CSIS had agreed on the phone to this language.
[IC] Heatherington testimony (April 21, 2005), pp. 15610–15611.
Exhibit C-28, Tab 8, p. 3.
[IC] Pardy testimony (August 4, 2005), pp. 16922–16923.
[P] Pardy testimony (May 25, 2005), pp. 3700 and 3714.
[P] Graham testimony (May 30, 2005), p. 4255.
[P] Loeppky testimony (July 27, 2005), p. 8576.
[P] Pardy testimony (June 2, 2005), pp. 4975–4976; [P] Fry testimony (June 13, 2005), pp.
6497–6498.
[IC] Pardy testimony (August 4, 2005), pp. 16922–16923.
[P] Pardy testimony (June 2, 2005), pp. 4975–4976; [P] Fry testimony (June 13, 2005), pp.
6496–6498. Exhibit P-136.
[P] Pardy testimony (June 2, 2005), pp. 4977–4978.
[P] Hooper testimony (August 25, 2005), p. 10719.
[IC] Livermore testimony (March 7, 2005), pp. 12355–12356.
[P] Hooper testimony (August 25, 2005), pp. 10679–10680.
Ibid., p. 10711.
[IC] Loeppky testimony (April 19, 2005), p. 15048.
[P] Fry testimony (June 13, 2005, pp. 6486-6491
Ibid., p. 6490.
[P] Easter testimony (June 3, 2005), pp. 5182–5184.
Ibid., pp. 5222–5223.
Exhibit P-108, Tab 2.
453
�454
FACTUAL BACKGROUND: VOLUME I
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[P] Graham testimony (May 30, 2005), pp. 4257–4258
Ibid., pp. 4258–4260.
Ibid., pp. 4260–4261.
Exhibit C-28, Tab 9.
Ibid.
Exhibit C-28, Tab 10.
Ibid.
On June 26, 2003, The Globe and Mail printed an article quoting Mr. Pardy’s e-mail to Dr.
Mazigh dated April 12, 2003.
[IC] Loeppky testimony (April 19, 2005), pp. 15046–15047, and [P] (July 27, 2005), p. 8582.
[P] Loeppky testimony (June 30, 2004), p. 914.
[IC] Loeppky testimony (April 19, 2005), p. 15009.
Ibid., p. 15049.
Exhibit P-117, Tab 23; [P] Gould testimony (August 24, 2005), pp. 10417–10418.
[P] Gould testimony (August 24, 2005), pp. 10420–10421.
[P] Hooper testimony (August 25, 2005), pp. 10723–10724.
[P] Pardy testimony (May 25, 2005), p. 3720.
Ibid., p. 3723.
[IC] Pardy testimony (August 4, 2005), p. 16921.
[P] Fry testimony (June 13, 2005), p. 6501.
Exhibit P 42, Tab 445; [P] Pardy testimony (May 25, 2005), p. 3723.
[P] Pardy testimony (May 25, 2005), pp. 3700–3701.
Ibid., p. 3777.
[P] Pardy testimony (June 2, 2005), pp. 4968–4969.
[P] Pardy testimony (May 25, 2005), p. 3784.
Ibid., pp. 3799–3800.
[P] Fry testimony (June 13, 2005), pp. 6499–6500.
Ibid., pp. 6500–6501. There is no difference between the Prime Minister visiting a head of state
and the Prime Minister sending a special envoy with a letter on his behalf. A special envoy attends in the place of the Prime Minister when the Prime Minister is unable to travel. He or she
acts as the Prime Minister’s personal representative. [IC] Pillarella testimony (March 31, 2005),
p. 13847.
Exhibit P-42, Tab 466, p. 3.
[P] De Bané testimony [ET] (June 1, 2005), pp. 4588–4591.
Ibid., pp. 4592–4593.
Ibid., pp. 4601–4602.
Exhibit P-132, Tab 10, p. 1; [P] De Bané testimony [ET] (June 1, 2005), pp. 4604–4605.
[P] De Bané testimony [ET] (June 1, 2005), pp. 4614–4616.
Exhibit P-132, Tab 18, p. 3.
[P] De Bané testimony [ET] (June 1, 2005), pp. 4607–4608.
Exhibit P-229, p. 19; [P] De Bané testimony [ET] (June 1, 2005), p. 4606 and [P] (August 23,
2005), pp. 10093–10100; [P] Pardy testimony (June 2, 2005), pp. 4987–4992; [P] Fry testimony
(June 13, 2005), pp. 6504–6506.
Exhibit P-88, Tab 1, p. 27; Exhibit P-132, Tab 10, p. 1; [P] De Bané testimony [ET] (June 1,
2005), pp. 4617–4623.
[P] De Bané testimony [ET] (June 1, 2005), pp. 4626 and 4631–4632. On July 17, 2003, Mr.
Pardy wrote to Syria’s ambassador to Canada, asking that, in accordance with their conversation the previous day, Syria’s ambassador deliver a letter from Prime Minister Chrétien to
President Assad. Exhibit P-42, Tab 471.
�IMPRISONMENT AND MISTREATMENT IN SYRIA
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The second letter from the Prime Minister to the President of Syria, dated July 17, indicated
that Senator De Bané was travelling to Syria in the coming days to meet with the President
and discuss various matters in the Canada–Syria relationship. The letter closed by asking that
the President take a few moments to meet with the Senator so that the Prime Minister could
have the President’s views on the many issues and developments in his region. Exhibit P-42,
Tab 472.
[P] De Bané testimony [ET] (June 1, 2005), p. 4629; [P] Pillarella testimony (June 15, 2005),
p. 6989.
[P] De Bané testimony [ET] (June 1, 2005), p. 4632.
Ibid., pp. 4633–4634.
Exhibit P-42, Tab 476.
Exhibit P-237, Tab 8, pp. 14–15.
[P] De Bané testimony [ET] (June 1, 2005), pp. 4652–4653.
Exhibit P-42, Tab 476; [P] De Bané testimony [ET] (June 1, 2005) pp. 4646–4647.
[P] De Bané testimony [ET] (June 1, 2005), p. 4654.
Exhibit P-42, Tab 478.
[P] Pardy testimony (May 25, 2005), pp. 3731–3732; [P] Pastyr-Lupul testimony (July 29,
2005), pp. 9082–9084.
“Émigré organization” is a common reference to an organization run by persons who have had
to emigrate to a foreign country, usually for political reasons.
[P] Pardy testimony (May 25, 2005), pp. 3733–3734, [P] (May 26, 2005), pp. 3924–3928, and
[P] (June 17, 2005), pp. 7709–7711.
Exhibit P-42, Tab 573, Tab 11.
[P] Pardy testimony (May 25, 2005), p. 3735.
[P] Pardy testimony (June 17, 2005), p. 7711.
Exhibit P-42, Tab 486, p. 3.
Exhibit P-42, Tab 489, p. 1.
Exhibit P-117, Tab 32. For example, the suggested reply to the question, “What is the
Canadian Government response to the reports of the Syrian Human Rights Committee that
Mr. Arar is being tortured?,” was:
“During previous Consular visits, we saw no evidence of torture or abuse. The Canadian
Government is troubled by these recent reports, as we cannot confirm or deny them.
We are also concerned that we have not had consular access to Mr. Arar since April. Consular
visits are one way that we can determine Mr. Arar’s state of health and well-being.
“The Canadian Embassy in Damascus will continue to pursue all Diplomatic efforts to seek
Consular access to Mr. Arar.” (Exhibit P-117, Tab 32).
Exhibit P-132, Tab 11, pp. 5–6.
Exhibit P-42, Tabs 491 and 497. Minister Graham elaborated on why recalling Ambassador
Pillarella was not a viable option at that time.
There are a series of diplomatic and other responses, short of going to war, to deal with
a dispute with a foreign state. These include calling in the other state’s ambassador, recalling
Canada’s ambassador, imposing embargoes, etc. In considering his options, Minister Graham
was guided by experts at DFAIT and their experiences in past cases.
Recalling the Canadian ambassador to Syria would have signalled extreme displeasure
with the actions of the Syrian government. However, the downside was that Canada would
be left without an ambassador in the country. Mr. Arar was not the only Canadian in detention in Syria at that time. It was DFAIT’s judgment that it was necessary to have a Canadian
ambassador in the country if DFAIT was going to effectively represent the detainees’ interests.
Secondly, Canada’s global interests had to be considered. Syria was in a key geographic
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position in terms of the Middle East peace process, and there were many issues in which
Canada was engaged. Recalling Ambassador Pillarella might have impeded Canada’s ability to
have effective representation in that respect.
Minister Graham strongly believed that keeping the Canadian ambassador in Syria was the
right decision in this case. It was unlikely that recalling the ambassador would have furthered
Mr. Arar’s case and it might, in fact, have made matters worse. [P] Graham testimony (May 30,
2005), pp. 4272–4275.
Exhibit P-42, Tab 492.
Exhibit P-132, Tab 11, p. 3; Exhibit P-42, Tab 521, p.13; [P] Graham testimony (May 30,
2005), pp. 4275–4277; [P] Pastyr-Lupul testimony (July 29, 2005), pp. 9094–9095.
[P] Pastyr-Lupul testimony (July 29, 2005), p. 9095.
Exhibit P-134, Tab 23, p. 9. Robert Fry, Minister Graham’s Senior Policy Advisor, was away
on holiday during this time but believes that it was probably his suggestion that Minister
Graham consider raising the issue with the Syrian Foreign Minister in a phone call that got the
ball rolling. Mr. Fry also discussed the suggestion with Mr. Pardy. In Mr. Fry’s absence,
Minister Graham’s chief of staff, Dan Costello, helped to coordinate the effort from the
Minister’s office. [P] Fry testimony (June 13, 2005), pp. 6513–6516.
The Canadian Embassy sent diplomatic notes to Syria’s Ministry of Foreign Affairs on June 2
and July 1 requesting consular access to Mr. Arar. (Exhibit C-206, Tabs 424 and 460) On
July 2, Ambassador Pillarella met with Syria’s Deputy Foreign Minister Mouallem and pressed
for consular access. (Exhibit C-206, Tab 462) Three weeks later, on July 22, 2003, Senator De
Bané, Prime Minister Chrétien’s special envoy, delivered a letter concerning Mr. Arar from the
Prime Minister to Foreign Deputy Minister Mouallem. (Exhibit C-206, Tab 476) Consular access was still not forthcoming. Finally, on August 4, Ambassador Pillarella met with Mr.
Suleiman Haddad, a Member of Parliament and Chairman of Syria’s Parliamentary Committee
on Foreign Relations, and pressed for access to Mr. Arar. (Exhibit C-206, Tab 485)
Exhibit P-134, Tab 23, p.1.
[P] Pillarella testimony (June 15, 2005), pp. 7004–7007 and 7014–7016.
Ibid., pp. 7006–7007 and 7010–7011.
Ibid., pp. 7016–7018.
[IC] Martel testimony (April 25, 2005), pp. 15826–15827.
[P] Martel testimony [ET] (August 30, 2005), pp. 11129–11130.
Exhibit P-134, Tab 24, p. 1.
Exhibit C-206, Tab 507.
[P] Pillarella testimony (June 15, 2005), p. 7021.
[IC] Pillarella testimony (March 31, 2005), p. 13697.
[IC] Martel testimony (April 26, 2005), pp. 16110–16112.
[IC] Martel testimony (April 25, 2005), p. 15832.
[P] Martel testimony [ET] (August 30, 2005), p. 11132.
[IC] Martel testimony (April 25, 2005), p. 15833.
Exhibit P-134, Tab 24.
[P] Martel testimony [ET] (August 30, 2005), pp. 11132–11133.
Exhibit P-134, Tab 24.
Ibid.
[IC] Martel testimony (April 25, 2005), pp. 15836–15837 and [P] [ET] (August 30, 2005),
pp. 11133–11134.
Exhibit P-134, Tab 24.
[P] Martel testimony [ET] (August 30, 2005), p. 11135.
Exhibit P-134, Tab 24.
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[IC] Martel testimony (April 25, 2005), pp. 15837–15838.
[P] Martel testimony [ET] (August 30. 2005), pp. 11134–11135.
Ibid., p. 11135.
[IC] Martel testimony (April 25, 2005), p. 15838.
Exhibit P-134, Tab 24.
[P] Martel testimony [ET] (August 30, 2005), p. 11136.
[IC] Martel testimony (April 26, 2005), pp. 15978–15979.
[P] Martel testimony [ET] (August 30, 2005), pp. 11136–11138. Upon his return to Canada, Mr.
Arar prepared a chronology of events starting from his detention in the United States on
September 26, 2002, up to his release from Syrian custody on October 5, 2003. Part of his written account of the August 14 consular visit stated: “The Consul asks if he has been tortured,
and Arar replies, ‘Yes, of course, at the beginning.’ After the meeting, Arar can see his captors
are very angry and he is terrified that he will be physically tortured again, but he is not.”
Exhibit P-242, Tab 17, p. 9.
Mr. Martel disputes this record that he asked Mr. Arar if he had been tortured. He testified that under no circumstances would he have asked Mr. Arar directly if he had been tortured. [P] Martel testimony [ET] (August 30, 2005), pp. 11196–11197.
[P] Martel testimony [ET] (August 31, 2005), pp. 11531–11532.
Exhibit P-42, Tab 508.
Ibid.
[P] Martel testimony [ET] (August 30, 2005), pp. 11142–11144 and [P] [ET] (August 31, 2005),
pp. 11541–11542.
[P] Martel testimony [ET] (August 30, 2005), pp. 11138–11139.
In December 2002, Mr. Arar’s brother told Ms. Pastyr-Lupul that Mr. Arar was being held underground and did not have access to natural light except when he attended consular visits.
This information was contained in a CAMANT note sent to and read by Mr. Martel. Exhibit
P 42, Tab 254; [P] Martel testimony [ET] (August 30, 2005), p. 11094.
[IC] Martel testimony (April 26, 2005), pp. 15970–15971 and [P] [ET] (August 30, 2005), p.
11145. Mr. Arar’s demeanor at this visit stands apart from the previous eight visits he received
from Canadian officials. Mr. Arar’s chronology of events from September 26, 2002, to October
5, 2003, describes the visit this way: “Arar has decided he cannot survive living in these conditions anymore, and that it is worth risking more physical torture to stop the ongoing psychological torture of remaining in the ‘grave.’ He bursts and tells the Canadian Consular, in
English, in front of the Syrian officials, about his cell and the conditions he is living in.” Exhibit
P-242, Tab 17 p. 8.
In a November 3, 2003, memorandum, Mr. Martel wrote: “During the August 14 meeting
Arar complained to officials about his detention conditions. At that moment, he seemed to have
lost any hope of ever getting out of jail and decided to speak his mind. General Hassan Khalil
listened and then promised to improve his detention conditions.” Exhibit C-206, Tab 647 p. 2.
[P] Martel testimony [ET] (August 31, 2005), pp. 11535–11538.
[P] Martel testimony [ET] (August 30, 2005), pp. 11146–11147. Mr. Martel knew that Mr. Arar
was kept in separate quarters from other inmates, which begs the question of how Mr. Arar
would be aware of his fellow inmates’ detention conditions. Mr. Martel was not sure how Mr.
Arar knew this information. He could only speculate that Mr. Arar may have had a neighbour
alongside his cell or other detainees in the vicinity of his cell. [P] Martel testimony [ET]
(August 31, 2005), pp. 11546–11547.
[P] Martel testimony [ET] (August 30, 2005), pp. 11148–11150.
Ibid., p. 11147.
457
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FACTUAL BACKGROUND: VOLUME I
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See Manual of Consular Instructions, section 2.4.1., Principle of international law. P-11,
Tab 22, p. 8.
[P] Martel testimony [ET] (August 30, 2005), pp. 11155–11158 and 11162–11164.
Exhibit P-42, Tab 508. Mr. Martel’s notes stated: “3 x 6 x 7 – sleeping on ground – mentally
destroyed.”
[P] Martel testimony [ET] (August 30, 2005), pp. 11151–11152. Mr. Martel believed that there
would have been a general awareness among DFAIT staff copied on the consular report about
the human rights situation in the geographic region to which they were assigned. He did not
think this knowledge necessarily extended to the size of the cells in foreign detention facilities. He had never heard of the cells being visited by anyone, including such widely respected
humanitarian organizations as the International Red Cross. [P] Martel testimony [ET] (August
31, 2005), pp. 11608–11609.
Mr. Pardy supported this assertion by Mr. Martel when he testified to being generally
aware of the poor prison conditions for political or national security prisoners in Syria, as laid
out in human rights and government reports. He was unaware of specific details about the
prison conditions, such as the size of the cell, and did not believe this information was available in the literature. [P] Pardy testimony (October 24, 2005), pp. 12175–12179.
[P] Martel testimony [ET] (August 30, 2005), p. 11152–11154.
[P] Hogger testimony (November 10, 2005), p. 12592.
Ibid., pp. 12597–12604.
Exhibit P-134, Tab 24.
Ibid.; [IC] Martel testimony (April 25, 2005), pp. 15847–15848.
[P] Pillarella testimony (June 15, 2005), pp. 7026–7027.
Ibid., pp. 7074–7075.
Ibid., pp. 7075–7078.
[IC] Martel testimony (April 25, 2005), pp. 15860–15861.
Exhibit C-206, Tab 511.
Exhibit P-134, Tab 24.
Exhibit P-95.
Exhibit P-42, Tab 505. The transcript of the scrum is dated August 13, 2003. This is incorrect.
The press scrum occurred on August 14, 2003. [P] Graham testimony (May 30, 2005), p. 4278.
[P] Graham testimony (May 30, 2005), pp. 4281–4283.
Ibid., p. 4283.
[P] Graham testimony (June 2, 2005), pp. 4918–4919.
Ibid., p. 4917.
Ibid.
Ibid., pp. 4915–4916.
Ibid., p. 4916.
Ibid., pp. 4917–4918.
[IC] Martel testimony (April 26, 2005), p. 15977; [P] Pillarella testimony (June 15, 2005),
pp. 7024–7025.
Exhibit P-134, Tab 23.
[P] Pastyr-Lupul testimony (July 29, 2005), p. 9101.
Ibid., pp. 9247–9248.
Ibid., p. 9103.
Ibid.
[P] Pillarella testimony (June 15, 2005), pp. 7194–7195; Exhibit C-206, Tab 507. Later that
day, Ambassador Pillarella spoke with Deputy Foreign Minister Mouallem, who knew about
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the earlier meeting, but not the outcome. The Deputy Minister reportedly would have been
happier if Mr. Arar had been released, but felt the last word was with military intelligence.
Ibid.; [IC] Martel testimony (April 25, 2005), pp. 15842–15844. Dr. Mazigh, upon learning of
her husband’s recommendation, found it a strange suggestion. Dr. Mazigh and her supporters had contacted this man in the beginning of Mr. Arar’s detention, but he had been too intimidated to do anything. Exhibit P-100.
[P] Pastyr-Lupul testimony (July 29, 2005), pp. 9117–9118; Exhibit C-206, Tab 512.
Syria has been under a state of emergency and martial law since 1963.
Exhibit P-27. See also the Amnesty International Report for Syria, 2002. (Exhibit P-29) It also
discusses the blatant shortcomings of the Supreme State Security Court.
[P]Pillarella testimony (June 14, 2005), pp. 6736–6738.
Exhibit C-206, Tabs 507 and 514.
These two lawyers were recommended to Dr. Mazigh by Amnesty International in London,
the Syrian Human Rights Committee, and Liberal MP and International Law professor Irwin
Cotler. Exhibit P-100.
Exhibit C-206, Tab 514.
[P] Martel testimony [ET] (August 31, 2005), pp. 11412–11414.
[P] Lockyer testimony (June 17, 2005), pp. 7551–7557; Exhibit C-206, Tab 531.
[P] Lockyer testimony (June 17, 2005), pp. 7611–7614.
Ibid.
Ibid., p. 7622.
Exhibit P-100.
[IC] Martel testimony (April 25, 2005), pp. 15870–15872; Exhibit C-206, Tab 516. The following day another diplomatic note was sent, informing the Syrian Ministry of Foreign Affairs
that Mr. Lockyer was Canada’s choice for an observer. Exhibit C-206, Tab 517.
Exhibit C-206, Tab 514; [P] Martel testimony [ET] (August 31, 2005), p. 11407; Exhibit C-206,
Tabs 563 and 565.
Exhibit C-206, Tab 519.
Exhibit C-206, Tab 518.
Ibid., Tab 519.
Exhibit P-100.
Ibid.
[P] Pardy testimony (May 25, 2005), pp. 3755–3756.
Exhibit P-100.
Ibid.
[P] Pardy testimony (May 25, 2005), p. 3758.
Exhibit C-206, Tab 518.
Exhibit P-100.
Ibid.
Ibid.
Ibid.
[P] Pardy testimony (June 2, 2005), pp. 5120–5121.
Exhibit C-206, Tab 518.
Ibid.
Ibid.
Ibid., Tab 519; P-100.
Exhibit C-206, Tab 519.
Ibid, Tab 519.
Exhibit C-206, Tab 523.
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[IC] Martel testimony (April 25, 2005), pp. 15872–15873; Exhibit C-206, Tab 524.
Exhibit C-206, Tab 524.
[IC] Martel testimony (April 25, 2005), pp. 15863–15868.
Exhibit C-206, Tab 528.
[P] Pardy testimony (May 26, 2005), p. 3959.
[P] Pardy testimony (June 17, 2005), pp. 7684–7687; Exhibit P-165.
[P] Pardy testimony (May 26, 2005), pp. 3953–3954.
Ibid., pp. 3954–3961.
Ibid.
Exhibit C-206, Tab 536.
[IC] Martel testimony (April 25, 2005), pp. 15873–15876; Exhibit C-206, Tabs 536 and 538. In
his note, Mr. Martel also relayed other information to Dr. Mazigh, via Mr. Pardy, concerning
Mr. Arar’s status. This included what information Mr. Martel had on his medical needs,
whether he had money, the court in which he would be tried (Supreme State Security Court)
and the language used in previous consular meetings.
Exhibit C-206, Tab 539; [IC] Martel testimony (April 25, 2005), pp. 15876–15877.
Exhibit C-206, Tabs 541 and 543. The information that the Canadian Embassy in Damascus received from Mr. Dahdouh was that judgments from the Supreme State Security Court cannot
be appealed, but are only valid once certified by the President or someone authorized by the
President. The President’s decision is final.
Exhibit C-206, Tab 540.
Ibid.
Exhibit C-206, Tab 546; [IC] Martel testimony (April 25, 2005), pp. 15879–15880.
Exhibit C-206, Tab 551.
Ibid., Tab 552.
Exhibit C-206, Tab 552; ibid., Tab 557.
Ibid., Tab 556.
Ibid., Tab 559.
Ibid.
Exhibit C-206, Tab 562.
[P] Pastyr-Lupul testimony (July 29, 2005), pp. 9131–9133.
[IC] Pillarella testimony (March 31, 2005), pp. 13706–13708.
Ibid., pp. 13706–13707.
In the interim period, Canadian officials took steps to address consular issues in situations
like that of Mr. Arar. At a meeting attended by consular officials and ministerial staff, possibly including Minister Graham, Canadian officials decided to strike a committee to study consular roles. On September 19, 2003, a meeting took place with Alex Neve from Amnesty
International, Dr. Mazigh, Mr. Sigurdson, Ms. Pastyr-Lupul and others, where Mr. Arar’s case
was presumably discussed. [P] Pastyr-Lupul testimony (July 29, 2005), pp. 9134–9141.
Exhibit C-206, Tab 569.
[IC] Martel testimony (April 26, 2005), pp. 16113–16114.
Exhibit C-206, Tab 576.
Ibid.
Exhibit C-206, Tab 574. Mr. Martel never did get instructions to this effect. [P] Martel testimony [ET] (August 31, 2005), pp. 11445–11447. On September 24, 2003, another diplomatic
note was sent to the Syrian Ministry of Foreign Affairs. No specific call was made for a fair and
open trial, but the note did seek permission for the Canadian consul to attend at Mr. Arar’s
trial, for Mr. Arar’s lawyer to be provided with access to Mr. Arar’s file and for general consular access. Exhibit C-206, Tab 575.
�IMPRISONMENT AND MISTREATMENT IN SYRIA
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[P] Fry testimony (June 13, 2005), pp. 6529–6531.
Exhibit C-206, Tab 587.
Ibid.
[P] Graham testimony (May 30, 2005), pp. 4288–4293.
Exhibit C-206, Tab 580; [P] Fry testimony (June 13, 2005), pp. 6532–6535; [P] Graham testimony (May 30, 2005), pp. 4288–4293.
Exhibit C-206, Tab 589.
Zahra Kazemi was an Iranian-Canadian photojournalist who died after being beaten in Iranian
custody on July 10, 2003.
[P] Fry testimony (June 13, 2005), pp. 6535–6536; [IC] Graham testimony (August 3, 2005), pp.
16748–16751; Exhibit C-291.
[P] Pardy testimony (June 17, 2005), pp. 7564–7566. Earlier, on September 16, 2003, Mr.
Lockyer had spoken to Mr. Sigurdson and Ms. Pastyr-Lupul about the Arar case, and about
possibly meeting with him and other interested persons in the field of human rights. As Ms.
Pastyr-Lupul put it in a DFAIT case note, it would be to “discuss the limitations of Canadian
diplomacy in a case like this one, and to propose solutions for Canadian foreign policy approaches to Consular cases that do not fit into our conventional services.” Ibid., pp. 7561–7563;
Exhibit C-206, Tab 566.
Mr. Lockyer did indeed feel that it would be helpful if some consideration were given to
the idea of setting up a body of outside citizens, along with members of the Department of
Foreign Affairs, who had expertise in the area of consular affairs, could meet on a regular
basis and look at these types of difficult cases: death penalty cases, cases where people are
arrested and there is good reason to believe they are innocent, and/or cases where torture is
likely occurring. This group might be able to think outside the box, and thereby develop
strategies to deal with these issues. Ibid., pp. 7643–7646.
Ibid., pp. 7564–7566.
Ibid.
Ibid., pp. 7563–7570.
Ibid. These media leaks are discussed in the following chapter.
Ibid., pp. 7570–7571.
[P] Pastyr-Lupul testimony (July 29, 2005), p. 9118.
[IC] Pillarella testimony (March 31, 2005), pp. 13796–13802; [P] Martel testimony [ET] (August
31, 2005), pp. 11326–11329; Exhibit P-11, Tabs 21 and 22.
[P] Martel testimony [ET] (August 31, 2005), pp. 11326–11329; Exhibit P-11, Tabs 21 and 22;
[IC] Pillarella testimony (March 31, 2005), pp. 13796–13802.
[P] Pastyr-Lupul testimony (July 29, 2005), pp. 9235-9236.
Exhibit C-206, Tab 166.
Exhibit P-196; [P] Catterall testimony (May 31, 2005), pp. 4574–4576 and [P] (June 1, 2005),
pp. 4689–4691.
[P] Martel testimony [ET] (August 31, 2005), pp. 11387–11389.
Ibid., pp. 11365 and 11389–11390.
Ibid., pp. 11364–11366.
Ibid., pp. 11385–11387.
Ibid., pp. 11393–11399.
Ibid., pp. 11449–11451.
[P] Pardy testimony (May 25, 2005), pp. 3690–3696.
[P] Lockyer testimony (June 17, 2005), pp. 7631–7632.
Exhibit C-206, Tab 262; [P] Graham testimony (May 30, 2005), pp. 4179 and 4171–4173. As
noted above, in their January 16, 2003 phone call, the Syrian Foreign Minister assured Minister
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Graham that if their investigation showed Mr. Arar was associated with al-Qaeda, he would
have a fair trial. Minister Graham made it clear, however, that the preferred option was to
have Mr. Arar returned to Canada. [P] Graham testimony (May 30, 2005), pp. 4189–4190;
Exhibit C-206, Tab 293.
Exhibit C-206, Tab 262; [P] Graham testimony (May 30, 2005), pp. 4179–4182.
Exhibit C-206, Tab 505.
[P] Graham testimony (May 30, 2005), pp. 4278–4279; [P] Graham testimony (June 2, 2005),
pp. 4930–4936.
[IC] Martel testimony (April 26, 2005), pp. 16112–16113; [IC] Pillarella testimony (March 31,
2005), pp. 13704–13705.
[P] Martel testimony [ET] (August 31, 2005), pp. 11415–11417.
Ibid., pp. 11417–11419.
[P] Pardy testimony (May 26, 2005), pp. 3928–3937.
[P] Pastyr-Lupul testimony (July 29, 2005), pp. 9237–9239;[P] Pillarella testimony (June 15,
2005), pp. 7030–7032.
[P] Pardy testimony (May 26, 2005), pp. 3962–3964.
[P] Martel testimony [ET] (August 31, 2005), pp. 11326–11329.
Ibid., pp. 11426–11429.
Ibid., pp. 11429 and 11431–11437.
[P] Graham testimony (June 2, 2005), pp. 4795–4797.
[P] Pastyr-Lupul testimony (July 29, 2005), pp. 9239–9247.
[P] Pillarella testimony (June 15, 2005), pp. 7149–7158.
[P] Lockyer testimony (June 17, 2005), pp. 7621–7631.
Ibid., pp. 7671–7673.
�
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PDF Text
Text
Report of the Events
Relating to Maher Arar
Factual Background
volume ii
Commission
of Inquiry into
the Actions
of Canadian
Officials
in Relation
to Maher Arar
�The Report of the Commission of Inquiry into the Actions of Canadian Officials in
Relation to Maher Arar as originally submitted to the Governor in Council included
some material which in this published version has been omitted in the interests of
national security, national defence or international relations (indicated by [***] in the
text). The decision to omit this material is made by the Government of Canada, and
does not represent the views of the Commission of Inquiry.
©
Her Majesty the Queen in Right of Canada,
represented by the Minister of Public Works
and Government Services, 2006
Cat. No: CP32-88/1-2006E
ISBN 0-660-19648-4
Available through your local bookseller or through
Publishing and Depository Services
Public Works and Government Services Canada
Ottawa, Ontario
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Printed by: Gilmore Print Group
Ce document est également publié en français sous le titre
Rapport sur les événements concernant Maher Arar
www.ararcommission.ca
�REPORT OF THE EVENTS RELATING TO MAHER ARAR
Factual Background
VOLUME II*
Contents
IV
RELEASE AND RETURN TO CANADA
467
1.
Mr. Arar’s Release
467
2.
Explanations of His Release
469
3.
The Trip Home
3.1 Mr. Arar’s Statements to Mr. Martel
470
471
4.
The October 7 Debriefing
472
5.
Mr. Arar Meets With the Minister — October 29
473
6.
Mr. Arar’s Press Conference
474
7.
Mr. Martel’s Memoranda
475
8.
The American Position on Mr. Arar’s Detention and Removal,
November-December 2003
480
Leaks to the Media
9.1 Leaks Prior to Mr. Arar’s Return
9.2 Leaks Following Mr. Arar’s Return
9.2.1 The Graham Fraser and Jeff Sallot Articles
9.2.2 The CTV News Leak
9.2.3 The Kurt Petrovic Report
9.2.4 The Juliet O’Neill Ottawa Citizen Leak
9.2.5 The December 30, 2003 Leak
9.2.6 Canadian Coverage of the CBS “60 Minutes II” Story
9.2.7 Leaks During the Public Inquiry
485
485
485
485
486
487
487
489
489
490
9.
* Because of its length, this Factual Background is published in two volumes, the first containing
Chapters I to III, and the second Chapters IV and V, as well as the Annexes and Appendices.
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FACTUAL BACKGROUND: VOLUME II
9.3 Mr. Arar’s Response
9.3.1 Effects on Mr. Arar
9.4 Government Investigations of the Leaks
9.4.1 The First PCO-Directed Investigation:
The CTV News Leak
9.4.2 The Second Series of PCO-Mandated Investigations:
The Juliet O’Neill Leak
9.4.3 The RCMP Criminal Investigation into
the Juliet O’Neill Leak
490
491
492
492
495
496
10. Project A-O Canada’s Continuing Investigation
10.1 Overview
10.2 Investigation While Mr. Arar Was in Syria
10.3 Investigation After Mr. Arar’s Release
10.4 Current Status
497
497
497
503
507
11. CSIS’ Continuing Investigation
508
12. The Tunisian Inquiries
508
13. Assessing the Imminence of Threats — October 2001-February 2004
509
V
MISCELLANEOUS MATTERS
523
1.
Rendition
523
2.
The Monterrey Protocol: A Formal Understanding on Removals
2.1 Development
2.2 Purpose
2.3 Effectiveness
527
527
528
529
3.
Consular Protection and Dual Nationality
3.1 Introduction
3.2 Consular Protection
3.3 Dual Nationality
3.4 “Clinging” Nationalities
530
530
530
531
533
4.
The RCMP’s Relationship with the Muslim Community
4.1 Training
4.2 Staffing
4.3 Contacts
4.3.1 Attendance at Mosques
4.3.2 Interviews
4.3.3 Community Relations
533
533
537
538
538
539
540
�CONTENTS
5.
Other Investigations in Relation to Mr. Arar
5.1 The Garvie Report
5.1.1 The CPC Process
5.1.2 Chief Superintendent Garvie’s Investigation
5.1.3 The Garvie Report’s Conclusions
5.1.4 Assistant Commissioner Clément’s Report
5.2 The SIRC Report
5.2.1 The SIRC Process
5.2.2 The SIRC Report’s Conclusions
5.2.3 Implementation of the Recommendations
541
541
541
543
544
547
548
548
549
551
ANNEXES
559
Annex 1
Summary of Information on Mr. Arar Provided to American
Authorities Prior to September 26, 2002
559
Annex 2
Public Sources of Information on Syria’s Human Rights Reputation
564
Annex 3
The Department of Foreign Affairs and Canadians Detained Abroad
570
APPENDICES
581
465
��IV
Release and Return to Canada
1.
MR. ARAR’S RELEASE
The news that Mr. Arar was about to be released first emerged in the early morning of October 4, 2003 when Minister Graham received a phone call from Syrian
Foreign Minister Shara’a. Minister Graham was in Rome for a NATO summit at
the time. The Syrian Minister told Mr. Graham that Mr. Arar was being released
as a result of the Canadian Prime Minister’s request to President Assad.1 Minister
Graham said they were elated by the news, but nervous about hastily announcing it to the public. Mr. Fry of the Minister’s office notified Dr. Mazigh
and Marlene Catterall, her MP. The message he conveyed to them was that they
did not have Mr. Arar yet, but were very optimistic. Mr. Fry also spoke to officials in the Middle East Division of DFAIT, including the Director responsible for
Syria, and asked that he be told as soon as there was word that Mr. Arar was
actually back in Canadian hands.2
The next day, in Damascus, the Syrian Military Intelligence called the
Chargé d’Affaires at the Canadian Embassy, Tracy Reynolds. (Mr. Pillarella was
no longer the Ambassador to Syria, and Mr. Reynolds was the next most senior
official.) The Syrians asked that Mr. Reynolds and Mr. Martel come to General
Khalil’s office that day.3 Mr. Martel gave immediate instructions at the Embassy
to book a flight, hoping that he and Mr. Arar might leave the country that night.4
Mr. Martel and Mr. Reynolds drove to General Khalil’s office at the Palestine
Branch, without going through the usual routine of meeting downtown and
being driven there by the Syrians. Mr. Arar would later tell Mr. Martel that he saw
them arriving in a van, and knew then that he was going to be set free.5
After an initial meeting with General Khalil and other Syrian officials,
Mr. Martel spotted Mr. Arar outside the door, and he was soon brought in to sit
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FACTUAL BACKGROUND: VOLUME II
with everybody.6 General Khalil informed his guests that Mr. Arar had been acquitted by the judge and was free to go.7 General Khalil then said something,
either to the effect that Mr. Arar had been kept for terrorist activities, or that he
was now under surveillance for terrorist activities.8 The two Canadian officials
also received the message that documents related to Mr. Arar would be released
in November, and documents related to criminal matters would be released to
the Embassy later. (These documents were never received, even though the
Embassy made further inquiries about them.)9
Mr. Martel asked whether Mr. Arar could leave that night, and the General
said yes. They stayed about 45 minutes or so, to be polite.10 Upon leaving,
General Khalil reportedly told Mr. Martel, in reference to Mr. Arar, to “watch
him, watch him,” to which Mr. Martel replied that he need not worry, Mr. Arar
was going with him. Apparently, on departure, General Khalil handed
Mr. Reynolds a document to be sent back to Canada. Mr. Martel did not view
the document.11 Then everybody but the General went down to the car together.12
Mr. Martel made the following notes while in the car: “Computer returned.
Arar is leaving with all of his belongings. [General] ordered him transferred to
better prison 45 days ago. [Mr. Arar] says he has really been well treated.”13
Ms. Catterall would later learn from Mr. Arar that he had been brought to
a court that day, without knowing why. He reportedly was told that he was released, but did not really believe it.14 Mr. Arar would later report to Mr. Martel
that the Syrians likely brought him before a judge to make it legal to let him go.15
Ms. Pastyr-Lupul also heard that it was not even clear that an actual trial took
place on the day Mr. Arar was released. Whatever happened, there was to be
no case. Canadian officials were not notified of a trial, no lawyer was present,
and no one was ever advised of the charges against Mr. Arar.16
Some evidence exists indicating that Mr. Arar was forced to sign a confession prior to release. This is mentioned in a human rights report on Syria prepared by the Canadian Embassy in Syria. Without more information, it is difficult
to say whether this is true, or whether this merely refers to the “confession” extracted from Mr. Arar, through torture, earlier on in his detention.17 Mr. Pardy did
testify, however, that being forced to sign a confession before release is almost
standard in countries like Syria. The confession is then used as an intimidation
factor, possibly against family members, or against Mr. Arar should he wish to
return to Syria.18
�RELEASE AND RETURN TO CANADA
2.
EXPLANATIONS OF HIS RELEASE
Almost everyone who was asked the question was willing to speculate about the
reasons for Mr. Arar’s release. Since the Syrian government declined the invitation to participate in this Inquiry, the truth may never be known.19 The likely answer is that there were numerous contributing factors.
What follows is a list, in no particular order, of some of the factors that
have been suggested in testimony before this Inquiry:
•
•
•
•
•
•
The Syrians were feeling increasingly isolated and looking for support from
elsewhere. Among their neighbours, Saddam Hussein (a former ally) was
gone, Jordan was an ally of the Americans, Turkey was a member of NATO,
and tensions were mounting in Lebanon. In the West, Europe was placing
pressure on Syria, and relations with the United States were deteriorating,
despite the Syrians’ earlier hopes that co-operation with the United States
would somehow be beneficial. One likely reason for the deterioration in
U.S.-Syrian relations was the threat of American sanctions against Syria,
aimed at restoring Lebanese sovereignty.20
The Syrians saw Canada in a favourable light because it was not participating in the Iraq war; this made up, perhaps, for Canada’s earlier listing of
Hezbollah as a terrorist organization in the Criminal Code of Canada.21
The Syrians had no evidence that implicated Mr. Arar in terrorism, and, in
accordance with previous public statements of the Syrian ambassadors to
Ottawa and Washington, Mr. Arar might have been released once this was
firmly established.22
The Syrians thought that by releasing Mr. Arar, they would somehow improve their human rights reputation.23
The Prime Minister’s letter to President Assad influenced the Syrians, as it
amounted to a clear articulation of a position from the very top of the
Canadian government, and was delivered by Senator De Bané, who, according to Mr. Pardy, had “entrée” with senior leaders in the Middle East.
As noted, this letter was cited by the Syrian Foreign Minister when he announced the release to Minister Graham. In the same vein, the months of
work by Canadian officials to secure Mr. Arar’s release likely had an effect,
although the early mixed messages coming from Canadian officials might
have slowed Mr. Arar’s return.24
Minister Graham’s conversation with the Secretary General of the Arab
League, shortly before Mr. Arar’s release, may have had some effect. He
469
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FACTUAL BACKGROUND: VOLUME II
•
was a powerful person in the Arab world, and a call from him would have
carried weight.25
Some witnesses said the public pressure, media strategies and the public
campaign in Canada made things worse, and others said it had a positive
effect in securing Mr. Arar’s release. Those who supported the public campaign pointed out that the Prime Minister’s letter likely came as a result of
public pressure, that the August 14, 2003 consular visit, and subsequent
transfer of Mr. Arar to Sednaya Prison, may have been a direct result of
public speculation of torture, and that, in some cases, quiet diplomacy does
not work. Those who worried about the negative consequences of publicity pointed out that embarrassing a foreign government was dangerous,
and often caused them to harden their stance.26 Mr. Pardy pointed to the
loss of control that occurs with media involvement, leading, for example,
to positive as well as negative stories about Mr. Arar. He felt that the effect
of publicity in this case was “entirely negative.”27
3.
THE TRIP HOME
When Mr. Arar was released on October 5, Mr. Martel took him to the Canadian
Embassy in order to make travel arrangements for that evening. Once everything was in order, they headed to a shopping centre, where Mr. Arar was able
to purchase shoes, and then on to Mr. Martel’s home to allow Mr. Arar to prepare for departure. The two men arrived at Damascus Airport around 10 p.m.28
The trip back to Canada took over 24 hours, as they travelled from
Damascus to Amman, Jordan,29 then to Paris and finally to Montreal.30 They arrived in Montreal on the evening of October 6.31
Myra Pastyr-Lupul, the case management officer for the Middle East Region
at DFAIT Headquarters, was thrilled to hear about Mr. Arar’s release. After she
had spoken with Mr. Martel, it was agreed that he would make contact once they
arrived in Paris for a layover. When they arrived in Paris, Ms. Pastyr-Lupul
arranged for Mr. Arar to speak to his wife, with whom he had not spoken for
more than a year.32
The next morning, Ms. Pastyr-Lupul arranged for a van to take Dr. Mazigh,
Mr. Arar’s family and other members of Mr. Arar’s support team to Montreal.
She also arranged for a private lounge in which the Arar family could meet as
soon as he left the plane.33 Konrad Sigurdson, the new Director General of the
Consular Affairs Bureau, Ms. Pastyr-Lupul and the two members of Parliament
who had visited him in prison, Marlene Catterall and Sarkis Assadourian, were
also at the airport.34
�RELEASE AND RETURN TO CANADA
When Mr. Arar arrived in Montreal, he was quickly reunited with his family, after which he made a brief statement to the assembled media. (Mr. Arar told
Mr. Martel during the trip home that he did not want a press conference as soon
as he returned to Canada because he was concerned about other Canadians still
in Syrian detention.) The family, his supporters and the government representatives then attended a homecoming celebration at the family home in
Montreal.35
3.1
MR. ARAR’S STATEMENTS TO MR. MARTEL
During the trip home, Mr. Arar revealed bits and pieces about his time in Syrian
detention to Mr. Martel. It was obvious to the consul that Mr. Arar had been
through a lot and did not want to fully discuss his experience at that time.
Mr. Martel was aware that his mandate was to accompany Mr. Arar, to give him
support and to ensure that he arrived home. Therefore, he did not ask Mr. Arar
many questions. He let Mr. Arar speak when it suited him and he did not take
notes of their discussions.36
The trip home was the first opportunity for Mr. Martel and Mr. Arar to speak
privately, outside the reach of the Syrian authorities. Mr. Martel broached the
subject of torture by telling Mr. Arar that there had been press reports about
him being stuffed into a tire and subjected to electric shocks. Mr. Arar told him
that these allegations were unfounded but then said “they have other means.”
He did not elaborate.37 He did tell the consul that he had a “difficult time” in the
first two weeks of detention and said something to the effect that “they hit me
from time to time, but nothing really serious.” Mr. Arar also said that after the
initial interrogation, they got everything and then left him alone.38
Mr. Martel believed that Mr. Arar placed less importance on his physical
treatment than on the conditions of detention at the Palestine Branch. What
Mr. Martel heard from Mr. Arar about the detention conditions was, in the words
of Mr. Martel, “appalling.”39
Mr. Arar told him he was kept in an underground cell in darkness, except
for the light that would come in through a small opening on the top of the cell.
Cats would sometimes walk over the small opening and relieve themselves on
him. The only time he saw daylight was when he was brought to see Mr. Martel
for a consular visit. His cell measured 3’ x 6’ x 7’ and he slept on a thin mattress
on the floor. He was given two bottles: one to drink from and one to relieve
himself in. The toilets were outside the cell and he could use them only three
times a day. He was allowed to do his laundry only once a week, in the toilet
area in darkness.40
471
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FACTUAL BACKGROUND: VOLUME II
As noted in the previous chapter, General Khalil kept his promise and transferred Mr. Arar to Sednaya Prison six days after the last consular visit on August
14, and this transfer surprised Mr. Arar. Apparently, during the last consular visit,
when General Khalil and Mr. Arar had a direct conversation in Arabic, Mr. Arar
expressed his unhappiness with the detention conditions, and this led to the
move to Sednaya.41 Mr. Arar remained there until his release.
(Mr. Arar’s counsel disputed Mr. Martel’s interpretation that Mr. Arar placed
less importance on the abuse that he suffered at the start of his detention.
Mr. Martel agreed that it was possible that what Mr. Arar conveyed to him was
that he had been in detention for so long that the beatings in the first two weeks
became less significant as the days, weeks and months went by, alone in a cell
in deplorable conditions. Nevertheless, he still felt that during their discussion
Mr. Arar placed less emphasis on the early period of his detention.)42
Mr. Arar also offered some comments on his time in Jordanian custody.
Although the Syrian authorities acknowledged receiving Mr. Arar on October
21, Mr. Arar told Mr. Martel that he spent only about eight hours in Jordan. The
Jordanian authorities were rough with him during this brief period until he informed them that he had an important relative in the Jordanian government.43
All in all, Mr. Martel said that he had no reason to doubt that Mr. Arar was
telling him the truth about his experience.44
4.
THE OCTOBER 7 DEBRIEFING
On October 7, Mr. Martel met with officials from DFAIT Headquarters to debrief them on Mr. Arar and his treatment in Syria. As has been mentioned,
Mr. Martel did not take any notes during his discussions with Mr. Arar on his way
home. Therefore, he spoke from memory at the meeting.45
The notes taken by various participants at the debriefing were fairly consistent in documenting what Mr. Martel had to say about how Mr. Arar was
treated and the conditions of his detention. Mr. Martel did not dispute his colleagues’ record of what he said. In regard to Mr. Arar’s treatment, Mr. Martel told
them that Mr. Arar was “beaten” occasionally during his first two weeks in Syrian
detention, that he was not forced into a tire or subjected to electric shocks, and
that he had suffered mentally.46
The information shared with DFAIT officials during the debriefing soon
reached CSIS. A CSIS official circulated an e-mail within CSIS about what he had
learned from a conversation with a DFAIT official who had attended the meeting. This e-mail stated that Mr. Arar claimed that he was not physically abused,
except for being slapped a few times while in Jordanian custody and by the
�RELEASE AND RETURN TO CANADA
Syrian authorities during the initial period of detention. However, Mr. Arar was
held in a small dark cell for over a year, which had a serious effect on his health
and mental well-being. The e-mail ended with the conclusion that, based on
what came out of the debriefing, “[Mr. Arar] was not subject to the physical
abuse that is commonly associated with torture.”47
5.
MR. ARAR MEETS WITH THE MINISTER — OCTOBER 29
Mr. Arar and Dr. Mazigh met with Minister Graham and officials from the office
of the Minister and DFAIT on October 29. The meeting was first limited to a
30-minute face-to-face encounter of Mr. Arar and Dr. Mazigh with Minister
Graham and Robert Fry, his senior policy adviser. The meeting was later expanded to include, among others, Mr. Sigurdson; John McNee, Assistant Deputy
Foreign Minister for the Middle East; Alex Neve of Amnesty International; James
Lockyer, a criminal lawyer; and Kerry Pither, Coordinator of the Solidarity
Network.48
During the private meeting between the Arars and Minister Graham,
Mr. Arar shared information about his detention that was similar to what
Mr. Martel had described to DFAIT officials at the debriefing. Mr. Arar also asked
the government to make clear that not everything that the media reported about
him was true.49
The larger meeting with the Arars was attended by about 20 people.
Minister Graham left partway though the meeting.50 During the second meeting,
the issue of a public inquiry was discussed, as well as the leaks of information
about Mr. Arar and the cases of Messrs. Almalki and El Maati (who were still in
detention in Syria and Egypt, respectively).51
All participants at the October 29 meeting agreed to keep it confidential
until Mr. Arar chose to address the media about his experience. The next day,
however, it was reported in the press that Mr. Arar had told the Canadian government that he had been tortured.52
Mr. Arar contacted Mr. Fry to express his displeasure with the government.
He had shared information with them in confidence and now felt betrayed.
Mr. Fry was not sure how the media had obtained the information but he was
confident that the leak did not come from the Minister’s office. In any event,
Mr. Fry immediately sent an e-mail to senior DFAIT officials, reminding them to
keep quiet about the meeting.53
473
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FACTUAL BACKGROUND: VOLUME II
6.
MR. ARAR’S PRESS CONFERENCE
Mr. Arar revealed his story to the media for the first time at a press conference
on the morning of November 4.54 Before the press conference, DFAIT officials
were provided with a written copy of Mr. Arar’s chronology of events from
September 26, 2002 to October 5, 2003.55
Reading from a prepared statement, Mr. Arar briefly discussed his background and then gave a detailed account of what had happened to him from his
arrival in New York until his release from Syrian detention.56 Both Minister
Graham and Mr. Fry, who had met with Mr. Arar privately on October 29, testified that what Mr. Arar said at his press conference was fairly consistent with
what he had told them in private.57
Shortly after the press conference, Minister Graham met the press informally. During this scrum, he said that he would call in Syria’s ambassador to
Canada to express Canada’s concerns about Mr. Arar’s treatment.58
As promised, that same day, Minister Graham met with the Syrian ambassador and registered Canada’s protest against Mr. Arar’s treatment. After the
meeting, the Minister’s office issued a press release calling on the Syrian government “to take [the] allegations of torture seriously and to act quickly to investigate all of the details of Mr. Arar’s detention, as well as those of other
Canadians being held in Syria.”59
Even after the meeting with the Syrian ambassador, the push for a response
from Syria continued. On November 5, DFAIT Headquarters instructed Brian
Davis, the new Canadian ambassador in Damascus, to follow up on the request
in the press release with Syria’s Ministry of Foreign Affairs. It was suggested that
a meeting be arranged with the Deputy Foreign Minister, Mr. Mouallem. Ottawa
wanted to stress six points with Mr. Mouallem, including the need for a prompt
and thorough investigation by the Syrian authorities of Mr. Arar’s allegations of
torture.60
A meeting was finally arranged between Ambassador Davis and
Mr. Mouallem for November 30. A diplomatic note dated the same day from the
Canadian Embassy to Syria’s Ministry of Foreign Affairs was also prepared. The
diplomatic note mentioned that Mr. Arar had made allegations of torture and
mistreatment against the Syrian authorities at his press conference on November
4. Then the following request was made: “Given the seriousness of these allegations, which, if true, would be inconsistent with Syria’s obligations under the
International Covenant on Civil and Political Rights, the Government of Canada
requests a formal investigation into the allegations and an official reply to this
�RELEASE AND RETURN TO CANADA
note on the results of that investigation.”61 Ambassador Davis intended to present this diplomatic note to the Deputy Foreign Minister during the meeting.62
However, when he arrived at the Ministry of Foreign Affairs on November 30,
he was told that Mr. Mouallem was out of town and unable to return in time for
the meeting. It was rescheduled for December 9.63
Mr. Martel testified that he did not know whether the Syrian government
ever responded to the diplomatic note.64
7.
MR. MARTEL’S MEMORANDA
As mentioned in Section 6, prior to Mr. Arar’s press conference, DFAIT officials
were provided with a copy of his chronology of events. Mr. Fry noticed that
Mr. Arar’s account of the August 14 consular visit stated that he had confirmed
to the Canadian consul that he had been tortured. Shortly after the visit, Minister
Graham reassured the public that Mr. Arar had not been tortured. Mr. Fry knew
that if this inconsistency was picked up by the media, the Minister’s office would
be asked to explain which of the two versions of events was true.65
In preparation for Mr. Arar’s press conference, Mr. Fry assembled talking
points for Minister Graham. It was unusual for Mr. Fry to do this, but he felt it
was necessary under the circumstances. The talking points were only a page
long. Not surprisingly, most of the points addressed the August 14 consular
visit.66 As a further step, which Mr. Fry also described as unusual, he contacted
Mr. Martel in Damascus to see if he could help sort out the inconsistency.67
Around the same time that the Minister’s office was dealing with Mr. Arar’s
chronology, the media was reporting that Mr. Arar had been tortured during the
first two weeks of his detention in Syria. This prompted DFAIT Headquarters to
e-mail the Canadian Embassy in Damascus on October 31. The e-mail noted
that the torture allegation seemed to be inconsistent with statements made by
Mr. Arar to Mr. Martel during the consular visit on August 14 (as detailed in the
consular report and an e-mail to Ms. Pastyr-Lupul on the same date) and on
October 6 while en route to Canada. The Canadian Embassy was asked to confirm the information filed by Mr. Martel on August 14 and Mr. Arar’s comments
during his travel back to Canada. The Embassy was also asked to provide its assessment of the conditions of detention, which could be considered “degrading”
or “inhumane.” Furthermore, Mr. Martel was to provide his notes from the
August 14 meeting.68
A memorandum in reply was drafted by Mr. Martel, approved by
Ambassador Davis and sent to DFAIT Headquarters on November 3. In it,
Mr. Martel stood by the content of his consular report and his e-mail to
475
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FACTUAL BACKGROUND: VOLUME II
Ms. Pastyr-Lupul on the August 14 consular visit. However, he emphasized that
Mr. Arar had been speaking in the presence of Syrian officials, and the nature
of the conversation had to be taken in the context of what was “apparent freedom of speech.” He noted that Mr. Arar told him after his release that he decided
from the first consular visit that he had to protect regular consular access, without which he would have committed suicide. For this reason, Messrs. Martel
and Davis felt that more credence should be given to what Mr. Arar said after
his release than to what he had said in the presence of Syrian Military
Intelligence officers.69
Mr. Martel wrote that, after Mr. Arar’s release, he pressed him for answers
on the question of torture. According to Mr. Martel, Mr. Arar confirmed that he
had not been beaten. Instead, he said “they have other means,” but did not elaborate. He did say that his time in detention had destroyed him mentally. Mr. Arar
also gave details about the prison conditions. (These details are similar to what
is written above in Section 3.1.) Mr. Martel wrote that they were unable to verify the accuracy of the information about the prison conditions because access
to the cells was not authorized.70
Mr. Martel also wrote that the press stories relating to the tire ordeal or the
use of electric shocks were unfounded, as Mr. Arar had stated during their private conversation. He noted that, as mentioned at the October 7 debriefing, torture can be defined in several ways. In the Middle East, solitary confinement for
months, in the conditions described by Mr. Arar, would be the norm but would
certainly be called inhumane in Canadian society.71
Near the end of the memorandum, Mr. Martel indicated that the Canadian
Embassy shared Headquarters’ concern about the possibility of Mr. Arar going
public and claiming that he had been tortured.72
Mr. Martel’s reply that Mr. Arar confirmed that he had not been beaten was
in marked contrast to what he told DFAIT officials in early October. At the
October 7 debriefing, Mr. Martel told officials that Mr. Arar had said that he was
beaten during the first two weeks of his detention. Mr. Martel explained that
both the October 7 debriefing and the November 3 memorandum were constructed from memory. He did not make any notes at the October 7 debriefing
and he did not see the notes of the other participants. He acknowledged that
various participants at the meeting recorded what he had to say about Mr. Arar
being beaten; therefore, he must have said it. He had a vague recollection of
Mr. Arar telling him that he had been hit in the beginning but that it was not very
serious. For this reason, when writing the memorandum a month later, he simply forgot what Mr. Arar had told him and what he had reported at the October 7
�RELEASE AND RETURN TO CANADA
debriefing. He also mentioned that Ottawa wanted an urgent reply; thus, the
memorandum was written quickly.73
Mr. Martel testified that omitting the reference to Mr. Arar telling him that
he was beaten from the memorandum was not to protect the Syrian government or to cover for failing to report that Mr. Arar had been mistreated. The
omission came down to a failure to remember what he had been told.74
The November 3 memorandum did not settle the matter of what exactly
Mr. Arar had told Mr. Martel about his treatment in Syria, and it continued to be
an issue for DFAIT Headquarters. The focus this time was on the contents of
Mr. Arar’s chronology, which claimed that Mr. Arar had confirmed to Mr. Martel
during the August 14 consular visit that he was tortured at the beginning of his
detention. In a series of e-mails between Ottawa and Mr. Martel on November
17 and 18, he stated that the consular report of August 14 accurately reflected
what Mr. Arar had told him during the consular visit, including that he had not
been beaten or tortured. Mr. Martel also repeated earlier comments that, during
the trip back to Canada, Mr. Arar never mentioned that he had been beaten during the first two weeks of his detention and instead had said “they have other
means.”75
When Mr. Martel was again confronted with the statements he made to
DFAIT officials at the October 7 debriefing, he again pointed to a memory lapse
to explain the contradictory statement in the e-mail. He repeated that he had forgotten that Mr. Arar had told him that he had been hit at the beginning of his
detention because Mr. Arar had told him that the beating was not serious.
Mr. Martel replied to the inquiry from Ottawa without having the benefit of seeing anyone’s notes from the October 7 debriefing, and he insisted that he was
not trying to conceal anything.76
Mr. Martel repeatedly stated in his testimony that he believed what Mr. Arar
told him concerning his treatment in Syria and that his omissions in the
November 3 and November 17-18 reports to DFAIT officials were not deliberate. However, a conversation between Mr. Martel and a Canadian official in
early 2004 appeared to call into question whether Mr. Martel believed Mr. Arar.
A Canadian official prepared a report summarizing his conversation about
Mr. Arar with Mr. Martel at the Canadian Embassy in Damascus on February 8,
2004,77 and this official believes that his report accurately reflects what Mr. Martel
told him.78
According to the report, during the conversation, Mr. Martel said that the information that Mr. Arar shared with him in interviews just before he was released from Syrian detention contradicted the information that Mr. Arar was then
giving to the media. Mr. Martel told the Canadian official that he believed the
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information he had received from Mr. Arar was likely more accurate because it
was “fresher” and not tainted by the spectre of big money and lawsuits.
Mr. Martel allegedly called Mr. Arar a liar and said that if he was asked to attend
an inquiry, he would gladly testify about the inconsistencies and irregularities involving Mr. Arar.79
Mr. Martel disputed this record of events. He believed that this portion of
the report did not accurately capture what he was trying to communicate to the
official. Mr. Martel testified that, at the time of the conversation, a civil lawsuit
was on his desk. It had been filed by Mr. Arar against the Government of Canada
for the way in which he was represented during his ordeal. Mr. Martel was
named as a defendant in the lawsuit. He was trying to point out to the Canadian
official that what Mr. Arar had told Mr. Martel in previous interviews did not
match what was alleged in the lawsuit.80
Mr. Martel’s testimony further suggested that the lawsuit the Canadian official saw on his desk prompted the discussion of lawsuits and money. In relation to the lawsuit, the official asked Mr. Martel why Mr. Arar would now change
his story. Mr. Martel told him that this was a question which only Mr. Arar could
answer. He then speculated that perhaps money was an issue. The conversation
did not go any further on this point.81
Mr. Martel was adamant that he never called Mr. Arar a liar. Mr. Martel considered his own reputation to be tarnished in the lawsuit, and he was trying to
express to the official that what was alleged in the lawsuit in relation to the
service he had provided Mr. Arar during his detention was a “big lie.” During
his testimony, Mr. Martel wanted to state clearly that he did not believe Mr. Arar
ever lied to him.82
Mr. Martel’s explanation that his comments were directed at a lawsuit filed
by Mr. Arar hit a snag during his testimony. Mr. Arar’s lawsuits against the
Government of Canada (including Mr. Martel) in both the federal and provincial
courts were filed on April 2, 2004,83 two months after the conversation between
Mr. Martel and the Canadian official took place. As of February 8, 2004, Mr. Arar
had not yet filed a lawsuit against the federal government.
Early in his testimony, Mr. Martel stated that he could not confirm that the
meeting took place on February 8, 2004, but he did not dispute it either. He
knew that he met with the official twice and during the second meeting the lawsuit was on his desk.84 Later, when presented with the April 2 date for the filing
of the lawsuits, and the report and testimony of the official confirming the
February 8 date of the meeting, Mr. Martel said that the February 8 date might
not be correct. He insisted that all he could say for certain was that the Federal
Court lawsuit was on his desk when he had the conversation with the official.85
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The Canadian official testified that, during the same meeting, they also discussed the case of Muayyed Nureddin, another Canadian who was released from
Syrian detention in January 2004.86 In fact, in addition to the report filed on
Mr. Arar, the Canadian official filed a second report detailing what Mr. Martel had
told him about Mr. Nureddin at this meeting.87 When Mr. Martel was asked if he
remembered discussing both Messrs. Arar and Nureddin at the same meeting, he
said that the official’s recollection might be correct but he could not be certain.
Regardless, he repeated that a lawsuit was on his desk when he met with the
official and he was not simply trying to rationalize his comments about Mr. Arar
by pointing to information he received after the meeting took place.88 Mr. Martel
did not produce the statement of claim to which he referred repeatedly, and
did not shed any light on where this document could be found.89
Although he was not certain that Mr. Nureddin had been discussed at this
particular meeting with the Canadian official, Mr. Martel did point to
Mr. Nureddin’s case when trying to explain certain comments recorded by the
Canadian official in his report on Mr. Arar. Mr. Martel believed the official was
confusing the stories of Mr. Arar and Mr. Nureddin.90
The comments in question related specifically to the treatment that Mr. Arar
received from his Syrian jailers. According to the report, Mr. Arar told the consul that during his first two weeks in Syrian custody, “they got everything and
then they left me alone.” During this period, the Syrian authorities used some
physical punishment on him by beating with a thick black plastic cable the soles
of his feet, his elbows and places where there would be no scarring. Mr. Arar
said that the Syrians appeared to be satisfied with his answers and did not use
any more physical punishment or interrogate him further after this. Mr. Martel
pointed out to the official that Mr. Arar was now saying that he had been tortured for longer periods and more brutally. He opined that this change in story
was likely linked to lawsuits or to certain pressure groups with political
agendas.91
When asked to explain this portion of the report, Mr. Martel acknowledged
telling the official something about Mr. Arar facing mistreatment during the first
two weeks of his detention.92 But he insisted that the details of the mistreatment
laid out in the report applied to Mr. Nureddin, not Mr. Arar.93 An examination
of reports on Mr. Nureddin filed by both Mr. Martel and the Canadian official
(based on his discussion with Mr. Martel) did not clear up Mr. Martel’s testimony.94
Mr. Martel believed that it was Mr. Nureddin, not Mr. Arar, who told him
that the Syrians appeared to be satisfied with his answers and did not use any
more physical punishment or interrogate him after this. However, he was unable
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to support this assertion with information in his report on Mr. Nureddin.95 The
Inquiry has also seen notes taken by DFAIT officials at the October 7 debriefing in which Mr. Martel told them that the Syrian authorities were rough with
Mr. Arar early on and then left him alone.96
As for the sentence stating that Mr. Arar was now saying that he was tortured for longer periods of time and more brutally, Mr. Martel said that he might
or might not have said this to the official. He was aware that there had been
press reports offering a more detailed account of Mr. Arar’s treatment. Mr. Martel
believed it was possible that the official had picked this up from the press reports on his own or Mr. Martel might have mentioned the press reports.97
The remainder of the Canadian official’s report of their conversation was
clearly focused on Mr. Arar, as it covered such topics as Mr. Arar’s transfer from
the United States to Jordan and then to Syria, and his consular visits with
Mr. Martel.98
Near the end of the report, the Canadian official wrote that Mr. Martel was
annoyed by suggestions that Canada did not do enough to release Mr. Arar.
Mr. Martel told him that Mr. Arar received more attention, including input from
the Prime Minister, parliamentarians and other senior DFAIT officials, than any
other consular case in his many years of consular service.99
Mr. Martel refuted any suggestions that he thought Mr. Arar should be grateful to DFAIT officials. Mr. Martel said that Mr. Arar was a consular client and was
entitled to all of the services under the consular regulations. Although the
Canadian official wrote that Mr. Martel was annoyed, Mr. Martel explained that
what he expressed to the official was disappointment that DFAIT was being criticized for not having done enough for Mr. Arar. At one point, he told the official: “Under the circumstances that we found ourselves in, imposed by the
country Syria, I think that we did the maximum and beyond. Never had we devoted so much time collectively to a single case, to my knowledge.” Thus, although the official wrote that Mr. Martel was annoyed, Mr. Martel insisted that
this is not what he had said.100
8.
THE AMERICAN POSITION ON MR. ARAR’S DETENTION
AND REMOVAL, NOVEMBER-DECEMBER 2003
On November 5, 2003, the day after Mr. Arar’s press conference, Minister
Graham telephoned Secretary Powell about the case.101 Robert Wright, of the
PCO, testified that Minister Graham’s message was twofold: first, that the Minister
needed more details on the U.S. allegation that Canada was involved in
Mr. Arar’s detention and removal; and second, that Mr. Arar had given a
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powerful press conference, and that the Canadian government was under pressure to call a public inquiry into the case.102
The Minister said that after Mr. Arar’s press conference, the United States
looked complicit in sending him to Syria to be tortured, and mentioned that
Mr. Arar had been denied a lawyer in New York. Secretary Powell responded
that his understanding was that U.S. law enforcement officials had contacted
Canadian consular officials in New York and that there had been consular access. Minister Graham agreed, but said that the immigration hearing had taken
place without Canada’s knowledge and without Mr. Arar’s lawyer’s knowledge.103 Minister Graham also wanted to know how the United States had received Mr. Arar’s lease.104
The Minister indicated that after Secretary Powell told him that information
had been provided by Canadian authorities, he had talked to various agencies
concerned. When his investigation revealed nothing,105 the Prime Minister had
charged him with calling Secretary Powell to get assistance from him and
Attorney General Ashcroft to determine the identity of the alleged Canadian
source.106 Minister Graham was thus in the awkward position of asking the U.S.
Secretary of State to look into who in the Canadian government might have provided the Americans with information.107 Secretary Powell undertook to look
into the matter immediately.108
Minister Graham testified that as of November 5, 2003, Secretary Powell’s
position was still that somebody in Canada was involved,109 despite the fact the
American Embassy had contradicted that suggestion in August.110
During the call, Minister Graham emphasized his concern that the Arar case
could have a negative impact on bilateral relations between Canada and the
United States, especially if things progressed to the stage of a public inquiry.
According to an internal DFAIT report, Secretary Powell replied in agreement.
Ambassador Kergin Is Called to the U.S. National Security Council,
November 6, 2003
Events moved quickly in early November 2003. In the House of Commons
Question Period on November 5, the Prime Minister announced the essence of
the Graham-Powell telephone call,111 i.e., that the Government had asked the
American authorities for more information on Canadian involvement in
Mr. Arar’s arrest and/or removal. In Mr. Graham’s words, “So the Prime Minister
ratcheted it up. The Prime Minister’s level, that, as you can imagine, got the attention of the Ambassador and everybody else.”112
The Prime Minister’s comments generated wide media coverage. On
November 6, the Ottawa Citizen ran an article entitled “PM to U.S.: Name moles
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in Arar case: PM wants names of tipsters behind torture of Canadian.”113 The article stated that the Prime Minister had asked the United States to hand over the
names of Canadian law enforcement officials who might have provided intelligence that led to Mr. Arar’s deportation to Syria. It also reported that the Prime
Minister told the House of Commons that Secretary Powell had promised to reveal the “Canadian mole” who had provided security information on Mr. Arar to
the U.S. intelligence community. The article quoted the Prime Minister as saying, “We want to know the name of the person who might be involved. If such
a name exists, they will give it to Canada... The name will be given and we will
act accordingly.”114
The Toronto Star ran a related article entitled “Chrétien blames the U.S. for
deporting Arar to Syria; Syrian envoy says Canadian jailed as favour to U.S. ‘We
believe there is no case against him,’ diplomat says.”115 The article reported that
“Prime Minister Jean Chrétien blames the United States for deporting Canadian
citizen Maher Arar to Syria, where he was jailed and tortured for 10 months as
a suspected terrorist,” and quoted the Prime Minister as saying in the House of
Commons, “fists clenched,” “The people who are responsible for the deportation of this gentleman to Syria are in the government of the United States, not
the government of Canada.”116 It also stated that the Prime Minister had announced that Secretary Powell had promised to hand over the names of any
Canadians involved in Mr. Arar’s arrest or deportation in 2002.
Also on November 6, Michael Kergin, Canada’s Ambassador to the United
States, 117 was called to a meeting at the National Security Council with Frances
Townsend, the U.S. National Director for Combating Terrorism and Deputy
National Security Advisor.118 Two other people were present: Tom Shannon,
United States Senior Director for Western Hemisphere Affairs, and Peter Boehm,
Canada’s Minister for Political and Public Affairs at the Embassy in Washington,
D.C.119 Mr. Kergin testified that to be called in by the National Security Council
in such circumstances was unusual.120
Ms. Townsend transmitted to Ambassador Kergin the substance of a meeting that had taken place that morning at the White House. She indicated that
senior administration officials were irritated that Prime Minister Chretien had
stated that the decision to remove Mr. Arar was made unilaterally by U.S. officials. In their view, it was a joint decision.
Ms. Townsend’s message was that “Arar’s name had ‘popped up’ in the
watch listing and had accordingly been discussed with ‘members of the
Government of Canada’ as had been the practice in our good intelligence relationship’121 Ambassador Kergin was advised that the U.S. Government in
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removing Mr. Arar to Syria attached a condition that he not be harmed which
was conveyed to the Syrians.122
Mr. Boehm’s report on the meeting details the Canadian Embassy’s response: first, that the message of presidential concern had been noted and
would be conveyed; second, that the Arar case had assumed a high public profile in Canada and that the government wished to avoid a public inquiry; and
third, that the Arar case had to be managed jointly and that there were no instant solutions, as intelligence issues are always particularly sensitive.123
After the meeting, Mr. Kergin telephoned the Deputy Minister of Foreign
Affairs, Peter Harder, and reported on the discussion. Mr. Harder advised
Mr.Kergin to follow up on who in the Canadian government was party to this
joint decision. Mr. Kergin followed up with Ms. Townsend but never heard
back from her or other U.S. officials as to who in the Canadian government was
party to any joint decision.
Several steps were taken in response to the presidential concern. Jim Wright
spoke with the U.S. Embassy in Ottawa; and Robert Wright from PCO had discussions with American counterparts. At this time Ambassador Cellucci was starting to acknowledge publicly that the U.S. decision to remove Mr. Arar was
unilateral.124
In a chance meeting with Ambassador Cellucci in Washington, D.C. on
November 13, Mr. Kergin was advised by the Ambassador that Canadian officials
were in no way implicated in the decision to deport Mr. Arar.
Mr. Kergin also reported that Deputy Prime Minister Manley had spoken
with U.S. Homeland Security Secretary Tom Ridge on November 11, and that
Secretary Ridge had made it clear that Secretary Powell would be the designated
channel for discussion of the Arar issue.
Solicitor General Easter Meets Attorney General Ashcroft — November 18,
2003
During his tenure as Solicitor General, from mid-October 2002 to mid-December
2003, Wayne Easter met with United States Attorney General Ashcroft several
times.125 At the first meeting, on December 17, 2002, Mr. Easter did not raise the
case of Mr. Arar; he testified that this was more appropriately the responsibility
of the Minister of Foreign Affairs.126 Nor did he raise the Arar case in a meeting
with Mr. Ashcroft on July 14, 2003, although his meeting briefing materials provided a recommended response “in relation to issues surrounding the deportation of Maher Arar to Syria,” and noted that a request to the U.S. for additional
information on Mr. Arar was outstanding.127
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At a November 18, 2003 meeting in Washington, D.C., the issue was at last
discussed by the Canadian Solicitor General and the American Attorney General.
Mr. Easter testified that he “raised very strenuously my concerns over the Arar
issue.”128
Mr. Easter also testified that Mr. Ashcroft told him that only a small part of
the information used by the United States against Mr. Arar had come from the
RCMP.129 Mr. Easter later publicly acknowledged that Canada had contributed information that led to Mr. Arar’s arrest.130
“I Was Mistaken”–Secretary Powell’s Last Position, December 1, 2003
On December 1, 2003, Secretary Powell telephoned Minister Graham with a
number of answers to Mr. Graham’s prior questions. He confirmed that the
United States alone, without consulting Canada, had made the decision to remove Arar to Syria, and that the decision had been based on information from
various sources, chief among them the RCMP and CSIS.131 To Minister Graham’s
knowledge, this is the last statement of the Secretary of State’s position as to
what happened in respect of Mr. Arar.132
A DFAIT chronology summarizes that call as follows:
Powell informs that (1) the Arar affair was triggered by enquiries by Canadian
sources and that Arar would not have been on the US radar screen had he not been
the subject of attention by Canadian agencies; (2) contrary to what he had alleged,
Arar had not been inoculated with any substance while in US custody; (3) US law
enforcement officials had informed the RCMP about Arar’s detention and the RCMP
had informed the Consulate General in New York; and (4) no Canadian officials
were consulted prior to the US decision to deport Arar. [Minister Graham] refers to
a meeting the previous week of Solicitor General Easter and Attorney General
Ashcroft when Easter raised the possibility of a bilateral protocol to deal with such
cases in the future.133
Minister Graham recalls that Secretary of State Powell consistently said that
“‘your guys knew what we were doing all along’ until the very end, when he
said, ‘I was mistaken.’”134
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9.
LEAKS TO THE MEDIA
9.1
LEAKS PRIOR TO MR. ARAR’S RETURN
The evidence shows that over an extended period of time classified information
about Mr. Arar was selectively leaked to the media by Canadian officials. The
leaks date from July 2003, before Mr. Arar’s return to Canada, to July 2005, during the course of this Inquiry.
By the summer of 2003, Monia Mazigh’s efforts to bring her husband home
had alerted the Canadian public to his predicament in Syria, and pressure was
building on the Canadian government to secure his release. It was in this context that the first major leak to the media occurred.
On Thursday, July 24, 2003, page A1 of the Ottawa Citizen featured an article by Robert Fife entitled “Terror Threats in Ottawa: Two kinds of fear: Report
says Syrian intelligence helped U.S. to foil al-Qaeda plot on target in Ottawa.”135
The article cited American journalist Seymour Hersh as reporting that Syrian intelligence had helped the United States avert a suspected attack against an
American target in Ottawa.
The article went on to refer specifically to the deportation of Maher Arar to
Syria the previous September, and to his continued detention there. Crediting
anonymous Canadian officials, Mr. Fife wrote: “One official would only tell
CanWest News Service that Mr. Arar, a 36-year-old Ottawa engineer, is a ‘very
bad guy’ who apparently received military training at an al-Qaeda base.” The article also noted that the unnamed government official refused to provide further
details, attributing the need for secrecy to ongoing intelligence operations.
9.2
LEAKS FOLLOWING MR. ARAR’S RETURN
9.2.1
The Graham Fraser and Jeff Sallot Articles
There were a number of information leaks following Mr. Arar’s return to Canada
on October 6, 2003.
An October 9, 2003 article by Graham Fraser in the Toronto Star136 reported
on the circumstances of Maher Arar’s detention in the United States and deportation to Syria, citing extensive comments from “an official closely involved in
the case.” Speaking “on condition that he not be quoted by name,” the official
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said that the United States contacted Canadian security officials when Mr. Arar’s
name was noted on a passenger flight list. According to the unnamed official,
the Canadians were asked “if you have anything on him [Arar],” and the United
States was told in response, “Yes indeed... he is watched because he has been
to Afghanistan several times.”
The source said the Americans then asked if Mr. Arar would be charged if
he was transferred back to Canada. Canadian officials responded that he would
not. After some discussion of Mr. Arar’s having lived in Boston at one time, and
the requirements for charges under Canadian law, the unamed official said that
the conversation ended with the following statement by the Americans:
“Obviously we can do nothing with you.” According to the source, Mr. Arar was
then transported to Jordan, without any notification to Canadian consular
officials.
The next day, October 10, 2003, the Globe and Mail published an article by
Jeff Sallot entitled “Arar was not tortured, officials say; Engineer held in ‘very bad’
conditions, suffered psychological stress.”137 The article cites unnamed Canadian
government sources as saying Mr. Arar complained he was “roughed up” in
Jordan and held in appalling physical conditions in a Syrian prison, but not
physically tortured.
9.2.2
The CTV News Leak
On October 23, 2003, CTV broadcast an item entitled: “The case of Maher Arar
takes more twists and turns”138 on its 11 o’clock news program. Journalist Joy
Malbon reported that “senior government officials in various departments” told
the network that Mr. Arar had provided information to the Syrians about
al-Qaeda, the Muslim Brotherhood, and radical cells operating in Canada.
Malbon also reported that “government sources say” Mr. Arar provided information to the Syrians about four other Canadians: Arwad al Bushi and
Abdullah al Malki, both being held in a Syrian jail; Ahmed Abu al Maati, in custody in Egypt; and Mohamed Harkat.139 According to the sources, Mr. Arar’s revelation of this information led to his release from Syria.
This was the first time Mr. Arar was publicly alleged to have divulged information about other Canadians held in detention abroad, during interrogations by the Syrians.
The CTV News item also revealed that Canadian officials had received information as a result of Mr. Arar’s interrogations in Syria, stating that “sources say
CSIS has received the transcripts of the Syrian interrogation of Arar, but won’t
say what will be done with that information.”
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The CTV leak was reported in the Globe and Mail’s October 24, 2003 morning edition. In an article entitled “Officials allege Arar gave data on al-Qaeda, report says,” Daniel LeBlanc cited senior Canadian officials as alleging that Mr. Arar
provided crucial information on the al-Qaeda terrorist network and on cells operating in Canada during his year-long detention in Syria.140
An Ottawa Citizen article published the following day, October 25, 2003,141
noted that the leaks about what Mr. Arar might or might not have said to his
Syrian interrogators were “particularly worrisome” and potentially hugely dangerous, not only for the Arar family, but also for the individuals allegedly named
by Mr. Arar and still in detention abroad in countries known to practise torture.
This leak was timed to implicate Mr. Arar in a terrorist scheme just after his
return to Canada. Obviously, being called a terrorist in the national media will
have a severe impact on someone’s reputation.142
9.2.3
The Kurt Petrovic Report
On October 29, 2003, officials from the Department of Foreign Affairs (DFAIT),
who were meeting with Mr. Arar, Dr. Mazigh, and others, promised Mr. Arar
that what he said would remain confidential until he chose to divulge it at a
press conference.143 Notwithstanding this commitment, the following day,
October 30, Kurt Petrovic reported on CBC Newsworld that Mr. Arar had met
with Foreign Affairs Minister Bill Graham, and had told the Canadian government he had been tortured while detained in Syria.144
Mr. Arar called Robert Fry at DFAIT to complain about the release of information to the CBC. According to Mr. Fry, Mr. Arar said he was very unhappy
and felt betrayed because he had spoken to DFAIT officials in confidence, and
the next day his comments had appeared in the media.145 Mr. Fry was embarrassed and sent an e-mail to the DFAIT officials who attended the meeting, letting them know how upset Mr. Arar was, and telling them they had to be very
careful.146 On the telephone, Mr. Fry reassured Mr. Arar, saying: “...it didn’t come
from us. We don’t know how this got out into the news.”147
9.2.4
The Juliet O’Neill Ottawa Citizen Leak
Four days after Mr. Arar’s press conference on November 4, information from secret documents was published in the Ottawa Citizen. The front-page article on
November 8 by Juliet O’Neill was entitled “Canada’s dossier on Maher Arar: The
existence of a group of Ottawa men with alleged ties to al-Qaeda is at the root
of why the government opposes an inquiry into the case.” The article contained
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an unprecedented amount of previously confidential information. It was also
published in shorter form in the Vancouver Sun on November 8.148
“There is said to be a sign in an office at the RCMP,” the article begins,
“that reads like this: ‘Beware rogue elephants - the Easter Bunny.’” This was a
reference to then-Solicitor General Wayne Easter’s previous comments about
“rogue elements” in the RCMP, who might have passed information to the United
States about Mr. Arar. Inspector Coons, the senior officer at “A” Division INSET,
confirmed that those words were written on a white board in the interior INSET
office sometime over the 2003 summer holidays.149 (Access to the INSET office
was restricted to those involved in national security investigations; only INSET
and Project A-O Canada members had passes allowing them entry.150 Inspector
Coons testified that a fairly large number of people without passes could have
visited the office, but because of the sign-in requirement, their identities should
be known.151)
Ms. O’Neill reported that the RCMP had “caught Mr. Arar in their sights”
while investigating members of an alleged al-Qaeda logistical support group in
Ottawa. The article names the investigation’s main target — Abdullah Almalki
— and describes the circumstances of a meeting between Mr. Almalki and
Mr. Arar.
Ms. O’Neill wrote that “it was in defence of their investigative work —
against suggestions that the RCMP and the Canadian Security Intelligence
Service, had either bungled Mr. Arar’s case or, worse, purposefully sent an innocent man to be tortured in Syria — that security officials leaked allegations
against him in the weeks leading to his return to Canada.”
The article mentions that “one of the leaked documents” contained information about what Mr. Arar allegedly told the Syrian Military Intelligence during the first few weeks of his incarceration (i.e., his “confession”), and goes on
to describe this information. As described in the Juliet O’Neill article, the document indicated that Mr. Arar trained in Afghanistan at the Khalden camp in 1993,
then travelled to neighbouring Pakistan at the behest of Montreal members of
the Pakistani Jamaat Tabligh [sic], an Islamic missionary organization. Mr. Arar
met Mr. Almalki at a family gathering and considered a joint business venture
with him, but rejected the idea because the Ottawa business environment
was too competitive. According to the article, under torture in Syria, Mr. Arar
confessed to training in Afghanistan, agreeing to the name of an Afghan camp
at random.
Ms. O’Neill’s article described the RCMP’s investigation into Mr. Arar, including the interview attempt by the RCMP in Ottawa in January 2002.
Interestingly, the article indicated that Mr. Arar declined to be interviewed — a
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misstatement found in Project A-O Canada documents. It also cited “a security
source” for the proposition that a suspected Ottawa-based al-Qaeda cell was at
the root of opposition by the Canadian government to a full public inquiry into
Arar’s case.
Gar Pardy, recently retired as Director General of Consular Affairs, was
quoted in the article as saying: “The RCMP and the security people, that’s where
the division came down. ... They were saying we have our responsibilities and
we don’t agree. I think it delayed our efforts to get him out of there to some extent, although I don’t think by a heck of a lot quite frankly.”
9.2.5
The December 30, 2003 Leak
The situation escalated as calls for a public inquiry into Mr. Arar’s case grew
more intense. On December 30, 2003, an article by Robert Fife, provocatively titled “U.S., Canada ‘100% sure’ Arar trained with al-Qaeda: Family spokeswoman
accuses intelligence officers of anonymous smear campaign” appeared on page
A1 of the Ottawa Citizen.152
The article cited “high-level sources in Canada and the United States who
have had access to an extensive secret intelligence file on Mr. Arar” as alleging
that Mr. Arar travelled to Pakistan in the early 1990s and then entered
Afghanistan to train at the Khalden camp. It also quoted a “senior Canadian intelligence source” as saying about Mr. Arar: “This guy is not a virgin... There is
more than meets the eye here.”
The source said that the United States had made an error in deporting
Mr. Arar, rather than allowing the RCMP to monitor his activities upon his return
from Tunisia. The source added that the United States had an extensive dossier
on Mr. Arar, and that “[if] the Americans were ever to declassify the stuff there
would be some hair standing on end.”153 The article then discussed Ahmed
Ressam and Abdurahman Khadr, who both trained at the Khalden camp, and
Omar Khadr, who was imprisoned at Guantanamo Bay. The effect was to draw
a clear link between Mr. Arar and individuals associated with terrorist acts or alQaeda training.
9.2.6
Canadian Coverage of the CBS “60 Minutes II” Story
Media coverage of the Arar case flared up again in late January, when CBS’s
“60 Minutes II” broadcast an extensive dossier on Mr. Arar’s deportation from the
United States and treatment in Syria. Robert Fife reported the CBS story in the
Ottawa Citizen on January 23, 2004.154 The Fife article reported that “intelligence
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sources” had said the RCMP and American officials were in regular contact after
Mr. Arar was arrested in New York. These sources also said American officials
had offered to send him home if the RCMP would charge him, but the Americans
were informed that Canada did not have enough evidence against Mr. Arar.
The article repeated information disclosed in the CBS report, including that
Canadian intelligence officials were told about, and approved of, the U.S. decision to deport Mr. Arar to Syria. It also reported on reactions to the case and calls
for a public inquiry by Prime Minister Chrétien and Anne McLellan, then-Minister
of Public Safety and Emergency Preparedness. At the time, both the Conservative
and the NDP leaders were urging the Prime Minister to call a full public inquiry.
The article stated that opposition MPs said the CBS report reinforced what they
had long believed - that the RCMP had a role in Mr. Arar’s removal, despite the
government’s denials.
On January 28, 2004, the Deputy Prime Minister announced the government’s decision to call a public inquiry into the actions of Canadian officials in
relation to Mr. Arar under Part I of the Inquiries Act.155
9.2.7
Leaks During the Public Inquiry
There was at least one further leak during the course of this Inquiry. On June
9, 2005, previously unpublished information appeared in an article by
James Travers in the Toronto Star. Mr. Travers wrote that CSIS had travelled to
Syria to sign an information-sharing agreement between Canada and Syria. The
article also referred to the in camera hearings, stating that: “Behind closed doors
O’Connor, who now knows all that is ever likely to be known about Arar’s case,
has been warned those sources will evaporate if Canada signals that information
sent here in confidence may not remain confidential.”156
This leak has troubling implications. It is very disturbing that a government
official or officials chose to breach the confidentiality that was essential in conducting the Inquiry’s in camera hearings.
9.3
MR. ARAR’S RESPONSE
Following these leaks, Mr. Arar felt the need not only to tell his story of detention and treatment in Syria, but also to clear his name by dispelling the implication that he was involved in terrorist activities.157
Mr. Arar responded to the allegations in the CTV News leak through
Kerry Pither, spokesperson for himself and his family. In the CTV report,
Ms. Pither stated: “What [Mr. Arar] has asked me to say to you tonight is that he
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is outraged that high-level sources are leaking information about him to the
media. .....” Mr. Arar alleged that the leaks were part of an orchestrated smear
campaign by informed government officials.158
As discussed above, Mr. Arar went public with his story in a press conference on November 4, 2003. In his remarks, he firmly denied any association to
terrorism and allegations that he had ever visited Afghanistan or attended an
al-Qaeda training camp:159
I am not a terrorist. I am not a member of al-Qaeda and I do not know anyone who belongs to this group. All I know about al-Qaeda is what I have seen in
the media. I have never been to Afghanistan. I have never been anywhere near
Afghanistan, and I do not have the desire to ever go to Afghanistan.
9.3.1
Effects on Mr. Arar
This Inquiry did not hear from Mr. Arar directly about the personal impact of the
leaks. However, Dr. Donald Payne, Board Member of the Canadian Centre for
Victims of Torture and expert witness before the Inquiry, testified that the experience would normally have the effect of “retraumatizing” someone in
Mr. Arar’s position.160
In addition, on July 27, 2005, this Inquiry appointed Stephen J. Toope,
Professor of Law at McGill University, as Fact Finder.161 His mandate was “to investigate and report to the Commission on Mr. Arar’s treatment during his detention in Jordan and Syria, and its effects upon him and his family.”162
In considering the psychological effects of Mr. Arar’s experiences in Syria,
Professor Toope noted that some of Mr. Arar’s most difficult psychological challenges arose from his experiences following his return to Canada.163 He is still
distrustful, and continues to fear a recurrence of his ordeal. He is also afraid
that his story will not be believed, and that he will not be able to resume a normal life.164
Professor Toope found that the leaks caused further psychological damage
to Mr. Arar:
[Mr. Arar] was particularly disturbed by certain “leaks” from sources allegedly
inside the Canadian Government that cast him in a negative light. These events
compounded his sense of injustice dating from his detention and torture in Syria.
All his advisers that I interviewed emphasized that Mr. Arar was “devastated” by
these leaks. Some described him as “hysterical.” He simply could not control his
emotions, and it took many hours of constant conversation to calm him down each
time new information surfaced in the press that he thought to be misleading and unfair.165
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Professor Toope also linked the leaks to Mr. Arar’s feeling of social isolation from the Muslim community:
[Mr. Arar] told me that he is disappointed with the reaction of many Muslims
to him and his story. Whereas other Canadians sometimes come up to him on the
street to share a sense of solidarity, most Muslims stay far away from him. Mr. Arar
thought that this distancing was exacerbated after the press “leaks” mentioned
previously.166
Finally, Professor Toope describes the economic effect of Mr. Arar’s ordeal on
the Arar family as “close to catastrophic.”167 Insofar as the leaks paint Mr. Arar
as a terrorist, it is reasonable to infer that they have contributed to his ongoing
difficulty in finding gainful employment in his field.
9.4
GOVERNMENT INVESTIGATIONS OF THE LEAKS
9.4.1
The First PCO-Directed Investigation: The CTV News Leak
Certain government officials were evidently concerned about the leaks, and
sought to identify their source. In late October 2003, Rob Wright, then at the
Privy Council Office (PCO), requested that the government departments involved in the Arar case conduct internal investigations into the “CTV News”
leak.168 The investigation was managed by Gerry Deneault, Director of Security
Operations (DSO) at PCO, whose other responsibilities included liaising with security officers in every department.169
On October 27, PCO’s Security and Intelligence Secretariat sent a fax to the
DSOs at DFAIT and the Solicitor General’s department. PCO requested that the
DSOs determine who in their organizations had access to information about the
Arar investigation, and that they interview each person to determine who might
have spoken with the media. The Solicitor General’s department was asked to
transmit the request to DSOs at CSIS and the RCMP.
Later that day, PCO sent another fax to the same officials, asking them to
review the Globe and Mail article to confirm its accuracy. If they determined it
to be factual, they were asked to conduct a damage assessment and find out
who had access to the information and might have leaked it to the media.170
On October 28, DFAIT reported that the department’s information, consisting of reports from its embassy in Damascus (including information passed
to the embassy when Mr. Arar was released), was not completely consistent
with the newspaper article. For example, the story referred to four individuals
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(Messrs. Al-Bushi, Al Malki, El-Maati and Harkat), whereas DFAIT’s information
referred only to Messrs. Al Malki and Abul Ma’ati, as well as a third Canadian
citizen.
DFAIT noted that the information in the Globe and Mail story did not damage its interests directly. However, the information could conceivably place
Mr. El Maati, who was incarcerated in Egypt at the time, at greater risk. DFAIT
also warned that the leak could damage Canada’s relations with the United States
if it interfered with any future investigations.171
PCO responded by requesting that DFAIT interview all personnel who had
access to the information referred to in the article.172 On November 3, the department reported that interviews had been conducted, and that the leaked information did not come from DFAIT.173 The response noted that the media
reports suggested a link between Messrs. Al-Bushi, Harkat and Arar, information
that was not contained in the documents circulated in DFAIT.174
PCO did not ask DFAIT to conduct any further investigation regarding the
CTV leak or the Globe and Mail article of October 24.
On November 7, the Solicitor General’s department (SolGen) submitted a
report to Gerry Deneault at PCO on the results of its own investigations, as well
as those at the RCMP and CSIS.175 Individual reports from each of the three organizations were included in the SolGen report.
The SolGen investigation into the alleged leak of information consisted of
interviews with five officials: three in the National Security Directorate, and two
in the Policing and Law Enforcement Branch. According to the department’s report, the information in question was not available within the department, and
those interviewed had not spoken with the media. As a result, no further interviews were deemed necessary.176
The RCMP report, dated October 31, 2003, stated that senior officers with
knowledge of the Arar case had been interviewed, and that none had communicated with the media about this issue.177 In his testimony, Deputy
Commissioner Loepkky confirmed that only senior RCMP officers were interviewed as part of the investigation.178
The RCMP report indicated that on October 23, 2003, the day that CTV
News broadcast the leaked information, CTV journalist Craig Oliver had requested a confirmation of the events related to Mr. Arar’s case from RCMP media
relations. In reply, the RCMP said it could neither confirm nor deny any of the
information referred to by Mr. Oliver.179 The report suggested that Mr. Oliver’s
request demonstrated that the leak came from a source outside the RCMP.
Evidence at this Inquiry revealed that on the day of the leak, October 23,
the RCMP’s Anti-Terrorist Financing Group prepared a briefing note for the
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RCMP Commissioner highlighting the following issue: “Potential CTV News report tonight (2003-10-23) quoting unnamed government sources as saying Maher
ARAR was part of an AL QAEDA cell in Canada and was only released from
Syrian custody because he agreed to tell about other members of his cell.”180 The
note recommended the following media response: “The RCMP can neither confirm nor deny these allegations.”181
In his testimony, Deputy Commissioner Loeppky offered an explanation of
why the briefing note might have been prepared prior to the actual leak. He
noted that before a journalist goes public with a story, he or she will often telephone the communications department to ask if the RCMP has any comments.
He concluded that this might have been the case in this instance.182
On November 4, Deputy Commissioner Loeppky confirmed by fax an
agreement reached between the RCMP and the Solicitor General’s department
about the RCMP’s investigation into the CTV leak.183 They agreed that the interview questions and the results would be disclosed in the PCO report, but that
the names and positions of the officers interviewed would not. The fax also
stated that the RCMP did not have the information published by the media, and
that it was through the media that the RCMP first became aware of it.184
On November 7, Deputy Commissioner Loeppky ordered that “A” Division
not speak to the media at all about the Arar case, and that all media comments
be coordinated through RCMP Headquarters.185 In testimony, Deputy
Commissioner Loeppky explained that although “A” Division wished to respond
to coverage on the leaks, management felt it best to channel this input through
Headquarters so that the organization would “speak with one voice.”186 At the
same time, however, Deputy Commissioner Loeppky testified that he did not believe anyone in “A” Division had already spoken to the media.187
The CSIS report, dated November 4, 2003,188 stated that it was responding
to the PCO request to determine the accuracy of the leaked information, the degree of damage as a result of the leak, and the identity of CSIS officials with access to the leaked information.189
The report traced the media coverage of the four people identified in the
CTV story. It also noted that DFAIT had provided CSIS with information received
from Syrian intelligence sources on November 3, 2002; this information was
translated and added to the CSIS holdings on November 12, 2002. CSIS members met with members of DFAIT and the RCMP on November 6, 2002 to discuss the Arar case, and the ensuing report was entered into the holdings as well.
The Syrian Military Intelligence also provided information obtained from questioning Mr. Arar directly to CSIS; this information was shared with RCMP CID and
DFAIT Security and Intelligence Bureau.
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The CSIS report concluded that some of the leaked information had a basis
in fact. However, for various reasons, CSIS concluded that the leak did not come
from CSIS. It postulated that the leaked information may have come from several different places.
There are indications that the PCO-mandated internal reviews relating to the
CTV leak were terminated on or about November 10, 2003, a decision made by
William Elliott, then Assistant Secretary to Cabinet, Security and Intelligence, in
consultation with Rob Wright, then National Security Advisor to the Prime
Minister.190
However, by November 10, the Juliet O’Neill leak was already making
media headlines.
9.4.2
The Second Series of PCO-Mandated Investigations:
The Juliet O’Neill Leak
On November 12, four days after the publication of the Juliet O’Neill article,
PCO sent a fax to DFAIT and the Solicitor General’s department, formally requesting that each department conduct a new round of internal interviews.191
The request was similar to that issued 16 days before regarding the CTV leak.
The fax noted that at least part of the information contained in the articles was
similar to a “SECRET” (C4) document dated October 13, 2003 that originated in
Damascus. Departments were to conduct an administrative inquiry in accordance with an enclosed questionnaire.192 PCO requested preliminary findings
by November 14, 2003.
Rob Wright testified that this second administrative investigation was significantly more intense than the first. He asked the deputy heads of each department/organization to provide assurance to PCO that it was not a leak from
their organization.193
Specifically, PCO requested that each department: 1) review the Juliet
O’Neill article and determine if any part might have been extracted from documentation/information that is/was in its possession, as well as to confirm what
portions, if any, were known to be accurate; 2) advise if any of the information
was “Special Operational Information” as defined in the Security of Information
Act; 3) conduct a damage assessment from the organization/department’s perspective; 4) arrange for interviews of any officials who had possession of
“leaked” information; 5) assess whether the leak, “if any,” either “did not/may/is
likely/is unlikely” to have occurred from within the organization; 6) if it was
possible the leak might have occurred from within the organization, provide
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corrective measures that would be put in place to prevent recurrences; and 7)
report back to PCO as soon as possible.194
The report stated that the document was shared with “CCRA, CSIS, CSE, IC,
DND, PCO/IAS, PCO/S&I, RCMP, TC, SolGen, and Justice”, through a classified
system. An informatics search revealed that eight people had accessed the document through this system in October. According to the report, interviews were
ongoing with those in the department who might have seen the document.
The report of the Solicitor General’s department on the second internal investigation followed on November 19.195 It stated that the department was not
in possession of the information in question, and therefore was not in a position to confirm the contents of the article, or to identify the source of the leak.196
9.4.3
The RCMP Criminal Investigation into the Juliet O’Neill Leak
As early as November 8, 2003, RCMP officers were considering whether to
launch a criminal investigation into the Juliet O’Neill leak.197 Deputy
Commissioner Loeppky met with Assistant Commissioner Richard Proulx sometime after November 8, and decided to undertake an investigation under the
Security of Information Act.198 The launch of a criminal investigation by the
RCMP effectively deferred or terminated departmental administrative inquiries
into the Juliet O’Neill leak.199
Deputy Commissioner Loeppky told Rob Wright of PCO that, in the RCMP’s
assessment, there was a fairly clear correlation between the leaked information
and information in the possession of the RCMP and other departments. Based
on this, there was cause for a criminal investigation.200
When testifying, Mr. Wright was asked if there were concerns about the
RCMP investigating itself. He said the RCMP had taken measures to address this
issue, including bringing in outside investigators - for example, officers from
New Brunswick. He stated he had been told how the RCMP proposed to structure the investigation, and he thought it appropriate in the circumstances.
However, because it was a criminal investigation, the RCMP did not keep PCO
advised of its status on an ongoing basis.201
At the time of closing submissions to this Inquiry, the criminal investigation
into the Juliet O’Neill leak was ongoing under the Security of Information Act,
and related proceedings were before the Superior Court of Ontario.202
Regarding the Jim Travers leak, while CSIS has acknowledged that the article’s publication constituted a breach of security, it also concluded there was
nothing CSIS could reasonably do to identify those responsible.203 Although the
released information originated in classified CSIS reports, it was shared with
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other government departments, resulting in an unmanageable number of potential interviewees for an administrative investigation.204
10.
PROJECT A-O CANADA’S CONTINUING INVESTIGATION
10.1
OVERVIEW
Project A-O Canada’s criminal investigation did not cease upon news of
Mr. Arar’s removal to Syria. First of all, Project A-O Canada maintained its interest in other individuals, and the alleged threat against a major Canadian target
remained a serious concern. As for Mr. Arar, if anything, he became more interesting to Project A-O Canada as a result of the Americans’ actions.205
Internally, the RCMP conducted several reviews of Project A-O Canada in
respect of Mr. Arar, both before and after his return from Syria. Externally, the
RCMP was called upon to respond to inquiries about Mr. Arar from other government agencies and the media. Then, in February 2004, the Government of
Canada established a full-fledged public inquiry into the actions of Canadian officials in relation to Mr. Arar.
RCMP Headquarters also attempted to impose greater centralized control on
Project A-O Canada’s activities in the period after Mr. Arar’s removal to Syria.
10.2
INVESTIGATION WHILE MR. ARAR WAS IN SYRIA
October 2002
As discussed previously, during Mr. Arar’s detention in the United States in
October 2002, Project A-O Canada investigated his whereabouts,206 attempted to
find out more about him, and considered interviewing him in New York.
After Mr. Arar was sent to Syria, the FBI continued to request assistance
and information about him from the RCMP.
The following is a summary of Project A-O Canada’s investigative activities
in October 2002 in relation to Mr. Arar, after it was discovered he had been sent
to Syria:
•
On October 11, an RCMP officer sought background inquiries and information on Mr. Arar’s brother Hassan, who was living in Mississauga.
Hassan Arar was eventually interviewed on January 28, 2003.207
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•
•
•
•
•
•
•
•
Around October 15, Corporal Buffam began analyzing documents on
Mr. Arar received from the Americans.
On October 17, Project A-O Canada informed the RCMP liaison officer to
Syria that it was interested in Mr. Arar. Inspector Michel Cabana agreed in
testimony that the message to the Rome LO overstated the relationship between Mr. Almalki and Mr. Arar.
On October 18, Superintendent Wayne Pilgrim of CID was called upon to
respond to questions from DFAIT regarding what information had been
shared with the United States concerning Mr. Arar. He replied that RCMP
investigators had maintained an open line of communication with Canadian
and American partners, and that all information obtained by Project AO Canada had been shared with CSIS, the FBI and other U.S. agencies.208
Also on October 18, a briefing note relating to Mr. Arar’s removal to Syria
was prepared for Commissioner Zaccardelli. The briefing note stated that
Mr. Arar had left for Tunisia “shortly” after being approached for an interview. In fact his departure was five or six months after this approach. The
report also appeared to overstate already unreliable information about
Mr. Arar.209
On October 21, Jim Gould from DFAIT ISI asked Project A-O Canada to explain the nature of the Project’s interest in Mr. Arar. Inspector Cabana said
that Project A-O Canada was simply interested in Mr. Arar because of his
association with Mr. Almalki. They wished to speak to him, but no charges
were contemplated. Inspector Cabana also related that they had intelligence
and evidence regarding both Mr. Arar and Mr. Almalki that they would be
prepared to share with the Syrian authorities if they felt it could assist their
investigation.210
Also by October 21, Project A-O Canada began to work on a lengthy timeline in respect of Mr. Arar, in response to questions from RCMP
Headquarters about RCMP involvement during his detention in New
York.211
As early as October 22, Project A-O Canada was conscious of media coverage and scrutiny of the Project’s possible involvement with Mr. Arar’s situation.212 By October 25, there is reference to Mr. Arar’s situation becoming
the subject of worldwide media attention.213
On October 24, Project A-O Canada began to hear news about Mr. Arar’s
situation in Syria from the Canadian Ambassador to Syria. The Syrian authorities related that Mr. Arar had allegedly confessed to links to terrorism,
and based on that confession, his return to Canada was unlikely.214
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•
•
On October 25, Project A-O Canada received from DFAIT Mr. Martel’s consular report detailing his first visit with Mr. Arar. Staff Sergeant Corcoran
had requested this information the previous day.215
On October 29, Project A-O Canada conducted a license plate search on
Mr. Arar.216
Now that Mr. Arar was in Syria, Project A-O Canada added him to the list
of individuals they wanted to interview overseas. However, as discussed in
Chapter III, Section 6.4, Project officials never did interview Mr. Arar.
In October 2002, Inspector Cabana met with Inspector Warren Coons, then
the head of “A” Division INSET, to discuss the effective date for transferring
Project A-O Canada to the “A” Division INSET unit.217 At the same time, Inspector
Coons was becoming more involved with the Project A-O Canada investigation,
reading prior situation reports and attending meetings.218
November 2002
•
•
•
On November 4, Project A-O Canada received news from DFAIT in
Damascus about discussions with General Khalil of the Syrian Military
Intelligence. General Khalil had reportedly confirmed links between
Mr. Arar and al-Qaeda, and that Mr. Arar had undergone training in
Afghanistan. On November 7, Project A-O Canada received from DFAIT a
synopsis of the results of Mr. Arar’s interrogation (the bout de papier).219
The synopsis was only three paragraphs long, so Project A-O Canada tried
to determine whether more information was available. Staff Sergeant
Corcoran understood that CSIS was going to Syria on unrelated business,
but would nonetheless see what could be found out about Mr. Arar and
other matters.220
Contradicting the testimony of numerous officers that Mr. Arar was still only
a person of interest at the time, an “Investigational Summary on Ahmed
ELMAATI [sic]” dated November 18, 2002, refers to Mr. Arar as a “Principal
Target” and “trained jihadist.”221
On November 20, Project A-O Canada gave a presentation to RCMP senior
management (including Deputy Commissioner Garry Loeppky and Assistant
Commissioner Richard Proulx) and Jack Hooper from CSIS, in which the
Arar situation was discussed.222 In fact, the full-length presentation was like
that given to the Americans in May 2002. Project A-O Canada discussed the
threat to a major Canadian target, Mr. Almalki’s activities and Project
A-O Canada’s future plans. According to Staff Sergeant Kevin Corcoran,
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•
•
RCMP senior management applauded Project A-O Canada’s efforts to date,
and Mr. Hooper took the opportunity to compliment Project A-O Canada.
As discussed in Chapter III, Section 3.7, Dr. Mazigh was subjected to a secondary examination on November 14. On November 22, Project
A-O Canada received the report from Canada Customs.223
Also on November 22, in a meeting with Corporal Rick Flewelling, Assistant
Commissioner Proulx expressed concern that Project A-O Canada had directly contacted the French Embassy in Canada without going through a liaison officer, as is customary. He then requested an in-depth report on
Project A-O Canada and Project O Canada, focusing in particular on which
subjects of interest related to which RCMP division.224
As discussed in Chapter III, Section 3.8.1, in November 2002 Michael Edelson,
representing Mr. Arar, sought a letter from Project A-O Canada stating among
other things that Mr. Arar was not wanted in Canada for any offence, that there
was no warrant for his arrest, and that he was not suspected of a terrorism-related crime. Project A-O Canada would not accede to this request.
December 2002
•
•
•
•
Around December 3, Project A-O Canada received a report from CSIS on
the recent CSIS trip to Syria. Although CSIS had not met with Mr. Arar, the
report contained more detailed information from Mr. Arar’s interrogation.
On December 9, the newly-commissioned Inspector Jamie Jagoe, from
RCMP “O” Division, was assigned to coordinate the national aspect of
Project O Canada. Inspector Cabana questioned his need to remain on
Project A-O Canada, given this new layer of management, and also why the
Project could not be transferred to the INSET unit. Inspector Jagoe was appointed to facilitate coordination, however, not to direct the Project
A-O Canada investigation, and for the moment at least, Inspector Cabana
remained on the job.225
Around December 18, Project A-O Canada received a copy of the report on
Mr. Arar stemming from the CSIS trip to Syria.226
On December 19, FINTRAC (Financial Transactions and Reports Analysis
Centre of Canada) notified the RCMP of a transaction from Mr. Arar to
Tunisia. Although the RCMP was precluded by law from making such requests, Inspector Reynolds explained that the RCMP voluntarily sends information to FINTRAC on cases in which they are interested. He assumed
that, at some point, such a report had been sent to FINTRAC concerning
Mr. Arar.227
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In December 2002, attempts to interview Messrs. Almalki and Arar began to heat
up. These events have been discussed in Chapter III, Sections 6.3 and 6.4.
January 2003
•
•
On January 7, Staff Sergeant Corcoran met with a CSIS representative who
summarized the information he had received while in Syria and discussed
Mr. Arar’s admissions.
On January 16, Project A-O Canada learned from the Ottawa Police that
Dr. Mazigh’s car had been broken into and that she had moved to a new
address. Staff Sergeant Callaghan testified that this was not the result of a
direct inquiry about Mr. Arar’s family: the Project had received this information because Mr. Arar’s name was on CPIC.228
January 2003 was also the month that Inspector Cabana withdrew from Project
A-O Canada. By February 4, 2003, he was no longer the Officer in Charge
(OIC).229 His departure stemmed partly from a concern that RCMP Headquarters
was making decisions that eliminated the possibility of Project A-O Canada travelling to Guantánamo Bay to interview detainees — or at least risked delaying
such interviews for months. Part of the problem may have been that RCMP
Headquarters disapproved of non-RCMP officers, such as staff sergeants Pat
Callaghan and Kevin Corcoran, going to Cuba to do the interviews, despite the
fact that Project A-O Canada was an integrated project and these two officers
knew the file. RCMP Headquarters wanted at least one RCMP officer present.230
Tensions rose between Project A-O Canada and RCMP CID, related once again
to a perception by Project A-O Canada management that Headquarters interfered too much in the Project A-O Canada investigation.
Inspector Cabana suggested transferring the file to INSET, as had long been
the plan. Project A-O Canada was officially transferred to RCMP “A” Division
INSET sometime in January or February 2003, although it remained a relatively
autonomous investigation.231 Different explanations for this transition were offered, none of which relate to Mr. Arar’s situation. The reporting relationship did
change, however. Staff sergeants Callaghan and Corcoran began to report to
Inspector Coons, the INSET OIC.232
February 2003
On February 5, members of Project A-O Canada met with CID and CSIS personnel at RCMP Headquarters. Superintendent Pilgrim informed the group that
there would be increased centralization and coordination of national security, a
return to the previous way of doing things. In particular, he said that dealings
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with foreign forces, particularly the American agencies, would be handled
through CID.233
•
A presentation Corporal Flewelling gave to Assistant Commissioner Proulx
on February 19 mentions Mr. Arar’s name, along with Messrs. Almalki and
El Maati. Mr. Arar is described as a “target” of Project A-O Canada who had
“Mujehedeen [sic] training in Afghanistan.” A picture of him behind bars
appears at the end of the presentation, to indicate his incarceration in
Syria.234 In reference to this presentation, Corporal Flewelling testified that
he felt it was interesting that Mr. Arar appeared to be linked to just about
every other person of interest to the investigation.235
March to May 2003
•
•
•
•
•
On April 25, Amnesty International contacted Corporal Buffam for information on Mr. Arar. Corporal Buffam referred the request to RCMP media
relations.236
On April 30, Project A-O Canada met with the Americans, who had no new
information on Mr. Arar. The investigators present also discussed other individuals.
A situation report for the end of April 2003 refers to news in the media that
Mr. Arar might be charged in Syria. Project A-O Canada contacted the RCMP
LO to DFAIT to ensure that all relevant information on Mr. Arar was being
passed to Project A-O Canada, in light of the fact that the Project still wished
to interview Mr. Arar in Syria.237
On April 30, RCMP Headquarters asked Project A-O Canada to prepare a
position paper on Mr. Arar. Headquarters anticipated political pressure on
the Prime Minister to intercede on Mr. Arar’s behalf.238
A briefing note to Commissioner Zaccardelli, dated April 30, 2003, states the
following about Mr. Arar’s status:
ARAR continues to be a person of interest in the Project A-O CANADA investigation. At present time there is insufficient evidence to contemplate criminal
charges against ARAR. Regardless, ARAR is a highly connected individual associated with several suspected criminal extremists. [***]239
June to September 2003
•
On July 28, Staff Sergeant Callaghan was asked directly by Inspector Rick
Reynolds whether anyone from Project A-O Canada had asked the
Americans to arrest Mr. Arar, or had somehow insinuated that Project
A-O Canada did not care what happened to Mr. Arar. Staff Sergeant
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•
Callaghan emphatically told Inspector Reynolds that no one with Project
A-O Canada had done such a thing. He felt so strongly about it, in fact,
that he offered to take a polygraph test to prove it. Despite this, Staff
Sergeant Callaghan testified that he learned the next day that Inspector
Reynolds had assigned an officer from the Financial Intelligence Branch to
review Project A-O Canada material on Mr. Arar to see if there was innuendo or suggestion to this effect.240
On July 30, as a result of questions from Commissioner Zaccardelli, Chief
Superintendent Wayne Watson also inquired about Project A-O Canada’s
role in Mr. Arar’s arrest and removal. He prepared a list of questions to be
asked of several Project A-O Canada investigators. Chief Superintendent
Watson concluded from his review that Project A-O Canada members had
acted “in a thoroughly professional manner. ... Nothing I have heard or
read ... suggests that the decision to detain or deport Mr. Maher Arar
stemmed from any communications from Project A-O Canada.”241
After numerous discussions with RCMP management (Inspector Coons at
“A” Division INSET and Inspector Reynolds at RCMP Headquarters), it was ultimately decided in the summer of 2003 that Project A-O Canada was not to have
any direct contact with certain U.S. agencies.242
Very little activity concerning Mr. Arar took place in the months immediately
preceding his return to Canada.
10.3
INVESTIGATION AFTER MR. ARAR’S RELEASE
As before, Project A-O Canada’s work relating to Mr. Arar following his release
resulted partly from requests for information from the RCMP and other agencies,
and partly from a perceived investigative need to dig deeper.
October 2003
•
•
On October 5, Project A-O Canada officers heard through the media that
Mr. Arar was being released from jail in Syria. In light of his release, they
decided that day that the Customs lookout on Mr. Arar should be deactivated prior to his return. They felt a secondary examination would not be
useful under the circumstances.243
On October 6, Project A-O Canada held a team meeting. They contemplated
interviewing Mr. Arar, including doing so right away at the airport, but
decided against it for several reasons. One was that Mr. Arar’s return had
attracted a lot of media attention, and the details of an interview might be
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•
•
reported in the media, thereby harming the Project A-O Canada
investigation. Another reason was that Mr. Edelson had previously placed
restrictive conditions on any interview. Project A-O Canada decided they
would approach him later on.244
In early October 2003, Project A-O Canada became the subject of yet another administrative review. Chief Superintendent Dan Killam, from RCMP
Headquarters, was asked to review Project documents, conduct interviews
and report on his findings. According to Staff Sergeant Callaghan, this review was more formal and broader in scope than previous reviews.245 As
with previous reviews, Chief Superintendent Killam found that Project
A-O Canada had behaved appropriately.246
On October 27, three events occurred:
•
•
•
•
•
•
Project A-O Canada received information on the date that Mr. Arar had
become a Canadian citizen.247
The Project prepared one of its lengthiest timelines to date on
Mr. Arar.248
The RCMP received from DFAIT the document provided to the chargé
d’affaires when Mr. Arar was released from Syrian custody. It is not
clear whether this document was forwarded to Project A-O Canada.249
On October 28, Project A-O Canada met with Mr. Edelson. Mr. Edelson was
no longer representing Mr. Arar, but “undertook to notify ARAR of [Project
A-O Canada’s] availability for a future interview.”250
Also on October 28, Project A-O Canada inquired with DFAIT about
whether “an “intelligence package” on Mr. Arar, referred to by the Syrian
Ambassador to Canada in a Globe and Mail article, had in fact been provided to Canadian officials. If this package was in DFAIT’s possession, the
RCMP wanted to have it.251
In the latter half of October 2003, Project A-O Canada learned that the
RCMP Public Complaints Commission had launched an investigation into
RCMP involvement in the Arar matter. This is discussed in Chapter V,
Section 5.1 (“The Garvie Report”).
November 2003
•
On November 3, 2003, Staff Sergeant Corcoran spoke to Officer Jean-Pierre
Thériault of Canada Customs about Mr. Arar’s travels, particularly to the
United States.252
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•
•
•
•
•
On November 4, Mr. Arar gave his press conference. This resulted in
increased activity for Project A-O Canada as Mr. Arar’s situation garnered
even more press attention,253 and as more people sought information on
Project A-O Canada’s role in the whole affair. Project A-O Canada would
also take issue with the veracity of some of Mr. Arar’s public statements, and
would set out to determine whether certain things Mr. Arar had said in public were true.
On November 5, a Project A-O Canada situation report revealed that the
Killam review was ongoing. Project A-O Canada learned that James Lockyer
was Mr. Arar’s counsel. In a phone conversation that same day, Mr. Lockyer
was told that Project A-O Canada was not interested in speaking with
Mr. Arar unless he had more to add to what he had said during his press
conference.254 In reference to Mr. Arar’s press conference the previous day,
Project A-O Canada indicated that Mr. Arar’s comments would be “reviewed
by investigators as they relate to this project.”255 One of the chief questions
arising from the press conference was whether Project A-O Canada had
actually provided U.S. officials with a copy of Mr. Arar’s rental application
and lease.256
The RCMP was now more concerned than ever about what information had
been passed to U.S. authorities. For example, on November 6, 2003,
Inspector Reynolds wrote to Inspector Coons, asking when the Project
A-O Canada database had been shared with the Americans, and who had
authorized the release.257
Likewise, a sense of urgency emerged around Arar-related tasks. For example, on November 10, mention was made in a Project A-O Canada meeting of the “need to complete the tasks previously assigned on Arar and
finish them. Need to review his press conference.” A total of twenty Ararrelated tasks are listed.258 Staff Sergeant Callaghan explained in his testimony that all the work had to do with the fact that 1) Mr. Arar had come
back to Canada and was making public statements; and 2) it was Project
A-O Canada’s responsibility to answer all the Arar-related questions that
would be asked. He disagreed that Project A-O Canada was somehow out
to get Mr. Arar.259
By November 19, staff sergeants Callaghan and Corcoran began to show
frustration at the number of inquiries and insinuations being directed at
them. They complained to their immediate supervisor, Inspector Coons,
that they did not want to have to listen to insinuations that they had somehow pushed the Americans to deport Mr. Arar to Syria. Inspector Coons
testified that he felt the officers no longer wanted to be part of an
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FACTUAL BACKGROUND: VOLUME II
•
•
•
investigation that wasn’t an investigation, but more a case of defending
themselves at every turn.260
On November 21, Deputy Commissioner Loeppky and RCMP Commissioner
Zaccardelli met with “A” Division staff and Project A-O Canada members to
discuss staff morale. The allegations of leaks, the media articles and the
continuing high profile of the investigation over the previous 8 to 10 months
had begun to cause concern and anxiety among RCMP officers. The two
senior officials sought to reassure them, telling them to stay the course, remain professional and move ahead with their investigative efforts.
According to Deputy Commissioner Loeppky, it was a show of corporate
support.261
On November 25, Project A-O Canada sent a request for information on
Mr. Arar to the FBI via RCMP Headquarters. Project A-O Canada wished to
know whether Mr. Arar was part of any prior FBI investigation. Inspector
Coons did not recall receiving a response.262
A situation report dated November 26 contains the following comment, indicating the extent to which Project A-O Canada was preoccupied with
Arar-related inquiries:
Project investigators have been tasked almost exclusively with tasks and requests in
relation to the issues surrounding Maher ARAR.
•
On November 27, Corporal Buffam prepared another internal memo that
dealt with Mr. Arar’s PDA and further analysis of that information.263
December 2003 to March 2004
•
•
•
•
Throughout December 2003, Project A-O Canada continued to work on
dozens of Arar-related tasks.264
On February 4, 2004, Project A-O Canada attempted, unsuccessfully, to interview Mourad Mazigh’s ex-wife, who was listed as an administrator of
CIM2000.265
On February 5, the Commission of Inquiry into the Actions of Canadian
Officials in Relation to Maher Arar was established. Even after the Inquiry
had been called, the investigation of Mr. Arar continued.
A February 17 Project A-O Canada document considered the next step for
the Project. The document states that, while not a specific target of Project
A-O Canada, Mr. Arar had been, and continued to be, an individual of concern. Although not specifically implicated in the commission of a criminal
offence, he had associations and connections to individuals of grave
concern to Project A-O Canada. Project A-O Canada’s position was that “to
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properly prepare for the inquiry process we must answer all outstanding
questions in relation to ARAR.” The Project needed to be able to “articulate
our concerns when called upon to testify.”266 The document then recommended a course of action involving approximately 35 tasks related to
Mr. Arar to be completed in the next three to four months.267
August 2004
In August, Project A-O Canada produced several pages of documents, both personal and commercial, indicating contact between the following individuals and
companies: Abdullah Almalki, Youssef Almalki, Safa Almalki, Nazih Almalki,
Maher Arar, Mourad Mazigh, and CIM2000. The documentation ranged in date
from 1996 to 2002, often related to computer equipment.
September 2004 to the End of Testimony
The Commission does not have any evidence of a continued investigation of
Mr. Arar during this time period.
10.4
CURRENT STATUS
The Arar investigation might have been put somewhat on hold because of this
Inquiry, but at the time of testimony, Mr. Arar remained a person of interest and
an individual Project A-O Canada wanted to interview.268
According to Project A-O Canada, Mr. Arar’s status will be determined at the
end of this Inquiry, but until the RCMP gets the answers it needs, the investigation of Mr. Arar, along with Messrs. Almalki and El Maati, will continue. Staff sergeants Callaghan and Corcoran seemed to indicate that only a decision from
RCMP management, after appropriate input from the Project, would put an end
to the investigation.269
Deputy Commissioner Loeppky, on the other hand, indicated that
Headquarters depends heavily on the investigative officers to use their judgment about when to stop an investigation. A direct order to stop an investigation might be seen as “interference in the independence of police officers and
senior people.”270 Deputy Commissioner Loeppky agreed that Mr. Arar might
have the impression that the investigation is only continuing today to avoid having to disclose information to him, but he still felt there were areas where the
RCMP was searching for answers.271
As for staff sergeants Callaghan and Corcoran continuing to investigate
Mr. Arar despite themselves being under investigation for their actions in relation
to Mr. Arar, Deputy Commissioner Loeppky agreed that there might appear to
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FACTUAL BACKGROUND: VOLUME II
be a conflict of interest. He felt, though, that it was a resource issue. It would
not do to pull investigators off a file too quickly where, as in this case, no evidence of bad faith exists.272
Deputy Commissioner Loeppky referred to the Air India investigation,
which took a very long time, but ultimately resulted in a prosecution. The Project
Canada investigations are ongoing and active, and Mr. Arar’s role therein has yet
to be fully determined, he testified.273
11.
CSIS’ CONTINUING INVESTIGATION
CSIS’ interactions with both domestic and international agencies regarding
Mr. Arar before and during his detention in Syria have been described in previous chapters.
With respect to Mr. Arar’s current status, CSIS Assistant Director Jack Hooper
testified that CSIS has an unequivocal policy that it will not confirm or deny the
existence of a security intelligence investigation or whether a person constitutes
a threat to the security of Canada.274 In his opinion, such a disclosure to the
public would be injurious to national security.275
12.
THE TUNISIAN INQUIRIES
As discussed earlier, Project A-O Canada learned in July 2002 that Mr. Arar and
his family had departed Canada for Tunisia. There is no evidence indicating that
Project A-O Canada intended to contact Tunisian authorities in regard to
Mr. Arar.
Two years later, in August 2004, Mr. Arar’s brother-in-law and father-in-law
were apparently approached by the Tunisian military intelligence and asked
whether Mr. Arar had moved to Tunisia permanently in the summer of 2002, or
if he was merely there on vacation. This was the first time that either man had
been approached by the Tunisian military intelligence. It is noteworthy that this
Inquiry was underway at this point; Mr. Arar’s brother-in-law was in Canada in
July 2004, at which time he met Commission Counsel as a possible witness.
None of the government witnesses were aware of anyone in the Canadian
government inducing, suggesting, requesting or in any way encouraging
Tunisian authorities to visit Mr. Arar’s family in Tunisia respecting matters before
this Inquiry.276 Rob Wright, the Privy Council Office’s Security and Intelligence
Coordinator and the Prime Minister’s National Security Advisor, also testified
that he had no knowledge of any communications between the Canadian and
Tunisian governments on this issue.277
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13.
ASSESSING THE IMMINENCE OF THREATS —
OCTOBER 2001-FEBRUARY 2004
As discussed in Chapter III, when Project A-O Canada was set up in October
2001, its focus was on a possible second wave of terrorist attacks. This threat became more specific in the fall of 2001, when the Project learned through confidential sources of a threat to a prominent building in the National Capital Region.
From that time on, this threat was factored into the decisions made by Project
A-O Canada officers. Witnesses from “A” Division and RCMP Headquarters were
asked to explain how it had affected their work as the investigation progressed.
This section reviews their evidence to show how the RCMP’s assessment of the
threat evolved over time.
Following the RCMP’s receipt of information about the threat in the fall of
2001, Superintendent Wayne Pilgrim directed CID’s Threat Assessment Section
to conduct an assessment of the situation.278 The Section’s mandate was to collect, assess and analyze any information regarding a potential threat to a
Canadian institution, in support of the RCMP’s protective policing operations. To
gather information, members of the Section would liaise with external agencies
like CSIS, the Department of National Defence and local police. This information would become part of a threat assessment report providing an objective
assessment of potential threats, as well as the factual basis for the analysis.279
An assessment report dated November 22, 2001 set the threat to the prominent building in the National Capital Region as “high,”280 but concluded that the
RCMP did not anticipate an imminent attack. Nevertheless, “extreme vigilance”
was recommended.281
The threat assessment reports prepared at RCMP Headquarters were shared
with the Threat Assessment Units that formed part of the National Security
Investigations Section/Integrated National Security Enforcement Team’s
(NSIS/INSETs) at the divisional level.282 It is believed that they were also shared
with CROPS officers in the divisions and, in turn, would have found their way
to Project A-O Canada. According to Superintendent Pilgrim, the threat assessments would have been available on the Secure Criminal Intelligence System
(SCIS) as well.283
To help determine the accuracy of the information received in the fall of
2001, the Project A-O Canada team compared it to the information they already
had. Certain details were identified as specifically relevant to the threat; other
details were also verified. This was the extent of the Project’s information about
the threat until the summer of 2002.
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FACTUAL BACKGROUND: VOLUME II
Witnesses from “A” Division had differing opinions about whether the threat
of a terrorist attack was still seen as imminent by the summer of 2002. One factor that had diminished the threat’s imminence was that Messrs. Almalki, El Maati
and Arar were no longer in Canada at that time. In any event, members of
Project A-O Canada did not believe that the threat had been eliminated, as too
many questions remained unanswered.284
In contrast, witnesses from RCMP Headquarters were clear that the threat
presented in the fall of 2001 was no longer imminent by the summer of 2002.285
Corporal Flewelling’s testimony underscores this point. As noted earlier in this
report, Corporal Flewelling was assigned responsibility for monitoring Project
A-O Canada on behalf of CID in or around June 2002. He testified that one of
his assignments had been to reinstate RCMP policies that applied before 9/11,
as CID no longer believed that an allegedly imminent threat justified continued
deviation from these policies.286
Around November 2002, when Messrs. Almalki, El Maati and Arar were all
in custody overseas, Project A-O Canada and Project O Canada began to differ
in their opinions regarding the threat to a prominent building in the National
Capital Region. Although these differences reflected the recurring jurisdictional
dispute between the Toronto and Ottawa projects, they also reinforced the contradictory opinions about this threat among various sections of the RCMP.
On November 21, 2002, two members of Project A-O Canada met with a
CID analyst 287 assigned to draft a report on the status of the anti-terrorism investigations in Toronto, Ottawa and Montreal. Both officers felt that the analyst
was sceptical about the threat.288 More importantly, they believed that his opinion had been influenced by a disagreement between the two teams on whether
the threat was directed toward an Ottawa target or a Toronto-area target.
However, Project A-O Canada officers were adamant that they had been tasked
with investigating a threat in the National Capital Region. Until they received instructions to the contrary, they would continue to investigate that threat,289 regardless of conflicting opinions from those outside the Project.
Also in November 2002, Osama Bin Laden made a public statement identifying Canada (and other Western nations) as an al-Qaeda target. A revised
threat assessment report from RCMP Headquarters, dated December 10, 2002,
stated: “At this time, Canadians and Canadian interests are likely to be directly
or indirectly targeted by terrorism. It should be noted that this designation is unprecedented [emphasis in original].”290
The assessment referred to reports of several possible Canadian targets, one
of which was a prominent building in the National Capital Region, but indicated
that, based on the RCMP’s investigation, there was no specific, perceptible or
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immediate threat to any of these targets.291 The report concluded that, “at this
time, there still exists no actionable information/intelligence pertaining to any
specific attacks on Canadians or Canadian interests. Nevertheless, now that
Canada is in Al-Qaida’s crosshairs, all readers are requested to maintain utmost
vigilance, and report any information of a threat nature to law enforcement [emphasis in original].”292
About the time of the Bin Laden threat, Project A-O Canada prepared an investigational planning report on the threat, dated November 18, 2002. The report concluded: “Project A-O Canada investigators believed that the information
[received] represents the truth and that [it] was a real threat.”293 On December 6,
2002, the report was sent to the Threat Assessment Section at RCMP
Headquarters.294
A few days later, on December 10, the Threat Assessment Section dropped
the level of the threat from “high” to “medium,”295 making no reference to the
need for vigilance. The rationale was that the threat was more than a year old
and the main player was in foreign custody. Threat assessments remained at
“medium” into the spring of 2004.296
Meanwhile, Project A-O Canada continued its investigation. The team was
particularly interested in interviewing Mr. El Maati, and was taking steps to gain
access to him in Egypt.
Project A-O Canada still considered the threats to be real in 2004. Although
the threats were thought to be less imminent, many questions remained unanswered.297 One witness pointed out that it could take years for an attack to be
carried out after a target was selected;298 therefore, they could not discount
the threat.
Notes
1
2
3
4
5
6
7
8
9
[P] Graham testimony (May 30, 2005), pp. 4300-4301; [P] Fry testimony (June 13, 2005),
pp. 6536-6538.
Ibid.; ibid.
[IC] Martel testimony (April 25, 2005), pp. 15892-15896 and [P] [ET] (August 30, 2005),
pp. 11172.
Ibid. and [P] [ET] (August 30, 2005), pp. 11175.
[IC] Martel testimony (April 25, 2005), pp. 15894-15896; Exhibit C-281.
[IC] Martel testimony (April 25, 2005), pp. 15894-15897.
Ibid., pp. 15895-15896; Exhibit C-281.
[P] Martel testimony [ET] (August 30, 2005), pp. 11177-11178; Exhibit C-281.
[IC] Martel testimony (April 25, 2005), p. 15896; Exhibit C-281; [P] Martel testimony [ET] (August
31, 2005), pp. 11452.
511
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FACTUAL BACKGROUND: VOLUME II
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
[IC] Martel testimony (April 25, 2005), pp. 15896-15899.
[P] Martel testimony [ET] (August 30, 2005), pp. 11180-11181 and [P] [ET] (August 31, 2005),
pp. 11455-11457.
Ibid. One of the people who walked Mr. Arar and the Canadian officials to their car was a
Syrian official known only as “George”. According to Mr. Martel, everybody was happy, and
shook hands before they separated. Then Mr. Arar reportedly remarked to Mr. Martel that
“George” was crying when they left. Mr. Martel did not recall George crying.
When Mr. Martel was asked whether he had any sort of personal relationship with any of the
members of the Syrian Military Intelligence, he replied that he was not allowed to have any
type of relationship with them, and they did not have that right either. He said that he could
not even have breakfast with them. He had a contact person, but that person was subject to
change. As for the Ambassador’s relationship with the Syrian Military Intelligence, Mr. Martel
only knew that Ambassador Pillarella had met with General Khalil on a few occasions, but did
not know “George”. He did not think that the relationship between Ambassador Pillarella and
General Khalil was personal. [P] Martel testimony [ET] (August 31, 2005), pp. 11565-11567.
[IC] Martel testimony (April 25, 2005), pp. 15892-15896; [P] Martel testimony [ET] (August 30,
2005), pp. 11187-11191; Exhibit C-281.
[P] Catterall testimony (June 1, 2005), p. 4723.
[IC] Martel testimony (April 25, 2005), pp. 15897-15898.
[P] Pastyr-Lupul testimony (July 29, 2005), pp. 9236-9237.
Exhibit P-242.
[P] Pardy testimony (June 2, 2005), pp. 5058-5060.
[P] Pillarella testimony (June 15, 2005), pp. 7115-7118.
[P] Martel testimony [ET] (August 31, 2005), pp. 11593-11597; [P] Pardy testimony (May 25,
2005), pp. 3775-3781.
Ibid.; ibid., pp. 3830-3831; [P] Graham testimony (May 30, 2005), pp. 4219-4221.
Exhibit P-89; [P] Pardy testimony (May 24, 2005), pp. 3428-3429. Exhibit P-89 is a document
obtained through an access to information request in the United States by counsel for Mr.
Arar. It is a record of a conversation between an American political officer and a Syrian representative. Neither of the individuals testified at this Inquiry.
Exhibit P-89; [P] Pardy testimony (May 24, 2005), pp. 3429-3432.
[P] Pardy testimony (May 25, 2005), pp. 3757, 3775-3781, 3783-3792 and [P] (October 24, 2005),
pp. 12197-12199; [P] Pillarella testimony (June 15, 2005), pp. 7177-7184 and 7202-7204; [IC]
Graham testimony (August 3, 2005), pp. 16751-16754.
[P] Graham testimony (June 2, 2005), pp. 4927-4928.
An example of this is the negative reaction of the Syrian Military Intelligence official who was
with Syrian Foreign Minister Shara’a and Minister Graham at their meeting in New York. The
intelligence official was clearly upset by the negative publicity in Canada and questioned why
they should ever release Mr. Arar.
[P] Pardy testimony (May 25, 2005), pp. 3775-3781 and [P] (May 26, 2005), pp. 3842-3847; [P]
Pillarella testimony (June 15, 2005), pp. 7204-7207.
[P] Martel testimony [ET] (August 30, 2005), pp. 11180-11182 and 11183.
Mr. Arar only learned of the stopover in Amman once the plane had taken off from Damascus,
and he was understandably upset by the announcement. Mr. Martel managed to calm him
down by reassuring him that they would not have to disembark from the plane. However,
once they arrived, they were told that there was a problem and all passengers would have to
leave the aircraft to identify their luggage. Fortunately, Mr. Arar and Mr. Martel were not traveling with any. They disembarked quickly and then reboarded the plane. [P] Martel testimony
[ET] (August 31, 2005), pp. 11552-11555.
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30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
Ibid., p. 11183.
Ibid., p. 11548.
[P] Pastyr-Lupul testimony (July 29, 2005), pp. 9145-9148.
Ibid., pp. 9148-9149.
[IC] Martel testimony (April 25, 2005), p. 15921.
Ibid., p. 15919; [P] Pastyr-Lupul testimony (July 29, 2005), pp. 9149-9150.
[P] Martel testimony [ET] (August 30, 2005), p. 11184.
[IC] Martel testimony (April 25, 2005), pp. 15913-15915.
Ibid., pp. 15916-15917 and (August 30, 2005), p. 11185.
[IC] Martel testimony (April 25, 2005), pp. 11185-11186.
Exhibit P-242, Tab 17, p. 2; [IC] Martel testimony (April 25, 2005), p. 15913 and [P] [ET] (August
30, 2005), pp. 11186-11187. The discussion during the journey back to Canada was the first
time it was confirmed for Mr. Martel that Mr. Arar was indeed being kept in the basement of
the Palestine Branch, the same location where they would meet for consular visits. [IC] Martel
testimony (April 25, 2005), p. 15913.
[P] Martel testimony [ET] (August 30, 2005), pp. 11187-11188.
[P] Martel testimony [ET] (August 31, 2005), pp. 11457-11458.
[IC] Martel testimony (April 25, 2005), p. 15916.
[P] Martel testimony [ET] (August 31, 2005), p. 11456.
[P] Martel testimony [ET] (August 30, 2005), pp. 11198 and 11200-11201.
Exhibit P-242, Tab 1; [P] Martel testimony [ET] (August 30, 2005), pp. 11198-11206.
Exhibit C-1, Tab 238; [IC] Martel testimony (April 25, 2005), pp. 15938-15940.
Exhibit P-242, Tab 14, p. 1.
Ibid., Tab 15; [P] Fry testimony (June 13, 2005), pp. 6545-6547.
[P] Fry testimony (June 13, 2005), p. 6549.
[P] Lockyer testimony (June 17, 2005), pp. 7587-7589.
[P] Fry testimony (June 13, 2005), pp. 6559-6560.
Exhibit P-42, Tab 630; [P] Fry testimony (June 13, 2005), pp. 6559-6560.
Exhibit P-42, Tab 693.
Exhibit P-242, Tab 17.
Exhibit P-42, Tab 693.
[P] Graham testimony (May 30, 2005), p. 4306; [P] Fry testimony (June 13, 2005), pp. 6561-6562.
Exhibit P-42, Tab 648, p. 1.
Exhibit C-206, Tab 650, pp. 3-4. Interestingly enough, in an October 31 e-mail to the Canadian
Embassy in Damascus, DFAIT Headquarters gave them the heads-up that if Mr. Arar were to
claim publicly that he had been tortured, there might be pressure on the Department of
Foreign Affairs to take the matter up with the Syrian authorities. At the same time, Headquarters
told the Embassy that it was mindful of the cases of two other Syrian-born Canadians who remained in Syrian detention and the delicate situation this presented if a public controversy with
Syria were to erupt. Exhibit P-199, p. 2, para. 4.
Exhibit C-206, Tab 650.
Ibid., Tab 748.
Exhibit P-242, Tab 18.
Exhibit C-206, Tabs 750 and 760.
[IC] Martel testimony (April 26, 2005), pp. 15991-15992.
[P] Fry testimony (June 13, 2005), pp. 6557-6559.
Exhibit P-42, Tab 649; [P] Fry testimony (June 13, 2005), pp. 6563-6565. The Minister’s main
message would be to emphasize that he reported on August 14 what he had been told about
the consular visit. The only point of clarification would be in regard to his prior statements that
513
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68
69
70
71
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74
75
76
77
78
79
80
81
82
83
84
85
86
87
88
89
90
91
92
93
94
Canadian officials met independently with Mr. Arar. This time around, he would be clear that
all the meetings that Canadian officials had with Mr. Arar were in the presence of Syrian officials. Exhibit P-42, Tab 649.
[P] Fry testimony (June 13, 2005), pp. 6557-6559.
Exhibit P-242, Tab 14, p. 1.
Ibid., Tab 16.
Ibid.
Ibid.
Ibid.
[P] Martel testimony [ET] (August 30, 2005), pp. 11213-11215.
Ibid., pp. 11219-11220.
Exhibit P-42, Tab 725. Ms. Pastyr-Lupul tried to contact members of Mr. Arar’s support team
to sort out the discrepancy between DFAIT’s account of the events of August 14 and Mr. Arar’s,
but to no avail. Exhibits P-200 and P-201; [P] Pastyr-Lupul testimony (July 29, 2005), pp. 91589160.
[P] Martel testimony [ET] (August 30, 2005), pp. 11224-11225.
Exhibit C-21, Tab 32. The report was dated February 9, 2004 and stated that the conversation
took place on January 8, 2004. The Canadian official testified that the date of January 8, 2004
was an error. The conversation actually took place on February 8, 2004. [IC] Testimony
(September 21, 2004), p. 1409.
[IC] Testimony (September 21, 2004), pp. 1421-1427.
Exhibit P-243.
[P] Martel testimony [ET] (August 30, 2005), pp. 11237-11238.
Ibid., pp. 11239-11240.
[P] Martel testimony [ET] (August 30, 2005), pp. 11241-11243 and [P] [ET] (August 31, 2005),
pp. 11560 and 11562-11563. Mr. Martel was particularly rankled by allegations in the lawsuit
that he was too busy to visit Mr. Arar more often when he was in detention in Syria. During
his testimony, Mr. Martel repeatedly referred to this point in particular as an example of a “big
lie.” [IC] Martel testimony (April 26, 2005), pp. 16024-16025 and [P] [ET] (August 30, 2005),
pp. 11241-11242.
Exhibit P-248; Exhibit P-249.
[IC] Martel testimony (April 26, 2005), p. 16021.
[P] Martel testimony [ET] (August 31, 2005), pp. 11346-11348.
[IC] Testimony (September 21, 2004), p. 1420
Exhibit C-23.
[P] Martel testimony [ET] (August 31, 2005), pp. 11348-11350 and 11352-11354. Mr. Martel denied that what he was really reacting to was the contents of Mr. Arar’s chronology, which he
had already seen. Ibid., p. 11356.
Ibid., pp. 11350-11352.
Ibid., p. 11268.
Exhibit P-243.
[P] Martel testimony [ET] (August 31. 2005), p. 11269.
Ibid., pp. 11281, 11283 and 11290-11291.
Both reports on Mr. Nureddin mentioned that the Syrian jailers “doused” or “poured” cold
water on him. This information was not included in the Canadian official’s report on Mr. Arar.
Also, both reports mentioned that he was beaten on the soles of his feet with a thick black
plastic cable. This was not mentioned in any reports filed by Mr. Martel on Mr. Arar or in
Mr. Arar’s press conference or chronology. Finally, neither report mentioned Mr. Nureddin
being beaten on the elbows and in other places where there would be no scarring. This was
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similar, however, to what Mr. Arar wrote in his chronology about his experience at the start
of his detention. See Exhibits P-42, Tab 693, P-242, Tab 17, P-244 and P-245.
Exhibit P-245; [P] Martel testimony [ET] (August 31, 2005), pp. 11270-11272.
Exhibit P-242, Tab 1.
[P] Martel testimony [ET] (August 31, 2005), pp. 11274-11276.
Exhibit P-243.
Ibid.
[P] Martel testimony [ET] (August 31, 2005), pp. 11357-11361.
[IC] Wright testimony (March 29, 2005), p. 13093.
Ibid., p. 13108.
Ibid., pp. 13104-13105.
Ibid., p. 13101.
Exhibit C-206, Tab 650.
[P] Graham testimony (May 30, 2005), pp. 4307-4308.
Ibid.
Exhibit C-206, Tab 650, p. 1.
[P] Graham testimony (May 30, 2005), p. 4311.
On August 1, 2003, the Ottawa Citizen ran a story entitled “RCMP didn’t turn in Arar; U.S.
Embassy statement conflicts with claims by Powell and Cellucci.” According to reporter Robert
Fife, Embassy officials had told the media the previous day that the RCMP had no direct role
in the U.S. decision to arrest Mr. Arar and deport him to Syria. The Embassy statement said
that “The U.S. and Canadian law enforcement agencies consult and exchange information all
the time, but, however, in the case of the detention of Maher Arar, the U.S. did not consult
with any Canadian law enforcement organization.”
The article continued: “The denial yesterday comes after the RCMP faced allegations of helping the U.S. to deport a Canadian citizen to a country known for torture and calls for a parliamentary inquiry from Amnesty International and the American Islamic Relations Council. ...
The official denial of any Canadian participation in Mr. Arar’s deportation was made under
pressure from the RCMP, sources say, and conflicts with statements made by U.S. Ambassador
Cellucci and U.S. Secretary of State Colin Powell.” Exhibit P-44.
Ibid.
[P] Graham testimony (May 30, 2005), pp. 4310-4311.
Exhibit P-31, Robert Fife, “PM to U.S.: Name moles in Arar case: PM wants names of tipsters
behind torture of Canadian,” Ottawa Citizen (November 6, 2003), A1.
Exhibit P-31; [IC] Kergin testimony (April 5, 2005), pp. 14228-14229.
Exhibit P-32, Susan Delacourt, “Chrétien blames the U.S. for deporting Arar to Syria; Syrian
envoy says Canadian jailed as favour to U.S. ‘We believe there is no case against him,’ diplomat says.” Toronto Star (November 6, 2003), A7.
[IC] Kergin testimony (April 5, 2005), p. 14230.
Mr. Kergin held the post from mid-September 2000 to the end of February 2005. Ibid.,
p. 14174.
Ibid., p. 14221; [IC] Wright testimony (March 29, 2005), p. 13116.
[IC] Kergin testimony (April 5, 2005), p. 14221.
Ibid., p. 14236.
Exhibit C-206, Tab 661, e-mail from Peter Boehm dated November 6, 2003, subject: “Arar:
Meeting at NSC.”
[IC] Kergin testimony (April 5, 2005), p. 14232.
Exhibit C-206, Tab 661; [IC] Kergin testimony (April 5, 2005), pp. 14233-14234.
Ibid., pp.13118-13119.
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Mr. Easter also met with U.S. Ambassador Cellucci, on December 2, 2002. Mr. Easter testified
that he could not recall whether Mr. Arar’s case was raised. In a memorandum for the Deputy
Solicitor General, it was noted that “[d]uring this meeting, the Ambassador may raise the Arar
case.” Mr. Easter also said that he was “pretty confident” that the issue was not brought up,
that “to raise this issue would be more the role of the Minister of Foreign Affairs, not myself.”
According to his recollection, no one suggested to Mr. Easter that he should raise the Arar case
on his own. Mr. Easter testified that the meeting was “basically a get to know you meeting”
with the Ambassador, and it “would have been really inappropriate for me to raise it.” See
Exhibit C-324, Tab 30; [IC] Easter testimony (August 11, 2005), pp. 17747-17749.
[IC] Easter testimony (August 11, 2005), pp. 17750 and 17782.
Exhibit C-324, Tab 10. [IC] Easter testimony (August 11, 2005), pp. 17778-17779.
Ibid.; ibid., p. 17797.
Ibid., p. 17802.
Ibid., p. 17803.
Exhibit C-206, Tab 749, C4 e-mail from Karen McDonald. See also P-105 (heavily redacted).
[P] Graham testimony (May 30, 2005), pp. 4321-4322.
Exhibit P-106, p. 2 (DFAIT Chronology); [P] Graham testimony (May 30, 2005), pp. 4320-4321.
[P] Graham testimony (May 30, 2005), p. 4149.
Exhibit P-80, p. 2.
Exhibit P-116. Graham Fraser, “U.S. urged Canada to hold Arar; Canada refused to make arrest Americans sent him to Syria,” Toronto Star, October 9, 2003, A1.
Exhibit P-247.
Exhibit C-29. “The case of Maher Arar takes more twists and turns,” CTV, (October 23, 2003),
P-39. Re-broadcast on “CTV Newsnet Morning,” October 24, 2003.
These names are variously spelled throughout the report.
Exhibit P-117, Tab 47, p. 6.
Exhibit P-80, p. 4; Norma Greenaway, “Supporters say Arar target of smear campaign,” Ottawa
Citizen, October 25, 2003, A3.
In their closing submission to this Inquiry, Mr. Arar’s counsel stated that “These leaks have irreparably damaged Mr. Arar’s reputation.” Closing Submissions, Mr. Arar, p. 210, para. 483.
[P] Fry testimony (June 13, 2005), p. 6559.
A rough transcript of Mr. Petrovic’s report is included in an e-mail from Joseph de Mora to
Karen Matthias, October 30, 2003; unredacted DFAIT document RCRD.BCD.BCF.0003.0253.
Mr. Petrovic’s report is also referenced in [P] Fry testimony (June 13, 2005), p. 6559.
[P] Fry testimony (June 13, 2005), pp. 6559-6560.
Exhibit C-206, Tab 630. E-mail from Konrad Sigurdson to Myra Pastyr-Lupul, December 5,
2004, containing an e-mail from Robert Fry to Isabelle Savard, John McNee, Colleen Swords,
Konrad Sigurdson, France Bureau, and Owen Teo, sent October 30, 2003.
Ibid.
Exhibit P-80, pp. 5-6; Exhibit C-221, Tab 49, pp. 3-6. The Vancouver Sun article appeared on
p. A5 under the title “RCMP could expose terror investigations; Scrutiny could expose allegations of an al-Qaida plot to bomb U.S. embassy.” [The Vancouver Sun article appears only in
Exhibit C-221, not in Exhibit P-80.]
[IC] Coons testimony (December 8, 2004), p. 7462.
Ibid., pp. 7461 and 7463.
Ibid., p. 7464.
Exhibit P-80, pp. 7-8. The article’s source was CanWest News Service. A similar version of the
story appeared in the Montreal Gazette on December 30, 2003 entitled “No doubt Al-Qa’ida
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trained Arar, officials say: Suspect’s family calls accusation a smear,” by Robert Fife, A1; Exhibit
P-80, pp. 9-10.
This statement suggests that the source knew of American information about Mr. Arar. There
is no evidence to support the proposition that Canadian officials ever received such
information.
Exhibit P-80, pp. 12-13. Robert Fife, with files from Mark Kennedy and Anne Dawson, “Arar
deported after RCMP told U.S. he would go free here: Mounties had no evidence to lay
charges; Martin hints he may call public inquiry,” Ottawa Citizen, January 23, 2004, A3.
R.S, 1985, c. I-11.
Motion by Mr. Waldman, June 13, 2005, pp. 6365-66.
[P] Waldman testimony (September 12, 2005), p. 11680.
Exhibit P-80, p. 5. Norma Greenaway, “Supporters say Arar target of smear campaign,” Ottawa
Citizen, October 25, 2003, A3.
Exhibit C-121.
[P] Payne testimony (June 8, 2005), pp. 6102-6106.
Appendix 7, “Report of Stephen J. Toope, Fact Finder,” October 14, 2005 (Toope Report).
The Fact Finder’s appointment and terms of reference were issued pursuant to the
Commissioner’s “Ruling on Process and Procedural Issues,” May 12, 2005.
Toope Report, pp. 813-817.
Ibid., p. 814.
Ibid.
Ibid., p. 816.
Ibid.
[IC] Wright testimony (April 6, 2005), pp. 14451-14452.
Ibid., p. 14452.
Exhibit C-245; [IC] Wright testimony (April 6, 2005), pp. 14454-14455.
Exhibit C-221, Tab 43.
Exhibit C-246; [IC] Wright testimony (April 6, 2005), pp. 14456-14457.
Exhibit C-221, Tab 44; [IC] Wright testimony (April 6, 2005), p. 14457.
[IC] Wright testimony (April 6, 2005), p. 14457.
Exhibit C-221, Tab 4, p. 1; Exhibit P-117, Tab 56, p. 1.
Exhibit C-221, Tab 47, p. 3; Exhibit P-117, Tab 47, p. 9.
Exhibit C-221, Tab 47, p. 11.
[P] Loeppky testimony (July 27, 2005), p. 8644.
Exhibit C-221, tab 47, p. 5.
Exhibit P-84, p. 133. The briefing note was recommended by Inspector Rick Reynolds, OIC
NSIB, and approved by Assistant Commissioner Richard Proulx, CID, October 23, 2003.
[P] Loeppky testimony (July 27, 2005), pp. 8639-8640.
Ibid., pp. 8640-8641.
Exhibit C-221, Tab 47, pp. 6-7.
Ibid., p. 78.
[P] Loeppky testimony (July 27, 2005), p. 8646.
Ibid., p. 8647.
Ibid.
Exhibit C-221, Tab 47, pp. 2-6.
The damage assessment was conducted as set out in the CSIS policy on Violations and
Breaches of Security (s.102).
Letter from Gregory S. Tzemenakis, McCarthy Tetrault, to Lara Tessaro, Commission Counsel,
Re PCO Undertaking, dated September 29, 2005, marked “Delivered by Hand.”
517
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Exhibit P-117, vol. 2,Tab 60, p. 1; Exhibit C-221, Tab 49; [IC] Wright testimony (April 6, 2005),
p. 14470.
Exhibit C-221, Tab 49, p. 2.
[IC] Wright testimony (April 6, 2005), p. 14470.
Exhibit P-117, vol. 2, Tab 60, p. 2. At DFAIT, the first and second investigations into the leaks
were consolidated into one internal administrative review. On November 14, 2003, PCO security sent a fax to DFAIT regarding the leak investigations, confirming that the department
would “handle all previous requests as one administrative review/case,” and explaining that
they [PCO] will send along new media articles as they appear. Exhibit C-206, vol. 6, Tab 719.
Exhibit C-221, Tab 56, pp. 1-3.
Ibid., p. 3.
[P] Loeppky testimony (July 27, 2005), p. 8650.
Exhibit P-83, Tab 2, p. 132; [P] Loeppky testimony (July 27, 2005), pp. 8649-8650.
[IC] Wright testimony (April 6, 2005), p. 14486; [P] Livermore testimony (May 18, 2005),
p. 2759.
[IC] Wright testimony (April 6, 2005), p. 14486.
Ibid., pp. 14487-14488.
[P] Barbara McIsaac (September 12, 2005), p. 11804.
Exhibit P-241.
Ibid.
[P] Cabana testimony (June 29, 2005), p. 8032.
Exhibit C-30, Tab 280.
[IC] Testimony (November 17, 2004), pp. 5539 and 5546-5549.
Exhibit C-30, Tab 309.
Ibid., Tab 301.
[IC] Cabana testimony (November 1, 2004), pp. 3243-3244.
Exhibit C-30, Tabs 316 and 318; [IC] Callaghan testimony (November 8, 2004), pp. 4228-4229.
Exhibit C-30, Tab 322; [IC] Cabana testimony (November 1, 2004), pp. 3256-3257. See also
Exhibit C-30, Tab 325, a Project A-O Canada situation report stating that a news reporter had
contacted Corporal Buffam to request an interview about Mr. Arar.
Exhibit C-30, Tab 342.
[IC] Corcoran testimony (November 15, 2004), pp. 4918-4919.
[IC] Roy testimony (December 6, 2004), pp. 6926-6927.
Exhibit C-30, Tab 344.
As discussed earlier in this Report, INSETs (Integrated National Security Enforcement Teams)
replaced the former NSIS (National Security Investigations Section) units in Ottawa, Toronto,
Montreal and Vancouver. National security investigations were normally conducted by INSET
units, Project A-O Canada being an exception to the rule. [IC] Cabana testimony (October 25,
2004), pp. 2342-2343; [IC] Clement testimony (January 18, 2005), pp. 8880-8881; [IC] Pilgrim
testimony (January 26, 2005), p. 10328.
[IC] Cabana testimony (November 1, 2004), pp. 3265-3266.
Exhibit C-30, Tab 355.
[IC] Corcoran testimony (November 15, 2004), pp. 4927-4928. The CSIS visit to Syria is discussed at length in Chapter III, Section 4.
Exhibit C-115.
Exhibit C-30, Tab 382.
[IC] Lemay testimony (November 17, 2004), pp. 5554-5555.
[IC] Flewelling testimony (January 20, 2005), pp. 9570-9578.
[IC] Cabana testimony (November 1, 2004), pp. 3348-3351.
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Exhibit C-30, Tab 410.
[IC] Reynolds testimony (February 1, 2005), pp. 10880-10888.
[IC] Callaghan testimony (November 8, 2004), pp. 4258-4259.
[IC] Cabana testimony (November 1, 2004), pp. 3380-3381.
[IC] Corcoran testimony (November 15, 2004), pp. 4948-4950.
[IC] Coons testimony (December 8, 2004), p. 7369.
[IC] Callaghan testimony (November 8, 2004), p. 4258. Staff Sergeant Callaghan added that no
new training took place, and no new policies related to national security investigation became applicable.
[IC] Walsh testimony (November 30, 2004), pp. 6196-6199. It appears that Superintendent
Pilgrim believed from this point on that contact between certain U.S. agencies, and Project
A-O Canada was prohibited. As discussed below, however, the contact continued for some
time. [IC] Pilgrim testimony (January 26, 2005), pp. 10462-10464.
Exhibit C-30, Tab 435.
[IC] Flewelling testimony (January 21, 2005), pp. 9755-9758.
[IC] Buffam testimony (December 1, 2004), pp. 6465-6466.
Exhibit C-83.
[IC] Walsh testimony (November 30, 2004), pp. 6199-6202.
Exhibit C-30, Tab 451
[IC] Callaghan testimony (November 8, 2004), pp. 4285-4292.
Ibid., pp. 4288-4292; Exhibit C-77; Exhibit C-30, Tab 482.
[IC] Corcoran testimony (November 15, 2004), p. 4975.
Ibid., p. 4996.
[IC] Callaghan testimony (November 8, 2004), p. 4302; [IC] Corcoran testimony (November 15,
2004), pp. 4996-4997; [IC] Coons testimony (December 8, 2004), pp. 7437-7439.
[IC] Callaghan testimony (November 8, 2004), pp. 4303-4306. Chief Superintendent Killam was
OIC of the National Security Intelligence Branch at this time.
Exhibit C-143.
Exhibit C-30, Tab 512.
Ibid., Tab 519.
Ibid., Tab 513.
[IC] Callaghan testimony (November 8, 2004), p. 4306; Exhibit C-30, Tab 516.
Exhibit C-30, Tab 514.
Corcoran notes, p. 287.
Corporal Buffam alone was contacted approximately 10 to 15 times after Mr. Arar’s November
2003 press conference.
Exhibit C-30, Tab 525.
Ibid.
Project A-O Canada wrote to the FBI to inquire whether they had received a copy of the lease
documents. Exhibit C-30, Tab 527.
Ibid., Tab 528.
Callaghan notes, pp. 653-654.
[IC] Callaghan testimony (November 8, 2004), pp. 4339-4341.
[IC] Coons testimony (December 8, 2004), pp. 7496-7498.
Exhibit C-30, Tab 555; [IC] Loeppky testimony (April 20, 2005), pp. 15263-15265
Exhibit C-30, Tab 554.
Ibid., Tab 557.
Corcoran notes, p. 308.
Exhibit C-30, Tab 589.
519
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Ibid., Tab 591.
Ibid.
[IC] Corcoran testimony (November 15, 2004), p. 4977.
[IC] Callaghan testimony (November 9, 2004), pp. 4426-4427 and [IC] (November 15, 2004),
p. 5092.
[IC] Loeppky testimony (April 20, 2005), pp. 15271-15273.
Ibid., p. 15281.
Ibid., pp. 15310-15314.
Ibid., pp. 15367-15370.
[IC] Hooper testimony (September 23, 2004), pp. 1805-1807.
Ibid., pp. 1798-1807. Mr. Hooper explained that if CSIS did this for Mr. Arar, it would receive
similar requests from lawyers for other individuals asking that the same statement be made
concerning their clients.
[IC] Testimony (September 15, 2004), pp. 502-503; [IC] Testimony (September 29, 2004),
pp. 2198-2199; [IC] Cabana testimony (November 1, 2004), pp. 3520-3521; [IC] Callaghan testimony (November 9, 2004), pp. 4428-4429; [IC] Corcoran testimony (November 15, 2004),
pp. 5056-5057; [IC] Walsh testimony (November 30, 2004), pp. 6146-6147; [IC] Buffam testimony (December 2, 2004), p. 6623; [IC] Coons testimony (December 8, 2004), p. 7542; [IC]
Hovey testimony (January 17, 2005), p. 8797; [IC] Pilgrim testimony (January 28, 2005), pp.
10590-10591; [IC] Reynolds testimony (February 1, 2005), p. 11050; [IC] Loeppky testimony
(April 20, 2005), p. 15316.
[IC] Wright testimony (April 6, 2005), p. 14571.
[IC] Pilgrim testimony (January 26, 2005), p. 10406.
[IC] Pilgrim testimony (January 28, 2005), pp. 10638-10641.
Exhibit P-12, Tab 39. According to the RCMP Operational Manual (IV.10 - National Security
Investigations Policy), threat warnings can be set (from highest to lowest) at imminent, high,
medium, low or no threat recognized. A “high” rating signifies that although no specific target has been identified, there is information about an individual or group in Canada with the
stated intent and capability to commit a serious act of violence against Canadians or their
property.
Exhibit C-180.
[IC] Pilgrim testimony (January 26, 2004), p. 10430.
Ibid., pp. 10420-10421 and [IC] (January 28, 2005), pp. 10648-10649; [IC] Cabana testimony
(August 8, 2005), pp. 17332-17333.
[IC] Cabana testimony (October 27, 2004), p. 2895; [IC] Buffam testimony (December 1, 2004),
pp. 6492-6494; [IC] Clement testimony (January 19, 2005), pp. 9299-9304.
[IC] Flewelling testimony (January 20, 2005), p. 9361; [IC] Reynolds testimony (February 1,
2005), pp. 10856-10857.
[IC] Flewelling testimony (January 20, 2005), pp. 9360-9361.
Russell Weissman.
Corcoran notes, p.176; [IC] Corcoran testimony (November 15, 2004), pp. 4933 and 4935;
Buffam notes, p. 229.
[IC] Corcoran testimony (November 15, 2004), pp. 4938-4940; [IC] Buffam testimony (December
1, 2004), pp. 6512-6515.
Exhibit C-180.
Ibid.; [IC] Pilgrim testimony (January 26, 2005), p. 10416.
Exhibit C-180. There was no threat level attached to the assessment because it did not address
a specific target. In assessing how such a threat would have been perceived, a witness from
RCMP Headquarters explained that it would not necessarily have been at the highest level
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(imminent), but would have been at a relatively high level. [IC] Pilgrim testimony (January 28,
2005), pp. 10648-10649.
Exhibit C-115.
Exhibit C-180.
Exhibit P-12, Tab 39. A “medium” rating signifies that there is intelligence or information about
an individual or group in Canada with the stated intent or capability of committing acts of serious violence, but that there is no intelligence or information indicating such an act is forthcoming.
Ibid. Threat assessments for May 21, 2003, September 24, 2003 and March 30, 2004 were provided to the Commission. All of these threat assessments set the threat to the prominent building at “medium.”
[IC] Callaghan testimony (November 9, 2004), pp. 4508-4509; [IC] Corcoran testimony
(November 15, 2004), pp. 4940-4941, 5054-5056 and 5104-5105.
[IC] Callaghan testimony (November 9, 2004), p. 4509.
521
��V
Miscellaneous Matters
1.
RENDITION
“Rendition” refers to the act of surrendering or handing over a person from one
country to another country — typically outside normal legal channels.1
Prior to 9/11, renditions were carried out for the express purpose of prosecution.2 More recently, the term “extraordinary rendition,” or “rendition to risk
of torture” has been used to describe any transfer of a person to a country where
he or she is at risk of being tortured, whether the transfer is within or outside a
legal procedure.3
American Practices
Relatively little is known about the American practices of rendition prior to 9/11.
From what is known, the practice was recognized in a series of Presidential
Decision Directives (PDDs), beginning in the late 1980s during the administration of President George H.W. Bush.4
Initially, the American practice of rendition involved what has been termed
“rendition to justice”. The first of these PDDs, which remains classified, provided for a process whereby U.S. officials from various agencies apprehended
terrorist and drug suspects outside of the U.S., for the purpose of bringing them
to the U.S. for prosecution.5
In June 1995, President Clinton issued PDD-39, which confirmed that, with
prior White House approval, terrorist suspects and others wanted for prosecution in the U.S. could be apprehended in other countries by U.S. operatives
without those countries’ consent or cooperation. Although heavily redacted, the
PDD states in part:
�524
FACTUAL BACKGROUND: VOLUME II
When terrorists wanted for violation of U.S. law are at large overseas, their return
for prosecution shall be a matter of highest priority … If we do not receive adequate
cooperation from a state that harbors a terrorist whose extradition we are seeking,
we shall take appropriate measures to induce cooperation. Return of suspects by
force may be effected without the cooperation of the host government, consistent
with the procedures outlined in NSD-77, which shall remain in effect.6
This policy was reiterated in May 1998 with a new directive, PDD-62.7
Testifying before the U.S. Senate Judiciary Committee in September 1998,
then FBI Director Louis Freeh stated that during the 1990s the U.S. had “successfully returned” 13 suspected international terrorists to stand trial in the U.S.
for completed or planned acts of terrorism against U.S. citizens.8 George Tenet,
the former Director of Central Intelligence, testified at the National Commission
on Terrorist Attacks Upon the United States (the 9/11 Commission) that more
than 80 individuals were rendered to the U.S. prior to September 11, 2001.9
It appears that the American practice of rendition changed significantly in
the aftermath of 9/11. According to media reports, a few days after September
11, 2001, President George W. Bush issued a new PDD that gave the CIA expansive new discretionary authority to carry out renditions without White House
approval in each individual case. In addition, the majority of renditions carried
out since then have not been “renditions to justice.” Instead, they have involved
the transfer of individuals to other countries for one of two purposes: intelligence gathering through coercive interrogation, or warehousing of individuals
considered to constitute a threat to U.S. national security.10
Human rights organizations became aware of the change in American rendition practice in late 2001, after men were rendered from Sweden to Egypt,
with American involvement.11 At the same time, articles began appearing in
major U.S. newspapers, describing how men were “snatched” and transferred to
third countries outside legal channels, calling this “extraordinary rendition”.12
In her testimony at this Inquiry, Ms. Julia Hall of Human Rights Watch13 estimated that between 9/11 and June, 2005, there were approximately 100 to 150
renditions.14 Research by Human Rights Watch indicates that the primary country of destination for those rendered was Egypt, and that there have also been
renditions to Syria, Jordan and Uzbekistan.15 Additional destinations identified by
investigative journalists are Morocco, Saudi Arabia and Yemen.16 All of these
countries have been implicated by the U.S. State Department in using torture in
interrogation.17 Referring to flight logs of aircraft apparently used by the CIA to
carry out rendition of terrorism suspects to those countries, Newsweek reported
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that by 2004, the CIA was running a covert airline for the purpose of moving
prisoners.18
Human rights advocates strongly suspect that the U.S. chooses to have terrorism suspects interrogated by officials in those countries because there are
both domestic and international legal obligations that impinge on the ability of
the U.S. to use coercive means of interrogation.19 There is an expectation that
there will be a better opportunity to gain intelligence by sending people to Egypt
or Syria, for example.
Governments, including the U.S. government, have explained that they do
not prosecute these terrorism suspects either because they have insufficient evidence, or because disclosure would reveal sensitive intelligence information.20
Ms. Hall testified that these global transfers of terrorism suspects after 9/11
involve a common set of features. The person subject to the transfer is labelled
a terrorist, someone associated with terrorists or a threat to national security.
The person so labelled is denied access to the evidence against him or her, and
so cannot challenge it. The countries to which the person is transferred include
states with well-documented histories of human rights abuses and in particular,
the use of torture or other cruel, inhuman or degrading treatment during interrogation and detention. The sending state justifies such transfers by securing
diplomatic assurances of humane treatment by the receiving state. Finally, the
transfers are carried out in secrecy.21
Human Rights Watch has labelled Mr. Arar’s case a rendition, and places it
in the context of other post-9/11 renditions having these features.22 However,
Mr. Arar’s rendition has certain unique features, including his Canadian citizenship and his expedited removal from the U.S. on security-related grounds under
section 235(c) of the U.S. Immigration and Nationality Act.23
The U.S. referred to its practice of obtaining assurances from foreign governments to which detainees are being transferred in its report to the United
Nations Committee Against Torture, submitted on May 6, 2005.24 In fact, the U.S.
is one of the few legal systems that provides in law for the use of diplomatic assurances in the context of its obligations under the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). A U.S.
federal regulation provides that the Secretary of State may secure assurances
from a government that a person subject to return will not be tortured. In consultation with the Attorney General, the Secretary of State determines whether
the assurances are “sufficiently reliable” to allow the person’s return in compliance with the CAT.25
Historically, European countries (and, more recently, Canada) have sought
diplomatic assurances prior to the return to the U.S. of criminal suspects who
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could otherwise face the death penalty.26 In those instances, the European countries and Canada have requested assurances that the person being returned to
the U.S. would not be subject to the death penalty.27 Compliance with such
diplomatic assurances can be readily monitored.28
In the rendition context, human rights advocates see the use of diplomatic
assurances by the U.S. and other countries as an end-run around their absolute
obligation not to return a person to a risk of torture (the “nonrefoulement obligation”).29 In their view, diplomatic assurances provide no effective safeguard
against torture, but are unreliable and unenforceable.30 They note that diplomatic assurances are always negotiated at the diplomatic level, by officials who
must take a number of competing considerations into account, and that human
rights concerns may not be a priority.31 They also question why states known
to abuse human rights should be trusted to honour their international obligations
not to engage in torture,32 and point out that neither the sending nor the receiving country has any incentive to find that a diplomatic assurance has been
breached.33
Reporting to the United Nations General Assembly in September 2004, the
outgoing Special Rapporteur on Torture, Theo van Boven, expressed concern
that the practice of relying on assurances “is increasingly undermining the principle of nonrefoulement.” He questioned whether this practice “is not becoming a politically inspired substitute for the principle of nonrefoulement, which
… is absolute and nonderogable.”34 Quoting the Commissioner for Human
Rights of the Council of Europe, the Special Rapporteur commented, “The weakness inherent in the practice of diplomatic assurances lies in the fact that where
there is a need for such assurances, there is clearly an acknowledged risk of torture and ill-treatment.”35 He stated that in circumstances where a person would
otherwise be returned to a country where torture was systematic, “the principle
of nonrefoulement must be strictly observed and diplomatic assurances should
not be resorted to.”36
The current Special Rapporteur on Torture, Manfred Nowak, has echoed
Mr. van Boven’s denunciation of the use of diplomatic assurances for returns to
countries where torture is systematic. Mr. Nowak pointed out that there is “no
way or very, very little possibility of the sending country to actually – as soon
as the person is in the other country – to make sure that this type of diplomatic
assurances are complied with.”37 This reality was recognized by the U.S. Director
of Central Intelligence, Porter J. Goss. In February 2005, Mr. Goss testified before Congress that although the U.S. has a responsibility of trying to ensure that
transferees are properly treated, “of course, once they’re out of our control,
there’s only so much we can do.”38
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In a recent decision, the Committee Against Torture held that Swedish authorities knew or ought to have known that Egypt resorted to consistent and
widespread use of torture against detainees, and that the risk of such treatment
was particularly high in the case of detainees held for political and security reasons.39 The Committee held that in the circumstances of that case, Sweden’s expulsion of a terrorism suspect violated Article 3 of the CAT, and that obtaining
unenforceable diplomatic assurances was insufficient to protect against the manifest risk that he would be tortured in Egypt.40
2.
THE MONTERREY PROTOCOL: A FORMAL
UNDERSTANDING ON REMOVALS
2.1
DEVELOPMENT
Following Mr. Arar’s removal from the United States to Syria via Jordan, DFAIT
began developing a protocol, or understanding, with the United States on the
issue of removals. The starting point for the Canada/U.S. Understanding on
Removals (the “Monterrey Protocol”) was a briefing note to Minister Graham
dated November 13, 2002, for his November 14 visit with Secretary Powell.41
The note stated that the Minister would want to register Canada’s serious concerns about the Americans’ handling of the Arar matter and that Canada hoped
there would be appropriate consultations before such decisions were taken.42
Jim Wright, ADM for Global and Security Policy at DFAIT, explained that
DFAIT spent a good part of 2002 and early 2003 trying to determine exactly
what had happened in Mr. Arar’s case.43 It was only when the United States
began to acknowledge its responsibility for the unilateral decision to remove
Mr. Arar that it was “judged to be propitious to proceed with this kind of understanding.”44 Mr. Wright developed the protocol together with his colleagues
in the Legal Bureau and in consultation with a number of other departments and
agencies.45 The initiative was taken to ensure that Canada did not have another
case like Mr. Arar’s in the future.46
In its initial drafts, DFAIT “sought in a sense a veto in the U.S. decision-making process with respect to deportation of Canadian nationals to third countries,” Mr. Wright testified.47 However, DFAIT understood that it was highly
unlikely that U.S. authorities would ever agree to this because a sovereign state
has the right to remove an individual to another state.48
Many communications and much negotiating took place in late 2003, with
DFAIT attempting to finalize the protocol for the meeting between
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Prime Minister Martin and President Bush in Monterrey, Mexico, in midJanuary. Robert Wright of the Privy Council Office (PCO) laid the groundwork
for a formal understanding on November 18 when he met with U.S. officials in
Washington, including George Tenet, Director of the CIA, who supported the
idea.49 On November 20, Jim Wright advised Steve Kelly, U.S. Embassy Deputy
Head of Mission, that Canada was developing a reciprocal consular understanding on removals and would be sharing the details with them shortly.50 The
draft protocol in the form of an exchange of letters was delivered to the U.S.
State Department on November 28.51
During December and January, Jim Wright spoke often with U.S. officials
to ensure that the protocol was finalized as quickly as possible and in advance
of the Monterrey meeting.52 He also raised the protocol issue when he met with
U.S. officials on his December 12 visit to Washington, since DFAIT had received
no official response from the United States at that time.53 On January 8,
Mr. Wright sent his counterpart in the U.S. State Department a revised version
of the draft exchange of letters clearly stipulating that Canada was not looking
for a veto in the U.S. decision-making process, but merely notification and
consultation.54
Mr. Wright testified that the initial objectives for proper notification and expeditious consultation were achieved by the final version of the exchange of letters,55 and this was done within six weeks.56 The final letters were exchanged
between Minister Graham and Secretary of State Powell on January 13, and the
protocol concluded by Prime Minister Martin and President Bush at Monterrey,
Mexico, the same day.57
2.2
PURPOSE
The Monterrey Protocol ensures that when a known Canadian national is to be
subject to involuntary removal from the United States to a country other than
Canada, the United States will advise the Canadian principal point of contact, the
Director General of the Consular Affairs Bureau of DFAIT, of the intended removal.58 The two countries also undertake to consult expeditiously upon request by either country concerning a case of removal.59
As Jim Wright explained, the main objective of the protocol is to protect the
interests of Canadians detained in the United States.60 However, he acknowledged that the three concerns of protecting bilateral relations, protecting the
flow of information between the two countries and doing what was available to
avoid a public inquiry were associated with the main objective, and “certainly
come up time and time again in terms of the documentation.”61 Robert Wright
�MISCELLANEOUS MATTERS
noted that the “whole logic of argument wasn’t just ‘We have to do this understanding so we don’t have a public inquiry’” — the broader context was that
there was a gap in the way Canada managed its information and its implications
for citizens, and Canada should deal with it.62
2.3
EFFECTIVENESS
The Monterrey Protocol is not a legally binding treaty. Jim Wright explained that
the procedure for arriving at a legally binding treaty would have been much
more arduous (requiring Senate approval in the United States), and Canada
might have come up with absolutely nothing in the end.63
Mr. Wright believed that an understanding like the protocol would make
it much more difficult, if not impossible, for the United States to unilaterally remove a Canadian citizen to a third country.64 While the United States still retained the right do so, the understanding would require a discussion between
the governments, which would make it much more difficult for the Americans
to proceed.65 According to Robert Wright, the protocol provides extremely helpful protection for Canadian citizens but “[t]here is never a guarantee of these
things…the President himself made it very clear that the U.S. is going to do what
is right for their citizens.”66 Canada’s ambassador to the United States, Michael
Kergin, noted that the United States probably retained the absolute right in its
own view to remove someone to a third country, but the extensive negotiation
process and the exchange of letters gave the protocol a lot more weight, making it difficult for the United States to ignore the consultation process.67
Minister Graham testified that while the protocol is “clearly not as effective
as an outright undertaking not to deport anybody under these circumstances,”
the best arrangement Canada could get was an agreement to consult.68 He believed that consultation creates an opportunity to bring other people into the picture; alarm bells then go off, and the issue can be raised to the prime
ministerial/presidential level if necessary.69 There would be a whole host of immediate responses moving it up to an action level, making it very unlikely that
the United States would go ahead in light of a Canadian government objection.70
While Minister Graham acknowledged that if the United States was determined
to go ahead with such a removal, Canada could do nothing to stop it, he believed the understanding provided a very effective protection for Canadians,
given how things work in international practice.71
Stephen Yale-Loehr, an expert witness on U.S. immigration law, stated that
the protocol did not go far enough. He wished the United States would agree
not to remove a Canadian citizen to a third country unless Canada explicitly
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agreed in advance and in writing,72 and he believed Canada should have a veto
power over the United States on such decisions.73 Julia Hall, an expert on the
U.S. practice of rendition, testified that the Monterrey Protocol has the same status in law as diplomatic assurances, which are found to be ineffective, not
abided by, legally unenforceable and operationally unworkable.74 However, she
acknowledged that the protocol is better than nothing.75
3.
CONSULAR PROTECTION AND DUAL NATIONALITY
3.1
INTRODUCTION
This section examines the right of consular protection for people with dual nationality, such as Maher Arar.
Traditionally, consular access has been understood to be one form of diplomatic protection for nationals detained in other countries.76 Consular access is
expressly provided for by the Vienna Convention on Consular Relations, which
states that consular officials are “free to communicate with nationals of the sending State and to have access to them.” Nationals of the “sending State” have a
corresponding right to communicate with, and have access to, consular officials
of that state. Once notified that one of its nationals has been detained, a state’s
consular officials have the right to visit and converse with their national and
arrange for legal representation.
Dual citizenship or dual nationality complicates and may completely frustrate Canada’s ability to afford consular protection to any of its nationals detained abroad in countries of which they are also nationals. However,
international law jurisprudence and scholarship suggest that Canada may have
the ability to afford consular protection where the dual national’s dominant nationality is Canadian.77
3.2
CONSULAR PROTECTION
In international law, states are under no obligation to afford their citizens diplomatic protection,78 and citizens generally have no right of consular protection.79
However, a recent decision concerning a Guantanamo Bay detainee (Khadr v.
Canada (Minister of Foreign Affairs) [2004] F.C.J. No. 1391) suggests that such
a right might exist in Canadian law.80
Article 36 of the Vienna Convention on Consular Relations provides that
consular officers can communicate with their nationals and have access to them,
�MISCELLANEOUS MATTERS
and that the nationals have the right to contact consular officials.81 There are
two aspects involved. First, when a national of a “sending state” (a state that has
“sent” its representative or national out) is detained by a “receiving state” (the
state that has “received” that representative or national), the receiving state is
obliged to inform that person of the right to contact consular officials, without
delay.82 This obligation to inform arises as soon as the receiving state’s authorities become aware or suspect that the person is a foreign national.83 Second,
if the national of the sending state requests access to a consular official, the receiving state is obliged to grant that access, or at least inform the consular official that access has been requested.84
Adjudication of disputes between states concerning alleged violations of
Article 36 is problematic. While Canada is among the 167 parties to the Vienna
Convention on Consular Relations, it is not among the 45 parties to the Optional
Protocol85 that provides that disputes respecting the application or interpretation
of the Convention between states that are parties to both the Convention and
the protocol may be settled by the International Court of Justice.86 Syria has not
signed the Protocol, nor has it accepted the compulsory jurisdiction of the
International Court of Justice,87 and although the United States signed the
Optional Protocol, it withdrew from it in March 2005.88 Consequently, the only
way Canada could bring a case against the United States or Syria in relation to
an alleged violation of Article 36 would be with the consent of the other country or through the use of another international legal instrument, such as the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment.89
3.3
DUAL NATIONALITY
According to Statistics Canada, the self-identification counts from the 2001
Census indicate that there are 552,880 Canadian citizens who are also citizens
of at least one other country,90 and an additional 4,000 who are citizens of two
or more other countries.
Special problems arise in affording diplomatic protection to dual nationals.
Article 4 of the 1930 Hague Convention on Conflict of Nationality Laws would
preclude a sending state from affording diplomatic protection to one of its nationals who is being held in a receiving state in which that person also holds citizenship (“A State may not afford diplomatic protection to one of its nationals
against a State whose nationality such person also possesses”).91 This is known
as the “non-responsibility rule.”92 Syria’s view that it had principal jurisdiction
over Mr. Arar (and therefore was under no obligation to provide consular access)
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while he was detained within that country is consistent with the non-responsibility rule.93
The non-responsibility rule is essentially a rule of standing. It denies one
state standing to assert a claim based on a wrong perpetrated to one of that
state’s nationals (or “espouse” the claim) or to afford diplomatic protection
against a state whose nationality that person also possesses.94
However, the Commission heard evidence that the non-responsibility rule
contained in Article 4 of the Convention does not represent the international
law on consular protection of dual nationals today.95 Even at the time the
Convention was adopted, this rule was not part of customary international law.96
Moreover, since then, the concept of genuine connection or effective (or dominant) nationality has evolved as a means of giving primacy to a particular nationality.97 Dominant nationality is assessed by reference to criteria such as
where a person is domiciled, where the person was educated, where family
connections are, and what languages the person speaks.98 This concept has recently been endorsed by the International Law Commission, which would permit the state with the predominant link to the individual to extend diplomatic
protection.99
One means of giving effect to this dominant nationality principle is through
bilateral consular agreements and bilateral consular treaties.100 Canada has entered into several bilateral consular agreements, including one with China.101
The Chinese government will not seek to apply Chinese nationality in cases
where a dual Canadian-Chinese national enters China using a Canadian passport
that has been stamped or otherwise recognized by the Chinese government.102
There is also scope for bilateral agreements to settle individual cases involving
dual nationals.103 Some states may be willing to quietly provide Canada with
access to dual nationals, but do not want that to be seen as establishing a
precedent.104
In recognition of the practical difficulties that arise in affording diplomatic
protection to dual nationals, the Citizenship and Immigration Canada website advises dual nationals that if they are in difficulty in the other country of citizenship, “Canadian officials may be entirely unable to help…[because] that country
will be dealing with one of its own citizens and probably will not welcome outside interference.”105 It is appropriate that the public receive such a warning.106
In the case of a dual national who is detained in a third country, there is
no law or practice that recognizes which of the two countries of nationality is
to be notified.107
�MISCELLANEOUS MATTERS
3.4
“CLINGING” NATIONALITIES
International law provides little guidance about the circumstances under which
one should be able to rid oneself of a nationality. Article 15 of the Universal
Declaration of Human Rights provides that no one shall be denied the right to
change nationality, but this was intended to be a statement of objective rather
than an obligation on individual states.108 Consequently, there is no international right to renounce a citizenship.109 The ability to renounce citizenship is
governed by the law of individual states. The result is that, as a matter of international law, unwanted citizenship can “cling” to a person.110
All of the countries to which the United States has rendered terrorism suspects impose significant bars to renunciation of citizenship.111 For example, a
U.S. survey of citizenship laws indicates that voluntary renunciation of Syrian citizenship is so complicated that it is best not even attempted.112 In any event,
former Syrian citizens “probably maintain an unofficial dual citizenship status
and would be subject to Syrian law should they return to Syria.”113 In addition,
anyone of military service age is not permitted to renounce citizenship.114
4.
THE RCMP’S RELATIONSHIP WITH THE MUSLIM
COMMUNITY
The following section examines the RCMP’s knowledge of and sensitivity to the
Muslim community’s beliefs and customs, in relation to the investigations discussed in this Report.
4.1
TRAINING
Members of Project A-O Canada received little or no training to make them sensitive to the Muslim or Sunni Muslim community and aware of their cultural particularities.
Chief Superintendent Antoine Couture testified that formal training in this
area had not been considered necessary. Even though Project A-O Canada’s investigation involved Sunni Islamic extremism and the targets and persons of interest were almost exclusively Muslim, the main recruiting focus in assembling
the team had been on investigators with experience in major case management.
Furthermore, given the expertise of the investigators and Canada’s multicultural
composition, Chief Superintendent Couture thought that Project A-O Canada
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investigators would have had some awareness of potential challenges in this
regard.115
Although he didn’t believe that formal training was required, Chief
Superintendent Couture did seek some outside expertise. Within two months of
9/11, Chief Superintendent Couture requested that “A” Division bring in an independent consultant on Middle Eastern affairs to assist with the investigations
related to terrorism. A professor at Concordia University was identified as someone who could fill this role and conduct presentations to investigators within the
division. It is unclear what became of this request.116
To Inspector Michel Cabana’s knowledge, the RCMP did not provide training on Islam.117 When referred to a booklet entitled Islam & Muslims: What Police
Need to Know, prepared in 2002 by the Winnipeg Police Service, the Edmonton
Police Service and the Canadian Council on American–Islamic Relations
(CAIR–CAN), Inspector Cabana said that he had never seen it before. The booklet offered a superficial introduction to the Muslim community, addressing such
topics as Muslim worship, dress code, and names and phrases. Inspector Cabana
indicated that the booklet would not have been available at the start of the investigation.118 Sergeant Randal Walsh was the only Project A-O Canada witness
who testified that he had read the booklet.119
Project members did have an opportunity near the start of the Project to
learn more about Muslim culture in relation to their investigative duties. In early
November 2001, an offer was extended to Project members to join with investigators in “A” Division’s National Security Investigations Section (NSIS) in attending a proposed two-hour presentation by a CSIS official specializing in
Middle Eastern affairs. The sender of the e-mail invitation noted that with the realignment of investigators to deal with terrorism tied to Middle Eastern groups,
some investigators were not necessarily familiar with the Muslim culture and
Islamic religion. The sender even mentioned the practical example of unfamiliarity with names and surnames leading to confusion for certain North American
investigators. Inspector Cabana believed members of his team attended this presentation but was unsure as to the number.120
Inspector Cabana also testified that Project A-O Canada had requested and
received background information on terrorism in the Muslim community from
CSIS and American agencies,121 and that Project staff realized very quickly that
they were dealing with something out of their ordinary experience. Officers investigating a drug-trafficking or criminal organization would normally know
what to look for, according to the type of offence they were investigating. After
9/11, Project A-O Canada learned from American authorities that the terrorists
had given no indication of what was being planned. On the surface, they were
�MISCELLANEOUS MATTERS
law-abiding citizens who went about their daily business.122 Project A-O Canada
also asked CSIS for contacts within the community.123
The information acquired from other agencies, however, tended to focus on
terrorist activities in the Muslim community, rather than on Muslim cultural values and habits or the need for sensitivity when dealing with this community.124
Specific efforts by Project A-O Canada team members to read the materials provided by other agencies or materials that they picked up on their own were uneven at best. Only two investigators mentioned reading literature on Muslim
culture.125
Moreover, two of the three examples witnesses offered of training in matters related to the Muslim community related to presentations that took place
one and a half years after the Project’s inception.
In February 2003, the Hate Crimes Section of the Ottawa Police Service
(OPS) organized a one-day seminar on the Muslim community, although only
the Project’s assistant managers mentioned that they attended it.126 Two investigators also attended a half-day workshop on terrorism in Ottawa in February
2003, at which Riad Saloojee of CAIR–CAN gave a presentation on Muslim culture and sensitivities and identified some issues of which police officers should
be aware when dealing with this community.127 Staff Sergeant Corcoran testified
that some Project A-O Canada investigators had attended a one-day seminar offered by CSIS.128 However, he did not mention a date for when this seminar
took place, nor did he elaborate on the attendees.
Inspector Cabana had indicated that he was willing to release members of
the team so that they could attend various seminars and workshops to further
their understanding of cultural issues, but he could not release all members, as
they were still operating in a crisis situation.129
Some Project A-O Canada witnesses considered additional cultural sensitivity training unnecessary. Inspector Cabana made it clear that, leaving aside efforts to increase members’ knowledge about the Muslim community, it was
important to note that “[Project A-O Canada] was not investigating the Muslim
community.”130
This view was supported by Staff Sergeant Callaghan, one of the Project’s
assistant managers. Asked if formal training in Muslim customs would have significantly altered any of the steps he had taken in the investigation, he indicated
that such training might have made him more sensitive to Muslim issues, but police officers did not base their investigations on a person’s religion. He explained
that “an investigation is based on reasonable grounds to believe a crime has
been committed, and what evidence is out there that [the police] can gather in
the normal police procedures under the laws of Canada.” He did not believe that
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sensitivity training would have altered the way he had assessed any of the evidence that Project A-O Canada had obtained. Summing up, Staff Sergeant
Callaghan stated: “… Cultural sensitivity training would have been a benefit, but
… this investigation was not about religion. It was about individuals being involved in possible terrorist activities.”131
The following two examples from the testimony of Project A-O Canada witnesses illustrate Project A-O Canada investigators’ inexperience and lack of training in dealing with the Muslim community. When responding to a question
about how members of the Muslim or Syrian immigrant community connected
with each other, one officer disputed the notion that such connections could be
interpreted in different ways.132 In another instance, a surveillance package prepared for Mr. Arar’s anticipated return in October 2002 referred to the Ottawa
Sikh Society in a section on mosques likely attended by Mr. Arar.133 The officer
who prepared the surveillance package stated that listing such mosques was a
mistake by a team member.134 When another officer was asked why mosques
would be included, he replied that “it is important for the [surveillance unit] to
have locations where individuals may go” and “none of this is based on religion.”135 Yet the officer who prepared the surveillance package stated that the
mosques had been chosen as places frequented by Mr. Arar’s associates.136
Notwithstanding all of the above, the evidence does not suggest that the officers of Project A-O Canada acted in bad faith or with any malice in their dealings with the Muslim community. Indeed, during the searches on January 22,
2002, RCMP officers believed that efforts were made to respect Muslim culture.
Officers were instructed to take off their shoes before entering a home, stuffed
animals were provided for any children present, and residents were permitted
to pray before searches were conducted.137
Despite these efforts, the response to the RCMP search was problematic.
There were media reports that the Muslim community felt targeted and treated
insensitively by RCMP officers. It was pointed out to Sergeant Walsh that some
members of the Muslim community were from countries run essentially as military states, and having law enforcement or intelligence personnel coming to
their doors would likely cause great fear and anxiety. Sergeant Walsh replied that
he had come to learn about the Muslim community’s lack of trust in law enforcement and agreed that if members did not trust the RCMP, they were less
likely to come forward with tips or to co-operate as witnesses. However, he
pointed out that this was true of any investigation.138
The Commanding Officer of “A” Division, Assistant Commissioner Dawson
Hovey, testified that he was aware of the Muslim community’s reaction to executing the search warrants, but did not recall the RCMP taking specific steps to
�MISCELLANEOUS MATTERS
alleviate their concerns. Instead, Assistant Commissioner Hovey met with the
head of the OPS, Chief Vince Bevan, to discuss the issue. According to Assistant
Commissioner Hovey, Chief Bevan felt that the appropriate course of action for
the OPS was to meet with representatives of the Muslim community to inform
them of its involvement in the searches (which he did). The RCMP did not feel
that such a meeting with the Muslim community was appropriate at that time,
given the ongoing criminal investigation.139
Chief Superintendent Couture testified that dealing with different cultural
groups is always challenging. It is difficult to recruit members of these groups
for law enforcement work and to convince them to testify or even to tell police
what they know, he said.140
Asked what steps the RCMP was taking to meet these challenges, Chief
Superintendent Couture replied that efforts were being made to recruit members
of the Muslim community. As well, the RCMP had staff to liaise with these communities and help them understand policing in Canada. These efforts were producing results, but very slowly.141
The Commission also heard evidence about efforts by “A” Division to maintain more regular contact with the Muslim community. The Commanding Officer
of “A” Division had had meetings with members of the Muslim community and
of other ethnic and cultural groups in Ottawa. Asked if these regular meetings
and consultations with the Muslim community would assist investigations like
Project A-O Canada by building trust in the community, one RCMP witness
replied that he hoped that the goodwill being developed with community leaders was building bridges throughout the community.142
4.2
STAFFING
The Project A-O Canada team had one Muslim investigator, seconded from the
OPS, who provided guidance about how to approach Muslims, as well as two
Arabic translators.143 Inspector Cabana testified that these efforts at inclusion
were made to ensure that any steps taken during the investigation did not create problems in dealing with the Muslim community.144
The Muslim investigator was on the Project for only a short time; he left in
late December 2001 and was not replaced.145 However, he did return briefly to
assist with the January 22 searches. In addition, two Muslim officers from the
Sûreté du Québec were brought in to help deal with the material seized in the
searches.146
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4.3
CONTACTS
4.3.1
Attendance at Mosques
On November 28, 2001, surveillance officers informed Project A-O Canada that
Abdullah Almalki’s parents, wife and children were headed for Dorval Airport.
Not realizing that Mr. Almalki had already left the country, Project A-O Canada
officers spent the next two days trying to find him.147
In the efforts to locate Mr. Almalki, the Muslim officer involved in Project
A-O Canada was sent to a local mosque in the afternoon of Friday, November
30, to see if he was there. The officer reported to Staff Sergeant Callaghan that
he did not see Mr. Almalki at the mosque, but did see one of Mr. Almalki’s
brothers, an associate of Mr. Almalki and possibly Mr. Arar.148
Staff Sergeant Callaghan instructed the officer to attend the mosque. He did
not see any problem with entering a place of worship to look for a police target. He pointed out that this investigative step was not contrary to proper procedure. He also pointed out that whether it was a Muslim mosque, a Catholic
church or a Buddhist temple, he could see nothing wrong with entering such a
building. According to Staff Sergeant Callaghan, it was very important that they
find Mr. Almalki.149 Inspector Cabana, the Project’s OIC, was not involved in
giving the direction to go to the mosque, but was not surprised this step had
been taken. He too felt that it was appropriate if the purpose was to find
Mr. Almalki.150
In November 2003, the Solicitor General issued a ministerial direction on national security investigations to the RCMP. Concerning sensitive sectors, the direction states:
Recognizing there are no sanctuaries from law enforcement, special care is required
with respect to the RCMP investigations conducted with respect to matters … which
have an impact on, or which appear to have an impact on, fundamental institutions
of Canadian society. Primary among these institutions are those in the sectors of academia, politics, religion, the media and trade unions.151
It also states:
It is the responsibility of the Assistant Commissioner, Criminal Intelligence
Directorate at the RCMP National Headquarters, or in his/her absence, his/her ap-
�MISCELLANEOUS MATTERS
pointed designate, to approve all RCMP investigations involving the sensitive sectors of Canadian society.152
Inspector Cabana questioned the relevance of this ministerial direction to Project
A-O Canada’s investigation. He believed that the direction concerned national
security investigations; therefore, it would apply to criminal investigations only
on a case-by-case basis. Furthermore, he did not believe that sending someone
to a mosque to confirm if a target was there was necessarily covered by the direction. He testified that, based on what he had seen, the direction is concerned
with the operations of the institutions in question (for example, an undercover
operation to investigate the management of a mosque), which is completely different from going to a mosque to look for someone.153
As for the relevance of the ministerial direction to future criminal investigations such as that conducted by Project A-O Canada, Inspector Cabana testified that it would not apply if the investigation involved determining whether a
target attended a particular mosque, but would apply if the investigation was
looking into the possibility the mosque was involved in a terrorist cell. Thus, in
his opinion, the ministerial direction could apply in some instances to criminal
investigations as well as to national security investigations.154
4.3.2
Interviews
During the January 22, 2002 searches, RCMP officers interviewed Mr. Almalki’s
brother, Youssef. The interview was conducted in the presence of Youssef’s
lawyer and focused on Abdullah. Youssef was questioned on whether Abdullah
was moderate or extreme in his religious beliefs.155 Youssef’s lawyer interjected
to point out that questions linking Muslim fundamentalism to extremism could
be deemed offensive to practising Muslims. He noted that a person could be a
fundamentalist Muslim without being an extremist. The officers did not ask questions about Muslim fundamentalism.156
Deputy Commissioner Garry Loeppky, the RCMP’s Chief Operational
Officer, stated that religious observance is not linked to terrorist or criminal activity; therefore, it is totally inappropriate for an officer to try to determine someone’s religious practices for personal information. However, on occasion, to
further an investigation, questions involving religious practice could be asked
that could connect it with terrorist or criminal activity.157
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FACTUAL BACKGROUND: VOLUME II
4.3.3
Community Relations
Using the OPS as an example, Dr. Sheema Khan, Chair of CAIR-CAN, testified
on the usefulness of law enforcement officials being proactive in their relations
with Muslim and Arab communities. Although relations between these communities and the OPS had been somewhat strained due to the Arar affair, community leaders had told her positive things about their relations with the local police
service. She said that after the Inquiry was called in 2004, Ottawa Police Chief
Bevan voluntarily acknowledged to the local Muslim and Arab communities that
the OPS had been part of the investigation into Mr. Arar. His willingness to share
this information with the community before it was brought out by the Inquiry
was seen as proactive and constructive.158 (Another example of the OPS’ willingness to communicate with the local Muslim population on a sensitive issue
directly affecting them, namely the January 22 searches, was described above
in Section 4.1.)
The Commission was provided with reference materials on the RCMP’s
training and outreach efforts related to cultural diversity and bias-free159 policing. These materials show a multi-faceted approach to sensitizing officers to cultural diversity and the importance of bias-free policing, including the need to
consult ethnic and minority communities.160 Many of the examples in the materials, however, relate to broad objectives. For instance, regarding commanding
officers, the RCMP’s Bias-free Policing Policy states: “Where circumstances warrant, consult with community leaders to resolve culturally sensitive issues.
Consider establishing community partnerships for early intervention or prevention (i.e. community leaders, community consultative groups, outreach programs).”161 The materials do not explain how some of the broad objectives were
being achieved.
The reference materials also outline specific efforts to reach out to local
Muslim and Arab communities. Most of the examples refer to steps taken by
INSET/NSIS units, which are specifically trained to deal with national security
files. For instance, the INSET in “C” Division in Montreal has a full-time community relations officer to help establish links with the Muslim community. The
INSET in “E” Division in Vancouver has established a direct point of contact
with each mosque and a liaison with British Columbia’s Muslim Association.
Examples of efforts involving the wider Force focus more generally on RCMP
participation at conferences and community events, and the meetings of the
Commissioner’s Advisory Committee on Visible Minorities, which are held twice
yearly.162
�MISCELLANEOUS MATTERS
5.
OTHER INVESTIGATIONS IN RELATION TO MR. ARAR
Media coverage of Mr. Arar’s story generated significant public controversy about
the possible role of Canadian officials in his detention and deportation. As a result, there were three other investigations of the handling of Mr. Arar’s case, in
addition to this Inquiry:
•
•
•
The RCMP ordered an operational review of Project A-O Canada as it related to Mr. Arar; it was conducted by Chief Superintendent Dan Killam.163
Chief Superintendent Brian Garvie also conducted an internal RCMP investigation, pursuant to the review process set out in the Royal Canadian
Mounted Police Act.164
The Security Intelligence Review Committee (SIRC), the arm’s-length review body established by the Canadian Security Intelligence Service Act,165
carried out a review on the role that CSIS played in events relating to
Mr. Arar.
While this Commission’s mandate does not extend to reporting on these review
processes, in the interest of completeness, the following sections summarize the
more salient aspects of the reports prepared by Chief Superintendent Garvie
and by SIRC.
5.1
THE GARVIE REPORT
5.1.1
The CPC Process
The RCMP Act creates a statutory review mechanism by which either the Chair
of the Commission for Public Complaints (CPC) or a member of the public may
initiate a complaint regarding RCMP conduct.166
A complaint by a member of the public may be disposed of informally,167
or may be dismissed by the Commissioner of the RCMP as: 1) more appropriately dealt with under another Act; 2) trivial, frivolous, vexatious, or made in bad
faith; or 3) unnecessary or not reasonably practical.168
However, if a complaint proceeds to the investigation stage, the investigation is conducted by members of the RCMP, in accordance with rules made by
the RCMP Commissioner.169 The review process is internal, in the sense that it
is conducted by members of the RCMP and reported to the RCMP Commissioner.
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FACTUAL BACKGROUND: VOLUME II
Once the investigation is complete, the Commissioner forwards a report or
letter of disposition to the complainant, which includes a summary of the results
of the investigation and any action taken or to be taken in resolving the issue.170
Neither the investigative report itself nor the supporting evidence is disclosed to
the complainant.171
If unsatisfied with the Commissioner’s disposition, the complainant may
refer the complaint in writing to the CPC.172 The Chair of the CPC may accept
the RCMP’s report, in which case the investigation ends there.173 Alternatively,
the Chair may reject the RCMP’s disposition, in which case the Chair may notify
the Minister, request further investigation by the RCMP, or conduct her own investigation or hearing into the conduct underlying the complaint.174
Two public complaints were lodged respecting the RCMP’s conduct in relation to Mr. Arar: one by Shirley Heafey, Chair of the CPC; and the other by the
Canadian Civil Liberties Association (CCLA). Similar in scope, the two complaints
alleged that unidentified members of the RCMP acted improperly in their investigation of Mr. Arar and in their consequent relations with other domestic
and foreign government agencies. 175
Ms. Heafey’s complaint was initiated on October 23, 2003, under subsection
45.37(1) of the RCMP Act. She wrote that, based on media accounts, she was satisfied there were reasonable grounds to investigate the conduct of unidentified
RCMP officers with respect to the following allegations:
•
•
•
that unidentified members of the RCMP improperly encouraged U.S. authorities to deport Mr. Arar to Syria; or, alternatively, that they failed to discourage his deportation by the U.S. to Syria;
that unidentified members of the RCMP improperly divulged information
and/or conveyed inaccurate or incomplete information about Mr. Arar to
U.S. and/or Syrian authorities;
that unidentified members of the RCMP improperly impeded the efforts of
the Canadian government and others to secure the release of Mr. Arar from
detention in Syria. 176
The CCLA’s complaint, forwarded to the Commissioner pursuant to subsection
45.35(3) of the RCMP Act, noted that the public controversy regarding the Arar
case had raised a number of allegations concerning the RCMP’s conduct. The
CCLA therefore requested that the Commission investigate the following
allegations:
•
that the RCMP employed inappropriate criteria and procedures to commence and conduct an investigation against Mr. Arar;
�MISCELLANEOUS MATTERS
•
•
•
•
that RCMP officers passed on information to the U.S. authorities about
Mr. Arar that led to his detention in the U.S. and eventual deportation to
Syria;
that RCMP officers knowingly and wrongfully attempted to facilitate
Mr. Arar’s deportation to torture;
that RCMP officers failed to take all reasonable and necessary steps to forestall Mr. Arar’s deportation to Syria; and
that RCMP officers failed to provide Foreign Affairs and other branches of
government with a full, fair, and timely account of the case so as to ensure
Mr. Arar’s expeditious return to Canada.177
Chief Superintendent Brian Garvie, a senior RCMP officer not affiliated with
either “A” Division or the Criminal Intelligence Directorate (CID) at RCMP
Headquarters, was assigned to investigate the allegations and report on them.
Following the process outlined above, the investigation was led on behalf of
Commissioner Zaccardelli, and was reported to the Assistant Commissioner and
Commanding Officer of “A” Division, Gessie Clément.178
5.1.2
Chief Superintendent Garvie’s Investigation
Chief Superintendent Garvie’s investigation of the two complaints consisted of
a review of all files and documentation relevant to Mr. Arar at Headquarters
and at “A,” “O,” and “C” Divisions.179 He also interviewed RCMP personnel at
each of the offices above, including retirees. Some members declined to be interviewed, stating that they intended to wait until called to testify at the public
inquiry.180 Chief Superintendent Garvie also made inquiries at CSIS, DFAIT and
the American agencies primarily responsible for terrorist activities in the U.S.181
The U.S. agencies did not respond, but Chief Superintendent Garvie met with
representatives of both CSIS and DFAIT.
DFAIT refused Chief Superintendent Garvie’s request to interview Maureen
Girvan, the consular officer who had met with Mr. Arar in New York. However,
on January 20, 2004, Donna Blois, counsel for DFAIT, forwarded a written response to a list of questions provided by Chief Superintendent Garvie. These answers are reproduced in the report.182
Mr. Arar chose not to be interviewed by Chief Superintendent Garvie, noting problems with the CPC process.183 However, he did meet with him on
January 23, 2004, responding to Chief Superintendent Garvie’s request to explain the process and attempt to negotiate an interview.184 Mr. Arar’s lawyer,
Lorne Waldman, subsequently provided a letter explaining why Mr. Arar was
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FACTUAL BACKGROUND: VOLUME II
unwilling to be interviewed, citing the following reasons: the credibility of a
process in which the RCMP investigates itself; the transparency of the process;
and the definition of terms.185
5.1.3
The Garvie Report’s Conclusions
In late February 2004, Chief Superintendent Garvie produced one report addressing both complaints, comprising a detailed chronology of RCMP actions
with respect to Mr. Arar, a discussion of key issues, a series of conclusions, and
answers to the specific complaints.186,187
In his report, Chief Superintendent Garvie makes 40 enumerated conclusions. He begins with an introductory statement that his conclusions should be
considered in the context of the public, political and national security environment after 9/11. He writes: “The ability of the RCMP to deal with that terrorist
act, and to manage the expectations as a result of it, was to a large extent limited. At that time, both at headquarters and the in [sic] field, the RCMP did not
have sufficient investigative expertise, nor did they have the capacity to efficiently and effectively deal with national security investigations overall.”188
For ease of reading, a summary of Chief Superintendent Garvie’s conclusions are grouped below under subheadings.
The RCMP’s Investigation of Mr. Arar
Chief Superintendent Garvie reported that Project A-O Canada had legitimate
reasons to initiate an investigation with respect to Mr. Arar. He was a “person
of interest” who had direct and indirect links with other individuals who were
suspected of being associated with al-Qaeda.189
The Minto Lease
The lease and rental application should have been obtained with a search warrant, as Project A-O Canada was a criminal investigation. The RCMP wrongly
identified Mr. Almalki as “a reference” on the lease agreement in a meeting with
the FBI on May 31, 2002 in Washington DC. In fact, the lease lists Mr. Almalki
as an emergency contact.190
The Lookout List
The RCMP requested that Mr. Arar and his wife Monia Mazigh be entered into
Canadian and U.S. Customs/Immigration databases as “lookouts.” Chief
Superintendent Garvie found there was sufficient justification for this request
with respect to Mr. Arar, but not for Dr. Mazigh.191
�MISCELLANEOUS MATTERS
Caveats
Chief Superintendent Garvie concluded that correspondence between the RCMP
and the American agencies did not have the appropriate caveats/conditions included, and was not in accordance with RCMP policy. Such correspondence
was also sent directly to American agencies without an appropriate supervisor’s
signature.192
Information Passed to the U.S Authorities
CDs containing all of the Project A-O Canada Supertext documentation up to
April 2, 2002 were shared with the American agencies, including disclosure letters from CSIS. There were no caveats or conditions included, and CSIS’ consent
was not obtained to share the disclosure letters.193 In addition, RCMP officers
failed to properly transpose information from the CSIS disclosure letter in written communications with the Americans by failing to accurately note the reliability of the information.194
The Americans’ Understanding of Mr. Arar
The RCMP was aware that the Americans had identified Mr. Arar as an al-Qaeda
operative, but to the RCMP’s knowledge, there was no substantiation for this
statement.195 Mr. Arar was told on October 2, 2002 that the United States considered him to be a member of al-Qaeda. Chief Superintendent Garvie wrote that
the RCMP was not asked to refute this allegation, nor was the RCMP aware that
the assertion had been made and formally documented.
Project A-O Canada–RCMP Headquarters Relationship
There was no senior management input on the RCMP response to the Americans’
question of whether the RCMP had information that could be used for U.S. law
enforcement proceedings.196 Chief Superintendent Garvie found that there was
an acrimonious relationship between Project A-O Canada investigators and
RCMP Headquarters CID; attempts by Headquarters to monitor the investigation
and provide direction were resented.197
Project A-O Canada’s Relationship With the American Agencies
Chief Superintendent Garvie concluded that Project A-O Canada’s relationship
with the American agencies was “not at arms length and served to exacerbate
the relationship between the RCMP and CSIS.”198 There were too many points
of contact within the RCMP, resulting in a lack of coordination about information sharing.199
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FACTUAL BACKGROUND: VOLUME II
RCMP Knowledge of Mr. Arar’s Deportation
The RCMP first learned there was a possibility that Mr. Arar could be deported
to Syria on October 8, 2002, from Inspector Roy. By then, Mr. Arar had already
been deported.200
RCMP Activities While Mr. Arar Was in Syria
Chief Superintendent Garvie concluded that “[t]he RCMP did not contribute
in any way to torture or interrogation of Maher Arar in Syria.”201 The RCMP liaison officer (LO) responsible for Syria did not discuss Mr. Arar with Syrian
authorities.202
Other Reviews of the Project A-O Canada Investigation
Chief Superintendent Garvie concurred with Chief Superintendent Wayne
Watson’s review, which found that the U.S. decision to deport or detain
Mr. Arar did not stem from Project A-O Canada. He also concurred with
Inspector Pierre Perron’s review of the actions and involvement of CID with
respect to Mr. Arar. Inspector Perron found that the United States had made a
unilateral decision to deport Mr. Arar. However, Chief Superintendent Garvie
disagreed with aspects of the report by Chief Superintendent Dan Killam,
Director General National Security, CID.203 Chief Superintendent Garvie could
not concur with the finding that the investigation was well managed and conformed to existing policy and guidelines, citing the sharing of information with
U.S. authorities without caveats or third-party conditions.204
Based on the above findings, Chief Superintendent Garvie concluded that
Ms. Heafey’s first complaint was unfounded. Specifically, members of the RCMP
did not improperly encourage U.S. authorities to deport Mr. Arar to Syria, and
they did not fail to discourage U.S. authorities from deporting him.
With regard to the second complaint, however, the picture was less clear.
The RCMP provided intelligence information to U.S. agencies “as was permitted
by jurisprudence and policy,” but “the manner in which the information was
provided was not in accordance with RCMP policy” as caveats/conditions were
not included. Chief Superintendent Garvie also wrote that the RCMP failed to respect caveats/conditions that were placed on CSIS intelligence, which was also
shared with American agencies. Even more explicitly, Chief Superintendent
Garvie concluded that the reliability assessment of information passed to the
U.S. agencies was inaccurate.205
Chief Superintendent Garvie concluded that Ms. Heafey’s third complaint
was also unfounded: he wrote that the RCMP did not improperly impede the
�MISCELLANEOUS MATTERS
efforts of the Canadian government and others to secure the release of Mr. Arar
from detention in Syria.
Turning to the CCLA complaint, Chief Superintendent Garvie dismissed the
first, third, fourth and fifth complaints: RCMP officers did not employ inappropriate criteria to commence and conduct an investigation into Mr. Arar, nor did
they knowingly facilitate his deportation to Syria, fail to take all reasonable and
necessary steps to forestall his deportation to Syria, or fail to provide other government departments with appropriate information in a timely manner.
However, Chief Superintendent Garvie did not dismiss the second complaint. With regard to the allegation that RCMP officers passed information to
U.S. authorities that led to Mr. Arar’s detention and deportation, he noted that
the RCMP had requested Mr. Arar be listed on the U.S. Treasury Enforcement
Communication System (TECS) database as a “lookout.” He again concluded
that the RCMP did not respect the rules regarding caveats/conditions, adding
that “the detention was not based solely on information obtained from the
RCMP, but also that “[i]nformation provided by the RCMP was used in the INS
hearing that resulted in Maher Arar’s deportation to Syria.”206
5.1.4
Assistant Commissioner Clément’s Report
As noted, Chief Superintendent Garvie’s report was prepared for the RCMP
Commissioner, via Assistant Commissioner Clément, Commanding Officer of “A”
Division. On February 17, 2004, Chief Superintendent Garvie advised Project
A-O Canada managers that his report had been completed and would be forwarded to Assistant Commissioner Clément on February 20, 2004.207 It would
then be her responsibility to provide a summary of the findings, and report on
any action taken in respect of those findings to the complainants, Ms. Heafey
and the CCLA.208
On April 7, 2004, six weeks after Chief Superintendent Garvie completed
his report, Assistant Commissioner Clément wrote a letter of disposition to
Ms. Heafey.209 Referring to the threat of post-9/11 attacks in the United States,
Assistant Commissioner Clément first reviewed the creation of multi-agency and
multidisciplinary national security teams at “A” Division. She went on to advise
that, due to the national security context, she was restricted regarding the level
of detail and extent to which she could disclose relevant information. However,
she provided assurances that the complaint had been fully investigated.
Responding to Ms. Heafey’s specific complaints, Assistant Commissioner
Clément wrote first that she could find no indication any member of the RCMP
had encouraged U.S. authorities to deport Mr. Arar to Syria.
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FACTUAL BACKGROUND: VOLUME II
Second, in response to the allegation that RCMP members failed to discourage Mr. Arar’s deportation to Syria, Assistant Commissioner Clément concluded that RCMP members and U.S. authorities did not discuss whether Mr. Arar
ought or ought not to be deported to Syria. She wrote that no RCMP members
“ever encouraged or discouraged U.S. authorities to deport Mr. Arar to Syria.”210
Third, Assistant Commissioner Clément provided a longer response with
regard to information sharing, reviewing the law and policy guiding RCMP action
on this point, including the Act, its regulations, and the RCMP Operational
Manual.
Her conclusion on this point took a markedly different tone from that of
Chief Superintendent Garvie:
My review determined that there were few instances where the exchanges of information were not consistent with existing RCMP policy on the use of caveats.
However, I did not determine that the exchange of information in these situations
was improper. I am satisfied that such inconsistencies did not result in improper divulgence nor the conveyance of inaccurate information. Furthermore, the investigation did not reveal what action US authorities took as a result of the information
provided by the RCMP.211
Fourth, Assistant Commissioner Clément concluded that there is no evidence
members of the RCMP improperly impeded the efforts of the Canadian government and others to secure the release of Mr. Arar from detention in Syria.
The conclusion to her letter noted that, in light of the instances where exchanges of information were inconsistent with RCMP policy, she would recommend that RCMP Headquarters CID implement an orientation program for all
investigators assigned to national security investigations.
Referring specifically to this Inquiry, Assistant Commissioner Clément advised the complainant that “[a]s the terms of reference for the Commission of
Inquiry reflect the subject matter of your complaint, I am confident the Report
of Mr. Justice O’Connor will address several of the issues you have raised.”212
5.2
THE SIRC REPORT
5.2.1
The SIRC Process
The oversight body for CSIS, the Security Intelligence Review Committee (SIRC)
was established by Subsection 34(1) of the CSIS Act. The Committee consists of
�MISCELLANEOUS MATTERS
a Chair and between two and four other members, all of whom are appointed
by the Governor in Council from among the members of the Queen’s Privy
Council for Canada.213
SIRC’s function is to review and monitor the performance by CSIS of its duties and functions, and to arrange for or conduct reviews or investigations related to CSIS activities.214 SIRC is an arm’s-length body, independent of CSIS,
with the power to review top secret CSIS information. Only Cabinet confidences
may be withheld from SIRC in the course of a review or investigation.215
Section 54 of the CSIS Act provides that SIRC may, of its own initiative, furnish the Minister with a report concerning any matter that relates to CSIS’ performance of its duties and functions.216 In October 2003, SIRC determined that
the events concerning Maher Arar were sufficiently important to warrant such a
review, and the review was publicly announced on January 22, 2004.217
SIRC began by asking CSIS to provide access to all the information it held
on its involvement in Mr. Arar’s case.218 After reviewing this information, SIRC
proceeded with a second independent review of the CSIS documentation by
SIRC’s senior counsel. It also forwarded written questions to CSIS and held two
meetings with the Director of CSIS and senior staff.219 The SIRC study covers
the period of November 18, 1993 to October 10, 2003.220
Jack Hooper, CSIS Deputy Director, testified that CSIS considers any of its
members who are seconded to other government departments to be outside the
jurisdiction of SIRC, as they are, in effect, employees of the other department.221
5.2.2
The SIRC Report’s Conclusions
The SIRC report made 14 findings and seven recommendations.
The first finding relates to SIRC’s own task. SIRC found that its inability to
determine the full extent of the RCMP’s involvement in the case, and therefore
its inability to pursue certain areas of inquiry, demonstrates the limitations of existing review mechanisms for national security investigations. SIRC endorsed the
government’s commitment to establish an independent review committee for
the RCMP’s national security functions.222
The findings of the SIRC review were consistent with CSIS’ position that it
had no prior knowledge of the American authorities’ plan to detain or deport
Mr. Arar.223
SIRC found that RCMP situation reports dated September 26, 2002 and
September 27, 2002, which were added to the CSIS holdings shortly after, on
September 27 and 30, respectively, indicated the FBI’s intention to detain and
interrogate Mr. Arar in New York and to deny him entry into the United States.224
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FACTUAL BACKGROUND: VOLUME II
However, SIRC writes that, according to CSIS, it only learned of Mr. Arar’s detention on October 2, 2002, through contact with DFAIT. CSIS informed SIRC
that it had not actually read the RCMP situation reports until after
October 2, 2002.225
CSIS then sought information regarding Mr. Arar’s status and arrest from
[***] via the CSIS security liaison officer (SLO) in Washington. The written request
was not delivered [***] until October 10, 2002. SIRC was told that the SLO would
have made a verbal request [***] prior to that date.226
[***].227
SIRC did not find any record of CSIS approval for the RCMP to disclose
CSIS information about Mr. Arar to a third party.228
However, SIRC did find that CSIS received an invitation on
November 4, 2002, via DFAIT, from the Syrian Military Intelligence to travel to
Syria to review information provided to them by Mr. Arar. CSIS agreed to go.229
SIRC also found that existing CSIS policy did not require consideration of the
lawfulness of Mr. Arar’s detention, or the likelihood that he had been subject to
torture, as part of the authorization process for CSIS’ travel to Syria.230
SIRC made seven strongly worded recommendations following its
findings:231
1)
2)
3)
4)
5)
6)
7)
that CSIS examine its agreements and policies with the RCMP to determine
whether they provide the necessary protection against third-party disclosure, while still recognizing the importance of information sharing between
the two organizations;
that the O’Connor Commission determine whether the RCMP shared CSISobtained information with American agencies;
that CSIS amend an operational policy in relation to foreign travel proposals including consideration of human rights concerns;
that CSIS amend an operational policy to require consideration of human
rights issues when seeking to use information for targeting approval;
that SLOs maintain written records when requests for information are transmitted to foreign intelligence agencies and that formal letters be sent to
confirm verbal requests;
that CSIS identify an effective means of prioritizing sensitive requests to
their Washington SLOs, and explore ways to reduce delays when seeking
information from U.S. agencies; and
that CSIS examine its practices relating to the receipt, prioritization, and review of RCMP reports to ensure more timely identification of time-sensitive
or important information.232
�MISCELLANEOUS MATTERS
The authors of the SIRC report were well aware of the limitations on SIRC’s
power of review. They identified particular areas of concern outside their mandate, and recommended that these be examined by this Inquiry. In particular,
they wrote:
… the role of other federal departments and agencies in Arar’s rendition to
Jordan by U.S. authorities and his subsequent detention and interrogation
in Syria, whether CSIS information was included in the RCMP files that were
shared with American authorities, and how the United States came into the
possession of Arar’s 1998 rental lease agreement, all warrant closer examination by the O’Connor Commission. …[The] Commission may also choose
to comment on the new consular understanding between Canada and the
United States announced… on January 13, 2004 [the Monterrey Protocol].
5.2.3
Implementation of the Recommendations
In its closing in camera submissions to this Inquiry, the Government of Canada
indicated that CSIS had implemented several of SIRC’s recommendations.
On June 29, 2005, a CSIS operational policy was amended to expressly include consideration of the human rights record of a foreign state or agency when
information received from that foreign state or agency will be used in an application for targeting approval.233
Also on June 29, 2005, an operational policy that governs the information
to be included in a foreign travel proposal was amended to expressly include
consideration of the human right records of foreign states or agencies in relation to incoming visits and travel abroad.234
Notes
1
2
3
4
5
6
7
8
9
10
11
12
Hall testimony (June 7, 2005), p. 5565; Exhibit P-120, Tab 3, p. 2.
Ibid., p. 5569.
Ibid., p. 5552.
Ibid., pp. 5567–5568.
Ibid.
Exhibit P-120, Tab 3, p. 3.
Ibid.
Ibid., Tab 12, pp. 12–13.
Ibid., Tab 3, p. 4.
Hall testimony (June 7, 2005), pp. 5571–5572; Exhibit P-120, Tab 3, p. 7.
Hall testimony (June 7, 2005), p. 5764.
Ibid., pp. 5565 and 5582.
551
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FACTUAL BACKGROUND: VOLUME II
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
Human Rights Watch is a nongovernmental organization dedicated to protecting human rights
around the world.
Hall testimony (June 7, 2005), p. 5573.
Ibid., pp. 5573–5574.
Exhibit P-120, Tab 12, p.8.
Ibid.
Hall testimony (June 7, 2005), p. 5574; Exhibit P-120, Tab 12, p. 8.
Ibid., pp. 5575–5576.
Ibid., pp. 5576–5577.
Ibid., pp. 5553–5554.
Ibid., p. 5553.
Yale-Loehr testimony (June 7, 2005), pp. 5622, 5817 and 5833; Hall testimony (June 7, 2005),
pp. 5760–5761 and 5833.
Exhibit P-120, Tab 3, p. 12.
Ibid., Tab 10 , p. 15.
Hall testimony (June 7, 2005), pp. 5605–5606.
Ibid., p. 5607.
Ibid., pp. 5606–5607.
Ibid., p. 5554.
Ibid., p. 5555; Exhibit P-120, Tab 3, p. 24.
Hall testimony (June 7, 2005), pp. 5609–5610.
Ibid., p. 5610.
Ibid., pp. 5610–5611.
Exhibit P-120, Tab 3, pp. 24–25; Exhibit P-120, Tab 19, p. 9.
Ibid., Tab 19, p. 9.
Ibid., Tab 3, p. 25 and Tab 19, p. 11.
Ibid., Tab 9, p. 17.
Ibid., Tab 9, p. 37.
Ibid., Tab 21, p. 34.
Ibid., pp. 34–35.
[IC] Wright testimony (March 24, 2005), pp.13003–13007; Exhibit C-206, Tab 199.
Exhibit C-206, Tab 199.
[IC] Wright testimony (March 24, 2005), pp. 13003–13007.
[IC] Wright testimony (March 29, 2005), p. 13236.
Ibid., pp. 13109–13111.
Ibid.
Ibid., p. 13112 According to Mr. Wright, DFAIT did not use the particular word “veto,” but
used language suggesting that Canada would have a very direct say in U.S. decisions to deport Canadian nationals to a third country.
Ibid.
Ibid., pp. 13149–13157 and [IC] (April 6, 2005), pp. 14505–14509.
Exhibit C-206, Tab 732; [IC] Wright testimony (March 29, 2005), pp. 13161–13165.
Exhibit C-221, Tab 60; [IC] Wright testimony (March 29, 2005), pp. 13170–13174.
[IC] Wright testimony (March 29, 2005), pp. 13175–13183. Exhibit C-221, Tabs 67 and 68;
Exhibit C-206, Tab 780; Exhibit C-224 documents his conversations with U.S. officials on this
matter.
Exhibit C-223; [IC] Wright testimony (March 29, 2005), pp. 13184–13186.
Exhibit C-224; [IC] Wright testimony (March 29, 2005), pp. 13193–13194 and 13196.
[IC] Wright testimony (March 29, 2005), pp. 13216–13222.
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Ibid., pp. 13239–13240.
Exhibit C-206, Tab 791.
Ibid. The protocol also places the onus on Canada to do the same in return.
Exhibit C-206, Tab 791.
[IC] Wright testimony (March 29, 2005), pp. 13233–13235.
Ibid.
[IC] Wright testimony (April 6, 2005), pp. 14535–14538.
[IC] Wright testimony (March 29, 2005), pp. 13175–13183.
Ibid., pp. 13218–13222.
Ibid.
[IC] Wright testimony (April 6, 2005), pp. 14535–14538.
[IC] Kergin testimony (April 5, 2005), pp. 14255–14256.
[P] Graham testimony (May 30, 2005), pp. 4323–4326.
Ibid., p. 4324.
Ibid., p. 4325.
Ibid.
Exhibit P-120, Tab 4; [P] Yale-Loehr testimony (June 7, 2005), pp. 5562–5563.
[P] Yale-Loehr testimony (June 7, 2005), pp. 5648–5650.
[P] Hall testimony (June 7, 2005), pp. 5801–5816.
Ibid., pp. 5815–5816.
[P] Forcese testimony, (June 6, 2005), p. 5520.
Ibid., p. 5522-5523.
Ibid., pp. 5397 and 5515–5516.
Ibid.; also [P] Forcese testimony, (June 6, 2005), p. 5508.
[P] Copithorne testimony, (June 6, 2005), pp. 5395–5397; [P] Forcese testimony (June 6, 2005),
p. 5516.
[P] Forcese testimony, (June 6, 2005), p. 5403.
Ibid., p. 5404.
Ibid., p. 5408.
Ibid., p. 5404; [P] Copithorne testimony (June 6, 2005), p. 5515.
[P] Forcese testimony, (June 6, 2005), p. 5473; [P] Copithorne testimony (June 6, 2005),
p. 5475.
[P] Forcese testimony, (June 6, 2005), p. 5474.
Ibid., p. 5477.
Ibid., p. 5475.
Ibid., pp. 5512–5513.
Ibid., p. 5411.
Ibid., p. 5425.
Ibid.
Ibid., pp. 5427 and 5516–5518.
Ibid., p. 5500.
Ibid., p. 5428.
Ibid.
Ibid., pp. 5428–5429.
Ibid., p. 5423.
Ibid., pp. 5429–5430.
[P] Copithorne testimony (June 6, 2005), p. 5467.
Ibid., pp. 5468–5469.
Ibid., p. 5470.
553
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FACTUAL BACKGROUND: VOLUME II
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Ibid., p. 5489.
Ibid., p. 5490.
[P] Forcese testimony, (June 6, 2005), pp. 5456–5457.
[P] Copithorne testimony, (June 6, 2005), p. 5459.
[P] Forcese testimony, (June 6, 2005), p. 5409.
Ibid., p. 5439; [P] Copithorne testimony (June 6, 2005), pp. 5443–5444.
[P] Forcese testimony (June 6, 2005), p. 5439.
Ibid., p. 5439.
Ibid., pp. 5439–5440.
Ibid., pp. 5440–5441.
Ibid., p. 5442.
Ibid.
[IC] Couture testimony, (December 6, 2004), pp. 7034–7035.
Exhibit P-169; [P] Cabana testimony (June 29, 2005), p. 7848.
[IC] Cabana testimony (November 1, 2004), p. 3500. Although Inspector Cabana could not
point to specific courses on Islam, he did mention that the RCMP offered cross-cultural courses
on different ethnic groups. He had not taken any of them, but knew that some team members had. [P] Cabana testimony (June 29, 2005), pp. 7837–7838.
Exhibit P-12, Tab 47;[IC] Cabana testimony (November 1, 2004), p. 3500.
[IC] Walsh testimony (November 29, 2004), p. 5952.
Exhibit P-169; [P] Cabana testimony (June 29, 2005), pp. 7844–7848.
[IC] Cabana testimony (October 25, 2004), p. 2407, and [IC] (November 1, 2004),
pp. 3500–3501.
[IC] Cabana testimony (October 25, 2004), pp. 2407–2408.
Ibid., p. 2409.
Exhibit C-63, “Terrorism: Travel Patterns of Al Qa’ida Members Outside and Inside of
Afghanistan,”; Exhibit P-10, Tab 3, “Bin Laden’s November 2002 Statement: What Does It
Mean?” and Tab 4, “Al Qaida: One Year After 9/11.”
[IC] Lang testimony (November 18, 2004), pp. 5771–5772; [IC] Walsh testimony (November 29,
2004), p. 5952.
[IC] Callaghan testimony (November 3, 2004), p. 3873; [IC] Corcoran testimony (November 9,
2004), p. 4646.
[IC] Walsh testimony (November 29, 2004), pp. 5951–5952 and [IC] (November 30, 2004)
p. 6249; Buffam notes, p. 259; [IC] Buffam testimony (December 1, 2004), pp. 6349–6350
and 6517–6518.
[IC] Corcoran (November 9, 2004), pp. 4646 and 4648. In mid-December 2001, Project A-O
Canada investigators were invited to attend a half-day presentation at CSIS, which would cover
Middle Eastern names. The Project was also invited to submit specific questions on Middle
Eastern terrorism in advance of the presentation. The two e-mails documenting this invitation
were provided to the Commission near the end of the hearings. It is possible that this presentation was the one referred to by Staff Sergeant Corcoran. Exhibit C-382.
[P] Cabana testimony (June 29, 2005), pp. 7839–7840.
[IC] Cabana testimony (November 1, 2004), p. 3501.
[IC] Callaghan testimony (November 9, 2004), p. 4475.
[IC] Callaghan testimony (November 8, 2004), pp. 4134–4138 and [IC] (November 9, 2004),
p. 4572.
RCMP, Tab 266, p. 3, Surveillance Request Form. The section of the surveillance request form
dealing with mosques that Mr. Arar might attend identified five locations, two of which were
not mosques.
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[IC] Lemay testimony (November 17, 2004), pp. 5523–5526.
[IC] Callaghan testimony (November 8, 2004), pp. 4322–4323.
[IC] Lemay testimony (November 17, 2004), pp. 5515–5517.
[IC] Callaghan testimony (November 9, 2004), p. 4571.
[IC] Walsh testimony (December 1, 2004), pp. 6329–6331.
[IC] Hovey testimony (January 17, 2005), pp. 8737–8741.
[IC] Couture testimony (December 7, 2004), pp. 7328–7329.
Ibid., pp. 7329–7330.
[IC] Walsh testimony (December 1, 2004), pp. 6335–6336. The RCMP’s Chief Operational
Officer, Deputy Commissioner Garry Loeppky, testified that, since 9/11, virtually every RCMP
division has had an outreach program with the Muslim community to ensure that the RCMP
understands their concerns and that the Muslim community in turn understands the RCMP’s
mandate. According to Deputy Commissioner Loeppky, outreach efforts are not new to the
RCMP. It has been involved in community outreach since 1986, when the Commissioner of
the day established the Commissioner’s Advisory Committee on Visible Minorities, on which
representatives from different visible minority communities meet with the RCMP Commissioner
twice a year. [P] Loeppky testimony (July 6, 2004), pp. 1239–1241.
[IC] Cabana testimony (October 25, 2004), pp. 2409–2410.
[IC] Cabana testimony (November 1, 2004), p. 3503.
[IC] Callaghan testimony (November 3, 2004), p. 3912.
[IC] Corcoran testimony (November 10, 2005), p. 4747 and [IC] (November 16, 2004), p. 5198.
[IC] Cabana testimony (October 26, 2004), pp. 2637–2639.
Callaghan notes vol 1, pp. 71–72; [IC] Callaghan testimony (November 3, 2004),
pp. 3909–3910.
[IC] Callaghan testimony (November 3, 2004), pp. 3910–3912.
[IC] Cabana testimony (November 1, 2004), pp. 3501–3502.
Ministerial Direction National Security Investigations in Sensitive Sectors. Exhibit P-12,
Tab 24, p. 9, para B.
Ibid., p.10, para. D.
[IC] Cabana testimony (November 1, 2004), pp. 3507–3508.
Ibid., pp. 3509–3510.
Exhibit C-30, Tab 106, pp. 16–17 and 19–20.
Ibid., p. 19.
[P] Loeppky testimony (July 6, 2004), p. 1242.
[P] Khan testimony (June 9, 2005), pp. 6209–6210.
Bias-free policing is defined by the RCMP as “any police action that is not based on race, nationality or ethnic origin, colour, religion, sex or sexual orientation, marital status, age, mental or physical disability. Rather, the police action is based on behaviour or information that
leads the police to a conclusion that a particular individual, group or organization is, has been
or may be engaged in unlawful activity.” RCMP: Cultural Diversity Training. Exhibit P-130,
Tab B, Appendix B.
Exhibit P-130.
Ibid., Tab B, Appendix B.
Exhibit P-130, Tab J.
Exhibit C-143. The operational review was ordered by Richard Proulx, Assistant Commissioner,
Criminal Intelligence Division (CID), carried out by Chief Superintendent Dan Killam, Director
General National Security, CID, and completed on December 30, 2003.
R.S.C. 1985, c. R-10, as amended (the RCMP Act).
Ibid., c. C-23, as amended (the CSIS Act).
555
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FACTUAL BACKGROUND: VOLUME II
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Subsection 45.29 of the RCMP Act establishes the Royal Canadian Mounted Police Public
Complaints Commission. Subsection 45.35(1) provides that any member of the public having
a complaint concerning the conduct, in the performance of any duty or function under the
RCMP Act or the Witness Protection Program Act, of any member or other person appointed
or employed under the authority of the RCMP Act may make a complaint, whether or not that
member of the public is affected by the subject matter of the complaint. Subsection 45.37 provides for a complaint mechanism instituted by the Commission Chairman, where the Chair is
satisfied that there are reasonable grounds to investigate the conduct of any member or other
person appointed or employed under the authority of the RCMP Act in the performance of any
duty or function under the Act.
RCMP Act, ss. 45.36(1), (2), (3).
This is not the exact language of the RCMP Act. See ss. 45.36 (5)(a), (b), (c).
For complaints by members of the public, see the RCMP Act, ss. 45.36(4); for complaints by
the Chair of the CPC, ss. 45.37(4); for the RCMP Commissioner’s rule-making power, ss. 45.38.
RCMP Act, ss. 45.4.
There is one exception: if the Chair of the CPC is the complainant, and subsequent to the
RCMP’s investigation, the Chair decides to refer the complaint to the CPC, the Commissioner
must furnish the Chair with “…such other materials under the control of the Force that are relevant to the complaint.” RCMP Act, ss. 45.41(2)(b).
Ibid., ss. 45.41(1).
Ibid., ss. 45.42(2). The Chair must prepare and send a report to that effect to the Minister, the
Commissioner, the person whose conduct is the subject matter of the complaint, and the
complainant.
Ibid., ss. 45.42(3).
The complaints are reproduced in the Garvie Report, Exhibit C-87, P-19, pp. 2–3 (Garvie
Report). The Heafey complaint is identified as File No: PC-2003-1803; the CCLA complaint is
File No: PC-2003-2049; and the Garvie Report is RCMP File # 2003A-5075 (Garvie Report,
p. 1).
See News Release: “Commission for Public Complaints against the RCMP Initiates Complaint
into RCMP Conduct in Relation to the Deportation and Detention of Mr. Maher Arar. (October
23, 2004). Exhibit P-14, Tab 9.
Exhibit C-87, pp. 3–4.
Exhibit C-79, Project A-O Canada SITREP 2004-01-12 to 2004-02-18, authored by P. Callaghan
and approved by K. Corcoran. Exhibit C-206, DFAIT e-mail.
Garvie Report, p. 54.
Chief Superintendent Garvie conducted 22 separate RCMP interviews from December 16, 2003
through February 13, 2004. It was on January 28, 2003, that the Deputy Prime Minister announced the government’s intention to undertake a public inquiry under the Inquiries Act. The
Garvie interview transcripts are Exhibit C-98; the public version is Exhibit P-83, Tab 3.
Garvie Report, pp. 54 and 58–60.
Chief Superintendent Garvie met with Donna Blois, counsel for DFAIT, on December 22, 2003.
Garvie Report, pp. 62–64.
Chief Superintendent Garvie met with Mr. Arar’s then-lawyer, James Lockyer, on December
15, 2003, and gave him proposed interview questions for Mr. Arar. Ibid., pp. 61–62.
Ibid., p. 54.
Ibid.
Ibid.
Exhibit C-79: Project A-O Canada SITREP 2004-02-12 to 2004-02-18.
Garvie Report, p. 67.
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Ibid., Conclusions 1 and 2.
Ibid., Conclusions 3, 4 and 6.
Ibid., Conclusion 7.
Ibid., Conclusions 8 and 9.
Ibid., Conclusion 10.
Ibid., Conclusion 12.
Ibid., Conclusion 11.
Ibid., Conclusion 14.
Ibid., Conclusion 31.
Ibid., Conclusion 32.
Ibid., Conclusion 33.
Ibid., Conclusion 23.
Ibid., Conclusion 25.
Ibid., Conclusion 26.
Exhibit C-143. Killam Operational Review (8 pages).
Garvie Report, Conclusions 34, 35, 36, 37, 38 and 39.
Ibid., p. 74.
Ibid., p. 75.
Exhibit C-79. Project A-O Canada SITREP 2004-01-12 to 2004-02-18, authored by
P. Callaghan and approved by K. Corcoran.
As required by the RCMP Act, ss. 45.4.
Final version is Exhibit P-15 (Clément letter); an earlier draft version is P-14, Tab 10.
Clément letter, p. 2.
Ibid., p. 5.
Ibid., p. 6.
Members of the House of Commons and the Senate are ineligible. Prior to any appointment,
the Prime Minister must consult with the Leader of the Opposition in the House of Commons,
as well as the leader of each party having at least twelve members in the House of Commons.
CSIS Act, ss. 34(1).
CSIS Act, ss. 38(a), (b), (c).
CSIS Act, ss. 39; Exhibit C-003. SIRC, “The Role of CSIS in the Matter of Maher Arar,” (SIRC
Study 2003-06), May 19, 2004, p. 2 (SIRC Report).
CSIS Act, ss. 54. See also ss. 40.
SIRC Report, pp. 1 and 11.
Ibid., p. ii.
Ibid., p. ii.
Ibid., p. 2.
[IC] Hooper testimony (September 23, 2004), pp. 1753–1754.
SIRC Report, p. vii. Finding #1.
Ibid., Finding #4.
Ibid., Finding #5.
Ibid., Finding #6.
Ibid., Finding #7.
Ibid., Finding #9.
Ibid., Finding #11.
Ibid., Finding #13.
Ibid., p. ix; Finding #14.
Ibid., pp. x–xi.
Ibid. This is not the exact wording of the recommendations in the SIRC Report.
557
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FACTUAL BACKGROUND: VOLUME II
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In Camera Closing Submissions of the Attorney General of Canada, Tab 2, para. 75, p. 16.
(Attorney General)
Ibid., para. 92, p. 19.
�ANNEXES
ANNEX 1
Summary of Information on Mr. Arar
Provided to American Authorities
Prior to September 26, 2002
Border Lookouts
•
On October 31, 2001, Project A-O Canada sent a request to U.S. Customs
asking that individuals, including Mr. Arar and his wife, be included as lookouts in the TECS system. The request described the individuals as a “group
of Islamic Extremist individuals suspected of being linked to [the] Al Qaeda
terrorist movement.”1
November 2, 2001 Request for Information from the FBI
•
On November 2, 2001, Project A-O Canada wrote to the FBI to request information on Mr. Arar. In doing so, they related the following information
about Mr. Arar:
1)
2)
3)
4)
5)
1
He had listed Mr. Almalki as his emergency contact on his rental
application.
He was a “close associate” of Mr. Almalki.
He had recently met with Mr. Almalki [presumably the Mango’s Café
meeting].
He was believed to be residing in the United States.
Biographical data on Mr. Arar, including birthdate, date of arrival in
Canada, American social security number, addresses and employment
in the United States, and education.
It is possible, but not certain, that the lookout request was provided by U.S. Customs to the FBI
at the time it was sent. In any event, Project A-O Canada provided it in April 2002, when it gave
the entire Supertext database to the American agencies.
559
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FACTUAL BACKGROUND: VOLUME II
February 2002 Meeting and Transfer of Hard Drives
•
Staff Sergeant Corcoran was certain that Project A-O Canada transferred
copies of the hard drives seized during the January 22, 2002 searches to
American agencies by February 8, 2002.2
February 2002 FBI Visit
•
The FBI sought and received access to Project A-O Canada files during this
three- to four-day visit, and spent three days engaged in a rigorous review
of Project A-O Canada information. During this time, two FBI agents reviewed two binders of information on Mr. Arar. The binders contained the
following information:3
1)
The rental application and lease that may have been shown to Mr. Arar
when he was detained in the United States.
2) A profile of Mr. Arar.
3) A photo of Mr. Arar and his home.
4) Immigration photos of Mr. Arar and his wife.
5) Police reports, i.e., complaints made by Mr. Arar to the police
department.
6) Past employment information.
7) NSIS inquiries on Mr. Arar.
8) A surveillance report from October 12, 2001.
9) The Canada Customs lookout on Mr. Arar, Dr. Mazigh and Mr. Arar’s
vehicle.
10) Other investigative materials on or related to Mr. Arar.
•
Shortly after the visit, on February 25, 2002, Corporal Lemay requested that
the FBI conduct inquiries about Mr. Arar’s travels between January 5 and
January 19, 2000.
2
Corcoran testimony (November 10, 2004), p. 4755. In any event, Inspector Cabana’s notes reflect that, by February 21, 2002, American agencies had the hard-drive information in their possession. Cabana testimony (January 18, 2005), p. 9095.
3
Although the FBI was free to copy the binders if they had asked, it does not appear they did
so.
�ANNEXES
The Supertext Database
•
The government estimates that the three CDs of Supertext material transferred to the American agencies contained a total of 3,737 files, 120 of
which were identified as relating to Mr. Arar.4 All told, on receipt of the
CDs, the Americans had access to practically all of the material that Project
A-O Canada had accumulated on Mr. Arar up to that point.
•
The CDs contained the following information on Mr. Arar:
1)
2)
3)
4)
5)
6)
Detailed biographical material, including Mr. Arar’s immigrant visa and
record of landing, client history and request for record of landing.
Canada Customs and Revenue Agency materials, including the material obtained from the November 29, 2001 and December 20, 2001
secondary examinations of Mr. Arar at the Canadian border.
The Project A-O Canada letter to U.S. Customs, dated October 31,
2001, requesting TECS checks and lookouts on Mr. Arar, Dr. Mazigh
and others (the request that described Mr. Arar, Dr. Mazigh and the
others as a “group of Islamic Extremist individuals suspected of being
linked to the al-Qaeda terrorist movement”).
Various Project A-O Canada and Project O Canada materials, including chronologies, an information request to the FBI, situation reports,
faxes, investigative plans mentioning Mr. Arar, analytical material, operational plans, interview notes, surveillance reports, CPIC person
queries, photos, and investigators’ notes.
Faxes, business materials, address books, phone lists, and an agenda.
Several references to Mr. Arar as a “suspect,” “principal subject,” target
or important figure.5
4
Exhibit C-85.
5
The following are examples of such references:
1) A document providing an explanation for the missed Customs lookout on Mr. Arar upon his
return from Tunisia after the January 22, 2002 searches refers to Mr. Arar as a “suspect.”
Exhibit C-86, Vol. III, Tab 4.
2) Another document refers to Mr. Arar as a “Principal Subject” of the investigation.
Exhibit C-86, Vol. I, Tab 41.
3) A Project A-O Canada situation report for October 23, 2001 refers to Mr. Almalki’s connection to Mr. Arar as “important.” Exhibit C-86, Vol. I, Tab 43.
4) An analytical diagram entitled “Bin Laden’s associates: al-Qaeda Organization in Ottawa”
has Mr. Almalki at its centre, and Mr. Arar directly linked to him. Exhibit C-86, Vol. II, Tab 4.
561
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FACTUAL BACKGROUND: VOLUME II
7)
8)
9)
10)
11)
12)
13)
Information that Mr. Almalki was listed as Mr. Arar’s emergency contact on a “lease” dated December 27, 1998 (the actual Minto rental application and lease were not on the CDs).
Information that Mr. Arar applied for a gun permit in 1992 (which
Corporal Lemay referred to as a “strange thing”).
Speculation (to be confirmed by Project A-O Canada) that Mr. Arar
might be President of The MathWorks, Inc. (which turned out to be
incorrect).
The erroneous notes taken by RCMP officers during the interview of
Youssef Almalki on January 22, 2002, indicating that Youssef Almalki
said that Mr. Arar had a business relationship with Mr. Almalki, but he
did not know the details. (Youssef Almalki actually said that he was
“not sure” if his brother had a business relationship with Mr. Arar.)
A situation report from “O” Division mentioning the Mango’s Café
meeting, but erroneously stating that Mr. Arar travelled from Quebec
to meet Mr. Almalki. (Mr. Arar was living in Ottawa at the time.)
Information on Project A-O Canada’s failed attempt to interview
Mr. Arar on January 22, 2002 (although not the details of negotiations
with Mr. Arar’s lawyer about an interview after the fact).
An analysis of the names found on Mr. Arar’s personal digital assistant
(PDA) seized by Customs on December 20, 2001, in which the analyst speculated that some of the people whose names were found on
the PDA might have links to extremist activity.
April and May 2002 Questions and Meetings
•
On April 1, 2002, Corporal Lemay prepared and sent questions to the FBI.
His list included a request for all information on Mr. Arar’s residence in
Massachussetts, and his MathWorks, Inc. workplace. This was a follow-up
request to Corporal Buffam’s unanswered request of November 2, 2001.
•
On April 18, 2002, Project A-O Canada met with the FBI in Ottawa and
made a number of further requests for information on Mr. Arar’s activities
while in the United States, and the possibility of other communications with
Mr. Almalki.
•
On May 22, 2002, Corporal Lemay sent a letter to the FBI in Ottawa, in
which he again lists information about Mr. Arar (business and work
addresses, information on Mr. Arar’s company – SimComm Inc.), and
requested material on Mr. Arar and others, including his “green card.”
�ANNEXES
Project A-O Canada Presentations to the Americans
•
Project A-O Canada’s presentation to the American agencies and the U.S.
Department of Justice on May 31, 2002 stated the following about Mr. Arar.
1)
2)
3)
4)
5)
6)
He was a “business associate of Abdullah Al Malki.”
The lease agreement for Mr. Arar’s Ottawa residence listed Abdullah
Almalki as a reference (in fact, it was a lease application, and
Mr. Almalki was his emergency contact).
He had travelled extensively to the United States.
He was a contract employee of The MathWorks, Inc. in Boston.
He had refused an interview request (which was incorrect — Mr. Arar’s
lawyer had attached conditions to an interview).
Mr. Arar, along with Nazih Almalki and two other individuals, might be
part of an investigative hearing under Bill C-36 (a hearing limited to
people who might be witnesses).
June 2002 Questions to the Americans
•
On June 26, 2002, Chief Superintendent Couture addressed a letter to the
U.S. Embassy, on behalf of Project A-O Canada, in which he set out several outstanding requests for information. He relayed the RCMP’s belief that
further communications existed, but had yet to be found, and stated that the
“… information [was] significant as the role of ARAR [had] yet to be firmly
established.”6
Arar’s Departure for Tunisia
•
6
On July 15, 2002, Project A-O Canada informed the Americans of Mr. Arar’s
earlier departure for Tunisia, and discussed the possible reason for his departure, including whether it was as a result of the investigation, or had
already been planned.
Exhibit C-30, Tab 185.
563
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FACTUAL BACKGROUND: VOLUME II
ANNEX 2
Public Sources of Information on Syria’s
Human Rights Reputation
1.
OVERVIEW
This Annex summarizes the information on Syria’s human rights record contained in the U.S. State Department Country Reports on Human Rights Practices
and Amnesty International annual reports at the time of Maher Arar’s detention.
It highlights the following points, because they frame Mr. Arar’s experience while
in detention in Syria and his claims of torture and ill-treatment after his return:
•
•
•
•
•
•
The role of security services in Syria, especially the Syrian Military
Intelligence (SMI), which was Canadian officials’ main contact in Damascus
for the Arar case;
The significance of the Muslim Brotherhood in light of the Syrians’ allegations that Mr. Arar was affiliated with this organization;
The practice of arbitrary arrests and incommunicado detentions. Mr. Arar
was arrested without charges and held incommunicado when he first arrived in Syria;
Prison conditions, especially at the Palestine Branch where Mr. Arar said he
was detained while in Syria;
The use of torture to coerce confessions and whether this tactic was used
on dual citizens. Mr. Arar, a Canadian-Syrian citizen, claims he was tortured
while detained in Syria and that, as a result, he gave a false confession
about attending a training camp in Afghanistan; and
Prosecutions before the Supreme State Security Court. Canadian officials
learned that Mr. Arar’s trial would take place before this court.
�ANNEXES
2.
U.S. STATE DEPARTMENT COUNTRY REPORTS ON HUMAN
RIGHTS PRACTICES IN SYRIA1
The U.S. State Department produces annual Country Reports on Human Rights
Practices that are prepared and released by the Bureau of Democracy, Human
Rights, and Labor. In addition, region-specific bureaus at the U.S. State
Department prepare Background Notes for countries, describing the geography,
government, economy, history and political conditions. These reports are accessible on the U.S. State Department website. Canadian officials often incorporated the U.S. State Department reports when assessing Syria’s human rights
situation.
2.1
GOVERNMENT AND POLITICAL CONDITIONS IN SYRIA
Putting Syria’s human rights record in context warrants a brief background of the
country’s government and political conditions. The following comes from the
U.S. State Department reports.
Syria has been a republic under the Arab Socialist Ba’ath Party regime since
March 1963. The U.S. State Department describes Syria as a military regime with
virtually absolute authority in the hands of the President.2 The President and his
senior aides, particularly those in the military and security services, make key decisions with a limited degree of public accountability.3 Security services play a
powerful role in the Syrian government in light of the state of emergency and
martial law that has been in place since 1963 that allows them to operate outside the legal system.4 In 2002 and 2003, the security services continued to be
responsible for human rights violations, including torture.5
The government considers militant Islam a threat and closely follows its adherents.6 In the late 1970s, the government was seriously challenged by
1
Exhibit P-27 is the U.S. State Department Human Rights Report for 2002, released March 31,
2003. Exhibit P-28 is the U.S. State Department Human Rights Report for 2003, released February
24, 2004.
2
Exhibit P-27, p. 1, Exhibit. P-28, p. 1. Syria’s current president is Bashar al-Assad, the son of Hafez
al-Assad, who held presidency in Syria from 1970 until his death in 2000. Bashar al-Assad was
elected as president on July 10, 2000, and has held this position to the present.
3
Exhibit P-26, pp. 6 and 10.
4
Exhibit P-27, p. 1; Exhibit P-28, p. 1. Syria justifies martial law by the state of war that continues to exist with Israel and by continuing threats posed by terrorist groups.
5
Exhibit P-26, p. 6; Exhibit P-27, p. 1.
6
Exhibit P-27, p. 9; Exhibit P-28, p. 7.
565
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FACTUAL BACKGROUND: VOLUME II
fundamentalist Sunni Muslims, who rejected the secular Ba’ath program and
rule by the minority Alawis,7 whom they considered heretical. The Muslim
Brotherhood led an armed insurgency against the regime from 1976 to 1982.8
The government crushed this opposition, leaving many thousands dead and
wounded9 and arresting many as political prisoners.10 In 1999 and 2000, there
were large-scale arrests, and torture in some cases, of Syrian and Palestinian
Islamists affiliated with the Muslim Brotherhood and the Islamic Salvation Party.11
The Inquiry heard expert testimony that even after the Muslim Brotherhood
was brutally repressed in 1982, the current Syrian regime has continued to view
the organization as the principal source of opposition, on an underground basis
inside Syria and in exile outside of Syria.12 Although Syria would view al-Qaeda
as a threat to its internal security, al-Qaeda has never explicitly targeted the
Syrian regime for attack or overthrow in the way it has targeted other regimes
in the Arab world, and it would not be seen as the principal threat to Syria’s internal security.13
This Inquiry also heard expert testimony about Syria’s co-operative relationship with the United States — and in particular the CIA — in the “war on
terror.” Flynt Leverett was called by Ambassador Pillarella and Leo Martel as an
expert witness on Syrian politics from 1963 to the present and on U.S.-Syrian relations. He testified that in the weeks following 9/11, the Syrians approached the
United States and offered to share intelligence that Syrian security services had
collected on various Sunni extremist groups with links to al-Qaeda. The Syrian
motive for doing this was to prove itself to be a useful partner to the United
States in conducting its “war on terror,” which would deflect pressure that might
otherwise come from the United States on matters of bilateral concern.14 As a result of the Syrians’ offer of intelligence, the United States opened an intelligencesharing relationship between the CIA and the Syrian Military Intelligence (SMI).
7
Sunni Muslims constitute the majority of Syria’s population (74 percent). While government policy officially disavows sectarianism of any kind, in the case of Alawis, religious affiliation can
facilitate access to influential and sensitive posts. Members of the President’s Alawi sect hold a
predominant position in the security services and military, well out of proportion to their percentage of the population, estimated at 12 percent.
8
Exhibit P-26, p. 4.
9
Ibid.
10
Exhibit P-27, p. 4; Exhibit P-28, p. 4.
11
Exhibit P-27, p. 9.
12
[P] Leverett testimony (November 9, 2005), pp. 12243–12244.
13
Ibid., pp. 12242–12243.
14
Ibid., p. 12236.
�ANNEXES
CIA officials would travel to Damascus to meet with General Khalil and other
officials of the SMI, and would receive information from the Syrians about
various Sunni extremist groups.15 In matters relating to internal security,
General Khalil was more important than Foreign Minister Shara’a.16 This intelligence-sharing channel ran from the end of 2001 to the eve of the Iraq war in
early 2003.17
2.2
SYRIA’S HUMAN RIGHTS PRACTICES
The 2002 and 2003 U.S. State Department Country Reports on Human Rights
Practices found that the Syrian government’s human rights record remained
poor. The reports also describe continuing serious abuses, including “the use of
torture in detention; poor prison conditions; arbitrary arrest and detention; prolonged detention without trial; fundamentally unfair trials in the security courts;
and infringement on privacy rights.”18 Both the 2002 and 2003 reports state that
incommunicado detentions occurred.19
According to the U.S. State Department, there was credible evidence that security forces continued to use torture in 2002 and 2003. Torture was most likely
to occur while detainees were being held at one of the many detention centres
run by the various security services throughout the country, especially while authorities were attempting to extract a confession or information. Reported torture methods included administering electrical shocks; pulling out fingernails;
forcing objects into the rectum; beating, sometimes while the victim was suspended from the ceiling; hyper-extending the spine; bending the detainees into
the frame of a wheel and whipping exposed body parts; and using a chair that
bends backwards to asphyxiate the victim or fracture the victim’s spine.20 In the
2003 report, a foreign citizen with dual Syrian nationality reported that he had
been tortured while in prison.21
Where the State’s case against a detainee was based on a confession, the
defendant was not allowed to argue in court that the confession was coerced.
15
Ibid., p. 12237. Mr. Leverett did not know if the CIA also gave the SMI intelligence.
16
[P] Leverett testimony (November 10, 2005), p. 12493.
17
[P] Leverett testimony (November 9, 2005), p. 12237.
18
Exhibit P-28, p. 1; Exhibit P-27, p. 1.
19
Exhibit P-27, p. 2; Exhibit. P-28, p. 2.
20
Ibid.
21
Exhibit P-27, p. 2.
567
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FACTUAL BACKGROUND: VOLUME II
There was no known instance in which a court ordered a medical examination
for a defendant who claimed that he had been tortured.22
The Syrian government has denied that it uses torture and claims that it
would prosecute anyone believed guilty of using excessive force or physical
abuse.23
2.3
PRISON CONDITIONS AND THE JUSTICE SYSTEM IN SYRIA
The U.S. State Department described prison conditions as poor and below international standards for health and sanitation. Pre-trial detainees, particularly
those held for political or security reasons, were usually held separately from
convicted prisoners.24 Facilities for political or national security prisoners were
generally worse than those for common criminals. The government did not permit independent monitoring of prison or detention centre conditions, although
diplomatic or consular officials were granted access in some cases.25
Other key findings included significant problems in arbitrary arrest and detention as authorized by the Emergency Law in Syria. In cases involving political or national security offences, suspects could be detained incommunicado
for prolonged periods without charge, trial or access to a lawyer. There have
been reliable reports in the past that the government did not notify foreign governments when their citizens were arrested or detained.26
Syria’s Constitution provides for an independent judiciary; however, the
U.S. State Department reported that security courts were subject to political influence.27 It also notes that the security court that tries political and national security cases — the Supreme State Security Court (SSSC) — operates under the
state of emergency and not ordinary law, and did not observe constitutional
provisions safeguarding the rights of the accused. For example, under SSSC procedures, defendants are not present at the preliminary or investigative phase of
the trial during which the prosecutor presents evidence; trials are usually closed
to the public; and lawyers are not ensured access to their clients before the trial
and are excluded from the court during their client’s initial interrogation by the
prosecutor.
22
Ibid., p. 5; Exhibit P-28, pp. 2 and 4.
23
Ibid., p. 2; Ibid., p. 9.
24
Ibid, p. 2.; Ibid., p. 2.
25
Ibid., pp. 2–3; Ibid.
26
Ibid., p. 3; Ibid., pp. 2–3.
27
Ibid., p. 1; Ibid., p. 1.
�ANNEXES
3.
AMNESTY INTERNATIONAL REPORT 2002
Amnesty International (AI) produces annual reports on human rights practices
in several countries. The reports are accessible on AI’s website. Canadian officials often relied on AI’s reports when assessing Syria’s human rights situation.
In 2002, AI reported that torture and ill-treatment continued to be used routinely against political prisoners in Syria, especially during incommunicado detention at the Palestine Branch and Military Interrogation Branch detention
centres. No investigations were known to have been carried out into recent or
past allegations of torture.28
Mr. Arar has publicly stated that he was detained in the Palestine Branch,
which makes references in AI’s report to this detention centre relevant. The report describes the treatment of a family who was held incommunicado at the
Palestine Branch based on allegations that the father was involved with unauthorized Islamist groups. The father was reportedly tortured in a metal chair
with moving parts that stretches the spine and causes severe pressure on the
neck and legs; given electric shocks; and beaten with cables while held in solitary confinement. The two daughters, also confined at the Palestine Branch,
were severely beaten and ill-treated.
Amnesty International also reported that procedures before the courts in
Syria fell short of international fair trial standards and frequently noted unfair trials before the Supreme State Security Court.
When AI was preparing its 2002 report on Syria, Syrian authorities ignored repeated requests from the organization to visit the country to speak with officials
and carry out research.29 The Syrian government last met with Amnesty
International in 1997.30
28
Exhibit P-29, pp. 1–2. The report covered the period of January to December 2001.
29
Ibid., p. 3.
30
Exhibit P-27, p. 11; Exhibit P-28, p. 9.
569
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FACTUAL BACKGROUND: VOLUME II
ANNEX 3
The Department of Foreign Affairs and
Canadians Detained Abroad
1.
OVERVIEW OF THE DEPARTMENT
The Department of Foreign Affairs has evolved over the years from a small
Canadian presence in the 1950s through expansion in the 1970s to the present
global network of about 174 posts abroad. Most of the staff of Canadian missions
abroad are hired locally and Canadians are clearly the minority.1
Until December 12, 2003, the Department of Foreign Affairs included international trade. On that day, the trade function in the Department was separated from the rest of Foreign Affairs. As a result, the Department was renamed
Foreign Affairs Canada (FAC) instead of the Department of Foreign Affairs and
International Trade (DFAIT).2
DFAIT’s mandate as outlined in the Department of Foreign Affairs and
International Trade Act is to advance and protect the interests and values of
Canada and Canadians in Canada’s foreign policy. These interests must be managed in an increasingly complex world.3 In exercising the powers and carrying
out the duties and functions of the Minister of Foreign Affairs, the Act states that
the incumbent shall:
•
•
Coordinate the direction given by the Government of Canada to the heads
of Canada’s diplomatic and consular missions; and
Have the management of Canada’s diplomatic and consular missions.4
The Minister of DFAIT during Mr. Arar’s incarceration in the U.S. and Syria
was the Hon. Bill Graham. The Minister was assisted by the chief public servant
1
[IC] Livermore testimony (March 7, 2005), p. 12124.
2
During the relevant period of Mr. Arar’s detention in the U.S. and Syria and subsequent release
in October 2003, the full name of the Department of Foreign Affairs in the Government of
Canada was the Department of Foreign Affairs and International Trade (DFAIT). Therefore, the
acronym used in this report for Foreign Affairs Canada is DFAIT.
3
[IC] Livermore testimony (March 7, 2005), pp. 12117–12118.
4
Department of Foreign Affairs and International Trade Act, section 10(2); Exhibit P-11, Tab 7.
�ANNEXES
in the Department, the Deputy Minister of Foreign Affairs (USS)5, Gaetan Lavertu,
and the Associate Deputy Minister (DMA), Paul Thibault.6 In addition, DFAIT has
a number of branches, each headed by an assistant deputy minister.
Apart from the administrative branches, there are two types of branches
within DFAIT: the geographic branches and the functional branches.7 The geographic branches mange the bilateral relations of Canada with the rest of the
world and include Africa and the Middle East, the Americas, Asia–Pacific and
Europe. The Assistant Deputy Minister for the Africa and Middle East Branch
was John McNee (MJM). The functional branches deal with specific issues such
as arms control, human security and land mines. The key functional branches
relevant to this inquiry are the Global and Security Policy Branch and the
Corporate Services, Passport, and Consular Affairs Branch. During the relevant
time period, the Assistant Deputy Minister for the Global and Security Policy
Branch was James Wright (MJW) and the Assistant Deputy Minister for the
Corporate Services, Passport, and Consular Affairs Branch was Kathryn
McCallion (MKM).
Each branch has a number of bureaus headed by a director general.8 For
example, the Security and Intelligence Bureau under the Global and Security
Policy Branch was led by Dan Livermore, Director General (ISD). The Consular
Affairs Bureau falls under the Corporate Services, Passport, and Consular Affairs
Branch and was led by Gar Pardy and later by Konrad Sigurdson, Director
General (JPD).
Finally, each bureau may have several divisions, each headed by a director. Most work is signed off at the division level, with the director of a division
as the principal signing authority. A more detailed discussion of the work of the
bureaus and divisions follows.
In summary, the following DFAIT agencies were involved in Mr. Arar’s case
in some way: Consular Affairs Bureau, Security and Intelligence Bureau, Middle
East Division, Legal Bureau, and U.S. Bureau.9
5
DFAIT has a detailed system of acronyms that refer to departmental structures and positions,
avoiding recourse to long titles. These acronyms are noted throughout the report.
6
[IC] Livermore testimony (March 7, 2005), p. 12118.
7
Ibid., pp. 12119–12120; Exhibit P-11, Tab 2.
8
Ibid., p. 12119, Exhibit P-24.
9
Ibid., pp. 12187–12188.
571
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FACTUAL BACKGROUND: VOLUME II
2.
RELEVANT POLICIES FOR CANADIANS DETAINED ABROAD
Consular officials working in missions abroad have access to the Manual of
Consular Instructions, which provides guidance on the provision of consular
services. The cases facing consular officials vary widely. Therefore, in dealing
with each case, the guidelines in the Manual must be supplemented by the discretion, good judgment and past experience of the officials concerned and,
where necessary, the input of DFAIT Headquarters.10
Legal problems of a criminal or civil nature often arise in consular matters.
However, consular officials cannot give legal advice on Canadian or foreign
laws. They are limited to assisting Canadian nationals in finding legal
representation.11 In criminal matters, consular officials are to advise Canadians
charged with a criminal offence of their right to consult a lawyer; arrange for
family or friends of the accused to be informed so that they may have an
opportunity to provide financial assistance; and inform the accused if free legal
aid is available.12
In general, consular officials are called on to offer protection and assistance
to Canadians abroad. As stated in the Manual, the principles underlying their
protection responsibilities are as follows:
A prime function of Canadian missions is to protect the lives, rights, interests, and
property of Canadian citizens … when these are endangered or ignored in the territory of a foreign state. The basis of protection is a compromise between two conflicting principles … the territorial sovereignty of states, and the personal jurisdiction
of states … over all persons who are its nationals, wherever they may be.13
The Manual directs consular officials to treat requests for protection (and assistance), even if ostensibly unreasonable, with courtesy, tact and good judgment. This includes offering information and advice within their competence
and authority; avoiding commitments that the mission or DFAIT cannot fulfill;
and ensuring that the mission has adequate information on local legislation, regulations and practices which might affect the interests of Canadians.14
10
[P] Sigurdson testimony (June 23, 2004), pp. 659–660 and p. 663.
11
Manual of Consular Instructions, Chapter 1 Legal Matters, Section 1.0.1. Exhibit P-11, Tab 21.
12
Ibid., Chapter 1, Section 1.0.2.
13
Ibid., Chapter 2, Section 2.3.1.
14
Ibid., Chapter 2, Section 2.3.2.
�ANNEXES
An applicant for protection should have exhausted all local remedies before
consular officials approach local officials to resolve a problem. According to the
Manual:
The right of a consular official to intervene with local authorities on behalf of a
Canadian who appears to have been the victim of unlawful (under domestic or international law) discrimination or denial of justice is well established in international law. Consistent with Canada’s commitment to fundamental human rights,
consular officers do what they can to protect Canadians against violation of these
rights. It is a basic principle of international law that whatever a state’s treatment of
its own subjects, aliens must be accorded an international minimum standard of
treatment, including freedom from arbitrary arrest, due process in the determination
of legal rights, and respect for human rights generally. The movement for international protection of human rights has produced a number of conventions and instruments to which Canada is a party…. Violation of the standards established in
these instruments may constitute grounds for the exercise of diplomatic or consular
protection by Canada on behalf of its citizens.15
Canadians who have been arrested or detained have the right to be visited
by consular officials, if they so request. This right is supported by article 36 of
the Vienna Convention on Consular Relations (VCCR).16 Consular officials
should make contact with an arrested or detained Canadian within 24 hours of
notification of the detention.17
Consular officials are expected to report to the mission or DFAIT
Headquarters if they are refused access, or if Canadian detainees are refused
communication with them. They are also expected to impress on the local authorities the necessity of Canadian consular officials interviewing Canadians who
are arrested or detained. The interviews should preferably be in private, consistent with normal security precautions.18
As for access to persons of dual nationality who have been arrested or
detained, the Manual instructs consular officials that the VCCR is silent on
consular access when such persons are arrested or detained in the country of
their other citizenship. The right of consular officials to intervene on the dual
15
Ibid., Chapter 2, Section 2.4.1.
16
Ibid. Chapter 2, Section 2.4.4(5).
17
Exhibit P-11, Tab 20 [Schedule: Protection and Assistance p. 1 of 4]; [P] Sigurdson testimony
(June 23, 2004), pp. 674–675.
18
Manual of Consular Instructions, Chapter 2, Protection and Assistance, Section 2.4.4(5). Exhibit
P-11, Tab 22.
573
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FACTUAL BACKGROUND: VOLUME II
national’s behalf is limited and may require consultation with DFAIT
Headquarters.19
Incarcerated Canadians can also receive consular services.20 A detailed description of DFAIT’s guidelines on the provision of consular services to incarcerated Canadians is laid out in an appendix to the Manual.21
Some of the assistance that consular officials provide to prisoners includes:
•
•
•
Visiting or maintaining contact with the prisoner, although the frequency
will depend on the location of the prison, the conditions in the prison, the
number of Canadians incarcerated, the size of the consular staff and the
competing priorities at the Canadian mission. In countries where prison
conditions are good and communication with the outside world is easier,
visits may be made only on request;
Attempting to obtain case-related information to the extent that the prisoner cannot obtain it directly, provided the prisoner so requests; and
Providing available information on such matters as the local judicial and
prison systems, approximate time requirements for court action, typical sentences for the alleged offence, bail provisions, procedures for transferring
offenders (if applicable) and methods of transferring funds.22
Some forms of assistance that consular officials provide in liaising with local authorities during the period of incarceration includes:
•
•
•
Where appropriate, seeking immediate and regular access to the Canadian
prisoner from the time of arrest until release;
Verifying that conditions of detention are at least comparable to the best
standards applicable to nationals of the country of incarceration; and
Obtaining information about the status of the prisoner’s case and encouraging local authorities to process the case without unreasonable delay.23
19
Ibid., Chapter 2, Section 2.4.4(6).
20
Ibid., Chapter 2, Section 2.4.9.
21
See Manual of Consular Instructions, Annex D-2, A Guide to Services Provided to Canadians
Detained or Imprisoned in Foreign Countries. Exhibit P-11, Tab 22.
22
Ibid., Annex D-2, Section 4(a).
23
Ibid., Annex D-2, Section 5(a).
�ANNEXES
3.
THE ROLE OF THE AMBASSADOR
Each mission abroad is directed by a head of mission (HOM). The title of that
person is ambassador, consul-general or, in the case of Commonwealth countries, high commissioner.
The HOM is appointed to his or her position by an Order in Council, which
means that the Prime Minister and Cabinet appoint the ambassador. Under the
Foreign Affairs and International Trade Act, the HOM is responsible not only for
the activities of DFAIT, but also for the activities of other departments and agencies of the Government of Canada in his or her area of accreditation. The Foreign
Affairs and International Trade Act describes the HOM’s duties as follows:
Except as otherwise instructed by the Governor in Council, a head of mission shall
have the management and direction of his mission and its activities and the supervision of the official activities of the various departments and agencies of the
Government of Canada in the country or portion of the country or at the international organization to which he is appointed.24
The head of mission in Damascus from November 1, 2000 to September
13, 2003 was Ambassador Franco Pillarella.25 He was responsible for the conduct of bilateral relations. In principle, everything that transpired between
Canada and the host country, Syria, should have been done with the
Ambassador’s knowledge and guidance.26 The Director of ISD, Dan Livermore,
who was formerly the Canadian Ambassador to Guatemala (and concurrently to
the Republic of El Salvador) from 1996 to 1999,27 testified that in being charged
with the management and direction of the embassy in a host country, the HOM
maintains coherence in the relationship and guides its development. To do so,
the HOM relies on deep knowledge of the interests which Canada may have in
that relationship, an understanding of how the host country and society function, the networks which the embassy maintains with influential people and decision-makers, and his or her skills of persuasion and leadership.28
Liaison officers who represent the RCMP and CSIS and have many accreditations outside their country of residence are expected to report to the head of
24
Exhibit P-11, Tab 7.
25
Exhibit P-85, volume 4, Tab 125.
26
[IC] Livermore testimony (March 7, 2005), p. 12125.
27
Exhibit P-65.
28
[IC] Livermore testimony (March 7, 2005), p. 12126.
575
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FACTUAL BACKGROUND: VOLUME II
mission when visiting another post and to be guided by the HOM’s instructions
while carrying out their responsibilities for the home agency.29
The HOM is expected to exercise latitude and initiative in carrying out his
or her responsibilities. He or she is expected to know the main players in his
country of accreditation, both public and private, and to learn quickly on arriving in his host country who the real decision-makers in that country are.
The HOM is expected to play a major role in interpreting that country to
Canada, both inside and outside government. The Canadian HOM in Syria would
be expected to analyze Syria’s influence in the Middle East peace process, its attitudes towards its neighbours and its foreign policy objectives more generally,
and to explain them to the Government of Canada.
Mr. Livermore testified that the influence and leadership that the HOM can
exercise both in the country of residence and in Canada is a major factor in the
success of his or her mission.30
For management purposes, the specific objectives of a HOM are worked out
by a geographic branch at DFAIT, in consultation with the functional branches
and other government departments. In the case of Syria, the ambassador seeks
guidance and assistance from the Middle East Bureau. Other relevant branches,
bureaus or divisions also add instructions, depending on their areas of responsibility in relation to the Syrian mission.31
The Manual of Consular Instructions provides some direction on police liaison programs at missions abroad and on how any appearance of conflict of
interest with consular programs should be managed, including HOM consultation with headquarters.
… These programs should not conflict, any more than, for example, law enforcement and legal aid programs in Canada, and missions should ensure that conflict is
avoided both in reality and appearance. Potential conflicts of interest, including perceived precedence of responsibility in police liaison and consular matters, should
be adjudicated by the Head of Mission, who must weigh the merits of any case in
the context of relations with the country concerned and of the rights and interests
of the Canadian citizen involved, in consultation with Headquarters (Consular Policy
Division – JPP, Consular Operations Division – JPO, Legal Advisory Division – JLA,
Security Division – ISS).32
29
Ibid., pp. 12126–12127.
30
Ibid., pp. 12128–12129.
31
Ibid., pp. 12127–12128.
32
Exhibit P-11, Tab 22, p. 13 of 75, section 2.4.10: Police Liaison Programs.
�ANNEXES
When asked about the relationship between an ambassador and the
Consular Affairs Bureau, Ambassador Pillarella testified that he took direction on
consular cases from the Consular Bureau, which would act in consultation with
the geographic and legal bureaus. With respect to Mr. Arar, Ambassador Pillarella
was responsible for executing Mr. Pardy’s directions and for exercising his discretion with Syrian authorities.33 Similarly, Mr. Pardy testified that, particularly
when more than one interest of the Canadian government is engaged, such as
consular, law enforcement and security intelligence responsibilities, headquarters instructs the ambassador on how to proceed. If different government objectives conflict, headquarters must make a decision and issue instructions, in
consultation with the relevant political division and, if necessary, the Deputy
Minister or the Minister.34 Mr. Livermore contrasted “tactical” with “strategic”
decisions. Ambassadors are expected to manage day-to-day tactical decisions,
while Ottawa determines the strategic directions and objectives.35
The ambassador does not have discretion to make decisions that would adversely affect others, especially in a country with a poor human rights record.36
For example, the question of sharing information about a Canadian detained in
such a country with the authorities there should be referred to headquarters.
The ambassador uses his judgment before referring a matter to headquarters.
Mr. Pardy testified that in exercising that judgment, the ambassador should apply
a test of possible injury, especially when the fate of an individual is concerned.37
4.
THE ROLE OF CONSULAR OFFICIALS
The Department handles approximately 700,000 consular cases annually.
Consular officials working at missions abroad are employees of DFAIT. The
ambassadors are their direct supervisors, but they also receive day-to-day
guidance as required from the headquarters divisions concerned in DFAIT. In
2002, Mr. Martel was receiving headquarters guidance from the Middle East desk
officer in the Consular Bureau, Myra Pastyr-Lupul.38 Given the high profile of the
Arar file, Mr. Martel was also receiving guidance from Mr. Pardy.
33
[IC] Pillarella testimony (March 30, 2005), pp. 13310–13312.
34
[IC] Pardy testimony (August 4, 2005), pp. 16830–16831.
35
[P] Livermore testimony (May 17, 2005), pp. 2439–2440.
36
[IC] Pardy testimony (August 4, 2005), pp. 16931–16932.
37
[IC] Pardy testimony (August 4, 2005), pp. 16945–16948.
38
[IC] Livermore testimony (March 7, 2005), p. 12126.
577
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FACTUAL BACKGROUND: VOLUME II
Mr. Livermore testified that the consular function is considered one of
DFAIT’s core services. While it is becoming an increasingly specialized function, nearly all experienced foreign service officers in the Department have
worked on consular issues over the course of their careers, either in Canada or
at posts abroad. This is important because it means that even those outside the
Consular Bureau know how consular issues have to be managed and what
DFAIT’s obligations are.39
The role of consular officials is complicated when they provide consular
services for dual nationals in the country of these individuals’ other nationality.
While Canada offers the same range of services to all its citizens, whether or not
they have any other nationality, a variety of practical and legal issues often arise
in the countries where they hold dual citizenship. In such cases, consular officials may have to rely on the good will of that country and on personal relationships built over the years.40
Mr. Pardy describes the standard approach to detention cases as threefold:
•
•
•
to ensure the well-being of the person detained and to provide a channel
of communication with his or her family;
to help the detained Canadian receive equitable treatment; and
to have charges adjudicated as quickly as possible by an appropriate judicial body.41
The Consular Affairs Bureau does not pass judgment on the detainee’s guilt or
innocence and does not seek preferential treatment for Canadians.42 Mr. Pardy
testified that while this latter statement is legally correct, in practice, at least
while he was the Director General, Consular Affairs did seek some measure of
preferential treatment for Canadians, whether it was to expedite the laying of
charges or the timing of a trial or to improve prison conditions.43
39
Ibid., p. 12134.
40
Ibid., pp. 12134–12135.
41
Exhibit P-42, Tab 317; [P] Pardy testimony (May 25, 2005), pp. 3632–3633.
42
Ibid.; [P] Pardy testimony (May 25, 2005), p. 3633.
43
[P] Pardy testimony (May 25, 2005), pp. 3634–3635.
�ANNEXES
5.
THE ROLE OF DFAIT ISI
The Security and Intelligence Bureau has existed in DFAIT in various forms for
more than 60 years. The Bureau has two sides: security (of personnel, physical
assets and information systems) and intelligence. The intelligence division of
the Bureau is the one that is relevant to this inquiry.
The Foreign Intelligence Division (ISI) is headed by a director. During the
relevant period of this inquiry, he was Scott Heatherington. The Deputy Director
of Intelligence Policy in ISI was Jim Gould. The ISI includes a three-member policy unit that works within and outside the Department to coordinate intelligence
policy. It prepares for meetings of Cabinet on intelligence matters and it oversees the Department’s contributions to common intelligence work. This small
unit also oversees the work of 11 political officers at Canadian missions abroad,
under the aegis of the Global Security Reporting Program (GSRP). This program
was created in 2002 in the aftermath of 9/11, to create more focused reporting
from our posts abroad on terrorism, non-proliferation and similar security issues. These political officers are not intelligence operatives.44
The ISI draws on intelligence and information largely from open-source
materials, possibly privileged but not covert, and not gathered by the surreptitious means of intelligence agencies like CSIS. More specifically, this includes information from local newspapers and magazines, contacts in local communities,
and professional contacts with various ministries and agencies in the host government. One witness described this type of intelligence as “small-I intelligence,”
as distinct from “big-I intelligence,” which includes information from wiretaps,
human sources and other covert means of an intelligence agency. While ISI
works with organizations that are involved in “big-I intelligence” and part of the
Security and Intelligence Bureau’s mandate involves coordination of “big-I” materials, the mandate of DFAIT generally is concerned with “small-I intelligence”.45
ISI has one liaison officer from CSIS and one from the RCMP. They secure
information from their respective agencies and solicit information from DFAIT
on requirements from their organizations.
ISI has a three-person unit consisting of policy advisers who follow intelligence on critical international issues and provide assessments to ministers or
senior managers as needed. They focus on current intelligence, that is, fastbreaking information involving short-term judgments.46
44
[IC] Livermore testimony (March 7, 2005), pp. 12139–12141.
45
Ibid., pp. 12142–12143.
46
Ibid., pp. 12146–12147.
579
�580
FACTUAL BACKGROUND: VOLUME II
The Security and Intelligence Bureau is best described as a client service bureau. It provides support and assistance to a wide variety of other bureaus and
divisions within DFAIT. This includes receiving and distributing intelligence materials to clients and assisting clients in deciphering intelligence. In some cases,
ISD may directly help to manage files with an important intelligence dimension,
in co-operation with the relevant bureau or division.47
ISD receives intelligence from a number of sources. The key intergovernmental sources of intelligence are CSIS, DND, CSE, the RCMP, the Integrated
Threat Assessment Centre and the Privy Council. ISI has arrangements to receive intelligence from foreign sources — mainly the United States and the
United Kingdom, but also Australia, New Zealand and some other countries. At
any given time, ISD may provide support to dozens of different parts of DFAIT
involved in a range of policy issues. The Middle East peace process, elections
in Ukraine, terrorism in Southeast Asia and the tsunami in South Asia are all examples of policy areas where other bureaus or divisions have the lead but ISD
plays an important role.48
ISD plays an identical role in relation to the Consular Affairs Bureau. Often,
the Consular Bureau will receive word from a family that an individual is missing. While the consular net goes out to our embassies abroad, ISD can do a parallel search among their intelligence sources, both Canadian and foreign. In
many cases, the Consular Bureau seeks help from others in DFAIT to understand
the complexities of a given consular situation, such as why a certain individual
was detained, what the complications of his or her continued detention are,
who holds power in that country and how Canadian influence might best be
used to meet its consular obligations. In trying to assist, ISD draws on a wide
range of information and a considerable group of individuals within and beyond the Government of Canada.49 Occasionally, ISD assists with personnel,
helping directly to manage case files in the consular area or assisting with the
management of crises or other issues.
The actual number of staff who deal in “big-I” intelligence at DFAIT is small,
and they are essentially confined to ISI and ISD.50 Those who deal in small-I intelligence are far more numerous, because that is the business of almost all geographic branches in the Department.
47
Ibid., pp. 12148–12149.
48
Ibid., pp. 12149–12150.
49
Ibid., pp. 12150–12151.
50
Ibid., p. 12164.
�APPENDICES
Contents
Appendix 1
MANDATE
583
(A) Terms of Reference
583
(B) Ruling on Jurisdictional Issue
586
Appendix 2
PROCEDURE AND PRACTICE
593
(A) Rules of Procedure and Practice
593
(B) Ruling: Rules of Procedure and Practice
603
Appendix 3
STANDING AND FUNDING
607
(A) Notice of Hearings for Application for Standing
607
(B) Ruling on Standing and Funding
609
(C) Supplementary Ruling re: Funding
640
(D) Supplementary Ruling on Standing
644
(E) Excerpt of Transcript of June 29, 2005 Public Hearing
(re: Standing of Abdullah Almalki and Ahmad El Maati)
645
(F) Supplementary Ruling re: Funding
648
(G) Parties and Intervenors in Factual Inquiry
650
Appendix 4
WITNESSES AT THE PUBLIC HEARINGS
651
Appendix 5
SECTION 13 NOTICES
653
(A) Sample Section 13 Notice
653
(B) Ruling — Motions to Quash Certain s. 13 Notices
(Summary Version — August 17, 2005)
655
(C) Ruling — Motions to Quash Certain s. 13 Notices
(Detailed Redacted Version — August 17, 2005)
655
�582
FACTUAL BACKGROUND: VOLUME II
Appendix 6
EVIDENCE AND CONFIDENIALITY
669
(A) Initial Document Request Letter
669
(B) Sample Undertakings Regarding Confidentiality
673
(C) Certificate of Production of Documents
675
(D) Ruling on Confidentiality
678
(E) Ruling on a Motion to Determine Whether to Make Certain RCMP
Documents Public
707
(F) Ruling on National Security Confidentiality
710
(G) Amendment to Ruling on National Security Confidentiality
757
(H) Ruling on Summaries
758
(I) Ruling on Process and Procedural Issues
761
(J) Ruling on RCMP Testimony
772
(K) Ruling on Parliamentary Privilege
781
(L) Directions re: Closing Submissions
784
(M) Ruling on Motion to File Chronologies
785
(N) Ruling on Motion to Further Redact Written Submissions of Certain
Individuals
787
Appendix 7
REPORT OF PROFESSOR STEPHEN J. TOOPE,
FACT FINDER
789
Appendix 8
COMMISSION STAFF AND ADVISORS
820
�APPENDIX 1
Mandate
APPENDIX 1(A)
Terms of Reference
P.C. 2004-48
The Committee of the Privy Council, on the recommendation of the Solicitor
General of Canada styled Deputy Prime Minister and Minister of Public Safety
and Emergency Preparedness, advise that a Commission do issue under Part I
of the Inquiries Act and under the Great Seal of Canada appointing the
Honourable Dennis R. O’Connor, Associate Chief Justice of Ontario, as
Commissioner
(a) to investigate and report on the actions of Canadian officials in relation to
Maher Arar, including with regard to
(i)
(ii)
(iii)
(iv)
(v)
the detention of Mr. Arar in the United States,
the deportation of Mr. Arar to Syria via Jordan,
the imprisonment and treatment of Mr. Arar in Syria,
the return of Mr. Arar to Canada, and
any other circumstance directly related to Mr. Arar that the
Commissioner considers relevant to fulfilling this mandate,
in this Order referred to as the “factual inquiry”, and
(b) to make any recommendations that he considers advisable on an independent, arm’s length review mechanism for the activities of the Royal
Canadian Mounted Police with respect to national security based on
(i)
an examination of models, both domestic and international, for that
review mechanism, and
(ii) an assessment of how the review mechanism would interact with
existing review mechanisms,
�584
FACTUAL BACKGROUND: VOLUME II
in this Order referred to as the “policy review”,
and the Committee do further advise that
(c) pursuant to section 56 of the Judges Act, the Honourable Dennis R.
O’Connor be authorized to act as a Commissioner on the inquiry referred
to in paragraphs (a) and (b) (in this Order referred to as “the inquiry”);
(d) the Commissioner be directed to conduct the inquiry under the name of the
Commission of Inquiry into the Actions of Canadian Officials in Relation to
Maher Arar;
(e) the Commissioner be authorized to adopt any procedures and methods that
he may consider expedient for the proper conduct of the inquiry, and to sit
at any times and in any places in Canada that he may decide;
(f) the Commissioner be authorized to grant to any person who satisfies him
that he or she has a substantial and direct interest in the subject-matter of
the factual inquiry an opportunity during that inquiry to give evidence and
to examine or cross-examine witnesses personally or by counsel on evidence relevant to the person’s interest;
(g) the Commissioner be authorized to conduct consultations in relation to the
policy review as he sees fit;
(h) the Commissioner be authorized to recommend funding, in accordance
with approved guidelines respecting rates of remuneration and reimbursement and the assessment of accounts, to a party who has been granted
standing at the factual inquiry, to the extent of the party’s interest, where
in the Commissioner’s view the party would not otherwise be able to participate in that inquiry;
(i)
the Commissioner be authorized to rent any space and facilities that may
be required for the purposes of the inquiry, in accordance with Treasury
Board policies;
(j)
the Commissioner be authorized to engage the services of any experts and
other persons referred to in section 11 of the Inquiries Act, at rates of remuneration and reimbursement that may be approved by the Treasury
Board;
(k) the Commissioner be directed, in conducting the inquiry, to take all steps
necessary to prevent disclosure of information that, if it were disclosed to
�APPENDICES
the public, would, in the opinion of the Commissioner, be injurious to international relations, national defence or national security and, where
applicable, to conduct the proceedings in accordance with the following
procedures, namely,
(i)
on the request of the Attorney General of Canada, the Commissioner
shall receive information in camera and in the absence of any party
and their counsel if, in the opinion of the Commissioner, the disclosure
of that information would be injurious to international relations, national defence or national security,
(ii) in order to maximize disclosure to the public of relevant information,
the Commissioner may release a part or a summary of the information
received in camera and shall provide the Attorney General of Canada
with an opportunity to comment prior to its release, and
(iii) if the Commissioner is of the opinion that the release of a part or a
summary of the information received in camera would provide insufficient disclosure to the public, he may advise the Attorney General of
Canada which advice shall constitute notice under section 38.01 of the
Canada Evidence Act;
(l)
the Commissioner be directed, with respect to the preparation of any report
intended for release to the public, to take all steps necessary to prevent the
disclosure of information that, if it were disclosed to the public, would, in
the opinion of the Commissioner, be injurious to international relations, national defence or national security;
(m) nothing in this Order shall be construed as limiting the application of the
provisions of the Canada Evidence Act;
(n) the Commissioner be directed to follow established security procedures,
including the requirements of the Government Security Policy with respect
to persons engaged pursuant to section 11 of the Inquiries Act and the handling of information at all stages of the inquiry;
(o) the Commissioner be directed to perform his duties without expressing any
conclusion or recommendation regarding the civil or criminal liability of
any person or organization and to ensure that the conduct of the inquiry
does not jeopardize any ongoing criminal investigation or criminal
proceedings;
(p) the Commissioner be directed to submit a report or reports in both official
languages to the Governor in Council; and
585
�586
FACTUAL BACKGROUND: VOLUME II
(q) the Commissioner be directed to file the papers and records of the inquiry
with the Clerk of the Privy Council as soon as reasonably possible after the
conclusion of the inquiry.
APPENDIX 1(B)
Ruling on Jurisdictional Issue
Counsel for a recipient of a notice given under s. 13 of the Inquiries Act1 (the
“Applicant”) filed a motion, alleging in part that the Commission lacks jurisdiction to inquire into the actions of Canadian officials in relation to Maher Arar.
On the motion’s return date, August 9, 2005, the Commission was engaged in
in camera proceedings. Because the jurisdictional issue affected all participants
in the Factual Inquiry, I directed that submissions on this issue be made in closing argument, that they be distributed to other participants and that other participants be given an opportunity to make submissions. Consequently, in
making this ruling, I have the benefit of submissions from the Applicant and
from counsel for the Attorney General of Canada and Mr. Arar, both of whom
oppose the Applicant’s request for a declaration that the Commission is improperly constituted and that the section 13 notice issued to the Applicant is of
no force and effect.
The Applicant contended that the Inquiries Act (the “Act”) contemplates
Part I public inquiries and Part II departmental investigations, but does not contemplate a hybrid of the two. The Applicant submitted that Order in Council PC
2004-48 (the “Order in Council”) creates such a hybrid by using the phrase “to
investigate and report on” the actions of Canadian officials in relation to Mr. Arar
in regard to the matters identified in subparagraphs (a)(i) through (v). This was
said to track the language used in Part II of the Act. The Applicant contrasted
this language with that used in the orders-in-council that created the Somalia
Inquiry and the Inquiry into the Blood System. It was also argued that the
manner in which the Commission was established (on the recommendation of
the Minister of Public Safety and Emergency Preparedness), receipt of substantial
1
Section 13 of the Inquiries Act, R.S.C. 1985, c. I-11 provides as follows:
13. No report shall be made against any person until reasonable notice has been given to the
person of the charge of misconduct alleged against him and the person has been allowed full
opportunity to be heard in person or by counsel.
�APPENDICES
portions of testimony in camera and Mr. Arar’s examination by a fact finder correspond more closely with a departmental investigation under Part II of the Act
than they do to a public inquiry.
For the reasons set out below, I reject these arguments and decline to grant
the declaration sought by the Applicant.
STRUCTURE AND SCHEME OF THE INQUIRIES ACT
The Inquiries Act (long title: “An Act respecting public and departmental inquiries”) is comprised of four parts: Part I (consisting of ss. 2 through 5), which
bears the heading, “Public Inquiries”; Part II (ss. 6 through 10), “Departmental
Investigations”; Part III, “General” (ss. 11 through 13); and Part IV (s. 14),
“International Commissions and Tribunals”.
Section 2 of the Act provides that a Part I inquiry may be established “whenever the Governor in Council deems it expedient (to) cause inquiry to be made
into and concerning any matter connected with the good government of Canada
or the conduct of any part of the public business thereof.” This may be contrasted with the power to establish departmental investigations under s. 6, which
empowers the minister presiding over any federal government department to appoint a commissioner to investigate and report on the state and management of
the business of the department, either in the inside or outside service thereof,
and the conduct of any person in that service. While made by the minister pursuant to s. 6, such appointments are under the authority of the Governor
in Council.
Although it is accompanied by a heading that refers to public inquiries,
Part I does not require that an inquiry be conducted exclusively in public, nor
does it purport to abrogate confidentiality or privilege. In fact, it makes no mention of the inquiry being held in public at all. This is consistent with the flexibility that public inquiries must possess in order to be fair and efficient.
Correspondingly, Part II contains no requirement that departmental investigations be conducted in private.
Moreover, giving the Act the fair, large and liberal construction that s. 12 of
the Interpretation Act2 requires, I conclude that the circumstances in which a
Part I inquiry or a Part II investigation may be created are not mutually exclusive.
Had Parliament intended otherwise, it would have said so in clear and
unambiguous terms.
2
R.S.C. 1985, c. I-21
587
�588
FACTUAL BACKGROUND: VOLUME II
I conclude that the specific power in Part II of the Inquiries Act to “investigate and report on the state and management of the business of the department”, does not diminish the power of the Governor in Council to establish a
public inquiry under Part I to investigate and report on the actions of Canadian
officials in relation to Mr. Arar. Finally, I note that where the Executive has
more than one power to establish an inquiry, it may choose one or the
other freely.3
MANDATE CONFERRED BY ORDER IN COUNCIL PC 2004-48
I accept the Attorney General’s submission that provided that the intention of the
Governor-in-Council is readily discernible, no specific language is necessary for
an Order in Council to be valid. This submission is borne out by a comparison
of the words used in the Order in Council with those used in orders-in-council
establishing other commissions.4 I also accept that the words, “investigate and
report on” do not necessarily connote a Part II departmental investigation rather
than a Part I public inquiry.
Referring to remarks made in the House of Commons by the Minister of
Public Safety and Emergency Preparedness,5 the Applicant submitted that the fact
that I was consulted regarding the Commission’s terms of reference was significant in that it pointed to an intention to create a departmental investigation and
was, in an unspecified way, “unfair to all participants”. I disagree. In my view,
there is no significance to the fact that I reviewed the terms of reference before
Order in Council PC 2004-48 was finalized. This was done as part of a practice
that has evolved when governments ask someone to undertake the task of being
a commissioner. Adherence to this practice is not unfair, nor does it create an
appearance of unfairness.
Counsel for Mr. Arar points out that the mandate for the Commission’s factual inquiry is to “investigate and report on the actions of Canadian officials in
3
Wagstaff v. Secretary of State for Health, [2001] 1 W.L.R. 292; [2000] E.W.J. No. 4098 (Q.B.) at
para. 49.
4
For example, the operative words in the federal Order in Council establishing the Commission
of Inquiry into the Contamination of the Blood System (1993) were “review and report on”: see
P.C. 1993-1879, October 4, 1993. P.C. 1995-442, the federal Order in Council establishing the
Commission of inquiry into the Canadian Forces’ Deployment to Somalia (1995) used the words
“inquire into and report on”. The provincial Order in Council establishing what became known
as the Walkerton Inquiry (2000) used the words “inquire into”: see O.C. 1170-2000. Like the
present commission, P.C. 2004-110, the federal Order in Council creating the Commission of
Inquiry into the Sponsorship Program and Advertising Activities (2004) used the words “investigate and report on.”
5
See Commons Debates, 37th Parliament, 3rd Session, 56 (2:1420)
�APPENDICES
relation to Maher Arar” including having regard to his detention in the U.S., his
deportation to Syria via Jordan, his imprisonment and treatment in Syria, his return to Canada, and any other circumstance directly related to Mr. Arar that I
consider relevant to fulfilling this mandate. The Commission’s terms of reference
are not limited to investigating and reporting on the state and management of
the business of any particular department of the federal government, nor even
to federal government employees. A departmental investigation could not be
convened in relation to the Prime Minister’s office, the offices of ministers of the
Crown or the Privy Council Office, because these parts of the executive branch
of government are not departments. In addition, whether CSIS employees or
RCMP officers could be the subject of departmental investigations may be open
to debate. Of course, municipal and provincial police officers who were seconded to Project A-O Canada were not employees of a federal government department. Yet all are Canadian officials for the purposes of the mandate
conferred upon this Commission.
I conclude that the Commission’s terms of reference do not confine this inquiry to a departmental investigation of employees of federal government departments because such a limit would be inconsistent with the very nature of the
inquiry that I have been asked to undertake.
SIGNIFICANCE OF MINISTER’S RECOMMENDATION TO THE
GOVERNOR IN COUNCIL
In support of the submission that the establishment of this commission followed
processes expected in departmental investigations created under Part II of the
Act, the Applicant pointed to the Order in Council’s reference to “the recommendation of the Solicitor General of Canada styled Deputy Prime Minister and
Minister of Public Safety and Emergency Preparedness”. The Applicant submitted that this was consistent with creation of a departmental investigation, under
section 6 of the Act, which empowers the minister presiding over a department
of the federal public service appoint a commissioner or commissioners to investigate and report on the state and management of the department’s business.
That provision can be compared to section 2 of the Act, which provides that the
Governor in Council may cause inquiry to be made into and concerning any
matter connected with the good government of Canada or the conduct of any
part of its public business.
However, every Order in Council must be recommended by a Minister of
the Crown. Although orders-in-council establishing commissions of inquiry are
commonly issued on the Prime Minister’s recommendation, this practice is not
589
�590
FACTUAL BACKGROUND: VOLUME II
invariable.6 I conclude that the Order in Council’s reference to the recommending minister does not change the legal character of this public inquiry.
DOES RECEIVING TESTIMONY IN CAMERA CHANGE THE LEGAL
CHARACTER OF A PUBLIC INQUIRY?
The Applicant has submitted that paragraph (k) of the Order in Council is contrary to the purpose and spirit of a public inquiry set up under Part I of the Act.
Paragraph (k) requires me to take all steps necessary to prevent public disclosure of information that would, in my opinion, be injurious to international relations, national defence or national security. On the Attorney General’s request
and where in my opinion such disclosure would be injurious to international relations, national defence or national security, it compels me to receive information in camera and in the absence of any party and their counsel. This resulted
in a significant portion of the evidence being heard in camera, at least in the
first instance.
I disagree with the Applicant’s submission that paragraph (k) gives me “absolute discretion” to hear testimony in camera. It is an express direction to me
to receive information in camera in the circumstances that it describes. Because
of this requirement’s impact on the commission’s hearing process, I appointed
amicus curiae with the mandate of testing the government’s requests that evidence be heard in camera. In determining whether to receive information in
camera and in the absence of parties and their counsel, I have derived very
substantial assistance from the involvement of amicus curiae.
The Applicant’s submission leaves unanswered the question of how national security confidentiality – or, for that matter, any kind of confidentiality –
can be accommodated in a public inquiry process. My review of the Inquiries
Act discloses that in no respect does the Act purport to take precedence over
other federal statutes. It establishes no hierarchy. For that reason, it is essential that any commission’s hearing process accommodate national security confidentiality, and all forms of privilege.
The English Court of Queen’s Bench has recognized that there will be circumstances in which public inquiries will be compelled to conduct some portion of their proceedings in private:
No one doubts that there are circumstances when freedom to receive information
or freedom of expression may have to be curtailed in the public interest ... The
6
For example, the Order in Council establishing the Commission of Inquiry into the Canadian
Forces’ Deployment to Somalia was issued on the recommendation of the Minister of National
Defence: see P.C. 1995-442, March 20, 1995.
�APPENDICES
same may apply in relation to national security, medical records or disciplinary proceedings, but where these freedoms are to be curtailed the case for restriction must
be strictly proved.7
I conclude that my compliance with the requirements of paragraph (k) of the
Order in Council has not deprived this commission of its jurisdiction to inquire
into the actions of Canadian officials in relation to Mr. Arar.
DOES APPOINTMENT OF THE FACT FINDER CHANGE THE LEGAL
CHARACTER OF A PUBLIC INQUIRY?
I do not accept the Applicant’s contention that “the manner of Mr. Arar’s examination” – that is, through the fact finder appointed under my ruling of May 9,
2005 –”has corresponded with the procedure set out in … Part II of the Inquiries
Act.” In making this submission, the Applicant has referred to s. 9 of the Act,
which enables commissioners conducting departmental investigations to authorize someone to take evidence and report it to the commissioners.
Section 11 of the Act (which is in Part III, applicable to both public inquiries and departmental investigations) empowers a commissioner, whether
appointed under Part I or Part II if authorized by the commission issued in the
case, to engage the services of experts and assistants as deemed necessary, and
experts “or any other qualified persons” may “inquire into any matter within the
scope of the commission” as the commissioner may direct.8 Paragraph (j) of the
Order in Council provides that “the Commissioner be authorized to engage the
services of any experts and other persons referred to in section 11 of the
Inquiries Act …”
In addition, paragraph (e) empowers me to adopt any procedures and
methods that I consider expedient for the proper conduct of the inquiry. The
flexibility provided by that paragraph is consistent with the Supreme Court of
Canada’s description of commissions of inquiry as “unconnected to normal legal
criteria” and based upon and flowing from “a procedure which is not bound by
the evidentiary or procedural rules of a courtroom”.9
I have stressed that any decision as to whether Mr. Arar will testify before
the Commission and be subject to cross-examination has been deferred until release of the interim report.10
7
Wagstaff, supra, note 3 at para. 99
8
Ss. 11(2).
9
Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System in Canada
– Krever Commission), [1997] 3 S.C.R. 440 at para. 34
10
Ruling on Process and Procedural Issues, May 9, 2005, p. 2
591
�592
FACTUAL BACKGROUND: VOLUME II
I conclude that appointment of the fact finder to examine Mr. Arar is authorized by s. 11 of the Inquiries Act and the terms of reference for this commission, and does not change the legal character of this inquiry.
CONCLUSION
The motion for a declaration that the commission is improperly constituted and
that the notice issued to the Applicant pursuant to s. 13 of the Inquiries Act is
of no force and effect is dismissed.
January 3, 2006
Justice Dennis R. O’Connor
Commissioner
�APPENDICES
APPENDIX 2
Procedure and Practice
APPENDIX 2(A)
Rules of Procedure and Practice
1.
The Commission proceedings will be divided into two parts. The first part,
the “Factual Inquiry”, will focus on the actions of Canadian officials in relation to Maher Arar, including the following:
(a) The detention of Mr. Arar in the United States;
(b) The deportation of Mr. Arar to Syria via Jordan;
(c) The imprisonment and treatment of Mr. Arar in Syria;
(d) The return of Mr. Arar to Canada; and
(e) Any other circumstance directly related to Mr. Arar which the
Commissioner considers relevant to fulfilling his mandate.
The Commissioner will conduct hearings in relation to the Factual Inquiry
as set out in these Rules.
2.
The second part of the Inquiry is a policy review directed at making recommendations for an independent arm’s length review mechanism for the
activities of the Royal Canadian Mounted Police with respect to national security (the “Policy Review”) based on:
(a) An examination of models, both domestic and international, for that review mechanism, and
(b) An assessment of how the review mechanism would interact with existing review mechanisms. The Commissioner will conduct consultations in relation to the Policy Review as set out in these Rules.
3.
In these Rules, “persons” refers to individuals, groups, governments, agencies or any other entity.
593
�594
FACTUAL BACKGROUND: VOLUME II
I.
RULES – FACTUAL INQUIRY
A. General
4.
5.
6.
Hearings will be convened in Ottawa to address issues related to the Factual
Inquiry.
Insofar as he needs to hear evidence, the Commissioner is committed to a
process of public hearings to the greatest extent practicable. However, the
Terms of Reference direct the Commissioner to take all steps necessary to
prevent disclosure of information that, if it were disclosed to the public
would, in the opinion of the Commissioner, be injurious to international relations, national defence or national security. The procedure which will
govern hearings where such issues may arise is addressed in the section on
“National Security Confidentiality”.
Applications may also be made to proceed in camera for reasons of personal confidentiality, referred to as “Personal Confidentiality” in these Rules.
Such applications should be made in writing at the earliest possible opportunity.
B. Standing
7.
Commission counsel, who will assist the Commissioner to ensure the orderly conduct of the Factual Inquiry, have standing throughout the Factual
Inquiry. Commission counsel have the primary responsibility for representing the public interest at the Factual Inquiry, including the responsibility to ensure that all matters that bear upon the public interest are brought
to the Commissioner’s attention.
8. The Commissioner will grant standing to all persons who satisfy the
Commissioner that they have a substantial and direct interest in the subjectmatter of the Factual Inquiry. Persons with standing are referred to as parties in these Rules.
9. The Commissioner will determine on what terms and in which parts of the
Factual Inquiry a party may participate, and the nature and extent of such
participation.
10. Persons who apply for standing will be required to provide written submissions explaining why they wish standing, and how they propose to contribute to the Factual Inquiry. Persons who apply for standing will also be
given an opportunity to appear in person before the Commissioner in order
to explain the reasons for their application.
�APPENDICES
11. The Commissioner may direct that a number of applicants share in a single
grant of standing.
12. Counsel representing witnesses called to testify before the Commission may
participate during the hearing of such evidence as provided in these Rules.
C. Funding
13. The Commissioner may recommend funding for a party, to the extent of the
party’s interest, where in the Commissioner’s view the party would not otherwise be able to participate in the Factual Inquiry.
14. A party seeking funding shall apply to the Commissioner in writing, demonstrating that he or she does not have sufficient financial resources to participate in the Factual Inquiry without such funding.
15. Where the Commissioner’s funding recommendation is accepted, funding
shall be in accordance with Treasury Board guidelines respecting rates of
remuneration and reimbursement and the assessment of accounts.
D. Evidence
16. The Commissioner may receive any evidence which he considers to be
helpful in fulfilling his mandate whether or not such evidence would be admissible in a court of law.
(a)
Preparation of Documentary Evidence
17. As soon as possible after being granted standing, all parties shall provide
to the Commission all documents having any bearing on the subject matter of the Inquiry. Upon the request of Commission Counsel, parties shall
provide originals of relevant documents.
18. All documents received by the Commission will be treated as confidential,
unless and until they are made part of the public record or the
Commissioner otherwise directs. However, Commission counsel are permitted to produce such documents to proposed witnesses and parties and
their counsel upon receipt of the appropriate undertaking.
(b) Witness Interviews
19. Commission counsel may interview people who have information or documents which have any bearing upon the subject matter of the Inquiry.
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FACTUAL BACKGROUND: VOLUME II
People who are interviewed are entitled, but not required, to have a legal
counsel present.
20. If Commission counsel determines that a person will be called as a witness
following an interview, Commission counsel will prepare a statement of
the witness’ anticipated evidence. Commission counsel will provide a copy
of the statement of anticipated evidence to the witness for review before the
witness testifies before the Commission.
21. After a proposed witness has reviewed the statement of anticipated evidence, Commission counsel will provide copies to parties having an interest in the subject matter of the proposed evidence. Before being given a
copy of statements of anticipated evidence, parties will be required to sign
an undertaking that they will use the statements only for the purposes of
the Inquiry.
(c)
Witnesses
22. All Government entities, agencies and officials and all witnesses shall cooperate fully with the Commission and shall make available all documents
and witnesses relevant to the mandate of the Commission.
23. Witnesses who testify will give their evidence at a hearing under oath or
upon affirmation.
24. Commission counsel may issue and serve a subpoena or summons upon
each witness before he or she testifies. Witness may be called more than
once.
25. Witnesses who are not represented by counsel for parties are entitled to
have their own counsel present while they testify. Counsel for a witness
will have standing for the purpose of that witness’ testimony to make any
objections thought appropriate and for other purposes set out in these
Rules.
26. Parties are encouraged to advise Commission counsel of the names, addresses and telephone numbers of all witnesses they wish to have called
and, if possible, to provide summaries of the information the witnesses may
have.
27. If the proceedings are televised, applications may be made for an order
that the evidence of a witness not be televised or broadcast.
�APPENDICES
(d) Oral Examination
28. In the ordinary course Commission counsel will call and question witnesses
who testify at the Inquiry. Counsel for a party may apply to the
Commissioner to lead a particular witness’ evidence in-chief. If counsel is
granted the right to do so, examination shall be confined to the normal
rules governing the examination of one’s own witness in court proceedings,
unless otherwise directed by the Commissioner.
29. Commission counsel have a discretion to refuse to call or present evidence.
30. The order of examination in the ordinary course will be as follows:
(a) Commission counsel will lead the evidence from the witness. Except
as otherwise directed by the Commissioner, Commission counsel are
entitled to ask both leading and non-leading questions;
(b) Parties will then have an opportunity to cross-examine the witness to
the extent of their interest. The order of cross-examination will be determined by the parties and, if they are unable to reach agreement, by
the Commissioner;
(c) After the cross-examinations by the parties, counsel for a witness may
then examine the witness;
(d) Commission counsel will have the right to re-examine last.
31. Except with the permission of the Commissioner, no counsel other than
Commission counsel may speak to a witness about the evidence that he or
she has given until the evidence of such witness is complete. Commission
counsel may not speak to any witness about his or her evidence while the
witness is being cross-examined by other counsel.
32. When Commission counsel indicate that they have called the witnesses
whom they intend to call in relation to a particular issue, a party may then
apply to the Commissioner for leave to call a witness whom the party believes has the evidence relevant to that issue. If the Commissioner is satisfied that the evidence of the witness is needed, Commission counsel shall
call the witness, subject to Rule 27.
(e)
Use of Documents at Hearings
33. In advance of a witness’ testimony, Commission counsel will endeavour to
provide to the parties and the witness a statement of that witness’ anticipated evidence and associated documents, subject to National Security
Confidentiality.
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FACTUAL BACKGROUND: VOLUME II
34. Parties shall provide Commission counsel with any documents that they intend to file as exhibits or otherwise refer to during the hearings at the earliest opportunity, and in any event shall provide such documents to
Commission counsel no later than the day before the document will be referred to or filed.
35. Before using such a document for purposes of cross-examination, counsel
shall provide a copy to the witness and to all parties having an interest in
the subject matter of the evidence not later than the day prior to the testimony of the witness, subject to the discretion of the Commissioner.
(f)
National Security Confidentiality
36. This section of the Rules addresses issues relating to the disclosure of information that would, in the opinion of the Commissioner, be injurious to
international relations, national defence or national security (“National
Security Confidentiality”), including the process regarding the in camera
hearings in the absence of parties and their counsel pursuant to paragraph (k) of the Terms of Reference.
37. After the standing hearing, parties with standing may make written submissions to the Commissioner with respect to the relevant case law and
principles which they submit the Commissioner should apply when making determinations of National Security Confidentiality as to which evidence
should be heard in camera and in the absence of parties and their counsel. The procedure shall be as follows:
(a) The Government and all parties who may seek to have evidence heard
in camera on the grounds of National Security Confidentiality shall
make written submissions about the principles the party submits the
Commissioner should apply, relevant case law, and whether the principles differ with respect to the separate elements of National Security
Confidentiality (injurious to international relations, national defence or
national security). The party shall file one written copy of the submissions and supporting documentation with the Commission offices
no later than May 14, 2004, and shall provide the Commission with an
electronic copy of the submissions. These submissions will be posted
on the Commission’s web site.
(b) Other parties with standing may make written submissions about the
principles the party submits the Commissioner should apply, relevant
case law, and whether the principles differ with respect to the separate
�APPENDICES
38.
39.
40.
41.
42.
43.
elements of National Security Confidentiality (injurious to international
relations, national defence or national security).
(c) The Government and parties who filed submissions in accordance with
paragraph 38 (a) of these Rules may file responding submissions. The
party shall file one written copy of the submissions and supporting
documentation with the Commission offices no later than May 21, 2004,
and shall provide the Commission with an electronic copy of the submissions. These submissions will be posted on the Commission’s web
site.
Commission counsel shall indicate to the Attorney General of Canada which
documents or portions thereof, and which aspects of the evidence
Commission counsel deems relevant and may introduce into evidence.
The Attorney General of Canada shall then indicate, with reasons, which
documents or portions thereof, and which aspects of the proposed evidence, he claims are subject to National Security Confidentiality.
The Commissioner shall convene an in camera hearing, in the absence of
parties and their counsel, to consider the request by the Attorney General
of Canada or by a party that specific evidence is subject to National Security
Confidentiality. The Attorney General of Canada or any party seeking an
in camera hearing shall bear the burden of establishing why it is necessary.
The Commissioner will appoint an independent legal counsel to act as an
amicus curiae to appear in these in camera hearings to make submissions
with respect to the request for in camera hearings. The counsel shall be
independent of Government and shall be a person with a background in
security and intelligence. His or her mandate shall be to test in camera
hearing requests on the grounds of National Security Confidentiality.
The hearings shall be held periodically as necessary throughout the Inquiry,
although it is contemplated that major portions of the evidence can be addressed before the evidentiary hearings begin. They are currently scheduled to begin on June 14, 2004.
The Commissioner shall rule on a request for National Security
Confidentiality. In his rulings, the Commissioner will set out the test and
principles that he applied in determining whether or not the evidence was
to be heard in camera. He will also refer, in general terms, to the anticipated evidence that he rules should be heard in public and his reasons for
denying a claim for confidentiality when such a claim was made. In addition, to the extent possible, the Commissioner will refer to the types of evidence that he ruled must be heard in camera, and the principles and
reasons that he applied to such decisions. The Commissioner’s rulings and
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FACTUAL BACKGROUND: VOLUME II
44.
45.
46.
47.
48.
reasons as set out in this paragraph will be made public and posted on the
Commission’s web site.
The Commissioner may also wish to issue confidential reasons referring to
specific evidence that he has ruled should be heard in camera, with specific reasons for such rulings. Those reasons would not be made available
to the public.
The Commissioner shall hear evidence that is subject to National Security
Confidentiality in camera and in the absence of parties and their counsel,
to the extent necessary to protect National Security Confidentiality.
Witnesses shall provide the evidence taken in camera under oath or upon
affirmation. Commission counsel will thoroughly test the evidence heard
in camera by examination in chief or by cross-examination where deemed
appropriate
Prior to going in camera Commission counsel shall, to the extent possible
and in accordance with directions from the Commissioner, advise parties of
the general nature of the evidence to be heard. Parties are invited to raise
with Commission counsel specific areas for questioning. Commission counsel shall, following an in camera session, advise counsel for parties whether
or not those areas were covered.
After hearing evidence in camera, the Commissioner shall prepare a summary of that evidence to the fullest extent possible without breaching
National Security Confidentiality, and shall provide the Attorney General of
Canada (“Attorney General”) with an opportunity to comment on the summary prior to its release. The applicable procedure with respect to release
of the summary is as follows:
(a) if the Attorney General takes issue with the proposed summary, the
Attorney General of Canada may apply to court for a determination
under section 38 of the Canada Evidence Act, or
(b) if the Attorney General agrees with the proposed summary, the
summary shall be marked as a public exhibit, published on the
Commissioner’s web site, and will form part of the record of the
inquiry.
If the Commissioner is of the view that notwithstanding National Security
Confidentiality, such evidence should be disclosed publicly, the
Commissioner may prepare a separate summary of the evidence. The
Commissioner shall advise the Attorney General and provide the summary
to the Attorney General, which shall constitute notice under section 38.01
of the Canada Evidence Act.
�APPENDICES
(g)
Personal Confidentiality
49. Any witness may apply to the Commissioner for a grant of “Personal
Confidentiality”. For the purposes of the Inquiry, Personal Confidentiality
shall include the right of the witness to have his or her identity disclosed
only by way of non-identifying initials, and, if the Commissioner so rules,
the right to testify before the Commission in camera.
50. A witness who is granted Personal Confidentiality will not be identified in
the public records and transcripts of the hearing except by non-identifying
initials. Any reports of the Commission using the evidence of witnesses
who have been granted Personal Confidentiality will use non-identifying
initials only.
51. Media reports relating to the evidence of a witness granted Personal
Confidentiality shall avoid references that might reveal the identity of the
witness. No photographic or other reproduction of the witness shall be
made either during the witness’ testimony or upon his or her entering and
leaving the site of the Inquiry.
52. Any witness who is granted Personal Confidentiality may either swear an
oath or affirm to tell the truth using the non-identifying initials given for the
purpose of the witness’s testimony.
53. All parties, their counsel and media representatives shall be deemed to undertake to adhere to the rules respecting Personal Confidentiality. A breach
of these rules by a party, counsel to a party or media representative shall
be dealt with by the Commissioner as he sees fit.
(h) Access to Evidence
54. All evidence shall be categorized and marked P for public sittings and C for
sittings in camera.
55. Copies of the P transcript of evidence will be made available on the
Inquiry’s website. One copy of the P transcript and the P exhibits of the
public hearings will be made available for public review at the Commission
offices.
56. Only those persons authorized by the Commission, in writing, shall have access to C transcripts and exhibits.
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FACTUAL BACKGROUND: VOLUME II
II. RULES – POLICY REVIEW
A. General
57. The Policy Review will proceed in three phases:
(a) The Commission will publish a research paper (the “Research Paper”).
The Research Paper will examine existing models, both domestic and
international, which might serve as a basis for an independent arm’s
length review mechanism for the activities of the Royal Canadian
Mounted Police with respect to national security; provide a description of existing review mechanisms; and describe the manner in which
the proposed models would interact with existing review mechanisms.
(b) Persons with an interest in the subject matter of the Policy Review may
make submissions in writing (the “Public Submissions”) to the
Commission about any matter relevant to the Policy Review, including
specific proposals for the recommendations to be made by the
Commissioner.
(c) The Commissioner will convene public and private consultations (the
format of which may vary) to hear submissions on the matters raised
in the Policy Review. The participants in the public consultations may,
at the Commissioner’s discretion, include any person whom the
Commissioner concludes will contribute to the process.
B. Research Paper
58. The Commission will publish the Research Paper on the Commission’s
web site.
C. Public Submissions
59. Any interested person may make a Public Submission, in writing, to the
Commission dealing with any matter related to the Policy Review including
responses to any matter raised in the Research Paper.
60. The Commissioner will set a deadline by which all Public Submissions must
be received. The Public Submissions will be made available for public review either on the Commission’s web site or at the Commission’s offices.
�APPENDICES
D. Public Consultations
61. Once all Public Submissions have been reviewed the Commissioner will
convene public consultations relating to the major topics addressed in the
Policy Review. The format of the public consultations will be tailored to
the topics discussed, and may vary. The public consultations may include
persons invited by the Commissioner, where the Commissioner concludes
such persons would contribute to the discussion based upon the contents
of the Public Submissions.
62. The public consultations shall be recorded.
63. At his discretion, the Commissioner may also conduct private consultations.
III. OTHER
64. All parties, witnesses and counsel shall be deemed to undertake to adhere
to these Rules, which may be amended or dispensed with by the
Commissioner as he sees fit. Issues of non-compliance with the Rules may
be raised with the Commissioner.
65. The Commissioner shall write two reports. One shall be a private report
which incorporates matters of National Security Confidentiality. The other
shall be a public report. In his public report, the Commissioner shall make
the greatest possible reference to matters heard in camera, and conclusions
which he has made with respect thereto.
APPENDIX 2(B)
Ruling: Rules of Procedure and Practice
I have received submissions from the parties and intervenors with respect to
the Draft Rules of Procedure and Practice. Copies of those submissions are available in the Commission’s office. I have incorporated many of the suggested
changes in the revised Rules which will be posted on the Commission’s website shortly. I would like to thank the parties and intervenors for the time and
effort they have put into their submissions. I think that the Rules have been improved as a result of this process.
In this Ruling I want to comment on some of the more important aspects
of the Rules.
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FACTUAL BACKGROUND: VOLUME II
First the Rules must reflect the Terms of Reference. The effect of some submissions would be to alter or expand my mandate. That, of course, is not something that comes within my authority.
In formulating the Rules I have been guided to the extent possible by four
principles: thoroughness, expedition, openness to the public, and fairness. I
discussed the importance of each of those principles in the Report of the
Walkerton Inquiry, Part One – Chapter 14.
The Terms of Reference for this Inquiry present challenges with respect to
the principles of openness and fairness. Paragraph k of those Terms directs that
I take steps to prevent public disclosure of information that would be injurious
to international relations, national defence or national security (national security
confidentiality). As a result, it is inevitable that some of the evidence will have
to be heard in camera and in the absence of parties and their counsel.
Unfortunately, there is nothing that I can do to avoid having some in camera
hearings.
The Terms of Reference provide for a two-stage process for determining
which documents and evidence need to be heard in camera. At the first stage,
an in camera hearing will take place at which the government will bear the
onus of establishing that disclosure would be injurious to national security confidentiality. If I agree with the government’s submissions, I will hear the evidence in camera. The second stage of the process will involve a determination
of whether the release of a part or summary of the information received in
camera would provide insufficient disclosure to the public. I will elaborate on
this stage of the process in my Ruling on the principles that apply to the in
camera hearings.
In designing the Rules I have attempted to minimize, to the extent possible, the impact of the in camera hearings on the principles of openness and fairness. For example, I provided the parties and intervenors with an opportunity
to make submissions on the principles that will guide my decisions on what evidence needs to be heard in camera. In addition, I have appointed Mr. Ronald
Atkey, who has expertise in national security matters, as amicus curiae to test
the government’s submissions about the need for in camera hearings.
Mr. Atkey’s participation is intended to help ensure that the government’s submissions are subject to rigorous scrutiny. In my Rulings with respect to the in
camera hearings, I will make clear the principles that I have adopted in reaching my decisions and, to the extent possible, I will describe the types of evidence
that will be heard in camera.
The Rules also provide that before evidence is heard in camera
Commission Counsel will, to the extent possible, advise the parties and
�APPENDICES
intervenors of the nature of the anticipated evidence. The parties and intervenors
will be able to advise Commission Counsel of areas of evidence that they wish
to be covered and after the hearings will be informed if those areas were in fact
addressed. In addition, after the hearing of evidence in camera, I will prepare
and publish a summary of the evidence heard, to the extent that I am able to
do so, without breaching national security confidentiality.
Insofar as fairness is concerned, when writing my Report, I will bear in
mind that I should not make findings adverse to the interest of any person on
the basis of evidence that that person has not had an opportunity to hear and
challenge.
No doubt the conduct of this Inquiry presents special challenges. However,
despite the constraints that are placed on the Inquiry process by virtue of concerns about national security confidentiality, I remain confident that I can fully
address the issues raised by the mandate and that I will be able to report publicly and in sufficient detail for those involved and for the public to understand
the role that Canadian officials played in the events relating to Mr. Arar.
A number of intervenors have raised a concern that the Policy Review is to
be run concurrently, not consecutively, with the Factual Inquiry. Some take the
view that the Policy Review should be conducted only after I have released my
Report setting out my findings in the Factual Inquiry. Others say that the Policy
Review should be carried out concurrently so that the evidence of the Factual
Inquiry, not necessarily my findings of fact, is available to inform consideration
of the issues in the Policy Review.
I agree with the second position. Let me expand upon the procedure that
I have adopted for the Policy Review. With the assistance of the Advisory Panel,
the Commission is preparing and will be publishing a consultation paper designed to provide a factual background for the Policy Review and to help focus
the public consultation process that will take place next fall. A draft outline for
the consultation paper including a draft list of issues has been published on our
website for public comment.
The Commission intends to publish the consultation paper by late summer.
At that time, the parties and the public will be asked to comment on the paper
and the Commission will be calling for public submissions on the recommendations to be made in the Policy Review part of the mandate. Currently, it is
planned that public meetings will be held in the months of October and
November, 2004 to discuss those submissions.
In my view, it would not be in the public interest to have the Policy Review
process await the publication of my findings from the Factual Inquiry. Although
the findings of the Factual Inquiry may inform the Policy Review, the
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FACTUAL BACKGROUND: VOLUME II
considerations which will be assessed in the Policy Review will go far beyond
the scope of the Factual Inquiry. Indeed, I assume that many submissions to the
Policy Review will be made without reference to the Factual Inquiry. Moreover,
the submissions from the Policy Review will not be due until after most, if not
all, of the public hearings in the Factual Inquiry are completed so that those
submissions may be informed by the evidence from the public hearings. If any
matter arises from the summaries I publish for the in camera hearings on which
someone wishes to comment, there will be an opportunity to supplement the
submissions to the Policy Review with those additional comments. I am satisfied
that informed and useful submissions can be made to the Policy Review before
my factual findings in the Factual Inquiry are published. It is in the public interest to report to the government in a timely manner and I am hopeful that the
procedure I have adopted will ensure that this is done. If, however, having
heard the evidence in the Factual Inquiry and the submissions from the Policy
Review I consider that there is benefit to delaying the completion of the Policy
Review until after the publication of my Report from the Factual Inquiry, I will
do so.
A number of intervenors made submissions requesting very detailed Rules
to address what they see as a possibility of unfairness arising from circumstances
that may or may not occur. For the most part I have not revised the Rules to reflect these types of concerns. Instead I have made it clear in Rule 5 that I retain
an overriding discretion to conduct the Inquiry so as to ensure that it is thorough,
fair and timely. Applications in writing can be made to me, as deemed necessary, to achieve these objectives.
June 15, 2004
Justice Dennis R. O’Connor
Commissioner
�APPENDICES
APPENDIX 3
Standing and Funding
APPENDIX 3(A)
Notice of Hearings for Application for Standing
Commission of Inquiry into the
Actions of Canadian Officials
in Relation to Maher Arar
Commission d enqu te sur les
actions des responsables canadiens
relativement Maher Arar
PRESS RELEASE
Attention News Editors
Dates set for Hearings for Application for Standing and for General Public
Hearings in the Arar Inquiry
Ottawa, March 29, 2004 - Mr. Justice Dennis R. O’Connor, Commissioner for the
Inquiry into the Actions of Canadian Officials in Relation to Maher Arar will hear
applications for Standing on Thursday, April 29th and Friday April 30th, 2004.
The hearings will take place in the Annex Room at the Government Conference Centre,
2 Rideau Street in Ottawa from 10 a.m. to 1 p.m. and will resume at 2:30 p.m. until
4:30 p.m.
No evidence will be heard during those hearings. However, the Commissioner may
grant standing to any person or group who can establish that they have a substantial
and direct interest in the subject matter of this inquiry. Standing before a Commission of
Inquiry gives the individual or group the right to take part in proceedings as directed by
the Commissioner and to make submissions to the Inquiry.
It is the present intention that the Inquiry’s public hearings will start on Monday June
14th, 2004 at 10:00 a.m. and will be held at the Government Conference Centre in
Ottawa.
More details will soon be available on our Web site: www.ararcommission.ca
Established under Part I of the Inquiries Act, the Arar Inquiry was set up on the
recommendation of the Deputy Prime Minister and Minister of Public Safety and
Emergency Preparedness to investigate and report on the actions of Canadian officials
in relation to Maher Arar. The Commission is also mandated to recommend an arm’s
length review mechanism for the activities of the Royal Canadian Mounted Police with
respect to national security.
-30-
Media contact : Francine Bastien, 613-996-4741; Email: fbastien@bellnet.ca
PO Box / CP 507, Station B / Succursale B
Ottawa, Canada K1P 5P6
613 996-4741 Fax / t l copieur 613 992-2366
www.ararcommission.ca / www.commissionarar.ca
607
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FACTUAL BACKGROUND: VOLUME II
Commission of Inquiry into the
Actions of Canadian Officials
in Relation to Maher Arar
Commission d enqu te sur les
actions des responsables canadiens
relativement Maher Arar
Media advisory
Reminder
Ottawa, April 28, 2004 - The Arar Inquiry into the actions of Canadian officials in
relation to Maher Arar will be holding public hearings for standing on Thursday, April 29
and Friday April 30 2004.
The hearings will take place in the Annex Room — Colonel By entrance - of the
Government Conference Centre, 2 Rideau Street in Ottawa starting at 10 am.
During those two days, Mr. Justice Dennis R. O Connor will be hearing 23 requests for
standing from individuals and groups.
The complete list of applicants can be found at: www.ararcommission.ca
Established under Part I of the Inquiries Act, the Arar Inquiry was set up on the
recommendation of the Deputy Prime Minister and Minister of Public Safety and
Emergency Preparedness to investigate and report on the actions of Canadian officials
in relation to Maher Arar. The Commission is also mandated to recommend an arm’s
length review mechanism for the activities of the Royal Canadian Mounted Police with
respect to national security.
-30Media contact : Francine Bastien, 613-996-4741; Email: fbastien@bellnet.ca
PO Box / CP 507, Station B / Succursale B
Ottawa, Canada K1P 5P6
613 996-4741 Fax / t l copieur 613 992-2366
www.ararcommission.ca / www.commissionarar.ca
�APPENDICES
APPENDIX 3(B)
Ruling on Standing and Funding
Contents
I. INTRODUCTION
610
A. Factual Inquiry
611
B. Policy Review
612
II. RULING ON STANDING AND FUNDING
612
A. Guiding Principles: Standing
1. Party Standing: Substantial and Direct Interest
2. Intervenor Standing
3. Witnesses
613
614
616
618
B. Guiding Principles: Funding
618
III. APPLICATIONS FOR STANDING AND FUNDING:
DISPOSITION
619
A. Direct Factual Connection
1. Mr. Maher Arar
2. Attorney General of Canada
3. The Ontario Provincial Police
4. Mr. Ahmad Abou El Maati
5. Mr. Youssef Almalki
6. Mr. Muayyed Nureddin
619
619
621
622
622
624
625
B. Intervenor Standing
1. Introduction
2. Arab and Muslim/Islamic Groups
(a)
Canadian Islamic Congress
(b)
The National Council on Canada-Arab Relations
(c)
The Muslim Community Council of Ottawa-Gatineau
(d)
Canadian Council on American-Islamic Relations
(e)
The Canadian Arab Federation
(f)
The Muslim Canadian Congress
3. Civil Liberties and Canadian Democracy/Sovereignty
(a)
British Columbia Civil Liberties Association
(b)
The Minority Advocacy and Rights Council
(c)
Canadian Labour Congress
625
625
627
627
627
628
629
629
630
631
631
632
632
609
�610
FACTUAL BACKGROUND: VOLUME II
4.
5.
(d)
The Law Union of Ontario
(e)
International Civil Liberties Monitoring Group
(f)
Council of Canadians and the Polaris Institute
International Human Rights
(a)
The Redress Trust, the Association for the Prevention
of Torture and the World Organization Against Torture
(b)
Amnesty International
(c)
The International Coalition Against Torture
(d)
The Center for Constitutional Rights
Individuals
(a)
Ken Rubin
(b)
Emmanuel Didier
IV. CONCLUSION
633
634
634
635
635
637
638
638
639
639
640
640
Ruling on Standing and Funding
I. INTRODUCTION
I have been appointed by Order in Council P.C. 2004-48 to conduct both a factual inquiry and a policy review. In the first part of my mandate, I am to investigate and report on the actions of Canadian officials in relation to Maher
Arar, including the following:
(i)
(ii)
(iii)
(iv)
(v)
the detention of Mr. Arar in the United States;
the deportation of Mr. Arar to Syria via Jordan;
the imprisonment and treatment of Mr. Arar in Syria;
the return of Mr. Arar to Canada; and
any other circumstance directly related to Mr. Arar that I consider relevant to fulfilling my mandate.
The first part of this inquiry is the “Factual Inquiry”.
The second part of my mandate is to conduct a policy review, and to make any
recommendations that I consider advisable on an independent, arm’s length
review mechanism for the activities of the RCMP with respect to national security based on:
(i)
an examination of models, both domestic and international, for that
review mechanism; and
�APPENDICES
(ii) an assessment of how the review mechanism would interact with existing review mechanisms.
This latter aspect of my mandate is referred to as the “Policy Review”.
The following paragraphs in the Terms of Reference are relevant to this ruling:
(e) the Commissioner be authorized to adopt any procedures and methods that he may consider expedient for the proper conduct of the
Inquiry, and to sit at any times and in any places in Canada that he may
decide;
(f) the Commissioner be authorized to grant to any person who satisfies
him that he or she has a substantial and direct interest in the subjectmatter of the factual inquiry an opportunity during that inquiry to give
evidence and to examine or cross-examine witnesses personally or by
counsel on evidence relevant to the person’s interest;
(g) the Commissioner be authorized to conduct consultations in relation to
the policy review as he sees fit; and
(h) the Commissioner be authorized to recommend funding, in accordance
with approved guidelines respecting rates of remuneration and reimbursement and the assessment of accounts, to a party who has been
granted standing at the factual inquiry, to the extent of the party’s interest, where in the Commissioner’s view the party would not otherwise be able to participate in that inquiry.
A. FACTUAL INQUIRY
I will conduct the Factual Inquiry by way of evidentiary hearings at which witnesses will give evidence under oath or affirmation, and will be examined and
cross-examined. I will receive closing submissions at the end of the Factual
Inquiry.
The draft Rules of Practice and Procedure which have been developed for
the Factual Inquiry have been published on the Commission web site at
www.ararcommission.ca. These have been modelled on the rules used in other
public inquiries. I thought that it would be useful to publish these Rules before
the hearings on standing. If any person or group participating in the Inquiry
wishes to make submissions on the Rules, they should do so in writing by
May 20, 2004. Any changes will be published on the Commission web site.
Persons or groups participating in the Inquiry should visit our web site regularly
for information on practical details and scheduling.
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B. POLICY REVIEW
The Policy Review will not proceed by way of formal evidentiary hearings.
Instead, in order to make its work accessible and to provide an opportunity for
public participation on a broad range of policy issues, the Policy Review will
proceed in a number of phases. The Policy Review will proceed concurrently
with the Factual Inquiry.
I have appointed a five member Advisory Panel for the Policy Review part
of the Inquiry. The members of the panel are Monique Bégin, Alphonse Breau,
Kent Roach, Martin Rudner and Reginald Whitaker. The Panel’s task is to help
me to discharge my mandate in making recommendations on an independent
arm’s length review mechanism for the activities of the Royal Canadian Mounted
Police with respect to national security, including how such a review mechanism
would interact with existing review mechanisms. I am confident that the Panel’s
expertise in the fields of intelligence, national security and government policy
will be of great assistance to me in addressing this part of my mandate.
I have arranged for a Research Paper to be prepared which will, among
other things, examine domestic and international review models, and identify the
key issues which should be considered with respect to any recommendations regarding a review mechanism. The Research Paper will be published on the
Commission web site, together with a description of what I see as the more important issues that need to be addressed in formulating my recommendations.
After the Research Paper has been published I will invite persons or groups
with an interest in the subject matter of the Policy Review to make submissions
in writing to the Commission about matters relevant to the Policy Review. The
Commission will set and publish a deadline by which all public submissions
must be received. The public submissions will be available for public review.
I also intend to hold a number of public meetings relating to the Policy
Review. I will preside over those meetings, and members of the Advisory Panel
may also participate.
II. RULING ON STANDING AND FUNDING
The Commission published a Notice of Hearing which invited persons interested in the Factual Inquiry to apply for standing. I received 24 applications for
standing, some of them involving multiple individuals or organizations. The
applications were heard in Ottawa on April 29 and 30, 2004. Some were heard
by way of teleconference.
Before I address each of the applications, I think it is useful to summarize
the general principles that have guided my decisions on standing and funding.
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A. GUIDING PRINCIPLES: STANDING
I am committed to ensuring that the Inquiry is both fair and thorough, and that
in the course of the Inquiry I obtain and consider all relevant information relating to the issues identified in the Terms of Reference.
I agree with the submissions of those applicants who urge that the Inquiry
look into not only what happened, but also the causes. I intend to examine
the “why it happened” from an individual, organizational and systemic
perspective. I also agree with the submissions that the scope of my mandate
should be interpreted broadly, and that the actions in question must be viewed
in context.
At the same time, I must bear in mind the importance of completing this
Inquiry as expeditiously as is reasonably possible. In the past, public inquiries
have suffered and lost the confidence of the public because of undue delay. I
will do what I can to avoid repetition and I will avoid the examination of matters not relevant or helpful in making findings called for by the mandate.
Another principle which will guide the conduct of this Inquiry is that of
transparency and openness. Because of the nature of this Inquiry, this principle presents a special challenge. Some of the evidence will no doubt have to be
heard in camera in order to avoid injury to international relations, national defence or national security. However, to the greatest extent possible, I will strive
to ensure that the work of the Inquiry is accessible to the public and that this
Inquiry is as open as possible. I have set out a process in the draft Rules designed to assist me with decisions about what evidence is to be heard in camera and to provide for the involvement of those participating in the Inquiry in
formulating the principles upon which those decisions will be made.
I will rely upon Commission counsel to assist me throughout the Inquiry.
They are to ensure the orderly conduct of the Inquiry and they have standing
throughout. Commission counsel have the primary responsibility for representing the public interest, including the responsibility to ensure that all interests that bear upon the public interest are brought to my attention. Commission
counsel do not represent any particular interest or point of view, and their role
is not adversarial or partisan.
I have decided to create three separate categories through which persons
or groups may participate in the Factual Inquiry:
(i)
Party Standing - those with a substantial and direct interest in all or
part of the subject matter of the Factual Inquiry;
(ii) Intervenor Standing - those who do not have a substantial and direct
interest but have a demonstrated concern in the issues raised in the
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mandate and a perspective and/or expertise that I consider will be of
assistance to me in carrying out my mandate; and
(iii) Witnesses - They may be represented by counsel when testifying.
The primary difference between a grant of party standing and one of intervenor
standing is that those with party standing will be involved directly in the development of the evidence - the examination of witnesses. Those with intervenor
standing will have significant opportunities to participate but not the right to
examine witnesses. I set out in more detail below the criteria upon which I
have made my decisions, and the nature of the opportunities to participate that
I am granting.
I have not granted some applicants all of the rights to participate that they
sought. If, as the evidence is called, circumstances change affecting individuals’ or organizations’ interests, they may apply for an increased opportunity to
participate.
1.
Party Standing: Substantial and Direct Interest
The test for the right to examine witnesses under the Terms of Reference is that
a person have “a substantial and direct interest in the subject-matter of the factual inquiry”. The “substantial and direct interest” test is not unique to this
Inquiry. Section 5(1) of the Ontario Public Inquiries Act, R.S.O. 1990, c. P.41
uses the same test, and the test under the Ontario Coroners Act, R.S.O. 1990, c.
C.37 is also similar. In the past both federal and provincial public inquiries have
applied the “substantial and direct interest” test in determining whether applicants should be granted standing.
It is neither possible nor desirable to set out a comprehensive list of the
types of interests that will come within this test for public inquiries. In each case,
a commissioner conducting a public inquiry will have to consider a number of
factors including his or her mandate, the nature of that aspect of the public inquiry for which standing is sought, the type of interest asserted by the applicant,
and the connection of the particular applicant to the Inquiry’s mandate.
In some instances, applicants asserting a substantial and direct interest have
essentially been obliged to prove that their “legal interests” would be “affected”
by the outcome of the inquiry or inquest. (Ruling of Commissioner Grange of
the Royal Commission of Inquiry into Certain Deaths at the Hospital for Sick
Children, cited and affirmed by Gosselin v. Ontario (Royal Commission of Inquiry
into Certain Deaths at the Hospital for Sick Children), [1984] O.J. No. 1302
(Div. Ct.) at paras. 7 and 16-17). That, it seems to me, may be an overly restrictive view of the issue.
�APPENDICES
Clearly individuals or groups whose interests may be adversely affected by
the report of an Inquiry as set out in section 13 of the Inquiries Act, R.S.C. 1985,
c. I-11, have a substantial and direct interest. However, a “substantial and direct interest” embodies more than a section 13 interest (see for example,
Re Royal Commission on Conduct of Waste Management Inc.et al. (1977), 80
D.L.R. (3d) 76 (Div. Ct.)).
If the subject matter of the inquiry may seriously affect the interest of a
party that too would be a basis for finding a substantial and direct interest (Re
Ontario (Royal Commission on the Northern Environment), [1983] O.J. No. 994
(Div. Ct.)). For example, if the findings of the Inquiry will affect the legal rights
or the property interests of an individual or organization, they would have a
substantial and direct interest in those aspects of the Inquiry that implicate those
rights and interests. Further where as, here, an individual like Mr. Arar is integrally involved in the events underlying the mandate of the Factual Inquiry, and
indeed is specifically named in the Terms of Reference, he will have a substantial and direct interest.
At the same time, merely being a witness does not itself constitute a substantial and direct interest. Nor does having a genuine concern about the issues
raised in the subject matter of the Inquiry, or having an expertise in those issues,
necessarily amount to a substantial and direct interest in the subject matter of the
Inquiry.
In this regard I agree with the reasoning of Campbell J. in Range
Representative on Administrative Segregation Kingston Penitentiary v. Ontario
(Regional Coroner), [1989] O.J. No. 1003, 38 Admin. L.R. 141 (Div. Ct.) at p. 13
(O.J.):
Mere concern about the issues to be canvassed at the inquest, however deep and
genuine, is not enough to constitute direct and substantial interest. Neither is expertise in the subject matter of the inquest or the particular issues of fact that will
arise. It is not enough that an individual has a useful perspective that might assist
the coroner.
This comment is particularly applicable when the aspect of the Inquiry for which
standing is sought is investigative and not preventative. For that reason, one
must view some of the jurisprudence dealing with standing in coroner’s inquests
bearing in mind the difference between standing in an aspect of a hearing that
is purely investigative from that in which the investigative, recommendatory and
preventative roles are considered jointly.
As I said above, it is not possible to set out a definitive list of the factors
that will control the determination of when an interest is sufficiently linked to
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the mandate to be considered “substantial and direct.” There will necessarily be
a degree of judgment involved. That judgment should have regard to the subject matter of the Inquiry, the potential importance of the findings or recommendations to the individual or organizations including whether their rights,
privileges or legal interests may be affected, and the strength of the factual connection between the individual or group and the subject matter involved.
2.
Intervenor Standing
Paragraph (e) of my mandate authorizes me to adopt any procedures and methods which I consider expedient for the proper conduct of the Inquiry. I have decided to exercise my discretion to afford intervenor standing to a number of
applicants which I find do not have a substantial and direct interest in the subject matter of the Factual Inquiry, but do have a genuine concern about issues
raised by the mandate and who have a particular perspective and/or expertise
which I have determined will be of assistance to me in this Inquiry.
I am satisfied that I should interpret my mandate broadly and should manage this inquiry process in such as way as to obtain the maximum amount of
assistance without unduly expanding on the time and expense necessary to
achieve my mandate.
I am satisfied that affording certain applicants rights of participation that
fall short of party standing but which allow them to participate in the Factual
Inquiry in a significant way will enable me to better fulfill my mandate. I call
this participation “Intervenor Standing”.
Moreover, I am not, at this stage at least, satisfied that it is necessary to provide the opportunity to examine witnesses to those applicants to whom I have
granted intervenor standing. I say so for three reasons:
(i)
As I have stated above, the role of Commission counsel is to represent
the public interest, and I am confident that Commission counsel will
fully explore all matters related to my mandate.
(ii) Mr. Arar will be ably represented by two senior counsel, and two junior counsel. None of these applicants is opposed in interest to
Mr. Arar. Indeed, it is fair to say that they would approach the development of the factual record with most, if not all of the same objectives. Many of them have supported Mr. Arar in a variety of ways,
from meeting with government officials during his detention, writing
opinion pieces and letters to the editor in his support, to calling for this
public inquiry. Insofar as the development of evidence is concerned
I am satisfied that Mr. Arar and his counsel will fully and adequately
�APPENDICES
address the issues raised by the applicants who have not been granted
the opportunity to examine witnesses.
(iii) It will be open to any of these applicants to approach Commission
counsel or Mr. Arar’s counsel regarding issues to be canvassed,
witnesses to be called, or areas of evidence to be explored. I expect
that Commission counsel or Mr. Arar’s counsel will pursue all reasonable suggestions.
Finally, I note that it is in everyone’s interest to have this Inquiry conducted
thoroughly, but also as expeditiously as possible. This Inquiry raises matters of
important public concern. On the basis of what is now known, I am satisfied that
the participation of parties with standing who have a direct and substantial interest will enable me to canvass all of the evidence necessary to allow me to
make the factual findings called for in my mandate. To add more counsel in the
evidence taking process could unduly protract the proceedings, and add unnecessary delay and expense. In making this comment I do not intend in any
way to criticize the organizations to which I grant intervenor standing.
However, my experience tells me that additional counsel generally result in additional delay and expense.
Those applicants which have been accorded intervenor standing will be
entitled to participate in the Inquiry in the following ways. They will have:
a)
b)
c)
d)
e)
The opportunity to make submissions as to the Rules of Practice and
Procedure. These submissions should be made to the Commission in writing by May 20, 2004;
The opportunity to make written submissions on the principles which
should be applied in making decisions whether information and evidence
should be heard in camera or in public. Further details on this process will
be made available shortly;
The opportunity to make written opening submissions, one week prior to
the commencement of the hearings. I would find it most valuable if the parties with standing and the intervenors outline the major principles they submit should guide the Inquiry process, and the specific factual issues raised
by my mandate which they submit should be examined;
Copies of exhibits entered into evidence at the public hearings; and
The opportunity to make closing submissions, with a particular focus on the
interests, perspectives and expertise as set out in these reasons which have
led me to grant intervenor standing.
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Importantly, those with intervenor standing will have the opportunity to fully
participate in the recommendation and preventative aspect of the mandate - the
Policy Review. For many of those granted intervenor standing this will be the
main focus of their participation. I will be issuing further directions about the
process for the Policy Review in due course.
It has become evident to me that certain applicants have a similar interest
or perspective and have no apparent conflict of interest. I am satisfied that the
relevant interest or perspective will be fully and fairly represented by a single
grant of intervenor standing to the applicants as a group. In order to avoid repetition and unnecessary delay, I have therefore grouped certain applicants into
coalitions as discussed below. I did the same in the Walkerton Inquiry, and
was satisfied that the participants in the coalitions worked well together. I
greatly benefited from their cooperation. As I stated then:
In my view the formation of flexible coalitions achieves a fair balance between the
desire to have important interests and perspectives represented and the need to
have an inquiry that is manageable. I am asking that the counsel and principals of
applicants who have been joined in a coalition make all efforts to work in the coalition. Cooperation and reasonableness are essential . . . In my view, the alternative
of separate standing for everyone is simply not acceptable.
(Ruling on Standing and Funding, Report
of The Walkerton Inquiry, Part One
(Ontario: Queen’s Printer for Ontario,
2002) at Appendix E(ii), p. 67.)
I also recognize that circumstances may develop that result in a coalition becoming unsuitable and I am satisfied that there should be flexibility, allowing
members to request separate intervenor standing should such a situation arise.
3.
Witnesses
Witnesses in the Factual Inquiry who are not represented by counsel for parties
with standing are entitled to have their own counsel present while they testify.
The witness may be represented by counsel for the purposes of his or her testimony, and counsel may make any objections which they believe to be
appropriate.
B. GUIDING PRINCIPLES: FUNDING
The Terms of Reference provide that I may make recommendations for funding
for a party who has been granted standing at the Factual Inquiry, to the extent
of the party’s interest where the party could not otherwise participate. I have
�APPENDICES
made recommendations for funding for those granted party standing who are
unable to pay for counsel.
I am of the view that funding for some of those granted intervenor standing is important in order that I receive the type of assistance that will be very
helpful to me in fulfilling my mandate with respect to the Factual Inquiry.
Accordingly, I am making recommendations for funding for some of those who
have been granted intervenor standing.
In making my decisions with respect to funding for the intervenors, I have
considered the following:
•
•
•
•
whether the intervenor has an established record of concern and a
demonstrated commitment to the interest it seeks to represent;
whether the intervenor has special experience or expertise with respect to the issues;
whether the intervenor can reasonably be included in a coalition with
others with similar interests; and
whether the perspective or interest of the intervenor will be otherwise
represented.
Finally I note that if witnesses called to give evidence request counsel and
are unable to fund counsel, I may make recommendations for funding.
The Government will set out guidelines respecting funding, including the
payment of counsel fees and disbursements, for those participating in the Factual
Inquiry. My comments in this ruling on the government’s guidelines are based
on the current draft which has yet to be approved.
III. APPLICATIONS FOR STANDING AND FUNDING:
DISPOSITION
I address the applications for standing and funding below.
A. DIRECT FACTUAL CONNECTION
1.
Mr. Maher Arar
This Commission of Inquiry is the “Commission of Inquiry into the Actions of
Canadian Officials in Relation to Maher Arar”. Mr. Arar seeks standing in all
aspects of the Factual Inquiry as they relate directly to his detention, his deportation, his imprisonment and treatment in Syria, as well as any other actions of
Canadian officials as they affect him. His counsel have stated that they will put
before me all relevant evidence to assist me as I evaluate the conduct of officials towards Mr. Arar, and I welcome that assistance. Mr. Arar’s counsel indi-
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cated that they will pursue a broad range of issues including: (1) whether the
Canadian government “contracts out” torture, or acquiesces in such a practice;
(2) the extent to which racial profiling of Muslims occurs; (3) the use of confessions obtained under torture by Canadian intelligence services; and (4) the
balance between national security and civil liberties.
On the issue of funding, Mr. Arar seeks funding for two senior counsel and
two junior counsel. Mr. Arar has also requested that funds be made available
for small offices in both Toronto and Ottawa so that the voluminous documentation can be appropriately managed. One of Mr. Arar’s counsel specifically
stated that she recognized the trust involved in the use of public funds, and that
his counsel would endeavour to minimize overlap. At this time, she stated that
the only time she contemplated overlap is when Mr. Arar and his spouse and
others who are part of his direct family network are being interviewed or called
as witnesses.
Disposition:
I am satisfied that Mr. Arar has a substantial and direct interest in the Factual
Inquiry. In accordance with the Terms of Reference I grant Mr. Arar party standing for the purpose of examining and cross-examining witnesses and otherwise
participating in the Factual Inquiry.
The Government guidelines for funding for counsel contemplate that I may
make recommendations that go beyond the guidelines “in exceptional circumstances”. I am satisfied that Mr. Arar’s involvement in the Factual Inquiry constitutes an “exceptional circumstance”. He is integrally involved in all aspects
of the evidence. It is essential that he, with the assistance of his counsel, be able
to fully and thoroughly participate in developing the evidence and in making
submissions about the appropriate findings.
For those reasons, I recommend that Mr. Arar be granted funding for two
senior and two junior counsel. Mr. Arar’s senior counsel have undertaken to
minimize overlap, and have said that other than days on which Mr. Arar and his
direct family network will be called, they will not both be required to attend.
I am recommending that Mr. Arar’s senior counsel each be allowed 50 hours
for preparation prior to the first day of public hearings and that each junior
counsel be allowed 25 hours during the same period. Otherwise, counsel fees,
preparation time, disbursements and travel and other expenses are to be paid
in accordance with the Government guidelines. I will make a recommendation
with respect to the amount of fees allowed for closing submissions later in the
process.
�APPENDICES
Mr. Arar’s counsel seek funding for a small office in Toronto and in Ottawa.
I note that the Government guidelines for reimbursing counsel do not contemplate this kind of expense. The public hearings for the Inquiry will be held at
the Conference Centre in Ottawa. The Inquiry will attempt to arrange for an office or offices for counsel to interview witnesses and to use on the day of hearings. Hopefully this arrangement will be of assistance to Mr. Arar’s counsel.
In making the above recommendations I have had regard to the types of
funding granted to parties with standing in other public inquiries. I have also
taken into consideration the central role that Mr. Arar and his counsel will play
in the Factual Inquiry. I am satisfied that the recommendations that I have made
for Mr. Arar are at least as favourable and probably more favourable than the
recommendations made in other instances.
2.
Attorney General of Canada
The Attorney General of Canada has applied for standing in the Factual Inquiry.
The Minister of Justice is ex officio Attorney General of Canada. Under the federal Department of Justice Act he is responsible for, among other things, ensuring that the administration of public affairs is in accordance with law, and for
the superintendence of all matters connected with the administration of justice
in Canada not within the jurisdiction of the governments of the provinces. He
is also responsible for advising the heads of departments of government on all
matters of law connected with such departments, and for the regulation and
conduct of all litigation for or against the Crown or any department.
Under the proposed Rules of Practice and Procedure of this Inquiry, the
Attorney General of Canada has the responsibility of indicating to me which
documents or portions thereof, or which aspects of proposed evidence, are subject to a claim of National Security Confidentiality. The Crown servants with
knowledge of relevant facts and events may be entitled to be represented by the
Attorney General of Canada. The Attorney General of Canada acts as the
Crown’s legal advisor with respect to positions to be advanced before this
Inquiry, and also with respect to the government’s response to my report.
Disposition:
The Attorney General of Canada has a substantial and direct interest in the
Factual Inquiry. I grant the Attorney General of Canada party standing in the
Factual Inquiry.
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3.
The Ontario Provincial Police
The Ontario Provincial Police (OPP) assert a substantial and direct interest in the
subject matter of the Factual Inquiry with respect to Joint Task Force operations
as described below. Members of the OPP belong to joint police task forces operating with the RCMP which were involved in matters related to the mandate
of the Factual Inquiry. These task forces, known as Integrated National Security
Enforcement Teams (INSET Teams), are charged with the investigation of offences arising out of conduct constituting a threat to the security of Canada. As
members of these teams, OPP officers have information about actions and communications that took place among Canadian officials in relation to the mandate
of the Inquiry.
The OPP has identified its substantial and direct interest in the Factual
Inquiry as a result of:
(a) its interests as the employer of OPP officers involved in national security investigative teams in which Mr. Arar’s name arose;
(b) its participation in joint investigative task forces mandated to investigate matters of national security; and
(c) its knowledge of and involvement in the sharing of investigative information among police forces, including joint task forces, at both domestic and international levels.
Counsel indicated that the OPP seek standing limited to those matters directly
engaging these interests. They are not seeking funding.
Disposition:
I am satisfied that the Ontario Provincial Police have a substantial and direct interest in the matters set out above. I grant party standing to the OPP in the
Factual Inquiry limited to those matters directly engaging those interests.
4.
Mr. Ahmad Abou El Maati
Mr. El Maati is a Canadian citizen born in Kuwait. He knows Mr. Arar. In his
affidavit, he states that from April 2001 onwards he had been the subject of surveillance and harassment by CSIS, the OPP and the RCMP. He states that CSIS
indicated that they were going to stop the sponsorship of his Syrian wife, and
he flew to Syria. He states that he was immediately detained, tortured and mistreated between November 2001 and February 2002 when he was transported
to Egypt. In Egypt he states he was directly imprisoned and mistreated until his
release in January 2004. He states that during his detention and torture by the
�APPENDICES
Syrians, he was questioned with respect to both Mr. Arar and Mr. Abdullah
Almalki. He states that his substantial and direct interest in this Inquiry is in the
actions and conduct of Canadian officials whom he believes had a hand in his
illegal detention and torture by Syria and Egypt. He submits that his detention
and torture is linked to Mr. Arar and Mr. Almalki.
In particular, he states that during his detention and torture in both Syria
and Egypt, his torturers made reference to facts and documents from Canada
which he believes were provided by Canadian officials. He also seeks funding.
Disposition:
At this point I am not satisfied that Mr. El Maati has a substantial and direct
interest in the Factual Inquiry that would entitle him to party standing.
It is important to keep in mind that the Factual Inquiry is directed at the actions of Canadian officials in relation to Maher Arar, no one else. Indeed, in his
submission for standing Mr. El Maati’s counsel suggested that if his client had
been in Canada when this Inquiry was called, the Terms of Reference would
have included Mr. El Maati as well as Mr. Arar. Whether that is the case or not,
the Terms of Reference do not include Mr. El Maati, and I must approach my
mandate as it is, not as it might have been.
The mandate for the Factual Inquiry directs me to investigate and report on
the actions of Canadian officials in relation to Mr. Arar. Subparagraphs a(i) to
(iv) each refer to Mr. Arar. Subparagraph a(v) directs me to consider any other
circumstances directly related to Mr. Arar that I consider relevant to fulfilling my
mandate. Clearly the mandate is focussed on the events involving Mr. Arar and
no one else.
There is a likelihood that Mr. El Maati will be called as a witness. If so, he
will have an opportunity to relate what happened to him. However, being a witness does not in itself constitute a substantial or direct interest in the Inquiry. If
he testifies, Mr. El Maati will be entitled to have counsel to represent him with
respect to his testimony.
There is also a possibility that some evidence relating to Mr. Arar may involve Mr. El Maati including, for example, evidence of alleged associations with
Mr. Arar. However, the reference to a person in evidence at a public inquiry
does not in itself constitute a substantial or direct interest. More is required.
That said, I am satisfied that if evidence relating to Mr. Arar should refer to
Mr. El Maati, he should be entitled to have counsel represent him with respect
to that evidence if he chooses.
Further, it may be that as the investigation of the Commission proceeds and
as the nature of the evidence to be called becomes clearer, Mr. El Maati’s inter-
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est will be greater than is currently envisioned. However, at the present time,
I am satisfied that his interest falls short of being substantial and direct. In this
connection I would point out that section 13 of the Inquiries Act, R.S.C. 1985,
c. I-11, precludes any finding of misconduct (which includes a finding adversely
affecting an individual’s reputation) unless that individual has been given reasonable notice and allowed full opportunity to be heard in person or by counsel. The Attorney General of Canada opposed Mr. El Maati’s application for
standing taking the position that he does not have a substantial and direct interest in the Factual Inquiry. I have no doubt that in opposing the application
counsel for the Attorney General was well aware of section 13.
It may be that Mr. El Maati’s participation in the evidentiary portion of the
hearings will warrant the opportunity to be involved in other aspects of the
Inquiry including making closing submissions. That is not yet clear and I will
defer my ruling with respect to future participation.
Where Mr. El Maati is represented by counsel I recommend that the
Government pay for one counsel, and fees and disbursements should be paid
in accordance with the guidelines.
5.
Mr. Youssef Almalki
Mr. Youssef Almalki has applied for standing. He states that his brother,
Mr. Abdullah Almalki, was detained and tortured in Syria for almost two years.
He seeks standing on the ground that “Mr. Abdullah Almalki’s case and
Mr. Arar’s case may be strongly intertwined”; and because it is unclear when his
brother will return to Canada. I understand Mr. Youssef Almalki to effectively
be applying for standing on his brother’s behalf.
Disposition:
Mr. Abdullah Almalki is in the same position as Mr. El Maati except perhaps that
he may not be available to give evidence should the Inquiry wish to call him as
a witness. My disposition with respect to Mr. El Maati applies equally to Mr.
Abdullah Almalki, and I need not repeat those reasons here.
Commission counsel are presently in the investigative stage of the Inquiry.
Should the situation with respect to Mr. Abdullah Almalki change, he or his
counsel will be notified and his application for standing will be considered further at that time.
Mr. Abdullah Almalki is entitled to be represented by counsel if he testifies.
If evidence relating to Mr. Arar should refer to Mr. Abdullah Almalki, he should
be entitled to have counsel represent him with respect to that evidence if he
chooses.
�APPENDICES
I recommend funding for Mr. Abdullah Almalki for one counsel whose fees
and disbursements shall be paid in accordance with the Government guidelines
for those matters referred to above.
6.
Mr. Muayyed Nureddin
Mr. Nureddin is a Canadian citizen of Iraqi origin. He says he was detained
and tortured in Syria. Mr. Nureddin submits that he has a substantial and direct
interest in the subject matter of the Factual Inquiry for two principal reasons. He
states that he experienced difficulties similar to those experienced by Maher Arar,
and he believes Canadian officials played a role in his detention and torture in
Syria. He submits this Inquiry is mandated to determine the extent to which
racial profiling and systemic racism played a role in what happened to Maher
Arar. He submits that a further investigation of what happened to him would
assist this Commission in putting into context what happened to Mr. Arar, and
would particularly assist me in determining the extent to which racial profiling
and systemic racism played a role. He also seeks funding.
Disposition:
I am not prepared to make a grant of standing for Mr. Nureddin at this point in
time. It is not clear that Mr. Nureddin will be called as a witness. If he is, he
will be entitled to have counsel for that purpose.
Moreover, it is not anticipated at this point that the evidence relating to
Mr. Arar will involve Mr. Nureddin.
Commission counsel are presently in the investigative stage of the Inquiry.
Should the situation with respect to Mr. Nureddin change, his counsel will be
notified and his application for standing will be considered further at that time.
B. INTERVENOR STANDING
1.
Introduction
There are sixteen organizations which have applied for standing which I am
satisfied do not have a substantial and direct interest in the Factual Inquiry but
which should be granted intervenor standing. I will address each of these applicants individually below. However, for the sake of avoiding repetition, I will
start out by making some general comments.
All of these applicants are sympathetic to Mr. Arar. Many were involved in
the efforts to have Mr. Arar returned to Canada and in the public campaign to
have the Government call this Inquiry. Each of these applicants have a genuine
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concern in some of the issues raised in the Factual Inquiry. These applicants
bring a variety of perspectives to these issues.
Some represent different points of view of the Arab community. Others approach the Inquiry from Islamic or Muslim perspectives. Still others have a primary focus directed at human rights and civil liberties, while others, some
international, are concerned about international relations and the prevention of
torture.
These applicants also have different experiences and expertise as it relates
to their particular perspective.
I am not persuaded at this time that any of these organizations have the type
of connection to the matters raised in the Factual Inquiry that meets the “substantial and direct interest” test. It must be remembered that the Factual Inquiry
aspect of my mandate for which they seek standing is an investigative, fact-finding process. The recommendation and preventative part of my mandate is found
in the Policy Review.
As I said above, the mandate for the Factual Inquiry directs me to investigate and report on the actions of Canadian officials in relation to Mr. Arar.
Subparagraphs a(i) to (iv) each refer to Mr. Arar. Subparagraph a(v) directs me
to consider any other circumstances directly related to Mr. Arar that I consider
relevant to fulfilling my mandate. Clearly the mandate is focussed on the events
involving Mr. Arar and no one else.
I have concluded that the interests asserted by the applicants to whom I
grant intervenor standing do not meet, at least at this point, the legal test of having a “substantial and direct interest” in the Factual Inquiry. For example, while
the Arab and Muslim/Islamic organizations assert an interest based on the premise that what happened to Mr. Arar resulted from racial profiling, systemic discrimination and the way governments have treated their communities in the
post 9/11 era, and while evidence about those matters may be helpful in putting what happened to Mr. Arar in context, I do not consider, at least at the
present time, that this interest meets the Asubstantial and direct interest” test.
However, as I have noted, I am committed to ensuring that the Factual Inquiry
is thorough and that it examines the causes of what happened to Mr. Arar from
an individual, organizational and systemic perspective. The applicants to whom
I grant intervenor standing have established their particular areas of expertise
and experience, and their genuine concern about these issues, and I believe
they can make a valuable contribution to this Inquiry.
I have described the attributes of intervenor standing above. Unless otherwise indicated each organization or coalition shall have those opportunities.
�APPENDICES
For purposes of simplifying the process and for purposes of making the
best use of Government funding, I have grouped some applicants into groups
or coalitions. I am flexible with respect to coalitions. If any organization seeks
to join or separate from a coalition they are free to do so. However, my recommendations with respect to funding are premised, as I set out below, on certain coalitions being formed. Let me then turn to each applicant.
2.
Arab and Muslim/Islamic Groups
(a)
Canadian Islamic Congress
The Canadian Islamic Congress (CIC) is a non-profit national Muslim organization. The CIC has been in existence for just under a decade. The CIC lobbied
the Federal Government for a full inquiry into the Maher Arar matter.
The CIC is concerned with what they submit is racial profiling of members
of the Muslim community by national and local law enforcement agencies, including the RCMP and CSIS. They state that while Commission counsel has the
primary responsibility for representing the public interest at the Factual Inquiry,
they feel that the Inquiry would benefit from a Muslim perspective. The CIC
proposes to call expert evidence regarding the present experience of the Muslim
community with respect to law enforcement, particularly the RCMP.
Counsel indicated that members of the Muslim community feel threatened,
fearful and angry at “Islamophobia”. The CIC would use their expertise to link
“Islamophobia” with racial profiling as it is used by the police, the RCMP and
CSIS; the impact of racial profiling on the Muslim community; and their expertise in social therapy. They allege that there is a lack of cultural and religious sensitivity on the part of law enforcement officers including the RCMP. Their
counsel confirmed that the interest which has led them to seek standing is racial
profiling and the stereotyping of Arab and Muslim people.
(b) The National Council on Canada-Arab Relations
The National Council on Canada-Arab Relations (NCCAR) is a national
organization that was founded in 1985. The mission of the NCCAR is “to build
bridges of understanding and cooperation between Canada and the Arab world”.
Their objectives include to promote and assist programs that increase Canadian
awareness and knowledge of the Arab world; to expand links between Canadian
and Arab institutions; to achieve a fair and balanced coverage of social, political
and economic events in the Arab world; and a greater recognition of the
contributions of Arab-Canadians to Canada. The NCCAR has been supportive
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of Mr. Arar, and urged the Arab League to intervene with respect to Mr. Arar’s
treatment.
The NCCAR submit that the treatment of Mr. Arar, a Canadian citizen of
Arab descent, is of substantial and direct concern as it impacts directly on ArabCanadians. The conduct also has significant implications regarding the security
of Arab-Canadians in Canada and elsewhere, and on Canada’s relations with
Arab countries. The NCCAR approaches these issues “from the perspective of
an organization whose mandate since its inception has been to study and promote international Canadian-Arab relations”.
The NCCAR identifies its expertise in international relations; governmental
and legal constructs, and the sharing of information between governments. They
have a wide knowledge of the workings of a variety of Arab governments.
Although they are concerned with racial profiling, their counsel acknowledged
this is not their area of expertise.
(c)
The Muslim Community Council of Ottawa-Gatineau
The Muslim Community Council of Ottawa-Gatineau (MCCO-G) is an umbrella
organization of several Muslim organizations within the National Capital Region
and across Canada. It is a non-profit organization whose mission is to encourage Canadian Muslim organizations in the Ottawa-Gatineau region to work together harmoniously to establish and support Islamic institutions, principles and
practices that help build happy families in a safe and secure community, and to
work with other organizations across Canada to address common issues affecting Muslims. The MCCO-G is comprised of a total of 29 organizations engaged
in a range of religious, social, educational and cultural activities.
The MCCO-G seeks standing to the extent of its interest on issues involving race relations, cross-cultural sensitivities, and the interaction of police and
other officials with racial and cultural minorities. The MCCO-G has been supportive of Mr. Arar and his family throughout. They identified Mr. Arar and his
family as active participants in the Ottawa Muslim community, and cite proximity
to and familiarity with Maher Arar and his friends, and the impact of his arrest
as having a powerful and negative impact on Muslims in the Ottawa-Gatineau
region. They state that other members of the Canadian Muslim communities
have experienced various degrees of negative episodes and experiences with intelligence and law enforcement agencies in the wake of the September 11, 2001
tragedy, which they perceive as discrimination on the basis of religion.
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(d) Canadian Council on American-Islamic Relations
The Canadian Council on American-Islamic Relations (CAIR-CAN) is an Ottawabased national organization that represents Canadian Muslims through community education, media engagement, anti-discrimination resolution and public
advocacy. They represent three national Canadian Muslim organizations, and
112 local Canadian Muslim organizations. CAIR-CAN has expertise in the legal
and policy issues arising from the Arar case, including the context of issues that
affect Canadian Muslims in the post-9/11 security environment. I note that they
identified the MCCO-G as one of their participating organizations.
CAIR-CAN has been distributing a pocket guide for Canadian Muslims entitled “Know Your Rights”, advising Muslims what to do if CSIS or the RCMP tries
to interrogate them about terrorism. This is reflective of what their counsel referred to as a Acommunity under siege” since 9/11, and their particular concern
and expertise in racial profiling.
CAIR-CAN was very active in the campaign to secure Mr. Arar’s release and
attended meetings with senior officials from the Canadian and American governments. Their 2003-2004 Annual Review contains a statement from Mr. Arar
that CAIR-CAN was the first organization to support his wife, Dr. Monia Mazigh,
in her efforts to obtain his freedom.
CAIR-CAN is jointly applying for standing with the Canadian Arab
Federation and I rule on this joint standing application below.
(e)
The Canadian Arab Federation
The Canadian Arab Federation (CAF) was founded in 1967 as a national, not-forprofit, umbrella organization. The CAF’s mandate is to articulate, defend and
otherwise pursue the interests of Canadians of Arab origin through maintaining
relationships with all three levels of government, liaising with the media, and
forging partnerships with other equity-seeking organizations. They indicate that
their substantial and direct interest lies in the fact that the CAF is uniquely positioned to represent the interests of Canadian Arabs. This includes the existence
of racial and religious profiling of Arabs in Canada by state agents; the
effectiveness of oversight and accountability mechanisms for law enforcement
and intelligence agencies; the civil and human rights implications of public legislation; human rights and international principles; the nature and details of
Canada-U.S. national security relations; and the status, protocol and legal implications of information sharing with foreign security and law enforcement
agencies.
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Counsel for the CAF submitted that they are deeply concerned with the
human rights abuses suffered by Arab Canadians as a result of the new national
security agenda. Mr. Arar suffered as he did because he was an Arab Canadian,
and Arab Canadians identify deeply with Maher Arar. Counsel identified six main
areas of interest to the CAF: (1) racial profiling; (2) security stereotyping; (3)
flawed intelligence gathering in minority communities; (4) information sharing
practices and protocols; (5) discrimination and marginalization; and (6) human
rights abuses. Counsel stated that an overriding concern is the proper balance
between national security and the protection of civil liberties.
(f)
The Muslim Canadian Congress
The Muslim Canadian Congress (MCC) is an unincorporated non-profit association created in March, 2002 with the objective of providing a voice to Muslim
Canadians who are not represented by existing organizations. They state that
the primary objective of the MCC is to identify, articulate, defend and otherwise
pursue the interests of the Canadian Muslim community, as well as out-reach and
education within the non-Muslim Canadian community. The MCC is seeking to
intervene on issues raised with respect to the discrimination on the basis of religion concerning Muslims. They also raise the issue of racial profiling of
Muslims in Canada, and the recruitment and use of Muslims as informers by intelligence agencies.
The MCC is seeking the right to file written closing submission at the Factual
Inquiry, and to be involved in the Policy Review. They agreed to be part of a
coalition to share a single grant of standing.
Disposition:
Three of these organizations - CAIR-CAN, the CAF and the MCC - have agreed
to be involved in a coalition. That coalition shall be granted intervenor standing. Each of these organizations is concerned with issues of racial profiling,
systemic discrimination and the impact on the Arab and/or Muslim communities of post 9/11 government actions. It is premature to determine to what extent these issues will be relevant to the Factual Inquiry. However, it may be that
this coalition can play a role helpful to Commission counsel in developing
evidence and identifying issues in these areas. I do not foreclose the possibility that at some point this coalition could be permitted to participate in the examination of witnesses in these areas.
The other three organizations – CIC, the NCCAR, and the MCCO-G – have
not sought to be joined in a coalition. These organizations are each granted intervenor standing.
�APPENDICES
I accept the reasons why they may choose not to join a coalition. Different
groups represent different constituencies and different perspectives. For example, the NCCAR is concerned about issues of racial profiling, but it is also concerned about international relations and the sharing of information between
states.
Although I grant each a separate grant of intervenor standing, I would urge
them to consider if their interests in relation to the Factual Inquiry can be accommodated through a single representation. If so, that would have to have the
effect of streamlining the process. If not, I understand.
As to funding, I recommend that the Government provide funding for two
counsel for the six Arab and Muslim/Islamic organizations for the Factual
Inquiry. As I said, I recognize that some have different constituencies and different perspectives. However, I am satisfied that funding for two counsel is sufficient to provide adequate representation for the different interests.
Although I will not at this point recommend to whom the funding will be
directed, I consider the coalition referred to above as a prime candidate to receive funding. I would ask that the six organizations discuss the matter and
present a plan. If they are unable to reach agreement by May 17, 2004, I will
make a ruling.
As to the amount of funding I recommend that each counsel be permitted
a maximum of forty hours in order to make submissions with respect to the
Rules, the in camera hearings, the opening submissions and other matters prior
to closing submissions. I will make a recommendation with respect to the
amount of time permitted for closing submissions later in the Inquiry.
3.
Civil Liberties and Canadian Democracy/Sovereignty
(a)
British Columbia Civil Liberties Association
The British Columbia Civil Liberties Association (BCCLA) is a society incorporated in 1963 pursuant to the Society Act, R.S.B.C. 1996, c. 433. The objectives
of the BCCLA include the promotion, defence, sustainment and extension of
civil liberties and human rights. The BCCLA has a long history and involvement
with national security and intelligence, anti-terrorism legislation and police
accountability. In 1978 and 1979, the BCCLA made submissions to the
McDonald Commission of Inquiry Concerning Certain Activities of the Royal
Canadian Mounted Police, and have continued to participate in subsequent reviews of CSIS.
The BCCLA submits that its long standing concern, involvement and influence in national security, intelligence and policing issues in Canada and its ac-
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knowledged expertise in these areas “means it has a direct and substantial interest in the rights of not only one citizen such as Maher Arar, but all or any citizen whose rights or freedoms are similarly at risk”. It identifies a unique interest
in ensuring that Canadian legislation, institutions, policies and practices are designed to protect those civil liberties, and asserts a substantial and direct interest as information resulting from this Inquiry will be relevant to the work that
the BCCLA does in assisting individuals with complaints about the RCMP and
other security and intelligence agencies.
Counsel identified the BCCLA’s substantial and direct interest as: (1) the
BCCLA represents the civil liberties of all Canadians; (2) an interest in the outcome, to ensure it never happens again; and (3) their role in policy-making and
the eliciting of relevant facts. Counsel identified a particular interest and expertise, as demonstrated through the BCCLA’s participation in the APEC Inquiry
and court interventions, on principles relevant to in camera hearings and the
conditions thereto.
(b) The Minority Advocacy and Rights Council
The Minority Advocacy and Rights Council (MARC) is a non-profit corporation
formed in 1991 for the purpose of monitoring, assisting, sponsoring and undertaking selected litigation concerning human rights legislation and the Canadian
Charter of Rights and Freedoms in the promotion and protection of minority
rights. MARC’s mandate is to address issues related to race, national and ethnic
origin, colour and religion in the area of human rights and social justice and to
work towards the elimination of racial discrimination and systemic inequality.
MARC submits that this Inquiry raises issues of freedom of conscience, religion and association (Charter section 2), the mobility rights of citizens (Charter
section 6), the right to life, liberty and security of the person (Charter section
7), and equality rights (Charter section 15). MARC submits that these issues are
raised in the context of section 27 of the Charter, which recognizes the multicultural heritage of Canadians. They submit that the Inquiry must “consider the
more precarious position of minorities in enjoying these legal and constitutional
rights particularly where, as here, the fact that Mr. Arar’s membership in a minority group was a factor in the events”.
Counsel submits that MARC will assist the Inquiry in obtaining facts, and
they also have a particular interest in oversight and policing issues.
(c)
Canadian Labour Congress
The Canadian Labour Congress (CLC) is affiliated with approximately 60 public
and private trade union organizations representing approximately 2.6 million
�APPENDICES
members. The CLC identifies three major issues that they say arise from or may
explain the actions of Canadian officials in relation to Mr. Arar, which they identify as their substantial and direct interest. The first issue is human rights and
racial profiling. Secondly, they state that they represent workers who are or
may be directly affected by the actions of Canadian officials. For example, members of their affiliate trade unions are employed in the transportation sectors
and have job duties which require them to regularly travel outside the country.
The CLC’s counsel submitted that the Terms of Reference require me to examine not only what happened, but why. This will require an examination of
the policy context in which the actions of Canadian officials are placed. On
this point, counsel submitted that some of their affiliated members are members of PSAC who are called upon to implement government policies relating,
for example, to customs and immigration.
The third aspect identified by the CLC is that of sovereignty. They state that
the case of Mr. Arar “illuminates the serious erosion of Canadian sovereignty
that has become an increasingly common feature of Canada-U.S. relations”, and
are particularly critical of any form of two-tiered citizenship in which Canadian
citizens of colour or those born in poorer countries are accorded a lesser status,
as they say appears to have happened with Mr. Arar.
(d) The Law Union of Ontario
The Law Union of Ontario (Law Union) is an Ontario-based, unincorporated association created in 1974. The Law Union defines its mandate as a commitment
to the defeat of oppression on the basis of class, ethnic origin, sex including sexual orientation, age, colour and religion. The Law Union cite a long history of
involvement in law reform, and in particular on policing issues including
strengthening of public complaints procedure, ensuring effective civilian oversight, combatting the use of excessive force and raising awareness about racial
and cultural sensitivity. The Law Union have been involved in a number of national security cases at all levels of court in Ontario, the federal courts and the
Security Intelligence Review Committee. The Law Union submits that they
would make a special contribution with respect to the use of informers, the apparent lack of understanding of cultural issues by the RCMP and INSET teams,
the transmission of intelligence information to agencies of countries that engage
in torture and detention without trial, and the credibility or reliability of information obtained or provided by the RCMP and CSIS.
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(e)
International Civil Liberties Monitoring Group
The International Civil Liberties Monitoring Group (ICLMG) is a pan-Canadian
coalition of civil society organizations that was established in the aftermath of
the September 11, 2001 terrorist attack in the United States. The ICLMG coalition brings together over 30 groups, including a number of the other applicants
such as Amnesty International, the CAF, the CLC, and the Council of Canadians.
The mandate of the ICLMG is to defend civil liberties and human rights as set
out in the Canadian Charter of Rights of Freedoms, federal and provincial laws
and international human rights instruments. The ICLMG is also involved in the
dissemination of information relating to human rights in the context of counterterrorism and concern with Canada’s anti-terrorism legislation and security
policies.
The ICLMG has actively been involved in the campaign for Mr. Arar’s release, and supported the calling of this Inquiry.
The ICLMG has indicated they are willing to cooperate in a coalition.
(f)
Council of Canadians and the Polaris Institute
The Council of Canadians is a not-for-profit organization founded in 1985. The
central interest of the Council of Canadians is the erosion of Canadian sovereignty and the democratic process. The primary objectives of the Council are
safeguarding social programs, promoting economic justice, renewing democracy, asserting Canadian sovereignty, preserving the environment and advancing alternatives to present trade policies.
The Polaris Institute is a research-advocacy institute founded in 1997. The
key focus for the Institute has been the impact of Canada-U.S. relations on sovereignty and democratic policy-making in variety of areas, including the potential for government priorities in the economic and security sphere to negatively
impact Canadian sovereignty and the rights of Canadians.
The Applicants submit that their purpose in seeking standing is to “ensure
that the policy and institutional origins of the apparent collaboration that took
place between Canadian and U.S. officials be thoroughly examined”. They state
that in this regard, it is crucial to examine all relevant aspects of Canada-U.S. relations that may have “come into play in creating the policy and institutional context within which the actions of Canadian officials in relation to Mr. Arar were
formulated and carried out”. Their counsel submits that this Inquiry should examine the extent to which Mr. Arar’s fate is symptomatic of a decline in Canadian
sovereignty and increased economic integration with the U.S. The Applicants
refer to the integration of economic, national security and other policies, which
�APPENDICES
they submit has a corrosive impact on Canadian sovereignty and democracy. It
is in this area that they identify their substantial and direct interests and their particular expertise.
Disposition:
Each of these organizations is granted intervenor standing to pursue the interests identified in their applications. At this point none have indicated a willingness to form a coalition.
As to funding, it is important that the civil liberties perspective be fully and
forcefully represented at the Inquiry. Accordingly, I recommend funding for
two counsel for this group of applicants.
I ask the applicants in this group to have discussions and if possible to
present a plan to the Inquiry by May 17, 2004 for how the funding should be
allocated. Failing receipt of such a plan, I will issue a ruling.
Let me make a few comments that might be of assistance. At this point, I
am not persuaded that the interests raised by the Council of Canadians, the
Polaris Institute and the CLC, other than those relating to civil liberties, are sufficiently germane to the mandate of the Factual Inquiry to warrant funding. I
consider the BCCLA as a prime candidate to receive a grant of funding. I was
very impressed with their presentation and their history of protecting civil liberties in a national security context.
I recommend that the funding for counsel be to a maximum of forty hours
for each counsel, plus disbursements, for services prior to closing submissions.
I will address closing submissions later in the process.
4.
International Human Rights
(a)
The Redress Trust, the Association for the Prevention of Torture and the World
Organization Against Torture
Three organizations have applied jointly for standing.
The Redress Trust (REDRESS) is an international non-governmental organization with a mandate to assist torture survivors to seek justice and reparations.
It is a United Kingdom based organization, and has accumulated a wide expertise on the rights of victims of torture within the United Kingdom and internationally. It has recently completed a comparative study on a reparation for
torture in 31 countries worldwide.
The Association for the Prevention of Torture (APT) is a non-governmental organization based in Switzerland which works worldwide to prevent torture
and ill-treatment by actively supporting the national implementation of interna-
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tional norms and standards that prohibit torture, contributing to the promotion
of control mechanisms; and developing information and training activities for authorities in contact with detainees. It has participated in the adoption of international and regional standards by various organizations and has organized
training in conjunction with various police forces on police codes of conduct and
human rights issues. The APT suggests that it will bring to the Commission its
experience concerning the elaboration and adoption of international legal
obligations at the level of national governments and regional organizations of
states, particularly in regard to standards for national police forces.
The World Organization Against Torture (WOAT) was founded in 1985 and
is based in Geneva. It is the world’s largest coalition of non-governmental organizations fighting against arbitrary detention, torture, and other forms of violence. Its global network comprises two hundred and sixty-six local, national
and regional organizations which share the common goal of eradicating such
practices and enabling the respect of human rights for all. WOAT frequently intervenes with various governmental authorities and international mechanisms
on behalf of those in danger of being returned to countries where they are at
risk of being tortured. Support for victims also takes a more general form,
through the submission of reports to various United Nations mechanisms.
WOAT brings to the Commission a wealth of experience gained worldwide
about the practical implementation of international instruments at the national
level.
The Coalition has applied for special standing in the Factual Inquiry. They
have identified four areas which they would like to participate. First, they have
sought the right to make an opening submission on the rules of international law
and practice governing the obligations of government officials, including officials
of the government of Canada, to protect citizens, residents and other persons
under their government’s protection from torture at home or abroad, and the implications of the Arar case within the international community of persons concerned with the prevention of torture. This opening submission would be for
the purpose of assisting the Inquiry to frame the issues for the Factual Inquiry
and subsequent Policy Review. They also seek the ability to apply for leave to
examine specific witnesses on the forcible removement of persons to countries
where there is a foreseeable risk of torture. The Coalition seeks leave to make
submissions on the scope of the Inquiry’s mandate or other procedural matters
“that may affect the perception, within the international community, of this
Inquiry’s ability to achieve the mandate established by its terms of reference”.
They wish to participate in oral consultations in the Policy Review. Finally, they
�APPENDICES
seek the ability to make closing submissions on matters that arise in the course
of the Inquiry.
The Applicant organizations are all members of the Coalition of
International Non-Governmental Organizations Against Torture (CINAT), an international body composed of seven international non-governmental organizations committed to ending and preventing torture, to bring torturers to account,
providing rehabilitation and obtaining justice and reparations for survivors of
torture. I note that Amnesty International, another applicant applying separately, is a member of CINAT.
The Coalition states that they have direct and substantial interest in the subject matter of this Inquiry, more particularly located in their work on the application of international human rights instruments, the prevention of torture, the
promotion of the rights of torture survivors, and the practice and jurisprudence
of national and international mechanisms for the protection of human rights.
The Coalition submits that the Inquiry raise the potential conflict between national security concerns and international human rights.
Counsel indicated that the Coalition members are pleased to share their expertise if Commission counsel or Mr. Arar should request.
Mr. Kevin Woodall, who acts for this group, has indicated that counsel will
serve on a pro bono basis, and seek funding only for disbursements. Counsel are
acting in the highest tradition of the profession, and I thank them for their commitment to pro bono representation.
(b) Amnesty International
Amnesty International Canadian Section (English Branch) (Amnesty
International) has applied for standing. Amnesty International was extensively
involved in Mr. Arar’s case commencing two weeks after his detention in the
United States. They worked closely with Mr. Arar and his family and other concerned organizations.
Amnesty International does not seek standing to present evidence or examine or cross-examine witnesses but rather, to observe the proceedings and
make submissions on occasion, particularly at the close of the Factual Inquiry.
Amnesty International has stated that the essential question the Inquiry must
address is whether the knowledge, action or inaction of Canadian officials in any
way put Mr. Arar at risk of the serious human rights violations he has experienced. They have also set out a number of specific questions which they submit this Inquiry should address. Amnesty International does not seek funding.
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(c)
The International Coalition Against Torture
The web site indicates that the goal of the International Coalition Against Torture
(InCAT) is to take all necessary and lawful steps to abolish sovereign immunity
for all acts of torture, so that the path leading to justice for all victims of torture
will be open. It is a non-governmental organization aimed at providing legal aid
for victims of torture, and pursuing justice in the courts by holding perpetrators
and violating states responsible for their actions.
InCAT identified as their direct interest that one of their founding members
has been tortured, and is still involved in litigation with respect to that torture.
Counsel indicated they have no objection to being grouped together in a
coalition.
(d) The Center for Constitutional Rights
The Center for Constitutional Rights (CCR) was established in 1966. It is a New
York based non-profit legal and educational organization dedicated to protecting and advancing the rights guaranteed by the U.S. Constitution and the
Universal Declaration of Human Rights. They are one of the leading organizations in the U.S. providing avenues of redress for torture victims.
Since the September 11th attacks, CCR has spear-headed litigation before
U.S. and international tribunals to protect fundamental rights to due process for
both U.S. citizens and non-citizens, who are impacted by what they state, are the
United States administration’s counter-terrorism measures. The CCR represents
Maher Arar in legal proceedings against United States officials involving his detention in the United States and his removal to interrogation and treatment in
Syria. The CCR filed a complaint on Mr. Arar’s behalf with the Federal Court in
January, 2004.
The CCR has identified these main areas of its expertise: (1) a history of U.S.
policies regarding torture, refoulement and rendition, including covert and overt
policies regarding extraordinary rendition; (2) the legal framework within which
Mr. Arar’s detention and removal took place, including the function and jurisdiction of various executive, judicial and law enforcement branches and agencies; and (3) the legal framework in the U.S. relating to the implementation of
the UN Convention Against Torture, including the role of diplomatic assurances.
The CCR has agreed to provide assistance to Commission counsel on these issues, if requested.
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Dispostion:
Each of these organizations other than the CCR is granted intervenor standing.
The CCR acts for Mr. Arar in a civil action in the United States. Given that relationship it seems to me that the CCR’s interest in the Factual Inquiry can most
appropriately be addressed through Mr. Arar’s grant of standing.
As to funding, counsel for the coalition of REDRESS, APT and the WOAT
indicated that counsel would provide legal services on a pro bono basis. He requested, however, that I recommend payment of disbursements. I am in agreement with that request and so recommend.
Consistent with its established policy, Amnesty International does not request any Government funding.
I do not consider it necessary to make any further recommendations for
funding with respect to this group. I note that InCAT has no objection to joining with one of the other organizations in this group.
5.
Individuals
(a)
Ken Rubin
Mr. Rubin is a public interest researcher who seeks standing as an individual
citizen. He states that since May, 2003 he has spent considerable time doing
access to information and privacy research work for Mr. Arar and
Dr. Monia Mazigh. He also notes that he has been an advocate of open government for over 30 years and has been involved in a significant number of
cases and hearings in many jurisdictions, and has written extensively on disclosure and privacy protection. He submits that the areas of his contribution would
be to monitor and intervene on the need for as much disclosure of the facts as
possible, to provide input on government records connected with the Arar case,
and to outline issues regarding access to information and privacy requests. He
is requesting funding as a senior researcher.
Disposition:
Mr. Rubin’s primary interest relates to the basis on which this Inquiry will determine what evidence should be heard in camera. He is granted limited intervenor standing for the purpose of making submissions on this issue. I am not
persuaded that he should be granted standing to pursue the other issues raised
in his application. I make no recommendation as to funding.
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(b) Emmanuel Didier
Dr. Didier appeared before me requesting to appear either as an independent
expert, or as an expert appointed by the Commission under Section 11(1) of the
Inquiries Act, R.S.C. 1985, c. I-11. His experience is in both public and private
international law and administrative law. This proceeding deals with standing
and not with experts, and so I make no ruling on this application at this time.
IV. CONCLUSION
I express my thanks to all of the individuals, groups and organizations who applied for standing and participated in the hearings.
May 4, 2004
Justice Dennis R. O’Connor
Commissioner
APPENDIX 3(C)
Supplementary Ruling re: Funding
I have received a number of submissions with respect to my ruling which was
released on May 11, 2004. All of the submissions are directed to the issue of
funding. I address each of those submissions below.
MAHER ARAR
In my ruling I recommended that Mr. Arar be granted funding for two senior and
two junior counsel. Those counsel have undertaken to minimize overlap. I recommended that senior counsel be allowed 50 hours of preparation prior to the
public hearings (now scheduled to begin on June 21) and that junior counsel be
allowed 25 hours during the same period.
Mr. Arar’s counsel have written requesting that those numbers be increased
to 200 and 150 hours respectively. In their letter counsel point out that the
Commission counsel’s decision to call Mr. Arar, his family members and other
�APPENDICES
Arar witnesses towards the beginning of the public hearings will result in an
enormous amount of work for them before the hearings begin. If those witnesses were to be called later in the Inquiry, the funding guidelines which permit 10 hours of preparation for each day of hearings would help significantly in
covering the expense of preparing those witnesses for the hearings. At the time
of Mr. Arar’s original request for funding, the need for additional funding for
preparation time before the start of the hearings was not as apparent as it is now.
There is merit to this request for extra funding. To date Mr. Arar’s counsel
have been very cooperative in assisting with the preparation for this Inquiry.
They indicate that they will continue to provide assistance so that the Inquiry
can proceed expeditiously. I am pleased that we are able to start the public
hearings as early as June 21st and it appears that we will be able to continue
those hearings through the month of July. There is a significant advantage to
everyone concerned in proceeding with this Inquiry as expeditiously as possible. The cooperation of those involved in the Inquiry is important in achieving
this goal.
I am prepared to increase the funding I previously recommended for
Mr. Arar’s counsel for preparation before the first day of hearings by 100 hours
for each of the four counsel. An increase of 100 hours for each lawyer is less
than requested, however, given that there are four lawyers and that those
lawyers will attempt to minimize overlap, it seems to me that an increase of
100 hours is reasonable. Accordingly, I recommend that senior counsel be
permitted 150 hours each and junior counsel 125 hours each. In all other respects my recommendation with respect to funding for Mr. Arar’s counsel remains unchanged.
CIVIL LIBERTIES AND CANADIAN DEMOCRACY/
SOVEREIGNTY GROUP
In my ruling I granted intervenor standing to the six organizations which I
grouped under the above-noted heading. I recommended funding for two counsel for the group. I recommended that each counsel receive funding for 40 hours
for services prior to closing submissions and stated that I would address the
amount of funding for closing submissions at a later point in time. I asked that
the group present a plan setting out how that funding should be allocated.
This group has written to me making a number of requests. First, the group
requests that I expand my funding recommendation to include payment of fees
and disbursements for one full-time legal counsel for the duration of the Factual
Inquiry. This counsel would be funded to attend the hearings at which evidence
is called, but would not participate directly in the examination of witnesses. It
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is suggested that having a counsel in full-time attendance at the hearings would
better enable these intervenors to assist Commission Counsel and other counsel when questioning witnesses and would also enable these intervenors to be
better informed when making final submissions.
I am not prepared to make the recommendation requested. The transcripts
of the hearings will be available on the Commission’s website in a timely manner - we expect on the evening of the day during which evidence is heard.
Counsel for these parties will have an opportunity of reviewing those transcripts
and Commission Counsel will be available to discuss suggestions about areas in
the evidence that need to be pursued. I will ensure that no problem arises because counsel for this intervenor group are not present at the hearings when a
particular area of evidence is first introduced. I am confident that the invernors’
suggestions to Commission Counsel will be fairly addressed.
Moreover, in approaching the issue of funding I have tried to ensure that
Mr. Arar’s counsel are sufficiently funded so that they can fully and effectively
participate in the hearings. Mr. Arar will be represented by two very experienced senior counsel and I will have the benefit of their participation. Similarly,
the government will be represented by a very experienced senior counsel who
is supported by a substantial team of lawyers. There will be no shortage of topflight legal talent participating in the calling of the evidence.
I am satisfied that Commission Counsel and the other counsel who are entitled to examine witnesses will be able to fully and fairly develop all of the evidence necessary for me to make the findings called for in the Factual Inquiry
part of my mandate. I do not think that the benefit gained from the presence of
an additional counsel throughout the hearings warrants the expense to the public purse that would be involved.
I note that the intervenors in this group would like to reserve the right to
make individual or group submissions on various aspects of the Factual Inquiry.
I agree with that request.
Finally, this intervenor group has requested that the 80 hours of preparation time be allocated equally among three groups: (1) the BC Civil Liberties
Association, (2) the International Civil Liberties Monitoring Group, the Minority
Advocacy and Rights Council and the Law Union of Ontario, and (3) the Council
of Canadians/Polaris Institute.
I am in agreement with that request and so recommend.
ARAB AND MUSLIM/ISLAMIC GROUP
In my ruling I recommended that the government provide funding for two counsel for the six Arab and Muslim/Islamic organizations which were granted
�APPENDICES
standing. I asked that the six organizations discuss the issue of the allocation of
the funding and, if possible, present a plan.
The Canadian Council on American-Islamic Relations (CAIR-CAN) and the
Canadian Arab Federation (CAR) have agreed to share one grant of funding. I
appreciate their cooperation. On the basis of their written and oral submissions
I am satisfied that this is a reasonable approach and I so recommend
There remain four other organizations in this group which have been
granted intervenor standing. They are: the Muslim Community Council of
Ottawa-Gatineau, the Canadian Islamic Congress, the National Council on
Canada-Arab Relations and the Muslim Canadian Congress. These organizations
have been unable to agree upon a plan for shared representation and funding.
Each wishes to be represented separately. While I fully accept the point that
each of these organizations represent different constituencies and perspectives,
none of them has pointed out any conflicting positions on the issues for which
they would be granted funding; the Rules of Procedure; the principles governing In-Camera Hearings; and the issues that need to be canvassed in the Factual
Inquiry. I would have thought that while some of these organizations may have
a different emphasis or perspective on some issues, a cooperative approach to
this Inquiry would nonetheless be possible and desirable.
That said, I have granted each organization intervenor standing and am
anxious to have their participation. In order to move the matter ahead, I am
prepared to recommend one extra grant of funding of 40 hours for this group
of four organizations. It continues to be my view that this funding will be better used if a sharing agreement is reached and I urge these organizations to
reach an agreement. Failing agreement, I will recommend that the two grants be
divided equally – 20 hours each. I look forward to a response by June 7th. The
recommendation for an additional grant of funding at this stage should not be
taken as necessarily leading to an additional grant for closing submissions. I will
consider funding for closing submissions in due course.
May 26, 2004
Justice Dennis R. O’Connor
Commissioner
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FACTUAL BACKGROUND: VOLUME II
APPENDIX 3(D)
Supplementary Ruling on Standing
Three of the witnesses whose evidence will be heard during the upcoming in
camera hearings of the Inquiry have applied for standing. There has also been
an application for standing by the Ottawa Police Service.
I have granted all of these applications.
In particular, I have granted standing to three members of the A-O Canada
project who I am satisfied have a substantial and direct interest in certain
A-O Canada-related matters that will be dealt with at the Inquiry. The names of
those members are not to be disclosed at the present time. Standing is limited
to those matters that directly engage their interests.
I have also granted standing to the Ottawa Police Service, limited to those
matters that directly engage its interest.
October 25, 2004
Justice Dennis R. O’Connor
Commissioner
�APPENDICES
APPENDIX 3(E)
Excerpt of Transcript of June 29, 2005
Public Hearing (re: Standing of Abdullah
Almalki and Ahmad El Maati), pp. 7749-7755
APPEARANCES:
Mr. Paul Copeland
Counsel to Abdullah Almalki
Ms. Barbara Jackman
Counsel to Ahmad El Maati
Ms. Barbara A. McIsaac, Q.C.
Attorney General of Canada
Mr. COPELAND: Thank you Mr. Commissioner. As I am sure you are aware, although some in the room may not be aware, I am counsel for Abdullah Almalki.
As, again you are aware, he was initially refused standing when an application was brought by Mr. Edelson. So far as I am aware, Mr. Almalki was not
notified of the evidence that was being heard at this inquiry that affected his reputation. He became aware of that evidence and, as you are aware, in my absence last week, Ms. Jackman brought an application for standing on my part
on behalf of Mr. Almalki.
And so far as I understand your ruling — and I apologize, but I only returned to Toronto late Saturday night — we have been granted standing so far
for the testimony of Mr. Cabana.
THE COMMISSIONER: Right.
Mr. COPELAND: My client is very concerned about what the RCMP and CSIS
have done to his reputation. He is very concerned about how the actions of the
RCMP and CSIS led to his detention and severe interrogation in Syria. He is
very concerned about how the evidence at this inquiry will impact on his
reputation.
I am greatly hampered in representing him by the non-participation to date
and by the lack of detailed knowledge that I have about evidence that has gone
in at this inquiry. I also will have, I think, some great problems knowing what
areas I can examine on — much like Ms. Edwardh — as to what is permissible
and what is going to get barred by national security, and I have the additional
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difficulty that at this point I am not quite sure what areas I am allowed to ask
questions about generally, what issues will be raised.
So I just wanted to alert you to that. I may have questions of this officer
that get into the national security issues, and I expect that I will be shut down
when that happens. But I just wanted to make you aware of the concerns that
I have.
THE COMMISSIONER: Just to clarify, Mr. Copeland, I was aware of the application that Ms. Jackman brought on behalf of her client and on your behalf for
Mr. Almalki. What I indicated through Mr. Cavalluzzo is I would rule, and I now
rule, is that you do have standing for purposes of dealing with evidence that relates to your client and for purposes of addressing evidence that may adversely
affect your client’s reputation.
As I understand it, the evidence that will be led through this witness will
mention your client from time to time. I am not sure of the exact details. But
in any event, it will.
So your standing and your participation will be with respect to that issue.
As a general guideline I would say to you that your cross-examination of
the witness should be limited to the interest which gives rise to your standing.
So it is not a grant of standing, if you will, generally for all of the issues in
the inquiry; it is a focused grant of standing. I will accompany the grant of
standing with a recommendation of funding with respect to the grant.
Mr. COPELAND: Thank you.
THE COMMISSIONER: Thank you.
Ms. JACKMAN: I echo what Mr. Copeland said.
THE COMMISSIONER: Thanks, Ms. Jackman, and I make then the same order
that I did with respect to you and to your client in exactly the same terms.
Just to indicate for the record, your client’s name.
Ms. JACKMAN: I am appearing for Ahmad El Maati.
Ms. McISAAC: Mr. Commissioner, we were completely unaware of either of
these applications and had no foreknowledge that this application was going to
be made this morning, or any opportunity to make representations.
�APPENDICES
THE COMMISSIONER: Actually, it is consistent with the ruling that I made back
in my initial ruling denying standing to these two when they applied at the
outset.
I apologize for that, Ms. McIsaac. Would you like an opportunity to oppose
these applications?
Ms. McISAAC: I would like an opportunity to think about them, sir, because I
am not sure what the implications are.
THE COMMISSIONER: I have made a tentative ruling.
Ms. McIsaac, do you oppose these two counsel asking questions of this
witness with respect to evidence that affects their clients and their clients’
reputation?
Ms. McISAAC: May I reserve my comments on that until I have had an opportunity to think about it, sir?
THE COMMISSIONER: It is just that that will be coming up fairly soon.
Ms. McISAAC: Yes. I will certainly advise you prior to that happening. I have
to seek instructions as well.
THE COMMISSIONER: I might just indicate for the record that I had, at the beginning when I made rulings on standing earlier, made what I considered to be
a rather normal direction in a public inquiry of this sort: that the type of standing that I have now granted to these two counsel would be available.
Ms. Edwardh?
Ms. EDWARDH: Could I take a position with respect to the application?
I want to make two observations, Mr. Commissioner.
When all the applications for standing came forward, no one was given an
opportunity to comment on other applicants. It was a matter for your discretion, as a matter of fairness to the persons. I certainly remind you of that
process, because I think that no one other than you should determine the propriety of the grant of standing.
THE COMMISSIONER: Thank you.
We will simply wait until we hear from Ms. McIsaac.
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FACTUAL BACKGROUND: VOLUME II
In that sense, I guess the ruling that I made this morning will be provisional or held in abeyance until we hear from you, Ms. McIsaac.
Ms. McISAAC: Thank you, sir.
THE COMMISSIONER: Are we ready to begin?
Mr. CAVALLUZZO: Just on that point, Commissioner, I want to remind counsel
that there have been several grants of standing with counsel here today without notice to other parties. These matters are within your discretion.
THE COMMISSIONER: Absolutely.
Mr. CAVALLUZZO: I reiterate Ms. Edwardh’s point.
THE COMMISSIONER: I agree. I am looking at at least three counsel in the
back row who we didn’t go through the formality of giving notice, and I don’t
recall Mr. Arar being given notice and an opportunity to object. That certainly
has not been the process.
That said, Ms. McIsaac makes the request, and I think if she wishes to consider it, she may do so.
Mr. CAVALLUZZO: Thank you, Commissioner.
APPENDIX 3(F)
Supplementary Ruling re: Funding
I have received a request for additional financial support from the eighteen organizations with intervenor status. In an earlier ruling I recommended funding
for the intervenors to assist with their participation in the evidentiary portion of
the factual Inquiry. In that ruling I indicated that I would address the amount of
funding for their closing submissions at a later point in time. I also recommended
that the funding be based on the intervenors’ participating in specific groups.
In March, 2005, the Coalition of the Canadian Council on American-Islamic
Relations and the Canadian Arab Federation entered into a Contribution
�APPENDICES
Agreement with the Commission whereby the Minister agreed to provide funding for parties meaning “an Applicant with a substantial and direct interest in the
subject-matter of the factual inquiry . . . to contribute towards the reasonable expenditures , , .” It was also agreed that payments under the Agreement “be directed to and issued in the name of the legal counsel retained by the Applicant.”
In early 2005, the eighteen intervenors formed a single group, titled “Committee
of Organizations with Intervenor Status at the Inquiry” in order to pool their resources and to launch fund raising activities to hire a coordinator. The Coalition
of the Canadian Council on American-Islamic Relations and the Canadian Arab
Federation are members of this Committee.
As a result of support from some generous organizations in the labour
movement, they were able to fund almost five months participation, taking them
from February through to mid-June of 2005. Since February, the intervenors
have participated in the Inquiry, in effect as a single coordinated voice. I commend them for this approach. From the Inquiry’s standpoint, this approach has
enabled the intervenors to participate in an efficient and in an effective manner.
Coordinating intervenor participation, to the extent possible, makes sense.
In the request for additional funding, the Coalition of the Canadian Council
on American-Islamic Relations and the Canadian Arab Federation indicate that
they exhausted their available resources, including funding received from this
Inquiry. They request that I recommend funding in the amount of $21,000 to
cover their expenses, which amount includes the salary of a coordinator for the
Committee of Organizations with Intervenor Status at the Inquiry, for the period
from the middle of June until September 30, 2005.
In my view, this is a reasonable request and I will recommend to the government the funding of the additional $21,000. The contribution of the intervenors to date has been useful and their continued participation would be of
assistance to the Inquiry. Submissions are scheduled for September, and while
some intervenors may choose to make submissions separately, and I look forward to the participation of the intervenors in making submissions at that time.
August 17, 2005
Justice Dennis R. O’Connor
Commissioner
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FACTUAL BACKGROUND: VOLUME II
APPENDIX 3(G)
Parties and Intervenors in Factual Inquiry
INDIVIDUAL OR GROUP
Maher Arar
Attorney General of Canada
Ontario Provincial Police
Ottawa Police Service
Ahmad Abou El Maati
Abdullah Almalki
Canadian Council on American-Islamic Relations
Canadian Arab Federation
Muslim Canadian Congress
Canadian Islamic Congress
National Council on Canada-Arab Relations
Muslim Community Council of Ottawa-Gatineau
British Columbia Civil Liberties Association
Minority Advocacy and Rights Council
Canadian Labour Congress
Law Union of Ontario
International Civil Liberties Monitoring Group
Council of Canadians and the Polaris Institute
Redress Trust, Association for the Prevention of
Torture and World Organization Against Torture
Amnesty International
International Coalition Against Torture
STANDING
Party Standing
Party Standing
Party Standing
Party Standing
Limited Party Standing
Limited Party Standing
Intervenor Standing
Intervenor Standing
Intervenor Standing
Intervenor Standing
Intervenor Standing
Intervenor Standing
Intervenor Standing
Intervenor Standing
Intervenor Standing
Intervenor Standing
Intervenor Standing
Intervenor Standing
Intervenor Standing
Intervenor Standing
Intervenor Standing
�APPENDICES
APPENDIX 4
Witnesses at the Public Hearings
NAME
TITLE
Rachad Antonius
Professor, Department of Sociology, Université de
Québec à Montréal
Professor, Faculty of Law, University of Windsor
Dean Emeritus, Faculty of Law, University of British
Columbia
Former Officer in Charge, Project A-O Canada,
RCMP
Member of Parliament
Case Management Officer, Consular Affairs Bureau,
DFAIT
Professor Emeritus, Faculty of Law, University of
British Columbia
Senator
Former Assistant Secretary to the Cabinet, PCO
Former Solicitor General
Former Counsel to Maher Arar
Former CSIS Director
Member, Criminal Intelligence Directorate (CID),
RCMP
Professor, Faculty of Law, University of Ottawa
Former Senior Policy Advisor to Minister of Foreign
Affairs
Manager of Consular Services, Canadian Consulate
General, New York
Former Deputy Director, Foreign Intelligence
Division (ISI), DFAIT
Former Minister of Foreign Affairs
Counsel and Researcher, Human Rights Watch
Former U.K. Ambassador to Syria
Former Deputy Director, CSIS
Chair, Canadian Council on American Islamic
Relations (CAIR-CAN)
Director General of National Security, RCMP
Reem Bahdi
Peter Burns
Michel Cabana
Marlene Catterall
Nancy Collins
Maurice Copithorne
Pierre De Bané
Lawrence Dickenson
Hon. Wayne Easter
Michael Edelson
Ward Elcock
Rick Flewelling
Craig Forcese
Robert Fry
Maureen Girvan
Jim Gould
Hon. Bill Graham
Julia Hall
Henry Hogger
Jack Hooper
Sheema Khan
Dan Killam
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FACTUAL BACKGROUND: VOLUME II
NAME
TITLE
Ron Lauzon
Officer in Charge, National Security and Intelligence
Branch, RCMP
Former Senior Analyst, CIA
Director General, Security and Intelligence (ISD),
DFAIT
Federal Public Servant, The Global Health Research
Initiative
Former Counsel to Maher Arar
Deputy Commissioner, Operations, RCMP
ADM, Corporate Services, DFAIT
Member of Parliament
Former Deputy Prime Minister
Canadian Consul in Damascus, DFAIT
Professor, Department of Sociology, University of
California, Berkeley
Former Director General, Consular Affairs Bureau,
DFAIT
Case Management Officer, Consular Affairs Bureau,
DFAIT
Psychiatrist, Toronto, and Member, International
Council for Torture Victims
Former Canadian Ambassador to Syria, DFAIT
RCMP Liaison Officer at DFAIT
Director General, Consular Affairs Bureau, DFAIT
Former RCMP employee at Immigration and Passport
Branch
Adjunct Professor, Faculty of Law, Cornell University
Flynt L. Leverett
Dan Livermore
Roberta Lloyd
James Lockyer
Garry Loeppky
Kathryn McCallion
Alexa McDonough
Hon. John Manley
Léo Martel
Richard Ofshe
Gar Pardy
Myra Pastyr-Lupul
Dr. Donald Payne
Franco Pillarella
Richard Roy
Konrad Sigurdson
Gregg Williams
Stephen Yale-Loehr
�APPENDICES
APPENDIX 5
Section 13 Notices
APPENDIX 5(A)
Sample Section 13 Notice
Commission of Inquiry into the
Actions of Canadian Officials
in Relation to Maher Arar
Commission d’enquête sur les
actions des responsables canadiens
relativement à Maher Arar
Name
Address
Dear [Name of Counsel]:
RE: Section 13 Notice:
[Name of Recipient of Notice]
We have now met with your client in respect of his anticipated evidence. In this regard,
we are appreciative of his cooperation in assisting us in the preparation of evidence to be
presented before the Commissioner. As you know, our goal is to ensure that the Commissioner
has all the relevant evidence before him so that the Inquiry’s mandate may be fulfilled.
In the interests of fairness, it is our practice to notify each witness of areas where the
Commissioner might find that the witness may have engaged in conduct for which there could
possibly be critical comment. Such notices are not allegations that the conduct referred to did in
fact occur nor are they charges in the sense that if proved the witness will be found to have
engaged in misconduct. Even if proved, the Commissioner may find that such actions or
inactions were the result of mitigating or extenuating circumstances and were therefore
understandable in the circumstances. As you can see, it is out of an abundance of caution that we
issue these notices to individuals and government agencies.
Further, in drafting the notice I have attempted to be as specific as possible. Thus, rather
than setting out two or three general statements, I have chosen to be much more focused. It
strikes me that this is a much fairer approach from [Name of Recipient of Notice] perspective.
In this light, we direct your attention to the following matters in respect of [Name of
Recipient of Notice] for which there may be negative findings:
[List of matters]
PO Box / CP 507, Station B / Succursale B
Ottawa, Canada K1P 5P6
613 996-4741
Fax / télécopieur 613 992-2366
www.ararcommission.ca / www.commissionarar.ca
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FACTUAL BACKGROUND: VOLUME II
-2-
Once again, we reiterate the purpose for which this notice is given. It is to bring to your
attention the possible action or inaction of [Name of Recipient of Notice] which could possibly
attract critical comment from the Commissioner. I stress that neither Commission Counsel nor
the Commissioner have reached any conclusions that the matters referred to in this notice
occurred or, if they did, warrant critical comment. It should be noted that this notice may be
amended, varied or changed at any time prior to or subsequent to the testimony of [Name of
Recipient of Notice]. Needless to say, [Name of Recipient of Notice] will be given full
opportunity to deal with any alterations to the notice.
If you have any questions or comments, please contact me.
Yours truly,
Paul Cavalluzzo
Lead Commission Counsel
�APPENDICES
APPENDIX 5(B)
Ruling — Motions to Quash Certain
s. 13 Notices
On August 9 and 10, 2005, I heard a number of motions brought by recipients
of Section 13 Notices seeking to quash the notices. I heard the motions in camera because the parties indicated that they would need to refer to information
covered by the government’s NSC claims in arguing the motions.
I dismissed all of the motions with written reasons. I have asked
Commission Counsel to meet with counsel for the parties involved to discuss
providing enhanced details, if possible, of some of the paragraphs in some of
the notices.
I have asked the parties to the motions and the Government to include in
their closing submissions, if they wish, submissions about whether my ruling,
subject to National Security Confidentiality claims, should be made public. I invite any other parties to make submissions in writing about publication of my
ruling by September 30, 2005.
August 17, 2005
Justice Dennis R. O’Connor
Commissioner
APPENDIX 5(C)
Ruling — Motions to Quash Certain
s. 13 Notices
A number of motions were brought by individuals who have been issued notices pursuant to s. 13 of the Inquiries Act. These motions were heard in camera on August 9 and 10, 2005.
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During the course of this Inquiry, the Commission has served s. 13 notices
on a number of individuals and institutions. In many cases, further particulars
have been provided when requested. Each notice made it clear that the purpose
for which the notice was given was to alert the recipient to the possibility that
critical comment could be made in my report, about the matters set out in the
notice.
Importantly, it was also pointed out that the notices were not allegations or
charges and that no findings had yet been made. Typically, the notices contain
statements such as the following:
In the interests of fairness, it is our practice to notify each witness of areas where
the Commissioner might find that the witness may have engaged in conduct for
which there could possibly be critical comment. Such notices are not allegations that
the conduct referred to did in fact occur, nor are they charges in the sense that if
proved the witness will be found to have engaged in misconduct. Even if proved,
the Commissioner may find that such actions or inactions were the result of mitigating or extenuating circumstances and were therefore understandable in the circumstances. As you can see, it is out of an abundance of caution that we issue these
notices to individuals and government agencies who are their employers.
A’S MOTION
■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■ A gave evidence on two occasions: ■■■■■■■■■■■■■■■■■■■■. Throughout this time, A
was represented by counsel – the same counsel who also acted for the Attorney
General of Canada. Suffice it to say that ■■■■■■ counsel was fully informed of
all the evidence and the proceedings of the Inquiry.
■■■■■■■■■■■■■■■■■■■■ [After ■■■■■■ testimony], Commission Counsel
served A with a s. 13 notice setting out four areas where I could possibly make
critical comment. ■■■■■■■■■■■■■■■■■■■■■■■■■■■, who brings this motion
■ ■ ■ ■ ■ ■ ■ ■ ■ ■ to quash the s. 13 notice. The motion provides three
■■■■■■■■■■
grounds for the relief sought.
Paragraph 4 of the s. 13 Notice is Ultra Vires
Paragraph 4 of A’s s. 13 notice reads as follows:
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A argues that the finding contemplated by paragraph 4 goes beyond the
mandate of this Inquiry [in that it is] ■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■ not related to “the actions of Canadian Officials in
relation to Maher Arar”.
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The determination of whether the evidence should be viewed in this manner depends on an analysis of a number of pieces of evidence. It would be premature, at this stage of the Inquiry, for me to determine whether
■■■■■■■■■■■■■■■■■■■■ [it] is something that I will, in the end, consider relevant to answering the questions raised by my mandate. The evidence is not yet
complete and final submissions have not been heard. In fairness to A, though,
the possibility exists that I will make a finding relating to ■ ■ ■ ■ ■ ■ ■ ■ ■
■■■■■■■■■
[this paragraph]. A should have notice of that possibility.
As far as determining at this stage whether such a finding would be ultra
vires my mandate, the comments of Cory J. in Canada (Attorney General) v.
Canada (Commission of Inquiry on the Blood System), [1997] 3 S.C.R. 440 [hereinafter Krever] are apposite. At para. 56, he states that “[e]ven if the content of
the notice appears to amount to a finding that would exceed the jurisdiction of
the commissioner, that does not mean that the final, publicized findings will do
so. It must be assumed, unless the final report demonstrates otherwise, that
commissioners will not exceed their jurisdiction.”
In response to questioning ■■■■■■■■■■■■■■■■■■■■ counsel for A sug,
gested that I would not have sufficient evidence before me to properly answer
the question ■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
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■■■■■■■■■■■■■■■■■■■■■■■■■ [of whether A’s conduct had a certain effect].
My response is that I will only make findings in my final report that I can safely
make on the basis of the evidence before me.
Accordingly, I do not accept the argument that paragraph 4 should be
struck as being ultra vires.
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FACTUAL BACKGROUND: VOLUME II
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Below I indicate that I have asked Commission Counsel to meet with counsel for the s. 13 recipients with a view to providing enhanced details, if possible, about some of the s. 13 paragraphs. I suggest that paragraph 4
■■■■■■■■■■■■ be included in those discussions.
2.
Paragraphs 1 to 3 of the s. 13
A’s next argument relates to the content of paragraphs 1 to 3 of the s. 13 notice. ■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
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For purposes of this argument, paragraphs 2 and 3 are similar and need not
be repeated.
A argues that paragraphs 1, 2 and 3 are void because they set out a legal
standard of conduct and thereby run afoul of the prohibition against making
findings of misconduct that would appear in the eyes of the public to be determinations of legal liability. In support, counsel for A relies on Re Nelles and
Grange (1984), 46 O.R. (2d) 210, Starr v. Houlden, [1990] 1 S.C.R. 1366, and
their mention in para. 43 of Krever. I do not accept this argument.
The language in paragraphs 1 to 3 is not couched in the language of criminal culpability or civil liability. In addressing an argument of this nature in the
Krever case, Justice Cory stated, at para. 62:
“… there are many different types of normative standards, including moral, scientific and professional-ethical. To state that a person “failed” to do something that
should have been done does not necessarily mean that the person breached a criminal or civil standard of conduct. The same is true of the word “responsible”. Unless
there is something more to indicate that the recipient of the notices is legally responsible, there is no reason why this should be presumed.” [Emphasis in original]
�APPENDICES
In the following paragraph, he adds the following:
“There are phrases which, if used, might indicate a legal standard had been applied, such as finding that someone “breached a duty of care”, engaged in a “conspiracy”, or was guilty of “criminal negligence”. None of these words have been
used by the Commissioner. The potential findings as set out in the notices may
imply civil liability, but the Commissioner has stated he will not make a finding of
legal liability, and I am sure he will not. In my view, no error was made by the
Commissioner in sending out these notices.” [Emphasis in original]
In my view, this language is applicable to the case at hand. Paragraphs 1, 2
and 3 allege ■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
That language does not necessarily mean that ■■■■■■■■■■■■ [he or she]
breached either a criminal or civil legal standard. Moreover, the notice in this
case does not use the type of wording described by Justice Cory, which could,
in normal legal proceedings, be used to describe the basis of civil liability or
criminal culpability. Finally, I point out that I will be careful, in preparing my report, not to make any findings of legal liability.
Bias/Timing
A argues that Commission Counsel demonstrated bias or created an apprehension of bias in the manner that ■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■. Linked to this argument is a suggestion that
Commission Counsel knew everything that eventually was included in the s. 13
notice, prior to that examination, and that he failed to issue the notice until after
the examination had taken place. As I understand the argument, the combination of the bias shown in the examination and the late delivery of the notice
should lead me to quash the s. 13 notice in its entirety.
Importantly, counsel for A emphasized that in making these submissions
■■■■■■ was not suggesting that Commission Counsel acted in bad faith.
I will deal with the bias point first. In making this argument, it is suggested
that the tone of the examination was prosecutorial and aggressive.
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Clearly, Commission Counsel’s examination of A in this area was firm, much
firmer than with the other two, but with good reason.
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FACTUAL BACKGROUND: VOLUME II
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A more appropriate comparison would have been with Commission
Counsel’s examination of Minister Bill Graham, where I think it is fair to say
that Commission Counsel pressed much more firmly and adopted a more challenging tone.
In my view, the questioning of A was firm but fair. It is open to Commission
Counsel to ask challenging questions when necessary to elicit the facts. Indeed,
Rule 37(a) of this Inquiry makes it clear that Commission Counsel may, if necessary, cross-examine witnesses. ■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■ My mandate requires that I report on what occurred
.
■■■■■■■■■■■■■■■■■■■■ and implicit is the direction that I should report on
what a Canadian official did or did not do ■■■■■■■■■■■■■■■■■■■■ Given
what Mr. Arar has alleged, it was appropriate for Commission Counsel to ask A
tough questions.
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■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■. A is very articulate.
Throughout ■■■■■■■■ examination, ■■■■■■■■■■■■■ A appeared to fully understand all of the questions and, from my vantage point, was more than able
to handle ■■■■■■■■■. Far from being intimidated or pushed around,
■■■■■■■■■■■■■ A made very clear the positions that ■■■■■■ took and the
reasons for them. ■■■■■■■ disagreed with Commission Counsel when
■■■■■■■■■■■■ saw fit. At the time, ■■■■■■■■ was represented by experienced and knowledgeable counsel, who assisted both during ■ ■ preparation
■■
and at the Inquiry itself. No objection was taken at the time to the manner of
questioning.
During arguments for this motion, I asked A’s counsel several times to indicate any places in the examination where A was not given a fair opportunity
to answer questions or where ■ ■ answers, even viewed with hindsight, were
■
not what ■■■■ would have wanted to say; there were none. Indeed, I have
gone one step further and suggested that if A becomes aware of how ■ ■ ev■■
idence was unfairly presented, ■ is free to testify further as ■ sees fit. To date,
■
■
■■■ has not taken advantage of that suggestion.
Moreover, even if the allegation of bias with respect to Commission Counsel
had been made out, it would not, in my view, lead to the remedy being sought,
which is to quash the s. 13 notice. In the end, it is the Commissioner, not
�APPENDICES
Commission Counsel, who will make the findings of fact with respect to A.
Although it is often said that Commission Counsel is the Commissioner’s alter
ego in a public inquiry, that description is apt in relation to the conduct of the
inquiry, but not to the function of making findings in the Commissioner’s report.
Fact finding is exclusively within the Commissioner’s province.
The bias argument would only succeed if it could be shown that the conduct of Commission Counsel (perhaps linked in this case to the late delivery of
the s. 13 notice) operated so as to raise a reasonable apprehension that I would
not, in my report, be able to judge A’s actions on the evidence fairly and impartially.
In the leading case on reasonable apprehension of bias in relation to a
Commissioner, Beno v. Canada (Commissioner and Chairperson, Commission
of Inquiry into the Deployment of Canadian Forces to Somalia), [1997] 2 F.C.
527, Brigadier-General Beno was served with a s. 13 notice. During Beno’s testimony, the Chairman interjected, pointing out that the witness had just contradicted evidence he had previously given in response to a question that the
Chairman had put to him. The Chairman said that Beno would not “gain much
by fiddling around”. One week later, in an informal discussion with another
senior officer who expressed the view that the Chairman had been unfair and
aggressive in his treatment of Mr. Beno, the Chairman expressed the opinion that
“Beno had not given straight answers and that perhaps Beno had been trying
to deceive.”
The Federal Court of Appeal overturned the decision of the trial judge, who
had granted prohibition (prohibiting the Chairman from making findings adverse to Mr. Beno). After referring to the decision of Cory J. in Newfoundland
Telephone Co. v. Newfoundland ( Board of Commissioners of Public Utilities),
[1992] 1 S.C.R. 623 at 644-645, the Court stated (at para. 27):
“Applying that test, we cannot but disagree with the findings of the Judge of first
instance. A commissioner should be disqualified for bias only if the challenger establishes a reasonable apprehension that the commissioner would reach a conclusion on a basis other than the evidence. In this case, a flexible approach of the
reasonable apprehension of bias test requires that the reviewing court take into
consideration the fact that the commissioners were acting as investigators in the
context of a long, arduous and complex inquiry. The Judge failed to appreciate this
context in applying the test”.
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■■■■■■■■ [Counsel], on behalf of A, did not extend ■■■ bias argument to
suggest that there was an apprehension that I would be biased in dealing with
A in my report.
Next, I turn to the question of the timing of the s. 13 notice. ■■■■■■■■
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■■■■■■■■■■■■■■■■■■■ . The s. 13 notice was served ■■■■■■■■■■■■■■■
[after A’s testimony]. ■■■■■■■■ A argues that the matters raised in the notice
were known to the Commission before ■■■ testified on both occasions, and
that ■ should have been given the s. 13 notice prior to testifying. As a result,
■
■■■■■■■■ the failure to give notice in a timely manner operated unfairly
■■■■■■■■ . ■■■■■■■■■■■■■■■■■■■■■■■■ submits that, while the content
■■■■■■■■ may not have been different, the tone might have been. ■■■■■■■■
suggests that it is possible that cross-examinations of other witnesses might have
differed.
In the Krever case, Justice Cory dealt with the timing of s. 13 notices. In that
case, the notices were given virtually at the conclusion of the evidence. In declining to strike the notices, Justice Cory pointed out that there is no statutory
requirement that a Commissioner give notice as soon as he or she foresees the
possibility of an allegation of misconduct. He went on to say, at para. 69:
“Although the notices should be given as soon as it is feasible, it is unreasonable to
insist that the notice of misconduct must always be given early. There will be some
inquiries, such as this one, where the Commissioner cannot know what the findings
may be until the end or very late in the process. So long as adequate time is
given to the recipients of the notices to allow them to call evidence and make submissions they deem necessary, the late delivery of notices will not constitute unfair
procedure.”
He continues as follows:
“Further, the appellants were given an adequate opportunity to respond to the notices and to adduce additional evidence if they deemed it necessary. The notices
were delivered on December 21, 1995 and the parties were initially given until
January 10, 1996 to decide whether and how they would respond. This period was
then extended following a request from the parties. The time permitted for the response was adequate; it cannot be said that the timing of the delivery of the notices
amounted to a violation of procedural fairness”.
This has been a difficult and complicated Inquiry. The decision whether
and when to give a s. 13 notice is a matter of judgment. ■■■■■■■■ [Counsel]
�APPENDICES
does not allege that there was bad faith in not issuing the notices before
■■■■■■■■■■■■■■■■ [A’s testimony].
Accepting, for the sake of argument, that the timing of the s. 13 notice could
present some difficulty for A, the remedy is not to quash the s. 13 notice. Rather,
the remedy is to provide A with an opportunity to respond to the matters raised
in the notice if ■■■■■■ considers that necessary.
It is important to bear in mind that the type of prejudice, flowing from the
timing of a notice, that needs to be addressed is prejudice with respect to findings that may be made in my report. In this context, prejudice does not include
critical commentary in the media following testimony at a public inquiry. As I
said above, A has not, to date, suggested that if ■ had received notice before
■
testifying that any ■■■■■■ answers would have been different, nor ■■■■■■
pointed to evidence of others that ■■■■■■ would have been cross-examined
differently.
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A will, of course, have the opportunity to make full closing submissions to address the matters raised in the s. 13 notice. I have also indicated to A’s counsel
that, if the Commission’s current schedule does not allow sufficient time ■ ■ ■
■■■
to take any of the steps referred to above ■■■■■■■■■■■■I can be spoken to in
order to make the necessary adjustment.
I, therefore, decline to quash the s. 13 notice issued to A.
MOTIONS OF B, C AND D
The Commission delivered s. 13 notices to each of the above, containing four
paragraphs with virtually identical language. They each seek to quash the notices on a number of grounds.
1.
Timing
The Commission delivered notices to each, ■■■■■■■■■■■■■■■■■■■■■■■■■
after they had testified ■■■■■■ B and C seek to quash the notices on the basis
.
of delay in issuing the notices. D does not challenge ■■■■■■ on this basis.
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B and C argue that questions put during their examinations and questions
put to other witnesses during their examinations by Commission Counsel prior
to the issuance of the s. 13 notices showed that ■■■■■ B and C, were individuals about whom a “charge” was being made long before the issuance of the s.
13 notice. The delay, they contend, denied them the full opportunity to be heard.
Moreover, given the amount of evidence heard by the Inquiry, it would be unreasonable to expect witnesses to be recalled and re-examined on the issues in
s. 13 notices.
I do not accept these arguments. As I said above, the decision whether to
issue s. 13 notices and when to do so is a matter of judgment. The Commission
issued notices to these individuals after all of the ■ ■ ■ [their employer’s] ev■■■
idence had been heard in camera and could be evaluated.
As I said above, the remedy for late delivery of a notice is not to quash but
to provide an opportunity to fairly respond. While I do not accept that the delivery of the notices to these two individuals was “late”, it is important to note
that shortly after the notices were delivered, Commission Counsel wrote indicating that those individuals could have witnesses recalled for further cross-examination and could call evidence if they wished. To date, they have done
nothing in response.
In their arguments, counsel for B and C did not point to any specific pieces
of evidence which show that ■■■■■■■■ were prejudiced by not receiving the
s. 13 notices earlier. It is worth noting that prior to receiving the s. 13 notices,
B and C were represented by government counsel, who were fully informed of
all the evidentiary issues relating to them.
Be that as it may, the offer to rectify any possible prejudice has now been
outstanding for several months and has not been accepted.
Finally, I note that counsel for B and C complained about the amount of
time necessary to review transcripts in order to prepare for final submissions. It
is worth noting that the issues arising from the s. 13 notices issued to B and C
are comparatively discrete in the context of the overall body of evidence.
Further, government counsel, who are thoroughly familiar with all the evidence,
have assisted the current counsel by directing them to the relevant portions of
the evidence. Finally, in response to requests from these counsel and others, I
have deferred the date to receive closing written submissions to September 19,
2005.
I decline the request to quash these s. 13 notices on the basis of timing.
�APPENDICES
2.
Specificity/Lack of Standards
B, C and D moved to quash some paragraphs in the s. 13 notices on the basis
that they lacked sufficient details to put them on notice of what may be found
to be misconduct, and on the basis that the standards against which their actions
may be viewed are not adequately set out.
In my view, it is premature to seek to quash the notices on either of these
bases at this stage of the Inquiry. For one, the evidentiary portion of the Inquiry
is not yet complete and closing submissions have not been received. I must be
careful not to foreclose reasonable arguments that may be made by parties with
standing in closing submissions. The quashing of a s. 13 notice in advance of
hearing closing submissions, in effect, narrows the manner in which I may report on the matters referred to in the notice.
Second, it must be remembered that this is not a criminal or civil trial in
which specific allegations are made and are then sought to be established.
Section 13 notices do not contain charges or allegations, rather they provide
notice of potential findings. The purpose of the notice is to provide procedural
fairness – a chance to respond to the matters raised in the notice. The question
of whether a particular notice provided a party with sufficient information (factual detail, or possibly a standard) to enable the party to fairly respond can best
be assessed after a Commissioner has made findings in a report. The findings
that may be made pursuant to a notice may vary. In the normal course, and absent reasonable grounds to believe that a Commissioner will exceed his or her
jurisdiction, the question of whether the s. 13 recipient was able to fairly respond to a specific finding should await the report.
In this regard, the reasoning of Justice Cory in Krever is apt. In that case,
Cory J. addressed challenges to the wording of s. 13 notices on the basis that
the notices could lead impermissibly to findings of civil or criminal liability.
At para. 58, Justice Cory began by pointing out that the challenges were to
notices, not to the contents of the report or specific findings. At para. 59, he further pointed out that the question is whether the Commissioner exceeded his jurisdiction in the notices delivered to the parties. He concluded that he had not.
He went on at para. 60 to say:
“If the Commissioner’s report had made findings worded in the same manner as the
notice, then further consideration might have been warranted. However, the appellants launched this application before the Commissioner’s findings had been released. Therefore, it is impossible to say what findings he will make or how they
will be framed. Quite simply, the appellants have launched their challenge prematurely. As a general rule, a challenge such as this should not be brought before the
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publication of the report, unless there are reasonable grounds to believe the
Commissioner is likely to exceed his or her jurisdiction.”
It seems to me that the same general principles with respect to the prematurity
of a challenge apply equally in the case of the types of challenges I am considering here.
In my view, even if valid, the challenges to the s. 13 notices do not establish an excess of jurisdiction at this stage of the Inquiry. Rather, the question of
whether the notices provide sufficient notice of findings that may ultimately be
made in my report can better be addressed after the findings are made.
All of that said, I agree with Justice Cory’s comment in Krever that the more
detail that can be provided to the recipient of a notice, the better. Greater detail helps focus the issues and potentially saves time and expense. The countervailing interest, however, is not to narrow the notices unduly so as to limit the
Commissioner’s discretion in making findings and comments on facts relevant
to the mandate. That, too, would be premature at this stage.
It is important to note that, prior to these motions, as a result of requests
for more detail, Commission Counsel have provided further detail for a number
of the paragraphs in the notices. Further, I have now asked Commission Counsel
to meet with counsel for each of the recipients of s. 13 notices with a view to
discussing the provision of enhanced details wherever possible, including the
details of the basis upon which conduct may be found wanting. In this regard,
I am encouraged by the approach of government counsel, who act on behalf of
four institutions and two individuals who have received s. 13 notices containing several dozen paragraphs in all. Government counsel quite reasonably took
the position that even if there is a lack of detail or a lack of standards, these are
not matters that go to my jurisdiction to conduct the Inquiry and should not result in the notices being quashed. Instead, he pointed to four paragraphs and
suggested there may be a few others where the government would be assisted
in making submissions by further details. I am sure that the discussions that will
take place between Commission Counsel and government counsel will be of
assistance in this regard.
Moreover, there may be an opportunity for further discussions about the notices after closing oral arguments and before the s. 13 recipients are required to
file their submissions.
Finally, I wish to make a few comments about the submission that the paragraphs in the s. 13 notices need to be based on articulated or published standards or guidelines. I disagree.
�APPENDICES
In making this argument, the parties have referred to the decision of the
Federal Court in Stevens v. Canada (Attorney General), [2004] F.C.J. No. 2116
[hereinafter Stevens]. They submit that the Stevens decision stands for the proposition that the standard set out in a s. 13 notice must be adequately defined. It
is important, however, that Stevens be considered in light of the specific mandate in the Order in Council for that Inquiry, which directed the Commissioner
to assess the conduct of Mr. Stevens against the definition of conflict of interest
contained in a specific set of conflict of interest guidelines, a definition which
turned out to be non-existent. In that situation, the Federal Court held that it was
not open to the Commissioner to substitute his own view of what the guidelines
should have been.
A more suitable authority on the need for s. 13 notices to articulate specific
standards is Krever. In my view, a proper statement of the law is that, in reaching conclusions, a Commissioner should rely upon standards of conduct that
could reasonably have been expected of an individual at the time when the
conduct under consideration occurred. It may be that in some instances such
standards will be articulated or published. In other instances, the standards may
be obvious, based on reasonable expectations or, indeed, common sense.
Whatever the case, the notice should make clear what conduct was expected of
the individual and the actions or conduct for which the Commissioner may be
making a finding of misconduct. It will be open to the recipient of the s. 13 notice not only to challenge the facts detailed in the notice, but also to argue that
the basis upon which a finding of misconduct may be made is not well founded.
For the above reasons I decline to quash the s. 13 notices of B, C and D.
MOTION OF E
In ■■ notice of motion, E seeks to have me quash six paragraphs in ■ s. 13
■
notice. ■■■ raises three grounds which I have addressed above: lack of
specifics, lack of standards and the potential for findings of civil or criminal liability. The same reasoning applies and I decline to quash E’s notice on these
grounds.
E also challenges paragraphs in ■■ notice relating to ■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■ [certain actions of E]. I also addressed this issue above
in the context of A’s motion. Insofar as E is concerned, I indicated during argument of the motion that in my report I intend only to set out the facts about the
■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ [certain actions]. In the circumstances as the ev■■■■■■■■■■■■
idence has unfolded, I do not intend to make any critical comment directed at
E. That said, I do not propose to quash that paragraph at this stage.
Accordingly, I decline to quash E’s s. 13 notice.
667
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FACTUAL BACKGROUND: VOLUME II
PUBLICATION OF THIS RULING
As indicated, this motion was heard in camera. This was because the parties indicated in advance that their arguments depended on referring to information
covered by the government’s national security confidentiality (NSC) claims. As
it turned out in argument, except for the submissions relating to ■■■■■■■■■■■
■■■■■■ [one matter] there was little reference to NSC information.
For the time being I am releasing this ruling only to the moving parties and
to the government. I invite those parties and the government to include in their
closing submissions their arguments, if any, why this ruling, subject to redactions
for NSC claims, should not be made public.
At this time I am releasing a short public ruling indicating that I have heard
motions in camera from certain s. 13 recipients seeking to quash the s. 13 notices and that I have dismissed those motions. I will also invite parties not involved in these in camera motions to make submissions on the issue of whether
this ruling, redacted for NSC claims, should be made public. Depending on what
submissions are received, I will provide opportunities to respond. Finally, I will
issue a ruling in due course dealing with the publication of this ruling.
August 17, 2005
Justice Dennis R. O’Connor
Commissioner
�APPENDICES
APPENDIX 6
Evidence and Confideniality
APPENDIX 6(A)
Initial document Request Letter
Commission of Inquiry into the
Actions of Canadian Officials
in Relation to Maher Arar
Commission d’enquête sur les
actions des responsables canadiens
relativement à Maher Arar
March 30, 2004
Ms Barbara McIsaac, QC
McCarthy Tétrault LLP
The Chambers
Suite 1400, 40 Elgin Street
Ottawa, ON
K1P 5K6
Re: Attorney General of Canada – Document Request #1
Dear Ms McIsaac:
Please find enclosed Document Request #1 directed to the Attorney General of Canada. We
have set out the documents that we require the government and its agents, servants, contractors,
agencies, boards, commissions and Crown corporations to produce. As discussed, the document
request is directed to the Attorney General of Canada rather than being separately directed to
each of the departments, agents, servants, contractors, agencies, boards, commissions and Crown
corporations which may have possession, custody or control of relevant documents. We have
agreed to this suggestion as it will expedite the request and production process. We understand
that in making this suggestion, the Attorney General represents that for the purposes of this
document request, he has the same powers of possession, custody and control as any of the other
departments of government, agents, servants, contractors, agencies, boards, commissions and
Crown corporations referred to in the document request.
In addition, please note the following:
1.
The government may provide copies of all documents, and may provide electronic copies
of all documents, although the Commission may require originals to be produced upon request.
PO Box / CP 507, Station B / Succursale B
Ottawa, Canada K1P 5P6
613 996-4741
Fax / télécopieur 613 992-2366
www.ararcommission.ca / www.commissionarar.ca
669
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FACTUAL BACKGROUND: VOLUME II
-2-
2.
Further to our letter of March 24, 2004, we expect that all issues respecting claims of
privilege and confidentiality are to be deferred until Commission Counsel indicate to you that
they propose to use the documents in any manner other than for the purposes of internal review
by persons retained by the Commission who have obtained security clearances.
3.
The document request is a continuing request. The obligation to produce thus extends to
documents which are created after the date of the document request.
4.
Commission counsel may make supplementary document requests.
5.
The Commissioner will require, prior to the time he delivers his report, that the Attorney
General of Canada complete a certificate of production of documents. The Commissioner will
require that the Attorney General certify that he directed the government and its agents, servants,
contractors, agencies, boards, commissions and Crown corporations to conduct a diligent search
for the documents in any way related to Maher Arar as listed in the document request(s); that he
established a system to ensure that the document request(s) were acted upon appropriately; and
that he is fully satisfied that all documents requested by the Commission in the document
request(s) have been produced to the Commission.
6.
We request that documents be provided to the Commission as they become available,
rather than waiting until all document searches have been completed. This is important to
eliminate any delays in starting the Inquiry process.
Thank you for your cooperation in this matter. Please do not hesitate to contact me should you
have any questions or comments.
Paul Cavalluzzo
Senior Commission Counsel
�APPENDICES
COMMISSION OF INQUIRY INTO THE ACTIONS OF CANADIAN
OFFICIALS IN RELATION TO MAHER ARAR
A.G. (Canada) Document Request No. 1
TO:
The Attorney General of Canada
DATE: March 30, 2004
A. DEFINITIONS
“document” refers to any written or electronic record, including faxes, telex,
e-mail as well as any audiotape or electronic capture of oral information in the
possession, custody or control of the Government of Canada or any of its agents,
servants, contractors, agencies, boards, commissions and Crown corporations,
anywhere in the world, including material in off-site storage or which has been
archived, in relation to the matters set out below.
“Government” means the Government of Canada, including its agents,
servants or contractors, agencies, boards or commissions, including all Crown
corporations, unless otherwise specified.
B. TIME FRAME
In this request, unless otherwise specified, production is requested for all documents created or collected in the period from September 11, 2001 to
February 5, 2004, unless the Government has knowledge of documents specific
to Mr. Arar which were created prior to September 11, 2001.
C. DOCUMENT REQUEST
1.
All documents in any way related to Maher Arar and the actions of Canadian
officials in relation to Maher Arar, including:
(i)
(ii)
(iii)
(iv)
(v)
the detention of Mr. Arar in the United States,
the deportation of Mr. Arar to Syria via Jordan,
the imprisonment and treatment of Mr. Arar in Syria,
the return of Mr. Arar to Canada, and
any other circumstance directly related to Mr. Arar,
which are within the possession, custody or control of the Government, including, without limitation, the following Departments and agencies:
(a) The Department of Foreign Affairs and International Trade,
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FACTUAL BACKGROUND: VOLUME II
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
The Department of National Defence;
The Department of the Solicitor General;
The Department of Justice;
The Privy Council Office;
The Prime Minister’s Office.
Citizenship and Immigration Canada;
The Royal Canadian Mounted Police;
The Financial Transactions and Reports Analysis Centre of Canada;
The Canadian Security Intelligence Service;
The Canada Revenue Agency; and
The Communications Security Establishment.
D. DESTRUCTION/LOSS OF CONTROL
If the Government has knowledge of any documents relevant to this
document request which (a) were in its possession, custody or control
but are no longer, or (b) have been destroyed, the Government is to
identify the documents and explain the circumstances leading to loss of
possession, custody or control or the destruction.
Dated at Ottawa this 30th day of March 2004.
Justice Dennis R. O’Connor
Commissioner
�APPENDICES
APPENDIX 6(B)
Sample Undertakings Regarding
Confidentiality
Commission of Inquiry into the
Actions of Canadian Officials
in Relation to Maher Arar
Commission d’enquête sur les
actions des responsables canadiens
relativement à Maher Arar
UNDERTAKING OF PARTIES AND INTERVENORS
TO THE COMMISSION OF INQUIRY INTO THE
ACTIONS OF CANADIAN OFFICIALS IN RELATION TO MAHER ARAR
I undertake to the Commission of Inquiry into the Actions of Canadian Officials
in Relation to Maher Arar that any document or information which is disclosed to me in
connection with the Commission’s proceedings will not be used by me for any purpose
other than those proceedings and for no other purpose. I further undertake that I will not
disclose any such documentation or information to anyone.
I understand that this undertaking will have no force or effect with respect to any
document or information which becomes part of the public record of the Commission, or
to the extent that the Commissioner may release me from the undertaking with respect to
any document or information. For greater certainty, a document is part of the public
record once the document is made an exhibit at the Inquiry.
With respect to those documents or information which remain subject to this
undertaking at the end of the Inquiry, I further understand that such documents or
information will be collected from me by my counsel who disclosed them to me.
_____________________________
Signature
____________________________
Witness
_____________________________
Date
_____________________________
Date
673
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FACTUAL BACKGROUND: VOLUME II
Commission of Inquiry into the
Actions of Canadian Officials
in Relation to Maher Arar
Commission d’enquête sur les
actions des responsables canadiens
relativement à Maher Arar
UNDERTAKING OF COUNSEL
TO THE COMMISSION OF INQUIRY INTO THE
ACTIONS OF CANADIAN OFFICIALS IN RELATION TO MAHER ARAR
I undertake to the Commission of Inquiry into the Actions of Canadian Officials
in Relation to Maher Arar that any and all documents or information which are disclosed
to me in connection with the Commission’s proceedings will not be used by me for any
purpose other than those proceedings and for no other purpose. I further undertake that I
will not disclose any such information or documents to anyone for whom I do not act, and
to anyone for whom I act only upon the individual in question giving the written
undertaking annexed hereto. In the event I act for a coalition, I will disclose such
documents and information to anyone who is a member of that coalition only upon the
individual in question giving the written undertaking annexed hereto.
I understand that this undertaking has no force or effect once any such document
or information has become part of the public record of the Commission, or to the extent
that the Commissioner may release me from the undertaking with respect to any
document or information. For greater certainty, a document is part of the public record
once the document is made an exhibit at the Inquiry.
With respect to those documents or information which remain subject to this
undertaking at the end of the Inquiry, I undertake to either destroy those documents or
information, and provide a certificate of destruction to the Commission, or to return those
documents to the Commission for destruction. I further undertake to collect for
destruction such documents or information from anyone to whom I have disclosed any
documents or information which were produced to me in connection with the
Commission’s proceedings.
Signature
Witness
Date
Date
PO Box / CP 507, Station B / Succursale B
Ottawa, Canada K1P 5P6
613 996-4741 Fax / télécopieur 613 992-2366
www.ararcommission.ca / www.commissionarar.ca
�APPENDICES
APPENDIX 6(C)
Certificate of Production of Documents
675
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FACTUAL BACKGROUND: VOLUME II
�APPENDICES
677
�678
FACTUAL BACKGROUND: VOLUME II
APPENDIX 6(D)
Ruling on Confidentiality
Contents
I. INTRODUCTION
679
Legal background
679
II. THE MOTION FOR DISCLOSURE
680
A. The nature of the motion
681
B. The submissions of the parties
1. Mr. Arar
2. The Attorney General
682
682
682
C. The submissions of Mr. Atkey
683
D. Resolution
684
III. SECTION (k)(i) OF THE TERMS OF REFERENCE
686
A. The submissions of the parties
1. The Attorney General
2. Mr. Arar
687
687
688
B. Resolution
689
IV. SECTION (k)(iii) OF THE TERMS OF REFERENCE
691
V. DISCLOSURE PROVISIONS OF THE
CANADA EVIDENCE ACT
692
A. The submissions of the parties
1. The Attorney General
2. Mr. Arar
693
693
693
B. Resolution
693
VI. THE PROCESS
694
Appendix A
699
Appendix B
706
�APPENDICES
Ruling on Confidentiality
I. INTRODUCTION
I have been appointed by Order in Council P.C. 2004-48 (the Terms of
Reference) to investigate and report on the actions of Canadian officials in
relation to Mr. Maher Arar and to make recommendations on an independent
arm’s length review mechanism for the activities of the Royal Canadian Mounted
Police with respect to national security.
The final Rules of the Inquiry have now been finalized and copies circulated
to parties and intervenors. The Rules have been posted on the Commission
website.
I have received submissions with respect to national security confidentiality from many of the parties and intervenors. These submissions have proven to
be very helpful and they have assisted me in designing what I think will be the
most effective process for addressing national security confidentiality in a way
that is thorough, fair and consistent, as well as expeditious.
This ruling concerns matters relating to the public disclosure of information
that is subject to a claim of national security confidentiality (NSC); that is, a claim
that disclosure of the information would be injurious to international relations,
national defence or national security. The ruling deals with the motion by counsel for Mr. Arar that information over which the Attorney General of Canada has
claimed NSC, but which is in the public domain, be disclosed. The ruling also
deals with questions of interpretation arising from sections (k)(i) and (k)(iii) of
the Inquiry Terms of Reference and from the Canada Evidence Act, R.S.C. 1
985, c. C-5, s. 38 and Schedule. Finally, the ruling outlines how the Inquiry
process will proceed with respect to the information and evidence that is subject to an NSC claim.
LEGAL BACKGROUND
My mandate, as provided for in the Terms of Reference, is as follows:
(a) to investigate and report on the actions of Canadian officials in relation
to Maher Arar, including with regard to:
(i) the detention of Mr. Arar in the United States,
(ii) the deportation of Mr. Arar to Syria via Jordan,
(iii) the imprisonment and treatment of Mr. Arar in Syria,
(iv) the return of Mr. Arar to Canada, and
679
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FACTUAL BACKGROUND: VOLUME II
(v)
any other circumstances directly related to Mr. Arar that the
Commissioner considers relevant to fulfilling this mandate.
The Terms of Reference also contain provisions with respect to information
which, if disclosed, would be injurious to international relations, national defence or national security. In particular, I am directed as follows:
.…
(k) … in conducting the inquiry, to take all steps necessary to prevent disclosure of information that, if it were disclosed to the public, would,
in the opinion of the Commissioner, be injurious to international relations, national defence or national security and, where applicable, to
conduct the proceedings in accordance with the following procedures,
namely,
(i) on the request of the Attorney General of Canada, the
Commissioner shall receive information in camera and in the
absence of any party and their counsel if, in the opinion of
the Commissioner, the disclosure of that information would be
injurious to international relations, national defence or national
security,
(ii) in order to maximize disclosure to the public of relevant information, the Commissioner may release a part or a summary of the
information received in camera and shall provide the Attorney
General of Canada with an opportunity to comment prior to its
release, and
(iii) if the Commissioner is of the opinion that the release of a part or
a summary of the information received in camera would provide insufficient disclosure to the public, he may advise the
Attorney General of Canada, which advice shall constitute notice
under section 38.01 of the Canada Evidence Act.
….
(m) nothing in this Order shall be construed as limiting the application of
the provisions of the Canada Evidence Act.
The provisions of the Canada Evidence Act which are relevant to issues addressed in this ruling are appended as Appendix “A”.
II. THE MOTION FOR DISCLOSURE
Counsel for Mr. Arar filed a motion, dated May 30, 2004, for disclosure of records
in the possession of the government that contain or relate to information that is
�APPENDICES
already in the public domain. The motion is supported by a number of the intervenors. Counsel for the Attorney General responded to the motion in writing;
those submissions were supported by the Ontario Provincial Police. Oral submissions by counsel for Mr. Arar and the Attorney General were heard at a hearing on July 5, 2004. Mr. Ronald Atkey, amicus curiae for matters of national
security confidentiality, also made submissions at the hearing.
A. THE NATURE OF THE MOTION
Counsel for Mr. Arar sought orders that the government disclose all records that
contain information that is in the public domain or that becomes public during
the Inquiry or that is subsumed or made obvious by information in the public
domain, and records that contain information emanating from Mr. Arar or his
counsel or that were disclosed to Mr. Arar by officials in the United States and
Syria. This motion included requests for any information disclosed:
•
•
•
•
•
•
•
•
to and by Mr. Arar during questioning in the U.S. and Syria;
to and by Mr. Arar’s counsel, Mr. Michael Edelson and Mr. James
Lockyer;
to and by Ms. Monia Mazigh during questioning in Tunisia;
as a result of the release of files to Ms. Juliet O’Neill of the Ottawa
Citizen;
by Canadian government officials in Hansard, in appearances before
parliamentary committees, to the media, and under the Access to
Information Act and Privacy Act;
by U.S. government officials to the media;
by Syrian government officials to the media; and
by unnamed media sources.
Counsel for Mr. Arar submitted a detailed compendium of public information relating to Mr. Arar, collected from official sources and from media reports.
Counsel sought disclosure of specific documents that she was able to identify,
including an unedited version of the U.S. order removing Mr. Arar to Syria and
the decision of the regional director, both dated October 7, 2004, copies of
Mr. Arar’s statements to U.S. and Syrian authorities, contents of a “JSTF file” that
was reportedly the basis for Ms. Juliet O’Neill’s article of November 8, 2003 in
the Ottawa Citizen, contents of a “Syrian file” on Mr. Arar that was reportedly
given to the Canadian government, contents of a “Tunisian file” that was allegedly shown to Ms. Mazigh during questioning in Tunisia, and a copy of Mr.
Edelson’s statement to Superintendent Garvie during the investigation into Mr.
Arar’s case by the RCMP Complaints Commissioner.
681
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FACTUAL BACKGROUND: VOLUME II
Counsel also sought disclosure of information concerning certain events or
matters relating to Mr. Arar, such as investigations into suspected terrorist activities in Canada and the U.S. in the period preceding Mr. Arar’s detention, information-sharing between Canada and the U.S., communications between police
and Mr. Edelson, the government practice of extraordinary rendition, and alleged
“leaks” about Mr. Arar before and after his return to Canada.
B. THE SUBMISSIONS OF THE PARTIES
1.
Mr. Arar
The essence of Mr. Arar’s motion is the submission that no valid NSC claim can
be made over information that is in the public domain. Thus, all relevant government documents that contain information that is in the public domain should
be publicly disclosed. Counsel for Mr. Arar offered two arguments to support this
submission. The first was that, in the context of a public inquiry, information that
is in the public domain simply cannot be privileged. Therefore, section (k) of
the Inquiry Terms of Reference does not apply to documents that contain such
information. As such, I have the discretion to reject an NSC claim that relates to
information in the public domain on the ground that the claim is an abuse of
the government’s authority to make NSC claims.
Alternatively, Mr. Arar’s counsel argued that, if section (k) does apply to the
Attorney General’s claims of NSC, then the fact that information is already in
the public domain means that the disclosure of documents containing such information would not be injurious to international relations, national defence or
national security (the elements of NSC) since whatever injury would be caused
by disclosure has already occurred.
2.
The Attorney General
Counsel for the Attorney General submitted that the motion by counsel for
Mr. Arar was both improper and premature. The motion was improper because,
in the context of an inquiry, a party receives information from the commission
of inquiry, not from other parties to the inquiry. It is therefore beyond my jurisdiction to make an order, as sought by Mr. Arar, for the government to produce information either to Mr. Arar or to the public.
Counsel for the Attorney General submitted that the motion was premature
because, in considering the government’s NSC claims, it is necessary for me to
hear the evidence that informs such claims with respect to specific documents
and information. It would be inappropriate for me to rule on NSC claims in the
abstract without having heard the underlying evidence that gives rise to the
�APPENDICES
claim. That underlying evidence will become known to me at the Inquiry’s in
camera hearings.
Counsel for the Attorney General also argued that information reported in
the media might not be legitimately in the public domain. Media reports could
be inaccurate. Where disclosure was unauthorized or otherwise illegitimate,
media reports should not trigger the disclosure of the documents that verify or
dispute that information.
On the other hand, counsel for the Attorney General characterized the fact
that information was legitimately in the public domain as a strong factor in the
determination of whether the information should be heard in public. Further, it
was accepted that the objective of the Attorney General at the Inquiry is to maximize the public disclosure of relevant information.
Finally, counsel for the Attorney General dealt with a number of the specific documents referred to in the submissions of counsel for Mr. Arar. With respect to the U.S. deportation documents of October 7, 2004, counsel indicated
that the government does not have an unredacted copy of those documents to
produce. Counsel also indicated that the government has no information about
information disclosed to Ms. Mazigh in Tunisia. With respect to Mr. Edelson’s
statement to Superintendent Garvie, that statement has been produced to the
Commission and, like other documents over which the government has made
no NSC claim, it can be disclosed. In the case of Ms. O’Neill’s article of
November 8, 2003, counsel submitted that the Inquiry should await the determination of matters of confidentiality in the ongoing proceedings before
Ratushny J. of the Superior Court.
C. THE SUBMISSIONS OF MR. ATKEY
Mr. Atkey submitted that, in his view, the motion was not premature and raised
important issues concerning the disclosure of information that is relevant to the
Inquiry. What might be premature would be an immediate decision on my part
to grant the order without further review, at an in camera hearing, of the specific documents that relate to information that is in the public domain. In this regard, the motion record would be extremely helpful.
Mr. Atkey also submitted that the issue whether information is legitimately
in the public domain appears to go to the core of the mandate of the Inquiry to
determine whether the conduct of government officials was improper because,
for example, unauthorized disclosures might have taken place in order to harm
Mr. Arar’s reputation.
683
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FACTUAL BACKGROUND: VOLUME II
D. RESOLUTION
The government’s argument that the motion was improper because it seeks disclosure from the government rather than the Commission is technically correct
but of no consequence. I will deal with the motion as if it sought disclosure
from the Commission.
I agree with Mr. Atkey that the motion was not premature and that it has
been a useful exercise. The motion has raised important issues concerning not
only the disclosure of information that is already public but also the authority
and process of this Commission generally, in relation to the disclosure of other
relevant information. Nevertheless, I am not presently in a position to rule on
the release of specific documents because I have not heard evidence about the
circumstances surrounding the government’s production or receipt of such documents. Further, I have not heard the evidence that the Attorney General may
wish to call to support its NSC claims.
I have reviewed a summary of a number of documents, subject to an NSC
claim, that appear to relate to information that is in the public domain. I did so
in order to make a preliminary assessment of whether it would be possible for
me, at this stage, to form an opinion whether disclosure of such documents
would be injurious to any of the elements of NSC. In almost every case, I find
it necessary to hear further evidence before making that decision. This is especially so in the case of documents received from foreign governments and in the
case of documents relating to alleged “leaks” by Canadian government officials
to the media.
Moreover, in the case of many of the NSC claims, I will be better able to
evaluate the significance of the claim when it can be put in the context of the
overall body of evidence over which NSC is claimed.
That said, I think that it is useful in this ruling to address several matters that
were raised in argument.
First, counsel for the Attorney General, in her submissions, indicated that
the government would make its best efforts to limit its NSC claims wherever
possible. She also agreed that it would be inappropriate for the Attorney General
to make NSC claims that were overinclusive, as a “first cut” for later negotiations
with Commission counsel regarding the validity of such claims. I commend
her for taking that approach. In my view that is the proper approach and counsel for the Attorney General should do everything she can to ensure that it is
followed.
In her submissions, counsel for Mr. Arar submitted that I may reject an NSC
claim by the Attorney General on the basis that it is improper because the
�APPENDICES
information is already in the public domain. In such a case she argues that I need
not consider the test in section (k) of the Terms of Reference as to whether disclosure would be injurious to NSC. I do not accept that argument. No such authority is expressly granted to me in the Terms of Reference. More importantly,
the language of section (k)(i) supports the contrary view. It states that, on the
request of the Attorney General, I “shall” receive information in an in camera
hearing if I am of the opinion that disclosure of the information would be injurious to any of the elements of NSC. It follows that, to reject an NSC claim, I must
first decide that disclosure would not be injurious.
In her submissions, counsel for Mr. Arar made reference to a number of
cases regarding claims of privilege over information that is already in the public domain, including the decision in Babcock v. Canada (Attorney General),
[2002] 3 S.C.R. 3. In that case, the Supreme Court of Canada rejected a claim of
cabinet privilege by the government, acting as the defendant in a civil lawsuit,
over documents that had been previously disclosed to the plaintiffs. The reasoning in Babcock appears highly relevant to a determination under section
(k)(i) with respect to information that the government has previously made public. However, the issue of whether section (k)(i) applies at all turns on the language of the Terms of Reference and I do not think that Babcock or the other
case law helps to resolve that issue.
Counsel’s second argument is that the fact that information is in the public
domain means that disclosure would not be injurious to international relations,
national defence or national security. I agree that the fact that information contained in a document is in the public domain is an important factor in the assessment of whether disclosure of that document would itself be injurious to the
elements of NSC. In other instances where privilege is sought, such as solicitorclient privilege and cabinet privilege, the fact of previous disclosure removes the
privilege. That said, I do not think that the fact that information is in the public
domain is necessarily conclusive of the issue under section (k)(i). Ultimately, the
test is always whether disclosure would be injurious to an element of NSC; however, it is a matter of common sense that previous disclosure will tend to significantly weaken if not defeat the claim that further disclosure would be
injurious.
Finally, it may be useful if I offer comments on some of the specific documents that were discussed during argument of the motion.
The Commission is not aware of the government having produced to the
Inquiry documents originating in a “Tunisian file” on Mr. Arar and counsel for
the Attorney General has indicated that the government has no information on
such a file.
685
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FACTUAL BACKGROUND: VOLUME II
NSC claims over information about Mr. Arar that was provided to the
Canadian government by U.S. or Syrian authorities generally implicate assurances provided by the Canadian government to those states with respect to information sharing. On reviewing a number of such documents, I find it necessary
to hear further evidence before forming an opinion on NSC.
A copy of Mr. Edelson’s statement to Superintendent Garvie was provided
to counsel for Mr. Arar, in order to prepare for Mr. Edelson’s testimony.
Commission counsel has requested that the Attorney General reconsider
NSC claims with respect to a number of specific documents including certain
documents that relate to police communications with Mr. Edelson and with family members of Mr. Arar. Commission counsel has also requested the Attorney
General to reconsider NSC claims over certain documents that originate in
Canada and that were allegedly shown to Mr. Arar during his detention in the
U.S. I will consider whether to issue a ruling concerning those documents once
the Attorney General has responded to these requests.
Finally, I agree with the submissions of counsel for the Attorney General
that documents that relate to Ms. O’Neill’s article of November 8, 2003 should
not be disclosed until Ratushny J. has resolved matters of confidentiality
presently before her, unless an application is brought before her by a party to
the Inquiry.
III. SECTION (k)(i) OF THE TERMS OF REFERENCE
On June 24, 2004, the Commission sent two questions to counsel for Mr. Arar
and the Attorney General. The questions are attached as Appendix “B”.
The questions were sent in order to invite further submissions on specific
issues that arose in the context of my consideration of matters of confidentiality and the overall Inquiry process. They did not reflect any determination by
me.
The first question raised the issue of the procedural steps that follow a decision by me under section (k)(i) that the disclosure of information that is subject to an NSC claim would not be injurious to any of the elements of NSC. In
the event of my reaching such a decision, the question was framed to suggest
that such information could be released to the public after a period of 10 days
following the Attorney General’s receipt of my decision, unless the Attorney
General notified the Commission within that period that he would apply to
Federal Court for an order to prohibit release under s. 38 of the Canada
Evidence Act. The Attorney General objected to this interpretation of section
(k)(i) on the basis that it was contrary to the Canada Evidence Act.
�APPENDICES
A. THE SUBMISSIONS OF THE PARTIES
1.
The Attorney General
Counsel for the Attorney General submitted that, despite a decision by me under
section (k)(i) of the Terms of Reference that disclosure of information would not
be injurious to international relations, national defence or national security, such
information remains “potentially injurious information” and “sensitive information” under s. 38 of the Canada Evidence Act. The provisions of s. 38 apply
generally to the process of the Inquiry and are not modified by the Inquiry
Terms of Reference. Indeed, section (m) of the Terms of Reference expressly
states that those Terms must not be construed so as to limit the application of
the provisions of the Canada Evidence Act.
Therefore, the Commission may not disclose information that is subject to
an NSC claim, even after I have decided that disclosure would not be injurious
to any of the elements of NSC, unless the Attorney General authorizes its release
under s. 38.03 or s. 38.031 of the Canada Evidence Act or unless a Federal Court
judge authorizes disclosure under s. 38.06(1) or (2). If the Commission wishes
to disclose such information without authorization by the Attorney General, and
if the Attorney General does not bring an application in the Federal Court, the
Commission may apply to Federal Court, under s. 38.04(2)(c), for a judicial order
authorizing disclosure. The Commission may do so after a period of 10 days
following the Attorney General’s receipt of my decision that disclosure would
not be injurious to any of the elements of NSC.
The Commission is listed as a designated entity under the Schedule to the
Canada Evidence Act. The purpose of this designation, according to counsel
for the Attorney General, was to enable the government to produce potentially
injurious and sensitive information to the Commission without triggering the application of s. 38.01(1) to (4) and the resulting procedural regime. However, the
designation of the Commission in the Schedule does not allow the Commission
to publicly release information, the disclosure of which I have decided would
not be injurious, absent authorization by the Attorney General or a Federal Court
judge. This is supported by the inclusion of the words “except where the hearing is in public” in the designation of the Commission in the Schedule.
Further, counsel for the Attorney General submits that s. 38.02(1.1) does not
authorize the Commissioner to publicly release information, the disclosure of
which I have decided would not be injurious to any of the elements of NSC, absent authorization by the Attorney General or a Federal Court judge. This section reads as follows:
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“(1.1) When an entity listed in the schedule, for any purpose listed there in relation
to that entity, makes a decision or order that would result in the disclosure of sensitive information or potentially injurious information, the entity shall not disclose
the information or cause it to be disclosed until notice of intention to disclose the
information has been given to the Attorney General of Canada and a period of 10
days has elapsed after notice was given.”
This section requires the entity not to disclose potentially injurious or sensitive
information that is contained in a decision until after a period of 10 days following the Attorney General’s receipt of notice of the decision. Counsel for the
Attorney General pointed out that this section is silent with respect to what happens after notice is given to the Attorney General. As such, the section does not
expressly oblige the Attorney General to respond in any way to a decision by a
designated entity. For this reason, and in light of section (m) of the Terms of
Reference, s. 38.02(1.1) does not authorize the Commission to publicly release
information, disclosure of which I have decided would not be injurious to any
of the elements of NSC, absent authorization by the Attorney General or a
Federal Court judge.
Finally, I note that the Attorney General’s submissions were consistent with
a supplementary request by the government, received by the Commission on
June 22, 2004, to amend Rule 50(b), Rule 55, and Rule 56 of the Inquiry Rules
of Procedure and Practice.
2.
Mr. Arar
Counsel for Mr. Arar submitted that the Commission may disclose information
once I have decided that disclosure would not be injurious to any of the elements of NSC, unless the Attorney General takes positive steps to prevent such
disclosure. Section 38.01 of the Canada Evidence Act does not apply to the
Commission because the Schedule lists the Commission as a designated entity
“for the purposes of the inquiry”. In the listing in the Schedule, the inclusion of
the words “except where the hearing is in public” is intended to require me to
form my opinion whether disclosure would be injurious at an in camera hearing, not to prevent the public disclosure of information once I have decided
that its disclosure would not be injurious.
Further, it is not logical for the Inquiry to go through the time-consuming
and expensive activity of reaching a decision on an NSC claim by the Attorney
General, as contemplated by section (k)(i) of the Terms of Reference, if that decision did not take precedence over the Attorney General’s initial NSC claim.
Where the government objects to disclosure by the Commission, following a
�APPENDICES
decision by me, the option that is available to the Attorney General is to issue
a certificate under s. 38.13 that prohibits disclosure. This interpretation is consistent with the Canada Evidence Act and has the benefit of maximizing and facilitating disclosure in the context of a public inquiry.
B. RESOLUTION
The issue is whether under the provisions of s. 38 of the Canada Evidence Act
I am prohibited from disclosing information, the disclosure of which I have decided would not be injurious to international relations, national defence or national security, once 10 days have elapsed from the date on which notice of my
decision was given to the Attorney General, in circumstances where the Attorney
General has neither agreed to the disclosure nor applied to the Federal Court to
prohibit disclosure. If I am prohibited from disclosing such information, the only
recourse open to me would be to bring an application to the Federal Court to
authorize the disclosure.
The provisions of s. 38 of the Canada Evidence Act were enacted in
December, 2001 as part of Bill C-36, the government’s anti-terrorism legislation.
I was not referred to any cases in which the question of the interpretation of the
subsections in issue here have been considered by a court.
Unfortunately, the provisions of s. 38 do not provide a clear answer to the
question. It is difficult to fit decisions made by listed entities referred to in s.
38.02(1.1) into the statutory scheme that applies when notice is given to the
Attorney General under s. 38.01. It is clear, however, that whatever interpretation of s. 38 is adopted, the Attorney General must be given notice of a decision by a listed entity that would result in disclosure of such information, and,
in my view, the Attorney General has the means to challenge such a decision
either in the Federal Court or by issuing a certificate under s. 38.13.
The Commission raised this issue relating to section (k)(i) in the hope of resolving a potential procedural problem at an early stage in order to avoid delay
later in the process. However, I have concluded that it does not make sense for
me to opine on this issue at this stage. As I have said, the answer is far from
clear. Moreover, the issue may never actually arise in the context of the Inquiry.
The Attorney General may not disagree with my disclosure decisions or, if he
does, he may bring an application to have the decisions reviewed in the Federal
Court. It would only be in the situation where the Attorney General remains
silent for 10 days after receiving notice of my decision that I would have to confront the issue at hand. It is my hope that this situation will not arise.
Let me add a few observations. Whatever interpretation one adopts, it
seems to me that it would be unusual to require the entities listed in the
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Schedule to the Canada Evidence Act to bring applications to a Federal Court
judge for disclosure of the information contained in their decisions. This would
be particularly unusual given that many of the listed entities are Federal Court
judges. I am not aware of any procedural regime requiring one judge to bring
an application before another. A more common approach, of course, is that
where a person, such as the Attorney General wishes to challenge a decision,
then that person is required to bring an application to seek judicial review. In
any event, I leave the resolution of this issue for another day and, preferably,
for another listed entity or a court.
Finally, I address the submission of Mr. Arar’s counsel as to the options
available to the Attorney General if he objects to disclosure within the 10 day
period. Depending on the resolution of the issue discussed above, the Attorney
General may have the option of doing nothing. Counsel for Mr. Arar submitted
that the only option that is available to the Attorney General at this stage is to
issue a certificate under s. 38.13. The other possibility is that the Attorney
General could apply to the Federal Court pursuant to s. 38.04(1) for an order
prohibiting the disclosure of information about which I have made a decision
under section (k)(i).
I am satisfied that both of these options are available to the Attorney
General. If, on receiving notice of a decision referred to in s. 38.02(1.1) it is necessary for there to be a s. 38.01 notice to the Attorney General in order for the
Attorney General to bring an application under s. 38.04(1), I am satisfied that it
is open to those involved in the Inquiry proceedings on behalf of the government to give notice to the Attorney General under s. 38.01(1) to (4) that sensitive or potentially injurious information could be disclosed.
In particular, s. 38.01(2) requires any “participant” in a proceeding “who believes that sensitive information or potentially injurious information is about to
be disclosed” to raise the matters with the person presiding at the proceeding
and to notify the Attorney General. Section 38.01(3) and (4) authorize an “official” to notify the Attorney General or to raise the matter with the person presiding at the proceeding in similar circumstances. In the context of this Inquiry,
if a matter of this nature is raised with me then I, as the person presiding, must
“ensure that the information is not disclosed other than in accordance with this
Act”. Finally, s. 38.04(1) authorizes the Attorney General to apply to the Federal
Court for an order with respect to the disclosure of information about which notice was given under s. 38.01. In light of these provisions, I do not think that the
Attorney General’s options to respond to a decision under section (k)(i) are limited to the issuance of a certificate under s. 38.13.
�APPENDICES
IV. SECTION (k)(iii) OF THE TERMS OF REFERENCE
The Inquiry Terms of Reference contemplate that I will make two types of decisions with respect to information, the disclosure which the Attorney General
claims would be injurious to international relations, national defence or national
security. Under section (k)(i) I am directed to hear information in camera on the
request of the Attorney General if I am of the opinion that disclosure of that information would be injurious to any of the elements of NSC. The second type
of decision I am required to make relates to the public interest. The combined
effect of sections (k)(ii) and (k)(iii) of the Terms of Reference is that if, after
hearing information in camera, I am of the opinion that the summary of that information that is acceptable to the Attorney General provides inadequate disclosure to the public, then I may so advise the Attorney General and this advice
constitutes notice under s. 38.01 of the Canada Evidence Act. Thus, if I am of
the opinion that partial or non-disclosure of relevant information – the disclosure of which, I have previously concluded, would be injurious to any of the
elements of NSC – is inadequate, then I may so advise the Attorney General.
That notice triggers the process found in s. 38.01 and after of the Canada
Evidence Act.
To the extent that counsel for Mr. Arar or the Attorney General made submissions on the operation of section (k)(iii), those submissions related to matters of disclosure that are dealt with in part V of this ruling. Here, I will briefly
indicate my interpretation of section (k)(iii).
Although what constitutes “inadequate disclosure to the public” is not defined in the Terms of Reference, I am of the view that the process set out in the
Terms of Reference contemplates that I should, at this stage, apply the same
test that a reviewing judge would apply under s. 38.06(2) of the Canada
Evidence Act. That section reads as follows:
“(2) If the judge concludes that the disclosure of the information would be injurious to international relations or national defence or national security but that the
public interest in disclosure outweighs in importance the public interest in non-disclosure, the judge may by order, after considering both the public interest in disclosure and the form of and conditions to disclosure that are most likely to limit any
injury to international relations or national defence or national security resulting
from disclosure, authorize the disclosure, subject to any conditions that the judge
considers appropriate, of all of the information, a part or summary of the information, or a written admission of facts relating to the information.”
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The result of deeming my advice that there is inadequate disclosure to the public to be notice under s. 38.01 would, if the matter runs its course, lead to a determination by a Federal Court judge under s. 38.06(2) of the Canada Evidence
Act. If the opinion I reach under section (k)(iii) of the Terms of Reference is to
be reviewed on the basis of the test in s. 38.06(2) then it is logical that my
opinion should be based upon the same test. The reviewing court should have
the benefit of my views on the same public interest balancing test that it will be
called upon to apply.
In summary, the Terms of Reference call for two decisions: would release
of the information be injurious to international relations, national defence or national security and, if so, would it nonetheless be in the public interest to release
such information. The Terms of Reference make clear that the second decision
can only be made after the evidence in issue has been heard in camera.
If I decide, under section (k)(iii), that the release of a part or a summary of
the information received in camera would provide insufficient disclosure to the
public, then I am required to advise the Attorney General, and such advice constitutes notice under s. 38.01 of the Canada Evidence Act. Once notice is given,
pursuant to section (k)(iii), the Commission is required not to disclose the information to which my decision relates without authorization or agreement by
the Attorney General or an order by a Federal Court judge.
V. DISCLOSURE PROVISIONS OF THE
CANADA EVIDENCE ACT
The questions posed by the Commission to counsel for Mr. Arar and the
Attorney General implied that the Commission is subject to the non-disclosure
provisions found in s. 38.02(1)(a) to (d) of the Canada Evidence Act. Those provisions prohibit, not only the disclosure of information about which notice has
been given under s. 38.01 [subsection (a)], but also the fact that notice has been
given to the Attorney General [subsection (b)], the fact that an application or appeal is underway in the Federal Court [subsection (c)], and the fact that an agreement has been reached with the Attorney General to disclose certain information
[subsection (d)]. An issue that arises in this Inquiry, therefore, is whether subsections (b), (c) and (d) apply to decisions under sections (k)(i) and (k)(iii) of
the Terms of Reference.
�APPENDICES
A. THE SUBMISSIONS OF THE PARTIES
1.
The Attorney General
The Attorney General submitted that the language of s. 38.02(1) makes clear
that the Commission is bound by all of the subsections in s. 38.02(1).
2.
Mr. Arar
Counsel for Mr. Arar submitted that s. 38.02(1)(b), (c) and (d) are unconstitutional. In effect, these provisions place an arbitrary publication ban on the
process by which NSC claims are resolved at the Inquiry. The view that the provisions are unconstitutional is supported, in particular, by the open court principle as applied by the Supreme Court of Canada in Re Vancouver Sun (2004),
SCC 43. Counsel indicated that she did not have sufficient opportunity to prepare a detailed challenge to the constitutionality of the Canada Evidence Act in
this respect but indicated that she was prepared to do so if necessary.
B. RESOLUTION
The provisions of s. 38.02(1)(b), (c) and (d) are clear and in my view apply to
my decisions if a notice has been given under s. 38.01(1) to (4). A decision
under section (k)(iii) is deemed to constitute notice under s. 38.01 of the Canada
Evidence Act. Subsections 38.02(1)(b), (c) and (d) expressly prohibit the
Commission from disclosing the fact that notice has been given to the Attorney
General, the fact that an application has been made or the fact that an agreement has been reached, unless the Attorney General or a Federal Court judge
authorizes disclosure.
On their face, the breadth of these provisions clearly detracts from the transparency of the Inquiry. Indeed, the provisions do not appear to sit well with the
whole idea of a public inquiry. That said, I have not heard sufficient argument
on the constitutionality of s. 38.02(1)(b), (c) and (d) to decide the issue. Further,
I do not propose to request submissions at this stage. While it is open to Mr. Arar
to initiate a constitutional challenge to these provisions, I do not propose to
launch such a challenge at present.
The reason that I am not pursuing the issue now is because this is only a
potential problem and one that may never need to be resolved in the context
of the Inquiry. I have asked Commission counsel to request the Attorney General
to agree to a blanket waiver of s. 38.02(1)(b), (c) and (d) with respect to this
Inquiry. Failing an agreement, should a situation arise that in my view warrants
disclosure of facts that would contravene s. 38.02(1)(b), (c) or (d), I will instruct
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my counsel to apply to Federal Court under s. 38.02(2)(b) to permit such disclosure.
VI. THE PROCESS
The final question that the Commission put to counsel for Mr. Arar and the
Attorney General, before the hearing of July 5, 2003, asked whether it would be
best for all matters concerning the disclosure of information, about which the
Attorney General claims NSC, to be dealt with after all the relevant evidence
has been received in camera. Following the in camera hearing, it was suggested, I would be in a position to issue an omnibus ruling dealing with my
decisions under sections (k)(i) and (k)(iii). Further, it was asked whether, as a
practical matter, all of the information relating to NSC claims should be dealt
with in a single sequence of in camera hearings rather than by switching back
and forth between in camera and public hearings.
Speaking generally, counsel for the Attorney General did not object to this
way of proceeding with respect to NSC claims. On the other hand, counsel for
Mr. Arar raised the concern that holding a single sequence of in camera hearings would prevent the public from knowing about the Attorney General’s objections to the public disclosure of particular evidence. For this reason, counsel
for Mr. Arar favoured a process in which the introduction of the evidence would
switch back and forth between in camera and public hearings.
The concern raised by Mr. Arar’s counsel is legitimate and one that I think
should be kept in mind. However, I think that there is considerable benefit to
holding an in camera hearing that would receive, in sequence, much of the
NSC evidence. Moreover, as I point out below, there are ways of addressing, to
some extent at least, the concern of Mr. Arar’s counsel. The government has
claimed NSC for a substantial portion, although not all, of the RCMP and CSIS
factual evidence. There are five significant advantages to hearing this evidence
in camera before I decide what portion may be made public, either by way of
testimony in a public hearing or by way of releasing a part or a summary of
some of the information heard in camera.
First, I will be in a better position to evaluate the Attorney General’s NSC
claim as well as the public interest in disclosure after I have heard all of the in
camera evidence. At that point, I will be better able to appreciate the significance of different pieces of evidence in the overall context of what happened.
Probably, I will also be better able to evaluate the extent of the injury, if any, to
the elements of NSC from the release of evidence to the public when I am in a
position to understand where a particular piece of evidence fits into the chronology of events and how that evidence relates to other evidence.
�APPENDICES
Second, the two decisions that I am called upon to make – NSC and the balancing of the public interest – are not unconnected. In making a decision with
respect to the public interest, the degree of the alleged injury to the elements of
NSC will undoubtedly be relevant. It seems to me sensible in most instances to
address those two decisions at the same time. Notably, as a matter of general
principle, the submissions which I received from many parties and intervenors
did just that; they addressed the issue of injury to the elements of NSC and the
issue of the public interest in disclosure interchangeably.
Third, I consider it very important to hear all of the factual evidence of the
RCMP and CSIS in one sequence, uninterrupted by shifting back and forth
between in camera and public hearings. The opportunity to hear all of the evidence in its normal sequence will make it easier for me to understand and evaluate the events relating to Mr. Arar.
Fourth, I am satisfied that hearing all of the RCMP and CSIS factual evidence in camera is the most efficient way to deal with what could become a
very complex process. After the evidence has been heard in camera I will rule
on both NSC and the balancing of the public interest. I recognize that, subject
to challenges in court, it may become necessary to hear some of the evidence
again in the public hearings. However, it may be possible in some instances to
simply introduce the transcript of evidence heard in camera and to provide the
opportunity for cross-examination in the public hearings. Even though there will
be some duplication of evidence heard in camera, I am satisfied that on balance
the process that I am adopting will enable us to proceed as expeditiously as possible.
In addition, the process will result in one main ruling on what information,
for which NSC is claimed, can be heard in public. Court challenges are one of
the main causes for delays in public inquiries. Although I am obviously not encouraging court challenges, I am aware of the possibility. I expect that the
process that I describe in this ruling will reduce the potential for multiple court
challenges on these issues. It is in everyone’s interest that the Inquiry be completed as quickly as possible and, if there is to be a court challenge to any of
the rulings I make with respect to in camera hearings, it is preferable that there
be only one such challenge.
Finally, everyone including the Attorney General has submitted that I should
make public as much evidence as is permitted under the Terms of Reference. It
seems to me that I will be best able to fulfill that objective by way of a process
that enables me to make decisions after hearing all of the factual in camera evidence and to put that evidence in its proper context. I also think that this
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process will lead to more sensible and manageable disclosure for the parties
and intervenors.
All of that said, I am not foreclosing the possibility that I may release rulings with respect to some of the Attorney General’s NSC claims before all of the
evidence has been heard in camera. Neither this ruling nor the question that was
put to counsel for Mr. Arar and the Attorney General should be interpreted as
foreclosing that possibility. In particular, I may choose to make such a ruling if
I come to the conclusion that I have heard sufficient information to decide,
under section (k)(i), that disclosure of particular information would not be injurious to any of the elements of NSC.
As discussed, counsel for Mr. Arar expressed the concern that holding a
single sequence of private hearings will limit the ability of the public to know
when the government was objecting to disclosure of information. No doubt this
is true. However, this concern is mitigated by a number of factors. First, pursuant
to Rule 54, prior to an in camera hearing, Commission counsel will advise the
parties and intervenors of the information and evidence that will be introduced
at the hearing. The parties and intervenors are invited to raise with Commission
counsel areas for questioning. In the process that I have described above, I contemplate that Commission counsel will periodically make available to parties
and intervenors a brief summary of the evidence that will be heard in camera
before the evidence is heard. It may become obvious from the advice of counsel, or the summaries of evidence, what evidence the Attorney General claims
is subject to NSC.
Also, I will produce a summary of the evidence that is heard in camera
which will provide the public with an indication of the evidence over which the
Attorney General claimed NSC. If circumstances permit, I may produce a summary of evidence heard in camera before all of the in camera hearings have
been completed. Finally, I can make additional rulings with respect to NSC
claims, if the need arises, in the course of the in camera hearings.
I am satisfied that the process described above is consistent with the Terms
of Reference and with the Rules of Practice and Procedure and, at this stage, I
think that is the best way to proceed. However, because of the special problems
related to NSC claims, this Inquiry presents more than its fair share of procedural
difficulties. We at the Commission are doing our best to design and draft a
process that is thorough, fair and as expeditious as possible. It may be that as
other issues arise further adjustments to the process and to the schedule will
need to be made. I appreciate the cooperation and assistance that we have been
receiving from the parties and intervenors to date and look forward to that continuing as we proceed.
�APPENDICES
I have not included the DFAIT evidence in the process described above.
The Attorney General does not claim NSC over DFAIT evidence to the same extent as the RCMP and CSIS factual evidence. I am advised by Commission counsel that we should be able to proceed with a sufficient amount of the DFAIT
evidence in the public hearing in a way that will make it understandable and
useful to the parties, the intervenors and the public.
We will hear those portions of the DFAIT evidence for which the Attorney
General claims NSC during the in camera hearings that address the RCMP and
CSIS factual evidence. In my omnibus ruling with respect to the matters of
confidentiality, I will include my rulings concerning the DFAIT evidence heard
in camera.
There may be NSC claims with respect to other government departments
and agencies. I will address the appropriate process for addressing those claims
if and when they arise.
After completing the in camera hearings, I will prepare an omnibus ruling
addressing the two issues: NSC and the balancing of the public interest. In
doing so, I will have regard to the submissions received from the parties and intervenors on the principles that apply to the question of national security confidentiality, the submissions made on July 5 on the motion by counsel for Mr.
Arar, and the submissions of counsel for the Attorney General and Mr. Atkey
with respect to specific in camera evidence. This ruling will address all of the
evidence heard in camera and it will include the rulings that are contemplated
by Rules 50 and 56.
I anticipate that the omnibus ruling will include:
a)
b)
c)
a brief description of the relevant evidence for which no NSC claim is
made. That evidence will be introduced in a public hearing.
subject to a challenge by the Attorney General, a summary of evidence
for which the Attorney General claims NSC but which I consider is not
injurious to any of the elements of NSC. That evidence will either be
introduced at a public hearing or filed as a transcript of the in camera
evidence. The parties will then have an opportunity at the public hearing to cross-examine on the evidence so disclosed.
subject to a challenge by the Attorney General, a summary of evidence
which I consider is subject to NSC but which I am nonetheless of the
opinion should be made public in the public interest. That evidence
will be dealt with in the same manner as the evidence referred to in
paragraph b) above.
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d)
subject to Rule 55, a summary of evidence heard in camera which I
conclude should not be made public as contemplated by section (k)(ii)
of the Terms of Reference.
July 19, 2004
Justice Dennis R. O’Connor
Commissioner
�APPENDICES
Appendix A
Relevant provisions of the Canada Evidence Act, R.S.C. 1985, c. C-5
The following provisions of s. 38 of the Canada Evidence Act are relevant to this
ruling:
38. The following definitions apply in this section and in sections 38.01 to
38.15.
….
“participant” means a person who, in connection with a proceeding, is required to disclose, or expects to disclose or cause the disclosure of, information.
“potentially injurious information” means information of a type that, if it
were disclosed to the public, could injure international relations or national
defence or national security.
….
“sensitive information” means information relating to international relations
or national defence or national security that is in the possession of the
Government of Canada, whether originating from inside or outside Canada,
and is of a type that the Government of Canada is taking measures to safeguard.
38.01 (1) Every participant who, in connection with a proceeding, is required to disclose, or expects to disclose or cause the disclosure of, information that the participant believes is sensitive information or
potentially injurious information shall, as soon as possible, notify the
Attorney General of Canada in writing of the possibility of the disclosure, and of the nature, date and place of the proceeding.
(2) Every participant who believes that sensitive information or potentially injurious information is about to be disclosed, whether by the
participant or another person, in the course of a proceeding shall raise
the matter with the person presiding at the proceeding and notify the
Attorney General of Canada in writing of the matter as soon as possible, whether or not notice has been given under subsection (1). In
such circumstances, the person presiding at the proceeding shall ensure that the information is not disclosed other than in accordance with
this Act.
(3) An official, other than a participant, who believes that sensitive information or potentially injurious information may be disclosed in
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connection with a proceeding may notify the Attorney General of
Canada in writing of the possibility of the disclosure, and of the nature,
date and place of the proceeding.
(4) An official, other than a participant, who believes that sensitive information or potentially injurious information is about to be disclosed
in the course of a proceeding may raise the matter with the person
presiding at the proceeding. If the official raises the matter, he or she
shall notify the Attorney General of Canada in writing of the matter as
soon as possible, whether or not notice has been given under subsection (3), and the person presiding at the proceeding shall ensure that
the information is not disclosed other than in accordance with this Act.
….
(6) This section does not apply when
….
(c) disclosure of the information is authorized by the government
institution in which or for which the information was produced
or, if the information was not produced in or for a government
institution, the government institution in which it was first received; or
(d) the information is disclosed to an entity and, where applicable, for a purpose listed in the schedule.
….
(8) The Governor in Council may, by order, add to or delete from the
schedule a reference to any entity or purpose, or amend such a reference.
38.02 (1) Subject to subsection 38.01(6), no person shall disclose in connection with a proceeding
(a) information about which notice is given under any of subsections
38.01(1) to (4);
(b) the fact that notice is given to the Attorney General of Canada
under any of subsections 38.01(1) to (4), or to the Attorney General of
Canada and the Minister of National Defence under subsection
38.01(5);
(c) the fact that an application is made to the Federal Court under section 38.04 or that an appeal or review of an order made under any of
�APPENDICES
subsections 38.06(1) to (3) in connection with the application is
instituted; or
(d) the fact that an agreement is entered into under section 38.031 or
subsection 38.04(6).
(1.1) When an entity listed in the schedule, for any purpose listed there in
relation to that entity, makes a decision or order that would result in the disclosure of sensitive information or potentially injurious information, the entity shall not disclose the information or cause it to be disclosed until notice
of intention to disclose the information has been given to the Attorney
General of Canada and a period of 10 days has elapsed after notice was
given.
(2) Disclosure of the information or the facts referred to in subsection (1)
is not prohibited if
(a) the Attorney General of Canada authorizes the disclosure in writing under section 38.03 or by agreement under section 38.031 or subsection 38.04(6); or
(b) a judge authorizes the disclosure under subsection 38.06(1) or (2)
or a court hearing an appeal from, or a review of, the order of the
judge authorizes the disclosure, and either the time provided to appeal the order or judgment has expired or no further appeal is
available.
38.03 (1) The Attorney General of Canada may, at any time and subject to
any conditions that he or she considers appropriate, authorize the disclosure of all or part of the information and facts the disclosure of which is prohibited under subsection 38.02(1).
….
(3) The Attorney General of Canada shall, within 10 days after the day on
which he or she first receives a notice about information under any of subsections 38.01(1) to (4), notify in writing every person who provided notice under section 38.01 about that information of his or her decision with
respect to disclosure of the information.
2001, c. 41, s. 43.
38.031 (1) The Attorney General of Canada and a person who has given
notice under subsection 38.01(1) or (2) and is not required to disclose information but wishes, in connection with a proceeding, to disclose any facts
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FACTUAL BACKGROUND: VOLUME II
referred to in paragraphs 38.02(1)(b) to (d) or information about which he
or she gave the notice, or to cause that disclosure, may, before the person
applies to the Federal Court under paragraph 38.04(2)(c), enter into an
agreement that permits the disclosure of part of the facts or information or
disclosure of the facts or information subject to conditions.
(2) If an agreement is entered into under subsection (1), the person may not
apply to the Federal Court under paragraph 38.04(2)(c) with respect to the
information about which he or she gave notice to the Attorney General of
Canada under subsection 38.01(1) or (2).
2001, c. 41, ss. 43, 141.
38.04 (1) The Attorney General of Canada may, at any time and in any circumstances, apply to the Federal Court for an order with respect to the disclosure of information about which notice was given under any of
subsections 38.01(1) to (4).
(2) If, with respect to information about which notice was given under any
of subsections 38.01(1) to (4), the Attorney General of Canada does not
provide notice of a decision in accordance with subsection 38.03(3) or,
other than by an agreement under section 38.031, authorizes the disclosure
of only part of the information or disclosure subject to any conditions,
(a) the Attorney General of Canada shall apply to the Federal Court for
an order with respect to disclosure of the information if a person who
gave notice under subsection 38.01(1) or (2) is a witness;
(b) a person, other than a witness, who is required to disclose information in connection with a proceeding shall apply to the Federal
Court for an order with respect to disclosure of the information; and
(c) a person who is not required to disclose information in connection
with a proceeding but who wishes to disclose it or to cause its disclosure may apply to the Federal Court for an order with respect to disclosure of the information.
(3) A person who applies to the Federal Court under paragraph (2)(b) or
(c) shall provide notice of the application to the Attorney General of
Canada.
(4) An application under this section is confidential. Subject to section 38.12,
the Chief Administrator of the Courts Administration Service may take any
measure that he or she considers appropriate to protect the confidentiality
of the application and the information to which it relates.
�APPENDICES
(5) As soon as the Federal Court is seized of an application under this section, the judge
(a) shall hear the representations of the Attorney General of Canada
and, in the case of a proceeding under Part III of the National Defence
Act, the Minister of National Defence, concerning the identity of all
parties or witnesses whose interests may be affected by either the prohibition of disclosure or the conditions to which disclosure is subject,
and concerning the persons who should be given notice of any hearing of the matter;
(b) shall decide whether it is necessary to hold any hearing of the
matter;
(c) if he or she decides that a hearing should be held, shall
(i) determine who should be given notice of the hearing,
(ii) order the Attorney General of Canada to notify those persons,
and
(iii) determine the content and form of the notice; and
(d) if he or she considers it appropriate in the circumstances, may give
any person the opportunity to make representations.
(6) After the Federal Court is seized of an application made under paragraph (2)(c) or, in the case of an appeal from, or a review of, an order of
the judge made under any of subsections 38.06(1) to (3) in connection with
that application, before the appeal or review is disposed of,
(a) the Attorney General of Canada and the person who made the application may enter into an agreement that permits the disclosure of
part of the facts referred to in paragraphs 38.02(1)(b) to (d) or part of
the information or disclosure of the facts or information subject to conditions; and
(b) if an agreement is entered into, the Court’s consideration of the
application or any hearing, review or appeal shall be terminated.
(7) Subject to subsection (6), after the Federal Court is seized of an application made under this section or, in the case of an appeal from, or a review of, an order of the judge made under any of subsections 38.06(1) to
(3), before the appeal or review is disposed of, if the Attorney General of
Canada authorizes the disclosure of all or part of the information or withdraws conditions to which the disclosure is subject, the Court’s consideration of the application or any hearing, appeal or review shall be terminated
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FACTUAL BACKGROUND: VOLUME II
in relation to that information, to the extent of the authorization or the
withdrawal.
….
38.06 (1) Unless the judge concludes that the disclosure of the information
would be injurious to international relations or national defence or national
security, the judge may, by order, authorize the disclosure of the
information.
(2) If the judge concludes that the disclosure of the information would be
injurious to international relations or national defence or national security
but that the public interest in disclosure outweighs in importance the public interest in non-disclosure, the judge may by order, after considering both
the public interest in disclosure and the form of and conditions to disclosure that are most likely to limit any injury to international relations or national defence or national security resulting from disclosure, authorize the
disclosure, subject to any conditions that the judge considers appropriate,
of all of the information, a part or summary of the information, or a written admission of facts relating to the information.
(3) If the judge does not authorize disclosure under subsection (1) or (2),
the judge shall, by order, confirm the prohibition of disclosure.
….
38.07 The judge may order the Attorney General of Canada to give notice
of an order made under any of subsections 38.06(1) to (3) to any person
who, in the opinion of the judge, should be notified.
38.08 If the judge determines that a party to the proceeding whose interests are adversely affected by an order made under any of subsections
38.06(1) to (3) was not given the opportunity to make representations under
paragraph 38.04(5)(d), the judge shall refer the order to the Federal Court
of Appeal for review.
….
38.13 (1) The Attorney General of Canada may personally issue a certificate that prohibits the disclosure of information in connection with a proceeding for the purpose of protecting information obtained in confidence
from, or in relation to, a foreign entity as defined in subsection 2(1) of the
Security of Information Act or for the purpose of protecting national defence or national security. The certificate may only be issued after an order
�APPENDICES
or decision that would result in the disclosure of the information to be subject to the certificate has been made under this or any other Act of
Parliament.
….
The Schedule to the Canada Evidence Act, as amended by Order in Council
P.C. 2004-73, provides:
DESIGNATED ENTITIES
….
19. The Commission of Inquiry into the Actions of Canadian Officials in
Relation to Maher Arar, for the purposes of that inquiry, except where the
hearing is in public.
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FACTUAL BACKGROUND: VOLUME II
Appendix B
Questions of interpretation and process
With a view to eliciting further submissions about the public disclosure of information at the Inquiry, the Commission sent the following questions to the parties for their consideration:
1.
Does section (k) entail the following two stage process?
a. Decision under section (k)(i):
The Commissioner is authorized to decide, under s. (k)(i), whether the
public disclosure of information relevant to the Inquiry would be injurious to international relations, national defence or national security
(National Security Confidentiality – NSC). This decision will follow a
claim by the Attorney General or any other person that relevant information is subject to NSC.
If the Commissioner decides that disclosure would not be injurious to
NSC, the Commission may disclose the information after a period of 10
days following receipt of the Commissioner’s decision by the Attorney
General unless the Attorney General has notified the Commission
within that period that he intends to apply to the Federal Court for a
determination under s. 38.04(1) of the Canada Evidence Act.
b. Decision under section (k)(iii):
Following his decision under s. (k)(i) that disclosure would be injurious to NSC, the Commissioner is authorized to decide, under s. (k)(iii),
whether the release of a part or a summary of the information, after the
information has been received in camera, would provide insufficient
disclosure to the public.
If the Commissioner decides that such partial disclosure would provide insufficient disclosure, he may advise the Attorney General, which
advice shall constitute notice under s. 38.01 of the Canada Evidence
Act. The Commissioner may also apply to the Federal Court for an
order under s. 38.06 with respect to disclosure of the information.
Under s. 38.02(1) and (2) of the Canada Evidence Act, the Commission
may not disclose the information, the fact of the Commissioner’s decision under s. (k)(iii), the fact that an application has been made to the
Federal Court, or the fact that an agreement regarding disclosure has
�APPENDICES
been entered into with the Attorney General, unless the Attorney
General authorizes such disclosure in writing or by agreement, or a
judge authorizes such disclosure in a final order under s. 38.06.
Thus, absent authorization or agreement by the Attorney General, or
a final order by a Federal Court judge, the Commission may not disclose information that the Commissioner has decided should be disclosed, in the public interest, under section (k)(iii).
2.
Would it be best for all matters concerning the disclosure of information,
with respect to which the Attorney General claims NSC, to be dealt with
after all of the information has been received in camera, following which
the Commissioner will issue a ruling or rulings dealing with his decisions
under s. (k)(i) and s. (k)(iii)? As a practical matter, would it be best to hear
all of the information, with respect to which the Attorney General claims
NSC, by holding one sequence of in camera hearings rather than by switching back and forth between in camera and public hearings?
APPENDIX 6(E)
Ruling on a Motion to Determine Whether
to Make Certain RCMP Documents Public
This is a motion to determine whether certain redacted documents relating to the
RCMP evidence, now being heard in camera, be released to the public.
The government produced to the Inquiry a large number of documents
from the RCMP. The documents, considered to be relevant, have been entered
as exhibits in the in camera hearings. The government claimed NSC with respect
to all or portions of many of the documents. The relevant documents, with those
portions over which the government claims NSC redacted, were produced to
Mr. Arar’s counsel. Mr. Arar’s counsel requests that the redacted documents be
released to the public.
Counsel for certain parties who have testified in camera object to the release at this time. They argue that the release of these documents should await
either the public disclosure of a summary of the RCMP evidence heard in camera or a decision by me about what other portions of these documents may be
publicly disclosed, or both. In that way, they submit, the documents will make
more sense and the public will be able to put the documents in their proper
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FACTUAL BACKGROUND: VOLUME II
context. The government does not object to the release of the documents at this
time, but submits that it would be a more orderly process if the documents were
released later in conjunction with a summary of the viva voce evidence relating
to them. These documents, possibly with fewer redactions, will be released
eventually. The essential issue is one of timing.
I heard this motion in camera in order to give the parties objecting to release an opportunity to raise specific concerns about unfairness to their interests
by the release of the documents at this time and in their redacted form. I am not
satisfied that there will be any unfair prejudice to the parties by their release at
this time. Nor do I accept that the public will be misled because they cannot put
the documents in their proper context. The public is fully able to understand that
there may be other evidence relating to the matters referred to in the unredacted
documents.
Clearly, some of the documents, without accompanying viva voce evidence,
may provide little, if any, useful information to the public. However, others will.
There is already a considerable amount of information in the public domain
about Mr. Arar and the events relating to him. That information should assist in
understanding where some of the documents fit into the overall picture. In any
event, the documents, albeit in unredacted form, have now been entered as exhibits in evidence. This is a public inquiry and to the extent possible evidence
should be made public in a timely manner. In my view, absent a demonstration
of unfair prejudice to a party or of a likelihood that the public will be misled or
confused by disclosure of the documents in their redacted form, they should be
released.
One of the parties argued that it is the unredacted documents that are the
exhibits, not the documents in redacted form. Thus, it is argued the redacted
documents should not be released on the basis that they have not been entered
into evidence. Be that as it may, the unredacted portions of the documents
which are the subject of this motion are part of the exhibits now in evidence.
Given the absence of legitimate concerns about prejudice or confusion, I am exercising my discretion under Rule 26 of the Rules of Procedure and Practice to
direct release of the redacted versions of the documents now in evidence. I note
that not uncommonly documents are released under the Access to Information
and Privacy process in redacted form without accompanying viva voce evidence.
In the course of submissions, I was referred to a ruling by Justice Linden in
the Ipperwash Inquiry. I agree with his conclusion in which he declined to disclose publicly certain documents, however, that case is distinguishable. Unlike
this case, the Commission Counsel had not screened the documents in issue
and they did not form part of the evidentiary base of the Inquiry.
�APPENDICES
I wish to make a number of points about the documents. First, it is
Mr. Arar’s counsel who seeks their release. Counsel has seen the documents
and are obviously not concerned about any potential unfairness to Mr. Arar or
his family.
Second, the documents are redacted on the basis of the government’s NSC
claims. The Commission has received into evidence the documents in their entirety. At this point, I have not ruled on the government’s redactions. It may be
that in future, more of the information contained in some of these documents
will be disclosed publicly.
Next, I caution readers not to attach undue importance to the information
in these documents. The Inquiry has heard and will hear more evidence about
the documents and the events referred to in them. In due course I will provide
a public description, to the extent I am able, of that evidence.
Finally, as I look ahead in this Inquiry, I am concerned about the amount
of time that would be involved in screening for NSC claims all of the documents
received into evidence at the in camera hearings. I expect that there will be
over 2000 documents and many are lengthy. The process for reviewing a document, sometimes word by word, and hearing submissions and ruling upon the
NSC claims, can be very protracted. Some documents are far more significant
than others. It is essential that I thoroughly examine all of the relevant evidence
and that I provide a public report that is as thorough as the NSC constraints permit. It is also important that the Inquiry be completed as expeditiously as possible. With that in mind, I will be asking the parties for submissions about the
process that I should follow in addressing the government’s NSC claims over
documents so as to provide a public report that is as thorough as possible and
at the same time is delivered in a timely manner.
Accordingly, I direct that a set of the documents will be made available to
the public at the Inquiry’s office.
November 23, 2004
Justice Dennis R. O’Connor
Commissioner
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FACTUAL BACKGROUND: VOLUME II
APPENDIX 6(F)
Ruling on National Security
Confidentiality
I. INTRODUCTION
1.
I have been appointed by Order in Council P.C. 2004-48 (the Terms of
Reference) to investigate and report on the actions of Canadian officials in
relation to Mr. Maher Arar including the following:
•
•
•
•
•
2.
the detention of Mr. Arar in the United States,
the deportation of Mr. Arar to Syria via Jordan,
the imprisonment and treatment of Mr. Arar in Syria,
the return of Mr. Arar to Canada, and
any other circumstances directly related to Mr. Arar that the
Commissioner considers relevant to fulfilling this mandate.
This ruling relates to the first summary of information that has been received
in camera that should, in my opinion, be released to the public. This
summary, which I will sometimes refer to as the “final” summary, is attached as Appendix A. This is also the first opportunity for me to address
issues of National Security Confidentiality (NSC) by reference to particular
information over which the government claims NSC and which, in my opinion, should be made public.
BACKGROUND: LAW AND PROCESS
The Terms of Reference
3.
In the Order in Council, I have been directed to take all steps necessary to
prevent the public disclosure of information that would, in my opinion, be
injurious to international relations, national defence or national security
(NSC). The Order in Council directs me:
.…
(k) … to take all steps necessary to prevent disclosure of information that,
if it were disclosed to the public, would, in the opinion of the
Commissioner, be injurious to international relations, national defence
or national security and, where applicable, to conduct the proceedings in accordance with the following procedures, namely,
�APPENDICES
(i) on the request of the Attorney General of Canada, the
Commissioner shall receive information in camera and in the absence of any party and their counsel if, in the opinion of the
Commissioner, the disclosure of that information would be injurious to international relations, national defence or national security,
(ii) in order to maximize disclosure to the public of relevant information, the Commissioner may release a part or a summary of
the information received in camera and shall provide the
Attorney General of Canada with an opportunity to comment
prior to its release, and
(iii) if the Commissioner is of the opinion that the release of a
part or a summary of the information received in camera would
provide insufficient disclosure to the public, he may advise the
Attorney General of Canada, which advice shall constitute notice
under section 38.01 of the Canada Evidence Act.
The relevant provisions of the Canada Evidence Act were appended to my
ruling of July 29, 2004.
The NSC process to date
4.
5.
6.
Rules 43 to 56 of the Inquiry Rules of Procedure and Practice set out the
process of the Inquiry as it relates to NSC claims. Rules 55 and 56 deal with
the release of a part or a summary of the information that has been received at the in camera hearings. I elaborate on relevant aspects of that
process in the body of this ruling.
In the early stages of the Inquiry, I appointed Mr. Ron Atkey as an amicus
curiae to test the government’s NSC claims. Mr. Atkey has expertise in matters of national security. From 1984 until 1989, he served as the first
Chairman of the Security Intelligence Review Committee (SIRC), a body established to oversee the activities of the Canadian Security Intelligence
Service (CSIS). Mr. Atkey, assisted by Mr. Gordon Cameron, has participated in the NSC proceedings leading up to this ruling and I will refer to
their role in the course of the ruling.
In May 2004, the parties and intervenors had the opportunity to make written submissions about the case law and principles that should apply to my
determinations of NSC. I thank them for those submissions. They were helpful to me in making this ruling.
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FACTUAL BACKGROUND: VOLUME II
7.
8.
9.
In my ruling of July 29, 2004, I decided to receive all of the information
over which the government claims NSC in one sequence, in camera, rather
than by switching back and forth between public and in camera hearings.
I also indicated that I would make an omnibus ruling after the in camera
hearings are complete, setting out all of the information that, in my opinion, can be disclosed to the public under either section (k)(i) or section
(k)(iii) of the Terms of Reference. That continues to be my intention.
In my ruling of July 29, I did not foreclose the possibility that I might release
rulings with respect to some of the government’s NSC claims before all of
the evidence has been heard in camera. In particular, I indicated that I
might choose to make such a ruling if I reached the conclusion that I had
heard sufficient information to decide, under section (k)(i), that disclosure
of particular information would not be injurious to any of the elements
of NSC.
The first round of the in camera hearings, dealing with evidence relating to
CSIS, is now complete. I am satisfied that I can, at this point, rule on the
government’s NSC claims over some of the information received at those
hearings. My ruling is based upon both sections (k)(i) and (k)(iii) of the
Terms of Reference and my reasons are set out below. I have attached as
Appendix A a summary of the information that, in my view, should be disclosed publicly at this stage of the Inquiry. Additional in camera hearings,
dealing with evidence relating to the Royal Canadian Mounted Police
(RCMP), are underway.
The preparation of the summary
10. I will describe the steps leading to the preparation of the summary in some
detail in order to shed light on the difficulties that we have encountered in
preparing and releasing a summary. Throughout, Commission staff have attempted to reasonably accommodate the positions of the government so as
to avoid litigation and the ensuing delay at this stage of the Inquiry, while
at the same time trying to provide disclosure of some information in accordance with the Terms of Reference. The fact that information heard in
camera is not disclosed in Appendix A does not necessarily mean that it will
not be disclosed at a later date.
11. Following the in camera hearings of evidence relating to CSIS, Commission
staff prepared a draft summary that was provided to government counsel
and to Mr. Atkey. Both government counsel and Mr. Atkey had the
opportunity to comment, and Commission counsel convened a meeting to
�APPENDICES
12.
13.
14.
15.
identify areas of dispute. Government counsel objected that the summary
contained information that was subject to an NSC claim, and that some portions of the summary did not fairly present the evidence. Government counsel also commented that the summary should not be as specific as was
proposed by the Commission, and provided an alternative draft summary
that was more general. A copy of the government’s proposed summary is
attached as Appendix B.
In response to the comments of government counsel and Mr. Atkey, the
Commission prepared a revised draft summary. Further discussions ensued
and, although the areas in dispute were narrowed, there remained several
significant areas about which there continued to be disagreement.
Commission counsel prepared another revised draft representing its position and the government highlighted on that draft the areas to which it objected. That draft with the highlighted areas of objections is attached as
Appendix C.
This draft summary formed the basis of a hearing before me on October 29,
2004. At the hearing, the government was given the opportunity to call
evidence to support its NSC claims and to make submissions as to the contents of the summary. Unfortunately, for personal reasons, Mr. Atkey was
unable to attend the hearing. However, he was involved in the process
leading up to the hearing. Prior to the hearing, Mr. Atkey indicated that he
agreed that the first summary prepared by the Commission (which formed
the basis for the draft summary, in Appendix C, that was considered at the
October 29th hearing) could be disclosed to the public in accordance with
the Terms of Reference.
Following the hearing, Mr. Atkey appointed Mr. Gordon Cameron to assist
him in his role as amicus curiae. Mr. Cameron has extensive experience
with matters of national security. He has been an outside counsel for SIRC
for the past ten years. At my request, Mr. Atkey and Mr. Cameron reviewed
the material leading to the preparation of the summary. They also reviewed
the evidence upon which the government relied for its NSC claims, as well
as the oral and written submissions of the government made at the October
29th hearing. Mr. Atkey has not changed his view that the draft summary in
Appendix C may be disclosed to the public.
This ruling follows the hearing of October 29. As I outline below, I have removed some of the information contained in the draft summary, Appendix
C, on which the hearing was based. The final summary, Appendix A, contains information that, in my view, should be disclosed at this stage of the
Inquiry.
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FACTUAL BACKGROUND: VOLUME II
16. The final summary, with this ruling, will be provided to the government, ten
days before any release to the public or Mr. Arar, so that the government
has an opportunity to respond in accordance with the Terms of Reference
and s.38 of the Canada Evidence Act. Subsequently, the Commission will
provide a copy of the summary to counsel for Mr. Arar to allow an opportunity for comment on its fairness and balance from Mr. Arar’s perspective.
After any objections of Mr. Arar’s counsel have been considered and addressed the summary will, if appropriate, be released publicly.
17. Because this is the first summary produced by the Commission, the preparation and release of the summary has been extenuated. In future, I anticipate that the process should be simplified without interfering with the
government’s or the amicus curiae’s opportunity to participate in accordance with the Inquiry Rules of Procedure and Practice.
18. I want to repeat that the fact that information received at the in camera
hearings has not been disclosed in the final summary does not foreclose disclosure of such information in a future summary or other public release.
Some information was excluded from the final summary for reasons other
than NSC, including in some instances the need for fair and balanced disclosure. I anticipate releasing that information at a future date. Moreover,
in furtherance of timely disclosure, Commission staff excluded some information from the draft summary in order to minimize NSC disputes. Finally,
I have excluded some information from the final summary because I considered it better to defer my ruling on that information until later in the
Inquiry. For these reasons, the fact that information received at the in camera hearings has been excluded from the final summary should not be construed as a ruling by me that release of the information would be injurious
to any of the elements of NSC.
II. THE GOVERNMENT’S NSC CLAIMS
A. THE SUBMISSIONS OF THE GOVERNMENT
19. The draft summary in Appendix C formed the basis for the hearing before
me on October 29. The government’s objections to disclosure of information in that summary are based on two types of NSC claims. The first, which
is highlighted in yellow in Appendix C, flows from the concern that disclosure would reveal information about CSIS investigations. In its written
submissions of October 27, the government indicated that the disclosure of
this information would:
�APPENDICES
identify or tend to identify Service interests in individuals, groups or issues, including the existence or absence of past or present files or investigations, the intensity
of investigations, or the degree or lack of success of investigations.
20. The government emphasized the mosaic effect of the disclosure of any information about CSIS investigations. By this, the government meant that
the release of apparently innocuous small pieces of information could assist and inform the often sophisticated individuals, who are involved in the
activities being investigated, of what CSIS is doing and what CSIS knew or
did not know. The government pointed to the fact that the consideration
of whether the disclosure of information might be injurious must be a forward-looking exercise and that one cannot know today what might come
to light in the future, nor can one know what harm the release of even
small pieces of information might have on future investigations. For this
reason, CSIS routinely refuses to publicly disclose information about past or
ongoing investigations, or information acquired about individuals. Indeed,
CSIS does not confirm or deny any such matters. The government submitted that, even when that information is in the public domain, there could
be injury if CSIS confirms its accuracy.
21. The information in Appendix C that the government submits falls within
this first broad NSC claim – injury to investigative interests – can conveniently be divided into three sub-categories.
a)
b)
c)
■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■ (The draft summary
does not disclose the details or the nature of such information).
■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■ Paragraphs 41 and 42 of Appendix C are
the primary source of this information.
22. The second type of government NSC claim, highlighted in red in Appendix
C, falls generally within the heading of information sharing, primarily with
foreign agencies. In particular, the government indicated that the disclosure of this information would:
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FACTUAL BACKGROUND: VOLUME II
reveal information received in confidence from foreign agencies or governments
and/or compromise the relationship that CSIS or other Canadian government departments and agencies have with foreign governments and their departments and
agencies.
23. At the hearing on October 29, government counsel elaborated on the government’s submissions in relation to this NSC claim, and referred to the
earlier evidence of Messrs. Hooper, ■■■■■■■■■■■■■■■■■■■ . Those
CSIS witnesses testified to the damage that would be done to CSIS’ relationships with foreign agencies if CSIS’ information sharing arrangements
with foreign agencies were revealed, or if information received from foreign
agencies was publicly disclosed in violation of caveats to protect the
information.
24. The government’s evidence stressed the importance of protecting relationships with other agencies in order to ensure the exchange of information.
In this age of global terror, the sharing of information among police forces
and security and intelligence agencies is critical. Information sharing relationships are based on trust and confidence that the information shared,
and often the relationship itself, will not be disclosed. Breaches of these understandings undermine relationships and can interfere with Canadian agencies’ access to information that is vital to protecting our national security
interests.
B. THE ARAR CASE: A HIGHLY UNUSUAL SITUATION
25. The circumstances in which the government’s NSC claims must be considered are highly unusual, perhaps unique.
26. The highly unusual nature of this situation results from two factors: first, a
significant amount of information over which the government claims NSC
is already in the public domain; second, the decisions about the government’s NSC claims are being made in the course of a public inquiry.
1.
Information in the public domain
27. Normally, NSC issues are determined in circumstances where there has been
little if any public disclosure of the information over which NSC is claimed.
Thus, the potential for injury to the elements of NSC arises because the
information, if disclosed, will inform the public and particularly those whose
activities are suspect of the information at issue. That, however, is not this
�APPENDICES
case. There has been extensive media coverage about Mr. Arar and the
events surrounding his detention in the United States, deportation to Syria
via Jordan, imprisonment in Syria, and return to Canada. Further, there is
information in the public domain with respect to the national security investigation that is connected to Mr. Arar.
28. Shortly after Mr. Arar was detained in New York, on September 26, 2002,
the media became aware of his circumstances and there were periodic
media reports about what was happening to him, including the fact that he
had been sent to Syria, where he was imprisoned. The media coverage increased alongside the efforts, spearheaded by Mr. Arar’s wife,
Ms. Monia Mazigh, to have him released from imprisonment in Syria. After
Mr. Arar’s return to Canada in October 2003, Mr. Arar made public statements describing his detention and his imprisonment in Syria. The Arar
story was front-page news across the country. Controversy grew about the
role of Canadian officials in the Arar matter. Mr. Arar literally became a
household name. The level of public interest and the uncertainty about
what happened led the government to establish this public inquiry in
February 2004.
29. The information already made public about Mr. Arar and what happened to
him, and about investigations connected to him, has originated from a number of different sources.
a)
b)
c)
From time to time, government officials have made public statements
that were reported in the media or in official sources about Mr. Arar
and his circumstances. Some media reports also attributed statements
to unidentified government officials.
In response to requests under the Access to Information Act, the government has released documents, or parts of documents, that contain
information about Mr. Arar (“ATIP release”).
Through this Inquiry, additional information has been released to the
public with the concurrence of the government. Most importantly, the
report of the Security Intelligence Review Committee (the “SIRC report”, which reviewed CSIS’ role in relation to Mr. Arar) and the report
of Chief Superintendent Brian S. Garvie (the “Garvie report”, which reviewed, in the context of the RCMP public complaints process, the
RCMP’s actions in relation to Mr. Arar) have been entered as exhibits
at this Inquiry, and publicly released in redacted form. The unredacted
portions of those reports reveal information over which the government does not assert an NSC claim.
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FACTUAL BACKGROUND: VOLUME II
d)
e)
There have been many other documents entered as exhibits at the
Inquiry, some at the public hearings and others at the in camera hearings. Those entered at the public hearings are now in the public domain. The unredacted portions of documents entered at the in camera
hearings, i.e. the portions over which the government does not assert
an NSC claim, have been made available to Mr. Arar and his counsel
and will be publicly released at some point. For practical purposes,
the information in unredacted portions of these documents should be
considered to be in the public domain.
On November 4, 2003, Mr. Arar made his first public statement outlining the circumstances of his detention in New York, his transfer to
Syria, and the mistreatment to which he says he was subjected in Syria.
Shortly after, an article appeared in the Ottawa Citizen reporting on
statements that Mr. Arar allegedly made during his imprisonment in
Syria. ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■
■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■ I do not
rely on any of the information in the Ottawa Citizen article in the reasoning contained in this ruling.
30. To illustrate, the information that is already in the public domain, often damaging to Mr. Arar, includes the following:
•
•
•
Mr. Arar was connected to an RCMP national security investigation that
involved individuals also of interest to U.S. authorities. Members of the
RCMP took steps to continue the investigation after Mr. Arar’s return to
Canada in October 2003.
Shortly after Mr. Arar was deported from the United States, the RCMP
reportedly told U.S. authorities that the RCMP had no information concerning any threat associated with Mr. Arar. RCMP Deputy
Commissioner Loeppky later stated that Mr. Arar was “subject of a national security investigation in Canada” and that he “remains a subject
of great interest”. Other RCMP officials have stated that Mr. Arar was a
“person of interest”.
The Solicitor General reportedly disclosed that Canada shared information about Mr. Arar with U.S. authorities, and the Foreign Affairs
Minister reportedly disclosed that both CSIS and the RCMP did so.
�APPENDICES
•
•
•
•
Canadian officials received confirmation from American officials that
Mr. Arar was deported to Syria and that he might have been sent to
Jordan. DFAIT learned that Mr. Arar was transferred from the U.S. to
Jordan by private plane. DFAIT at one point reported that, on arrival
in Jordan, Mr. Arar was detained for questioning by Jordanian authorities instead of being transferred to Syria and that Jordan handed Mr.
Arar over to Syria only on October 21.
In November 2002, an unidentified party provided DFAIT with a verbal briefing of the results of the Syrian investigation of Mr. Arar to that
point. A copy of a written report of this information, in Arabic, was
translated and forwarded to CSIS.
In January 2003, the Department of Foreign Affairs and International
Trade (DFAIT) informed CSIS that the Syrians believed that Mr. Arar
was involved with the Muslim Brotherhood, as well as other Syrian allegations. DFAIT also informed CSIS that, when Syrian officials were
asked about Mr. Arar’s future, they responded that Mr. Arar would
likely be detained for a lengthy period and prosecuted.
After Mr. Arar’s return to Canada, Syria’s Ambassador to Canada reportedly stated: “we didn’t find complete ■ ■ concrete evidence of his
■
link.”
31. I have appended, in Appendix D, a lengthier summary of some of the information about Mr. Arar that is in the public domain. I have laid out the
information in some detail because I anticipate that the nature of prior public disclosure will be relevant, not only to the present summary, but also to
future summaries. It is important to emphasize that the fact that information
has been reproduced, both below and in Appendix D, should not be taken
to mean that I have found that any of the conclusions that are drawn about
Mr. Arar are warranted.
2.
THE CONTEXT OF A PUBLIC INQUIRY
32. The second unusual factor about the case of Mr. Arar is that the government’s NSC claims are being raised in the context of a public inquiry. No
doubt it was partly because of information about Arar that had become
public, and the level of controversy that surrounded what happened to
Mr. Arar, that the government sought to investigate what had happened.
Significantly, the government chose to pursue a public inquiry, rather than
a private investigation, into these events.
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33. The relevant part of my mandate, contained in section (k) of the Terms of
Reference, is set out above. Section (k) directs me to conduct a two-stage
process. First, under section (k)(i), I am to decide whether the disclosure
of information would be injurious to any of the elements of NSC: international relations, national defence or national security. The second step is set
out in section (k)(iii): if I decide that the disclosure of certain information
would be injurious to the elements of NSC, then I must consider whether
the disclosure of a part or a summary of the information would provide insufficient disclosure to the public. If I conclude that disclosure would be insufficient, then I may so advise the Attorney General and that advice shall
constitute notice under s. 38.01 of the Canada Evidence Act.
34. For the sake of efficiency, I address both steps – NSC and the public interest in disclosure – in this ruling. The draft summary, Appendix C, was prepared taking into consideration both section (k)(i) and section (k)(iii). Thus,
the summary was intended to include information, the disclosure of which
would not be injurious to the elements of NSC; as well as information, the
disclosure of which would be injurious, but which should be disclosed publicly under section (k)(iii). This ruling therefore addresses both stages of the
process under section (k) of the Terms of Reference.
35. Section (k)(i) of the Terms of Reference requires me, at the first stage, to
consider whether the disclosure of information would be injurious to any
of the elements of NSC. I am satisfied that the fact that this is a pubic inquiry is not relevant to a decision under section (k)(i). Under that section,
I am to hear in camera all information that, in my opinion, would be injurious to the elements of NSC. The factors that affect that determination are
the same whether the decision is made in the context of a public inquiry
or in some other proceeding.
36. The second stage of the process takes place under section (k)(iii). Here, I
am satisfied that the fact that the decision is made in the context of a public inquiry is relevant.
37. In itself, the calling of a public inquiry is a significant event in a parliamentary democracy. Public inquiries are often called in the wake of a
tragedy or a scandal. When the public’s confidence in public officials or institutions has been shaken, the public’s demand to know all of the details
about what has occurred is often the catalyst for the calling of a public inquiry. Because a public inquiry is established to be independent of the government, it has the advantage of bringing to light, in an impartial and
independent way, those facts that are necessary to assess the situation that
triggered public concern. One of the great advantages of a public inquiry
�APPENDICES
is that it can expose all of the facts, many of which might not be revealed
in normal public discourse.
38. As important as the Commissioner’s report, at the end of an inquiry, is the
process of public exposure of the facts that allows the public to make its
own evaluation over time. I agree with Justice Samuel Grange, who conducted two public inquiries, when he said in “How should lawyers and the
legal profession adapt?” (1999) 12 Dalhousie Law Journal 151 at 154-55:
I remember once thinking egotistically that all the evidence, all the antics, had only
one aim: to convince the commissioner who, after all, eventually wrote the report.
But I soon discovered my error. They are not just inquiries; they are public inquires… I realized that there was another purpose to the inquiry just as important
as one man’s solution to the mystery and that was to inform the public. Merely presenting the evidence in public, evidence which had hitherto been given only in private, served that purpose. The public has a special interest, a right to know and a
right to form its opinion as it goes along.
39. I recognize that this Inquiry is different from others in that it is concerned
with many matters that, for reasons of NSC, cannot be publicly disclosed.
Even so, I think it important that I bear in mind, under section (k)(iii), the
fundamental point that the government established a public inquiry, rather
than a private investigation, in the case of Mr. Arar.
40. Moreover, the government specifically directed me to opine on what constitutes sufficient public disclosure. In forming that opinion, it is important
to consider the public nature of the Inquiry and the importance of providing as much information as possible to the public. Consistent with this
approach, section (k)(ii) of the Terms of Reference, speaks of maximizing
disclosure. It reads:
In order to maximize disclosure to the public of relevant information, the
Commissioner may release a part or a summary of the information received in camera and shall provide the Attorney General of Canada with an opportunity to comment prior to its release ■■■■■ ■ ■ ■ ■ ■ ■ ■ [emphasis added].
■■■■■■■■
41. Thus, I am satisfied that I should consider as one of the factors in the balancing exercise, under section (k)(iii), the fact that the sufficiency of public disclosure is being determined in the context of a public inquiry.
42. That said, the interest in public disclosure must be balanced against the fact
that disclosures of information, pursuant to section (k)(iii), are disclosures
that I have determined would be injurious, at least to some extent, to an element of NSC. Otherwise disclosure could take place under section (k)(i).
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FACTUAL BACKGROUND: VOLUME II
43. Clearly, some injuries to the elements of NSC are more serious than others.
For example, there should very rarely, if ever, be a disclosure of information that would reveal, even indirectly, the identity of a human source.
Similarly, I would only rarely, if ever, consider disclosing information that
would harm relationships with foreign law enforcement or security and intelligence agencies. Those relationships are essential to effectively protecting our national security. However, other NSC-related interests may be less
compelling. Moreover, I must bear in mind that, where the information at
issue is already in the public domain, most, if not all, of the injurious effect
of disclosure may have already occurred.
44. Further, I must consider, under section (k)(iii), the need for fairness so as
to ensure, as best I can, that the disclosure or non-disclosure of information – for reasons of NSC – is not unfair to those individuals who may be
affected. In my consideration of the present summary, I speak here of fairness to Mr. Arar in light of detrimental information about him that is already in the public domain, and nothing more.
45. I recognize that, in addition to considering the public interest in disclosure
and the need for fairness to individuals about whom there is damaging information already in the public domain, there may be other factors that
come into play in the decision-making process under section (k)(iii).
However, for purposes of determining what may be disclosed in the present summary, I need to consider only those two.
C. THE TWO-STAGE PROCESS
1.
Section (k)(i)
46. I want to address three aspects of the decision-making process under section (k)(i). First, the onus is on the government to establish its NSC claims.
By this I mean that the government cannot merely assert a claim for NSC.
Rather, the government must establish an NSC claim by introducing evidence to support the claim.
47. In Canada (Attorney General) v. Ribic [2003] F.C.J. No. 1964 (F.C.A.), the
Court stated at para. 18-21:
Where the judge is satisfied that the information is relevant, the next step pursuant
to section 38.06 [Canada Evidence Act] is to determine whether the disclosure of the
information would be injurious to international relations, national defence or national security. This second step will also involve, from that perspective, an exam-
�APPENDICES
ination or inspection of the information at issue. The judge must consider the submissions of the parties and their supporting evidence. He must be satisfied that executive opinions as to potential injury have a factual basis which has been
established by evidence: Home Secretary v. Rehman, [2001] H.L.J. No. 47, [2001] 3
WLR 877 at 895 (HL(E))….
….
An authorization to disclose will issue if the judge is satisfied that no injury
would result from public disclosure. The burden of convincing the judge of the existence of such probable injury is on the party opposing disclosure on that basis.
48. The requirement that the government lead evidence to support an NSC
claim has an additional dimension. The evidence must be sufficiently particular to support the claim of injury flowing from disclosure of the piece
of information that is in question. In K.F. Evans Ltd. v. Canada (Minister of
Foreign Affairs) [1996] F.C.J. No. 30 (F.C.T.D.), Rothstein J. concluded that
this requirement for sufficient particularity was not met. He stated at para.
34 that “[t]he determination the Court must make requires some explanation
of the linkage between disclosure of specific information and harm to
Canadian interests” and that what he was dealing with was largely an “exaggeration of the harm to Canadian interests from disclosure which
■ ■ ■ ■ subsections 37(1) and 38(1) of the Canada Evidence Act were en■■■
acted to curtail.”
49. All of that said, I recognize that some of the government’s NSC claims will
be obvious and that the need to call evidence may be dispensed with. In
other cases, evidence previously called by the government will be sufficient to support its NSC claim. However, the underlying requirement is that
the government supports its NSC claims with evidence.
50. Further, for the government to succeed on a claim of NSC, it must show that
disclosure “would be injurious” to one of the elements of NSC. That is a different and more stringent test than that found in some statutory provisions,
such as section 38.01 of the Canada Evidence Act and section 15 of the
Access to Information Act.
51. The Canada Evidence Act, s. 38.01, requires persons to notify the government of Canada about the anticipated disclosure in court proceedings of
what they believe to be “potentially injurious information”, which is defined as “information of a type that, if it were disclosed to the public, could
injure international relations or national defence or national security” [emphasis added].
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FACTUAL BACKGROUND: VOLUME II
52. The Access to Information Act, s. 15(1), permits the head of a government
institution to refuse to disclose information contained in government
records requested under the Act if such disclosure “could reasonably be
expected to be injurious to the conduct of international affairs, the defence
of Canada or any state allied or associated with Canada or the detection,
prevention or suppression of subversive or hostile activities…” [emphasis
added].
53. Counsel for Mr. Arar submitted that the use of the phrase “would be injurious” in the Terms of Reference connotes a higher threshold for establishing that information should be held in camera at this Inquiry than in the
case of the statutory provisions reproduced above. I agree. On the face of
the Terms of Reference, the use of the less speculative term “would” in the
Terms of Reference does connote a higher threshold. This interpretation is
supported by an examination of the structure of the Canada Evidence Act.
54. In the case of the Canada Evidence Act, the initial determination that disclosure could injure triggers a duty to notify the Attorney General of
Canada. The Attorney General then has the opportunity, pursuant to s.
38.04(1), to apply to the Federal Court for an order to prevent disclosure
of the information. At that stage, pursuant to s. 38.06, the judge of the
Federal Court may authorize disclosure unless the judge concludes that
disclosure “would be injurious to international relations or national defence
or national security” [emphasis added]. Thus, the judge has the discretion
to permit disclosure unless a higher threshold is satisfied in support of nondisclosure. The language that is used at the s. 38.06 stage is similar to the
language in the Terms of Reference.
55. It is consistent with the basic purpose of this public inquiry – to address
public concern about the conduct of Canadian officials – that the threshold
for concluding that information will be heard in camera should be higher
than the threshold that is applied in deciding, in the first instance, whether
a piece of information should be disclosed under the Access to Information
Act or in court proceedings in general. The purpose of this Inquiry, and the
connection of that purpose to a discrete set of events, makes it appropriate to be cautious about applying an overly speculative approach to the
determination that information should be received in camera. The threshold of injury test in a section (k)(i) determination requires a probability that
disclosure would be injurious, rather than a mere possibility of injury.
56. Finally, I want to comment on what deference, if any, should be paid to the
government’s NSC claims. The wording of the mandate is important. For
convenience, I repeat the relevant language of section (k):
�APPENDICES
(k) … to take all steps necessary to prevent disclosure of information that,
if it were disclosed to the public, would, in the opinion of the
Commissioner, be injurious to international relations, national defence
or national security and, where applicable, to conduct the proceedings in accordance with the following procedures, namely,
(i) on the request of the Attorney General of Canada, the
Commissioner shall receive information in camera and in the absence of any party and their counsel if, in the opinion of the
Commissioner, the disclosure of that information would be injurious to international relations, national deference or national security, …. [emphasis added]
57. The mandate directs that I form an opinion with respect to the government’s
NSC claims. Given that the integrity of a public inquiry depends, to a large
extent, on its independence from government, it makes sense that that
should be the case. As I said above, a decision that the disclosure of information would be injurious to NSC must be based on evidence. Thus, the
mere assertion of an NSC claim is not by itself sufficient to find that an NSC
claim is established.
58. I will consider the evidence called by the government to support its NSC
claims very carefully and I will attach weight to the expertise of those who
give that evidence. As is frequently said in the case law regarding NSC
claims, it is the executive – in this case CSIS – which is the expert in the field
of NSC; the judiciary is not. I accept that the government and its witnesses
have access to special information and expertise, and they have a protective
role with respect to public security and safety. See for example Canada
(Attorney General) v. Ribic, supra, at para. 18-21.
59. Further, I accept that the injury required to shield information from disclosure under section (k)(i) need not be great and that I should bear in mind
the mosaic effect that Addy, J. described in his oft-quoted passage in Henrie
v. Canada (Security Intelligence Review Committee) (1988), 53 D.L.R. (4th)
568, aff’d (1992) 88 D.L.R. (4th) 575 (F.C.T.D.), at page 578-9:
It is of some importance to realize that an ‘informed reader’, that is, a person who
is both knowledgeable regarding security matters and is a member of or associated
with a group which constitutes a threat or a potential threat to the security of
Canada, will be quite familiar with the minute details of its organization and of the
ramifications of its operations regarding which our security service might well be relatively uninformed. As a result, such an informed reader may at times, by fitting a
piece of apparently innocuous information into the general picture which he has be-
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FACTUAL BACKGROUND: VOLUME II
fore him, be in a position to arrive at some damaging deductions regarding the investigation of a particular threat or of many other threats to national security….
60. All of that said, I need to be vigilant about the possibility that the government could attempt to use the opportunity to claim NSC in order to delay
or avoid the release of embarrassing information, the disclosure of which
would not be injurious to any of the elements of NSC.
61. In Goguen v. Gibson [1984] F.C.J. No. 13 (F.C.A.), Marceau J. made comments which were adopted by Rothstein J. in K.F. Evans Ltd. v. Canada
(Minister of Foreign Affairs), supra, and which I think are apt to the situation that I must address [adopted in K.F. Evans at para. 33]:
While a confidence of the Queen’s Privy Council, with the precisions given in the
Act, is readily identifiable, a possible danger to international relations or national security is not so easily capable of being recognized and, as a result, may be feared
and evoked somewhat too quickly, albeit in perfect good faith. That is clearly apparent in the field of international relations, but is also true, although to a somewhat
lesser degree, in that of national security, and if the possibility of improper use has
always been present in the former system, it will, of course, be even more present
in the new one where the objection is available not only to ministers but to any person claiming interest.
The new rule as I view it, is aimed at thwarting those possible exaggerations,
over-statements or abuses by giving the Court the authority to examine the information and to declare that the public interest invoked as the basis for objecting to
disclosure, although related to international relations or national security, is, in any
given instance, outweighed in importance by the public interest in requiring disclosure for the due administration of justice.
2.
Section (k)(iii)
62. I also want to deal with the question of the onus under section (k)(iii). As
mentioned, when I embark upon the analysis of particular information
under section (k)(iii), I will have accepted that disclosure of the information would, to some extent at least, be injurious to NSC. Because of that, I
am satisfied that I should approach the determination under section (k)(iii)
on the basis that the factors which weigh in favour of disclosure must outweigh the injurious effect to the elements of NSC.
63. I note that there will in many cases be no party, other than Commission
counsel and the amicus curiae, to assert the public interest in disclosure.
This is because the in camera hearings at which these decisions will be
�APPENDICES
made are held in the absence of the parties and intervenors, with the exception of the government and its officials. The mandate of the amicus curiae is to test the government’s NSC claims and to make submissions that
the amicus curiae considers appropriate with respect to the disclosure of
information over which NSC is claimed. In doing so, the amicus curiae will
consider section (k)(iii) as well as section (k)(i) of the Terms of Reference.
In addition to the amicus curiae, I have also asked Commission counsel to
play a role in the evidentiary process relating to NSC claims and to make
submissions, where appropriate, with respect to the public interest.
64. The public interests that are relevant to the decision-making process under
section (k)(iii) do not always lend themselves to proof by way of evidence.
Both the public’s need to know and the need for fairness will often lend
themselves more readily to submissions based on the substantive evidence
at the Inquiry rather than proof by way of specific evidence. For this reason, in many cases I do not see a need for Commission counsel or the amicus curiae to call additional evidence to support their submissions
regarding the public interest in disclosure. That said, government counsel
should be informed of the basis upon which submissions will be made in
favour of disclosure under section (k)(iii) so that they may have an opportunity to address those submissions.
III. THE DRAFT SUMMARY
65. I will now address the government’s NSC claims, as set out in the draft summary attached as Appendix C. Those claims seek to protect from injury in
relation to two interests: (i) CSIS’ investigative interests and (ii) CSIS’ information sharing interests, particularly with agencies in foreign countries.
A. CSIS’ INVESTIGATIVE INTERESTS
66. As mentioned above, the government’s NSC claims in this area can be divided into three sub-categories. ■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
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67. In my view, the disclosure of information in this sub-category would not be
injurious to any of the elements of NSC.
68. Information that falls within this sub-category is found throughout the draft
summary in Appendix C. ■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■
• ■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
■ ■ ■ ■ ■ ■ ■ ■ ■ ■(Note that the words ■ ■ ■ ■ ■ ■ ■ ■ ■
■■■■■■■■■
■■■■■■■■■
were added at the request of the government, in place of the word
“about” in the Commission’s draft.)
Other examples are found in paragraphs 25 and 29 of the draft summary in
Appendix C.
•
69. I begin by noting that the disclosure in the form that I propose provides very
little, and only very general, information. Moreover, this information is already in the public domain. Publicly available information directly discloses
that CSIS acquired information about Mr. Arar during the critical time period shortly after Mr. Arar was imprisoned in Syria. The redacted SIRC report, which was vetted by CSIS in order to protect national security
concerns, disclosed that, in November 2002, an unidentified party provided
Ambassador Pillarella with a verbal briefing of the results of the Syrian investigation of Mr. Arar to that point. A copy of the written report of this information, in Arabic, was translated and forwarded to CSIS in November
2002. Further, in a report dated January 8, 2003, DFAIT informed CSIS that
the Syrians believed that Mr. Arar was involved in the Muslim Brotherhood,
along with other allegations. The public record clearly shows that CSIS acquired information about Mr. Arar shortly after his imprisonment in Syria.
70. Moreover, the public record is replete with references to the RCMP’s national security investigation relating to Mr. Arar. Publicly available information discloses that the RCMP was looking at Mr. Arar from the start of
2002; that the RCMP communicated with U.S. authorities during Mr. Arar’s
detention in New York from September 26 to October 8, 2002; that as of
June 2003, when Mr. Arar was still in prison in Syria, Mr. Arar was the subject of a national security investigation in Canada and a person “of great interest” to the RCMP; and that in October 2003 Mr. Arar continued to be a
person of interest and arrangements were made to conduct surveillance of
�APPENDICES
71.
72.
73.
74.
him after he returned to Canada. In addition, the public record makes clear
that, in order to protect Canada’s security, CSIS works very closely with the
RCMP and other Canadian agencies. CSIS has the primary mandate to protect Canadians’ national security interests. It would be surprising indeed if
CSIS did not acquire information about Mr. Arar from the RCMP.
Further, it is publicly known that SIRC conducted a review of CSIS’ involvement with Mr. Arar and that CSIS is participating in this Inquiry. Both
of those facts make clear that CSIS was involved with Mr. Arar and, given
CSIS’ role as a security intelligence agency, it can safely be concluded that
the public knows that CSIS acquired information about Mr. Arar.
Moreover, the government did not call any evidence to support the submission that, given the information that is currently in the public domain
about CSIS’ involvement in the Arar matter, ■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■ I am satisfied that, if the disclosure of that type
.
of information would in fact injure CSIS’ investigative interests, such injury
has long since occurred. Members of the public, particularly Mr. Arar and
anyone who knows him, would by now have concluded that CSIS collected
or received some information about Mr. Arar. I cannot conceive that there
is the slightest doubt in their minds about that.
Let me then turn to information in the ■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
■ ■ ■ ■ ■ ■ ■ ■ ■ ■ . Examples are found in paragraphs 13, 14 and 18
■■■■■■■■■■
of the draft summary in Appendix C. ■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
at the Inquiry, Mr. ■■■■■■■■■■■■ – a CSIS witness called by the
government – accepted that the fact that CSIS has a database in which it
stores information is not a secret. Indeed, that fact was disclosed in public
testimony at this Inquiry. ■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
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■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
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■■■■■■■■■■■■■■■■■■■■
Insofar as the specifics in paragraphs 13, 14 and 18 are concerned, I am satisfied that the public record is such that no one, let alone Mr. Arar and
anyone who knows him, would be surprised by the disclosure of the fact
729
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FACTUAL BACKGROUND: VOLUME II
75.
76.
77.
78.
79.
that in the fall of 2002, after Mr. Arar was detained and deported to Syria,
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■■■■■■■■■■■■■■■■■■■■
Finally, in this sub-category the government objects to those parts of the
summary that ■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■ Examples of the
government’s objections in this regard are found in paragraphs 15, 21, 22
and 30 of the draft summary in Appendix C.
Again, I do not accept that the disclosure of this type of information in
the circumstances of the Arar case ■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
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■■■■■■■■■■■■■■■■■■■■
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■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
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■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
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■■■■■■■■■■■■■■■■■■■■
I am therefore satisfied that there would be no injurious effect to the
elements of NSC, ■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
Further, pursuant to section (k)(iii), I am satisfied that the public interest in
disclosure of this information, in the context of this Inquiry, overwhelms
any possible damage to the elements of NSC. The same reasons that lead
�APPENDICES
80.
81.
82.
83.
84.
me to conclude that such disclosure would not be injurious to the elements
of NSC also lead me to say that, if there were injury, it would be minimal.
On the other side, arguing in favour of public disclosure, is the fact that this
is a public inquiry. I am asked to report on the actions of Canadian officials
in relation to Mr. Arar. CSIS played a significant role in the events relating
to Mr. Arar. In my confidential report to the government, I will be addressing the role of CSIS at length. However, the government has also requested that I make a public report. If I am unable to comment on the fact
that
■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■ even without providing details,
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■■■■■■■■■■■■■■■■■■■■
The second sub-category of information under the ■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■ relates to information in the summary that
would ■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
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■■■■■■■■■■■■■■■■■■■■
Out of caution, I will defer my decision on this sub-category of information
until later in the Inquiry. This should not be taken as an indication that I
consider that information in this sub-category may cause injury to the elements of NSC. Rather, I think I may be assisted in forming an opinion on
this issue when I am addressing the potential disclosure of information
about the RCMP’s investigation of Mr. Arar.
The third sub-category relates to ■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■ This information is found in paragraphs 41 and
42 of the draft summary in Appendix C. I will also defer my decision with
respect to ■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■ I will consider
the release of that information later in the Inquiry.
■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
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731
�732
FACTUAL BACKGROUND: VOLUME II
85.
86.
87.
88.
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■■■■■■■■■■■■■■■■■■■■
However, Mr. Arar’s case is far from the usual one. There are a number of
reasons why, in my view, the above information should be disclosed in
this case.
First, there is currently in the public domain a large amount of information
concerning the assessment of Mr. Arar’s status as a threat to national security. This information has come from a number of official sources including,
importantly, the RCMP which conducted a national security investigation
in relation to Mr. Arar. In my view, the amount of information about
Mr. Arar’s status currently in the public domain ■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■ Given the substantial amount of public information about
Mr. Arar’s status, and given that the fact that the ■■■■■■■■■■■■■■■■■■
■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ I fail to see how disclosure of that
■■■■■■■■■■■■■■■
assessment could in any way compromise future investigations.
Moreover, in this Inquiry, the government has taken the position that disclosure of the RCMP’s assessments of Mr. Arar’s status would not be injurious to the elements of NSC. At this point, the RCMP is the agency with the
primary investigative role with respect to Mr. Arar. By way of example,
when the government redacted the Garvie Report for possible NSC claims,
it did not redact the RCMP’s assessment of Mr. Arar that he was a person
of interest or a person of great interest, or the information that Mr. Arar was
the subject of a national security investigation. Moreover, the government
�APPENDICES
has not claimed NSC with respect to the disclosure of several of the important details that make Mr. Arar a person of interest to the RCMP.
■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■■
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■■■■■■■■■■■■■■■■■■■■
89. In addition, I note that the information that I propose to disclose in this
regard is largely benign. ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■
■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■ This disclosure would add nothing to informa.
tion now publicly available.
90. Finally, I heard evidence about the potential injury that may result from the
release of this type of information. In his testimony at the Inquiry, Mr.
■■■■■■■■■■■■■■■■■■■■ who is the individual whose personal opinion
,
is expressed in the information I propose to disclose, was asked if release
of the information ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■
■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■ as of the day of Mr. ■■■■■■■■■■■ testimony,
,
would be injurious. After replying that the issue was debatable and that he
thought Mr. Arar had already been informed of this information, Mr.■ ■ ■
■■■
agreed that disclosure of the information would not be injurious. I accept
Mr. ■■■■■■■forthright assessment. He was an impressive witness. He was
completely familiar with the case of Mr. Arar and, no doubt, fully aware of
much of the information that is now in the public domain. Throughout his
evidence, I was struck by his even-handedness, his fairness and his knowledge about matters relating to national security.
91. Two other witnesses gave evidence with respect to the release of the information about Mr. Arar’s current status. Mr. Jack Hooper, the deputy director of CSIS, testified that, in his view, there would be injury from the
release of this information. He relied upon two factors. First, he was concerned that the disclosure be accurate and comprehensive. I believe that the
disclosure I propose is accurate and comprehensive. Second, Mr. Hooper
was concerned about setting a precedent and offered a type of floodgates
argument. As I have said, the Arar situation is highly unusual. I do not accept that the disclosure of this information would create a precedent that
would present a problem for CSIS in other circumstances. Finally,
Mr. Hooper, when giving his opinion, did not address the fact that considerable evidence about Mr. Arar’s status has already been publicly disclosed.
733
�734
FACTUAL BACKGROUND: VOLUME II
92. Mr. ■■■■■■■ testified that he considered that ■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■ would be injurious. Like Mr.
Hooper, Mr. ■■■■■■■■■■■■■■■■■■■■ also did not address this issue in
the context of the information that is now in the public domain.
93. Where the evidence of the three witnesses differed, I prefer the evidence of
Mr. ■■■■■■■■■■. In summary, I am of the opinion that ■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■ as set
about above, would not be injurious to any of the elements of NSC.
94. There is also a compelling reason why this information should be released,
if necessary, under section (k)(iii) of the Terms of Reference. That reason
has to do with fairness to Mr. Arar. It is in the public interest that persons
whose interests may be affected by a public inquiry be treated fairly. The
confidential nature of much of the evidence that will be heard in this
Inquiry presents unique challenges to the principle of fairness. Section
(k)(iii) of the Terms of Reference directs me to consider whether the release
of some information heard in camera would provide insufficient disclosure
to the public. I am satisfied that one of the factors relevant to the sufficiency of disclosure is fairness to individuals; in this instance, Mr. Arar.
95. With respect to the present summary, the relevant issue is that of fairness
to Mr. Arar in light of information about him that is already in the public
domain. Both before and during the Inquiry, there has been a great deal of
information released about Mr. Arar’s status in relation to national security.
Take for example the statements of an unnamed “senior Canadian intelligence source” as reported in the Ottawa Citizen on January 30, 2004: “This
guy ■■■■■■■ is not a virgin. There is more than meets the eye here…. If
the Americans were ever to declassify the stuff, there would be some hair
standing on end.”
96. Moreover, much of the information about Mr. Arar’s status was released
with the government’s concurrence. For example, the RCMP’s assessment
of Mr. Arar, and the information that there was an RCMP national security
investigation linked to Mr. Arar, was revealed in portions of the Garvie
Report that were left unredacted by the government. Likewise, portions of
the SIRC report, left unredacted by the government, revealed that Syrian
Military Intelligence Service (SyMI) officials informed Canadians MPs that a
Syrian investigation of Mr. Arar was completed and that Mr. Arar would
soon stand trial on charges of belonging to Al Qaeda. The information in
those unredacted portions of the Garvie report and the SIRC report were
publicly released after the reports were filed as exhibits at the Inquiry, and,
�APPENDICES
in the case of the SIRC report, after an additional piece of information was
identified in an ATIP release.
97. By and large, the information that has been publicly disclosed about
Mr. Arar’s status has been damaging to him. While this Inquiry was not established to determine whether Mr. Arar was involved in terrorist activities,
his status in relation to national security is nonetheless relevant, and it is certainly a matter of public discussion and speculation. In my view, the
disclosure of information about Mr. Arar’s status should be presented fairly.
■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■ with the concurrence of the government,
in relation to the RCMP’s national security investigation and
■■■■■■■■■■■■■■■■■■■■■■ Although I have deferred, for now, the pos.
sible disclosure of the fact, favourable to Mr. Arar, that ■ ■ ■ ■ ■ ■ ■ ■
■■■■■■■
■■■■■■■■■■■■■■■■■■■■ I think that the public interest, and fairness to
,
Mr. Arar, ■■■■■■■■■■■■■■■■■■■■ I see no reason to delay that disclo.
sure.
B. CSIS’ INFORMATION SHARING INTERESTS
98. The government’s NSC claims in this area arise from a concern about damaging relations with foreign law enforcement agencies or foreign security
and intelligence agencies. The concerns relate to two types of disclosure:
(i) disclosure of the existence of a relationship and (ii) disclosure of information received from a foreign agency. A number of the government’s NSC
claims in this area can be dealt with, for now, merely by changing or
deleting a word or two. In the summary that I propose to release, Appendix
A, I have accepted some of the suggestions of this nature in order to defer
resolution of the issue underlying these NSC claims at this time. See for
example, paragraphs 17, 18, 21, 22 and 25 of the draft summary in
Appendix C. For the same reason, I have deleted paragraph 23 of the draft
summary in Appendix C.
99. I now turn to the remaining paragraphs over which the government claims
NSC in relation to potential injury to international relations.
100.Paragraph 27 of the draft summary in Appendix C says only that a ■■■
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■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
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735
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FACTUAL BACKGROUND: VOLUME II
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101.In my opinion, public disclosure of paragraph 27 would not damage relations with ■■■■■■■■■■■■■■■■■■■■ The day on which injury may have
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been caused by such disclosure has long passed.
102.The same holds true for paragraph 28 of the draft summary in Appendix C.
Disclosure of the information ■■■■■■■■■■■■■■■■■■■■ will surely come
as no surprise ■■■■■■■■■■■■■■■■■■■■. As I point out above, ■■■■■■
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103.Paragraph 26 of the draft summary in Appendix C ■■■■
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104.Further, I am of the opinion that the information set out in paragraphs 26,
27 and 28 of the draft summary in Appendix C is relevant to issues raised
by the Terms of Reference and should also be made public pursuant to
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105.I am also of the view that paragraph 29 of the draft summary in Appendix
C should be disclosed publicly. That paragraph contains information similar to information which was previously released to the public, with the
government’s concurrence, in the SIRC report. Notably, the information that
the government chose to release in the SIRC report has much more detail,
and is far more damaging to Mr. Arar’s reputation.
106.Finally, in my view, paragraph 39 in the draft summary in Appendix C
should be disclosed. That paragraph contains information that complements
information, previously released to the public in the SIRC report, that
■■■■■■■■■ told Canadian officials that Mr. Arar was a member of a terrorist cell, information that is damaging to Mr. Arar. In light of the public
interest and fairness to Mr. Arar, the information in paragraph 39 should be
released.
C. THE NSC PROCESS
107.I am very concerned about the complexity, time and cost involved in addressing the NSC issues covered by this ruling. The draft summary,
�APPENDICES
Appendix C, was prepared so as to minimize NSC-related disputes. As a
result, Commission staff left out a good deal of information that I might ultimately determine should be disclosed.
108.Even with that approach, this process has been extremely protracted. In this
ruling I have set out the basis for my conclusions in some detail. I have
done so in part because this is the first ruling of this sort and because I
hope that, by doing so, the approach I take in this ruling will facilitate the
process in future.
109.I have prepared the final summary, Appendix A, with a view to capturing
the reasons set out in this ruling. Without in any way accepting the validity of the government’s submissions as to accuracy and fairness, I have incorporated some of the government’s proposed changes where I concluded
that they did not alter the meaning of the summarized evidence.
110.It is also my intention to release this ruling to the public. I propose to release the ruling, after providing the government with a copy that contains
square brackets to indicate the small amount of information in the ruling
that I would not publicly release, and after giving the government an opportunity to make submissions about those portions of the ruling that could
raise NSC concerns.
December 3, 2004
Justice Dennis R. O’Connor
Commissioner
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Appendix A
Summary of Information Received at In Camera Hearings
[Note: In the attached Ruling, the Commissioner authorized public release of this
final summary following an in camera National Security Confidentiality (NSC)
hearing of October 29, 2004.
After reviewing this summary, the government asserted claims of NSC over
certain sections of the text. These sections have been blacked out in this
Appendix.]
This summary relates to information received at hearings from September 13 to
29, 2004. The summary was prepared by Commission staff and it is subject to
revision and addition by the Commission.
There are a number of points that should be made clear about the purpose
and content of the summary. First, the summary is not a comprehensive ruling
by the Commissioner as to the portions of the evidence that can be publicly released. Rather, the summary has been prepared in order to inform the public,
in general terms, about the Inquiry’s in camera hearings. It is anticipated that a
more detailed description of the evidence will be publicly released when the
Commissioner makes his ruling(s) on National Security Confidentiality (NSC),
either during or after the in camera hearings. The Commissioner will also rule,
in future, on the government’s NSC claims over information that is contained in
the SIRC Report, the Garvie Report and other documents, as he considers appropriate. Additional information received at the Inquiry’s hearings to date may
also be released in future summaries.
Next, the summary does not reflect findings or factual conclusions on the
part of the Commissioner. Additional information received at future hearings
may differ from information that is summarized here. Any information in this
summary that reflects negatively on any individual or organization should be
treated as inconclusive until the end of the Inquiry.
Finally, the summary in many instances does not fully reflect the probing
of witnesses, by Commission counsel, particularly where relevant information in
the testimony is being disclosed at the present time. Information has been excluded or synthesized in the summary in order to present a logical account of
evidence that is deemed to be both relevant and significant. The summary also
excludes information that is subject to a valid NSC claim and where, in the
Commissioner’s opinion, the public interest in non-disclosure is not outweighed
by the public interest in disclosure. Further, some information has been excluded for reasons of fairness, including consideration of the inability of
�APPENDICES
individuals to cross-examine witnesses whose testimony affects those
individuals, the need to account for conflicts in the evidence, and the need not
to mislead the public. In particular, to avoid unfairness, information has been excluded where it involves speculation or where it may be contradicted by other
evidence. The unusual nature of publishing information by summary has led
the Commission to exercise caution in avoiding undue emphasis on evidence
that may yet be called into question.
1.
2.
3.
4.
5.
The Inquiry received information in contextual presentations by a CSIS officer and an RCMP officer. The presentations summarized ongoing CSIS and
RCMP investigations relating to national security. The purpose of the presentations was to provide contextual or background information for the
events involving Mr. Arar and to indicate why information that concerns
ongoing investigations should be kept confidential for reasons of National
Security Confidentiality. Information in the presentations was not presented
for the purpose of establishing the culpability of individuals subject to those
investigations, but rather for the purpose of providing a background against
which the actions of Canadian officials involving Mr. Arar could be
reviewed.
Following these contextual presentations, the Inquiry heard evidence from
nine CSIS officers. Their testimony is summarized below. Any significant
divergence of testimony, deemed significant, is reflected in the summary.
Prior to Mr. Arar’s detention and deportation, ■■■■■■■■■■■■■■■■■■■■
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Within one month of September 11, 2001, CSIS transferred to the RCMP primary responsibility for national security investigations on a number of targets that were believed to warrant criminal investigation and possible
charges. ■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■■ An RCMP-coordinated investigation
project was created. The project was called Project O Canada and its operation in Ottawa was called Project A-O Canada.
This transfer of investigations allowed CSIS to focus its resources on security threats that were less clear and to search for new threats. It was a very
extensive transfer of investigations by CSIS to the RCMP. The transfer of investigations was not made simply because of resource limits. CSIS believed
that there was a good possibility that the RCMP would be able to lay criminal charges against the individuals whose files had been transferred. Even
with its resource allocation before the budget cutbacks of the 1990s, CSIS
would have made the same decision to transfer the investigations. As yet,
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there have been no prosecutions of any of the individuals in question.
However, criminal investigations continue as does the prospect of criminal
charges under the new anti-terrorism legislation that was introduced in
Bill C-36.
6. Following the transfer of investigations to the RCMP, CSIS took a less aggressive role in the investigation of the targets in question. However, CSIS
continued to monitor and collect information on the targets. Following the
transfer of investigations, CSIS continued to pass on to the RCMP information collected by CSIS, ■■■■■■■■■■■■■■■■■■■■
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7. Information provided by CSIS in disclosure letters to the RCMP was normally subject to caveats that it be used only for the pursuit of investigative
leads and that it not be used to obtain search warrants or authorizations for
intercepts, or to support prosecutions.
8. CSIS exercises tight control over the dissemination of its information. After
September 11, 2001, CSIS staff warned the RCMP that, when dealing with
foreign security intelligence agencies, the RCMP should protect the integrity
of CSIS’ information. They did so to ensure that CSIS’ information, contained in RCMP databases, was being appropriately protected.
9. Following the transfer of investigations to the RCMP, the RCMP provided
CSIS with reports on its ongoing investigations. These reports summarized
the RCMP’s ongoing investigations. Some of the information provided by
the RCMP, through Project A-O Canada, ■■■■■■■■■■■■■■■■■■■■
.
10. CSIS officers maintained an ongoing relationship with members of Project
A-O Canada. Since the creation of Project A-O Canada, CSIS officers had
two dozen, or more, meetings with members of Project A-O Canada. A CSIS
officer testified that CSIS was kept up to date about the RCMP’s relevant ongoing investigations.
11. ■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
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■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■ The information was
accompanied by written caveats that the information was loaned in confidence, and that it not be used as evidence or reclassified or disseminated,
without the consent of CSIS.
12. Mr. Arar was detained at JFK Airport in New York on September 26, 2002.
In a report dated September 26, 2002, the RCMP informed CSIS that Mr. Arar
would be denied entry into the U.S. ■■■■■■■■■■■■■■■■■■■■
■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■ a CSIS witness testified that
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�APPENDICES
13.
14.
15.
16.
17.
18.
received and read by CSIS on October 3. ■■■■■■■■■■■■■■■■■■■■
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In a report dated September 27, 2002, the RCMP informed CSIS that Mr. Arar
was being detained and interrogated in New York. ■■■■■■■■■■■■■■■
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CSIS first learned of Mr. Arar’s detention from DFAIT on October 2, at which
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After receiving DFAIT’s request in relation to Mr. Arar, a CSIS officer advised other CSIS staff that Mr. Arar had been arrested in the U.S., that DFAIT
had advised that the arrest did not appear to relate to an immigration matter, and that DFAIT had advised that “it could be much bigger”.
Also on October 2, CSIS headquarters in Ottawa requested its Washington
office to contact U.S. authorities to seek clarification about the circumstances
and reason for Mr. Arar’s detention in the U.S. The CSIS office in
Washington, which had three staff at the time, handled hundreds of information requests per month. This request was treated as a routine request
by CSIS since Mr. Arar already had consular assistance and
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Also, the request was not made a priority because CSIS expected that, if
Mr. Arar was deported from the U.S., he would be deported to Canada.
Finally, CSIS was aware that other Canadian agencies were involved.
On October 7, the RCMP provided CSIS with a report that stated that “Project
A-O Canada submitted a request through channels [to U.S. authorities] to
allow investigators access to Maher Arar to conduct an interview”. The
report also stated that Mr. Arar “was detained by U.S. ■■■■■■■
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the 27th of September”. ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■
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19. CSIS learned of Mr. Arar’s deportation to Syria on October 9, from two
sources, one at DFAIT and the other at Project A-O Canada. DFAIT had obtained this information from the RCMP.
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■■■■■■■■■■■■■■■■■■■■■■■■■ a CSIS request for information from U.S.
authorities about Mr. Arar’s ■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
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■■■■■■■■■■■■■■■■■■■■■■■■■ a CSIS request for information from U.S.
authorities about Mr. Arar’s ■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■■
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23. On October 14 or 15, CSIS was informed by DFAIT that Mr. Arar may be in
Syria. On October 22, CSIS received confirmation from DFAIT that Mr. Arar
was in Syria. Subsequently, CSIS was informed by DFAIT that Mr. Arar had
advised its officials that he had been in Jordan briefly, was taken to the
Syrian border, and was given to Syrian authorities.
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�APPENDICES
25.
26.
27.
28.
29.
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After Mr. Arar’s deportation, CSIS continued to receive information about
Mr. Arar. On October 24, CSIS received information from DFAIT about
Mr. Arar from sources in Syria. A DFAIT report was generated which included information about statements allegedly made by Mr. Arar while in
detention in Syria. On November 6, CSIS received an Arabic copy of a statement, obtained by DFAIT from a Syrian official. The statement was allegedly
made by Mr. Arar while in detention in Syria.
For national security reasons, CSIS may have to enter into relationships with
a foreign agency of a country that has a poor human rights record. In such
cases, CSIS exercises caution by closely scrutinizing the content of information provided to, or obtained from, the foreign agency and by instituting checks and balances to ensure that none of the security intelligence
information exchanged with the foreign agency is used in the commission
of human rights violations.
Generally speaking, CSIS only discloses information to a foreign agency of
a country in which there are human rights concerns after considering various issues. These issues include the potential use to which the foreign
agency may put the information, especially if it concerns Canadians, and the
degree of the threat that an affected individual poses to national security.
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30.
31.
32.
33.
34.
Further, CSIS considers the ability and willingness of the foreign agency to
respect caveats and protect the information from public disclosure.
CSIS was concerned that, if Mr. Arar was tortured or mistreated in Syria, this
would make it difficult for Canada to deport other individuals to Syria.
By mid-January, 2003, Canadian officials became aware that Mr. Arar could
be imprisoned in Syria for a very long time and that he could be sentenced
to death. A CSIS witness agreed with the statement that the Canadian government should do everything possible to secure Mr. Arar’s release from
Syria.
In May, 2003, the CSIS liaison officer at DFAIT advised CSIS that the DFAIT
Security and Intelligence Bureau was considering sending an officer to Syria
to interview Mr. Arar. The Bureau asked CSIS whether CSIS had any questions for Mr. Arar. A CSIS witness testified that, to his knowledge, no questions were sent. Government counsel advised, at the hearing, that the
contemplated interview with Mr. Arar did not take place.
In May and June, 2003, CSIS objected to a DFAIT proposal to send a joint
ministerial letter – from both the Solicitor General and the Minister of
Foreign Affairs and International Trade – to the Syrian government requesting Mr. Arar’s release. In particular, CSIS objected to the proposed
statement that “the Government of Canada has no evidence that Mr. Arar
was involved in terrorist activity nor is there any impediment to his return
to Canada”. CSIS supported alternative language as follows: “Mr. Arar is
currently the subject of a National Security Investigation in Canada.
Although there is not sufficient evidence at this time to warrant Criminal
Code charges, he remains a subject of interest. There is no Canadian government impediment to Mr. Arar’s return to Canada.” A letter, with modified language, was eventually sent by the Prime Minister on July 11, 2003.
That letter stated: “I can assure you that there is no Canadian government
impediment to [Mr. Arar’s] return”.
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40. With respect to the Commissioner’s mandate to make recommendations in
Part 2 of the Inquiry, several CSIS witnesses testified that the CSIS review
mechanism – consisting of the Security and Intelligence Review Committee
(SIRC) and the Inspector General – are very effective. The prospect of review occupies a high position in the mindset of CSIS staff. This is very effective in keeping CSIS within the bounds of appropriate behaviour and its
mandate.
41. In response to a question about caveats, a CSIS witness testified that, when
applying caveats, he did not tend to think of the prospect of review by
SIRC. Nevertheless, he testified that CSIS staff are very conscious of the policies that surround the use of caveated information and that there could be
a review if an error occurs.
42. Another CSIS witness testified that, although the CSIS review bodies are
seen as time and resource-intensive by frontline staff, from an organizational point of view the review bodies increase internal accountability. The
same witness also testified that, following the implementation of the new
anti-terrorism legislation post 9/11, there is now more overlap than ever
before between CSIS’ work and the RCMP’s work in relation to national
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FACTUAL BACKGROUND: VOLUME II
security, which is a requirement to preclude things ‘falling between the
cracks’.
Appendix B
The government’s proposed summary of information
received in camera
[Note: The government proposed this summary, as an alternative to the draft
summary produced by the Commission, in advance of the in camera NSC hearing of October 29, 2004.]
Summary – CSIS Witness Testimony
The Commission received information in contextual presentations by Mr. Jack
Hooper, the A/Deputy Director Operations, CSIS and an RCMP officer. The presentations summarized ongoing CSIS and RCMP investigations relating to national security. The purpose of the presentations was to provide contextual or
background information for the events involving Mr. Maher Arar, and to indicate
why information relating to concerns pertaining to ongoing investigations should
be kept confidential for reasons of national security confidentiality and to ensure
that those investigations are not compromised. Information in the two presentations was not presented for the purpose of establishing the culpability of individuals subject to those investigations, but rather for the purpose of providing
a background against which the actions of Canadian officials involving Mr. Arar
should be reviewed.
Following these contextual presentations, the Commission heard evidence
from nine CSIS employees over nine days of in camera testimony.
To prepare for this testimony, the Commission reviewed both the corporate
and non-corporate (transitory) records of CSIS – in short, all of the records CSIS
identified that could relate to the work of the Commission. Additional equipment
and software had to be purchased by the Service and substantial human resources were involved in conducting the searches required by the Commission.
Following a review of CSIS documentation and a series of pre-interviews
with Service employees, nine CSIS employees testified in camera before the
Commission. They were questioned extensively and in detail about the Service’s
counter-terrorism mandate and investigations, the Service’s investigations in the
area of Sunni Islamic extremism and, more particularly, on any information relating to Mr. Arar and the work of this Commission.
�APPENDICES
CSIS witnesses included: senior management (including Mr. Jack Hooper
who had testified in the open hearings in June, 2004), analysts, supervisors and
managers from CSIS Headquarters Counter Terrorism Branch, CSIS Ottawa
Region office investigators and supervisors and CSIS Liaison Officers posted
abroad during the relevant period.
During the course of the in camera hearings the Commission looked into
the following questions raised by the SIRC:
•
•
•
•
•
•
•
•
•
•
•
•
Was Mr. Arar a CSIS target or individual of interest to the Service before his
detention in the United States in September 2002?
What was the nature and extent of the information that CSIS possessed on
Mr. Arar before his detention in the United States?
What information did CSIS provide to domestic agencies (including the
RCMP) and/or foreign agencies (including American, Jordanian and Syrian
intelligence agencies) before Mr. Arar’s detention in the United States?
Was any information regarding Mr. Arar provided to CSIS, before his detention in September 2002, by other Government of Canada departments or
agencies? Which ones?
By foreign governments? Which ones?
When and how did CSIS become aware that Mr. Arar had been detained in
the United States?
When and how did CSIS become aware that Mr. Arar was being deported
to Syria?
What information did CSIS receive from and/or provide to domestic and/or
foreign agencies between the time Mr. Arar was detained in the United
States and the time he arrived in Syria?
What information did CSIS obtain regarding the detention and interrogation
of Mr. Arar in Syria, and from whom did CSIS receive this information?
Did any CSIS employee or human source travel to Syria during the time
Mr. Arar was detained, and did any person associated with the Service have
contact with Syrian officials and/or Mr. Arar during this time?
What operational information did CSIS obtain stemming from Mr. Arar’s interrogation in Syria, and did CSIS share any of this information with domestic and/or foreign agencies?
When and how did CSIS become aware that Mr. Arar was to be returned
to Canada?
What information did CSIS receive from and/or provide to domestic and/or
foreign agencies regarding the circumstances under which Mr. Arar would
be returned to Canada?
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FACTUAL BACKGROUND: VOLUME II
•
•
•
Regarding the distinction between the duties, powers, functions and responsibilities of CSIS and those of the RCMP, how is this distinction defined and applied by CSIS?
What are the standards and policies that are in place to determine whether
an individual should be a target or subject of an investigation by CSIS?
INSET is an example of a new program that involves close collaboration between CSIS and the RCMP. Would it be accurate to conclude that the division of responsibilities between the RCMP and CSIS are more blurred today,
than intended in 1984 and practices until recent years?
During the June 21-23 public hearings, counsel for Mr. Arar – Mr. Lorne
Waldman – posed a number of questions the answers to which were opposed
by Government Counsel on the grounds of national security. During the in camera hearings, the Commission received information in respect of these questions:
•
•
•
•
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•
•
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•
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•
Have there been times when restrictions have been placed on relationships
with foreign agencies because of human rights violations?
Do you know if CSIS agents went to Syria?
Does CSIS have an arrangement with Syria?
The US Department of State website lists the states that engage in torture.
Do we have arrangements with any of the states listed on the US
Department of State website?
Has CSIS given information regarding an individual to regimes that engage
in torture?
Can you ascertain whether we shared information with Syria?
Can you ascertain whether we shared it [information] on any individual?
Did CSIS provide information on Mr. Nureddin to Syria?
With respect to joint operations, would this also involve observing another
agency interview a suspect? Did this happen to Mr. Arar?
What are INSET teams? What training do they receive? What additional information can you provide?
Do you think the deportation of Mr. Arar was appropriate?
The Commission also heard detailed evidence from several of the CSIS witnesses in support of the Attorney General of Canada’s request that information
be received in camera and ex parte and not be disclosed publicly on the basis
that disclosure of such information would be injurious to national security.
With respect to the Commissioner’s mandate to make recommendations in
Part 2 of the Commission, several CSIS witnesses were asked by the
Commissioner to comment on their personal views of the CSIS review
�APPENDICES
mechanism, consisting of the Security Intelligence Review Committee and the
Inspector General. Witnesses testified that they viewed the review mechanisms
as effective. The prospect of review occupies a high position in the mind set of
CSIS staff and is effective in keeping CSIS within the bounds of its statutory mandate. The Commission did not receive any evidence relating to the effectiveness
of existing RCMP review mechanisms or possible alternative review mechanisms.
Appendix C
Draft summary of information received in camera
[not for public release]
[Note: The Commission produced this draft summary in order to provide a
record for the in camera NSC hearing of October 29, 2004. It was not intended
for public release. A revised version of this draft summary, authorized for public release by the Commissioner, is attached as Appendix A.]
Appendix D
Summary of information that is in the public domain
The following is a collection of some of the information about Mr. Arar, often
damaging to his reputation, that is already in the public domain. I have grouped
the information into different categories and identified the sources of the information in each case.
Investigations relating to Mr. Arar
Official release
•
•
The genesis of Project O Canada and Project A-O Canada (RCMP investigations) was fundamentally linked to the events that occurred postSeptember 11, 2001. Project O Canada began on September 27, 2001. It
was made up of a task force called the Toronto Counter Terrorism Task
Force, whose mandate was to investigate an alleged Al Qaeda cell (Exhibit
P-19, Garvie report p.55).
Mr. Arar was connected to an ongoing RCMP investigation that involved
individuals also of interest to U.S. authorities (Exhibit P-19, Garvie
report p.30).
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FACTUAL BACKGROUND: VOLUME II
•
On October 7, 2003, A-O Canada investigators decided to request Mr. Arar’s
arrival location and time in Canada so that their investigation of Mr. Arar
could be continued, including placing Mr. Arar under surveillance when
he returned to Canada (Exhibit P-19, Garvie report, p.23).
Media reports based on statements of named government officials
•
•
•
Headline: “Maher Arar still under RCMP suspicion, solicitor general hints:
Easter won’t divulge force’s role in case” (Ottawa Citizen, October 8, 2003).
Story: “…. Mr. Easter and Deputy RCMP Commissioner Garry Loeppky
threw a cloud of suspicion over Mr. Arar yesterday while testifying at a
Commons committee…. Mr. Easter would not say if the RCMP provided information to the U.S., saying it could compromise the integrity of a continuing investigation and violate Mr. Arar’s privacy…. Mr. Easter’s statement
indicates the RCMP are continuing an investigation of Mr. Arar, under way
since at least January 2002 when Mounties visited the computer engineer’s
Ottawa home.”
Headline: “Mounties eyed Arar since start of 2002: Syrian-Canadian had contact with ‘persons of interest,’ document says” (National Post, October 18,
2003). Story: “The federal government has acknowledged for the first time
that the RCMP had Maher Arar under investigation since January, 2002, because of concerns about his associates. A government document says the
Mounties were investigating Mr. Arar from the ‘early days of this case’ based
on contacts the Syrian-Canadian allegedly had with “persons in Ottawa who
were of interest to them…. The documents say U.S. law enforcement gave
the Mounties ‘clear evidence’ of Mr. Arar’s “involvement in al-Qaeda”” [citing documents obtained under ATIP].
Headline: “Chief admits Ottawa police took part in Arar probe” (Ottawa
Citizen, March 10, 2004). Story: “…. After his return home, it was revealed
that the RCMP had had Mr. Arar under surveillance and had passed on information about him to U.S. officials.”
Media reports based on statements of unnamed sources
•
Headline: “Arar case began amid fear of attack on Ottawa” (Globe & Mail,
January 16, 2004). Story: “Canadian counterterrorism agents were investigating the possibility of an al-Qaeda plot to blow up targets in Ottawa when
they began a probe that would lead to the detentions of Maher Arar and
several other Canadian Muslims half a world away…. information obtained
by the Globe and Mail points to a series of events that started just before
the September 11, 2001, attacks in the United States. In late August, 2001,
�APPENDICES
•
U.S. border guards discovered a single sheet of paper – a schematic map
of Ottawa marking government buildings and nuclear research facilities –
in an 18-wheeler driven by a man named Ahmad Abou El-Maati… Friends
say he [Mr. Muayyed Nureddin] was put under scrutiny by CSIS before his
capture.”
Headline: “Fears of terror cell fade as two are freed” (Globe & Mail, March
20, 2004). Story: “Fears that Ontario might have harboured a terrorist cell,
once thought to have included Maher Arar, seem to have disintegrated,
now that two acquaintances are to return to Canada as free men….
Abdullah Almalki was quietly released from a Syrian jail… Ahmad Abou
El-Maati was freed early this year… Mr. El-Maati… had been under close
scrutiny in Canada, suspected of links to terrorism…. All three men were
subjects of a counterterrorism investigation in Ontario in the aftermath of
the September 11, 2001 attacks. Properties were searched, but no charges
were ever laid.”
Information sharing with foreign governments
Official release
•
•
•
•
On October 2, 2002, a briefing note stated that an identified party had indicated that “they” would interview Mr. Arar and then refuse his entry into
the United States, and that an unidentified party had requested a list of
questions from A-O Canada for “their” interview (Exhibit P-19, Garvie report p.17).
U.S. authorities inquired as to the RCMP’s level of interest in filing criminal
charges against Mr. Arar and the RCMP’s ability to refuse him entry into
Canada (Exhibit P-19, Garvie report p.30).
According to Mr. Stephen Harper, Leader of the Opposition: “The foreign
affairs minister said for two months that the United States had offered no
justification or information for the deportation of Maher Arar. Yet we now
know that the RCMP knew of Arar’s activities. They questioned him nearly
a year ago and they were notified weeks ago by the FBI of its information”
(Hansard, Oral question period, November 18, 2002).
Syrian authorities provided the Department of Foreign Affairs and
International Trade (DFAIT) with confirmation that Mr. Arar was being held
and interrogated by Syrian authorities and that there was a reference to
Mr. Arar having “apparently already admitted that he has connections with
terrorist organizations” and that the Syrians intended to continue to interrogate him (Exhibit P-19, Garvie report, p.32).
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FACTUAL BACKGROUND: VOLUME II
•
In response to a possible question “Did Syria provide transcripts of its interrogation of ARAR to CSIS”, the Solicitor General was briefed to answer
as follows (ATIP release):
•
•
•
•
•
I simply will not comment on the operational activities of CSIS.
The terrorist threat confronting Canada is international in scope and
unrelenting. We are clearly not immune from the threat of terrorism.
To protect Canada and Canadians, CSIS is working very closely with
the RCMP and other Canadian agencies.
CSIS is actively engaged with its international counter-terrorism partners and exchanges intelligence on terrorist threats to Canada and
Canadians.
The activities of CSIS are closely reviewed by both the Security and
Intelligence Review Committee, SIRC, as well as by the Office of the
Inspector General of CSIS.
The briefing was prompted by a CTV news report as follows:
•
•
•
•
A CTV news report of 24 October 2003, alleges that the Syrian government provided transcripts of its interrogation of Maher ARAR to
CSIS.
CTV reported that senior government officials have advised that the
Syrian information indicates that ARAR, during his interrogation, provided information which implicated several other Canadians detained
in Syria as well as in Canada under security certificates.
CTV reported that this information pertained to Abdullah al Malki,
Arwad al Bushi, Ahmed Abu al Maati and Mohamed Harket, and that
it tends to indicate that there are Al Qaeda sleeper cells in Canada.
In response to a possible question, the Solicitor General was briefed as follows (ATIP release):
Question:
What about the recent media reports, stating that CSIS has received transcripts of Mr. Arar’s “debriefing” by Syrian officials?
Answer:
In order for CSIS to fulfill its mandate, CSIS actively exchanges information
with foreign agencies, under defined arrangements. These types of information exchanges, as well as the arrangements that govern them, are available to the Committee at all times and are reviewed by SIRC on an ongoing
�APPENDICES
basis. I am not prepared to comment further, except to re-state that SIRC
has full access to all CSIS files.
•
•
•
•
•
On October 10, 2002, American officials confirmed that Mr. Arar was deported to Syria, and further information was provided that Mr. Arar might
have subsequently been sent to Jordan (ATIP release).
Syrian and Jordanian authorities confirmed that Mr. Arar was not in their
countries (ATIP release).
DFAIT learned that Mr. Arar was transferred from the U.S. to Jordan by private plane (ATIP release).
DFAIT reported that, on arrival in Jordan, Mr. Arar was detained for questioning by Jordanian authorities instead of being transferred to Syria and that
Jordan handed Mr. Arar over to Syria only on October 21 (ATIP release).
DFAIT reported that Mr. Arar was detained by Jordanian authorities for over
a week and that they may have questioned him over his alleged terrorist
connections (ATIP release).
Media reports based on statements of named government officials
•
•
•
Headline: “Deporting Arar was right thing to do: U.S.: Easter admits Canada
gave information to U.S. about Ottawa man’s alleged terror links” (Ottawa
Citizen, November 20, 2003). Story: “…. In the past, Mr. Easter has ducked
questions about the role Canada played in providing information on Mr.
Arar, but yesterday, he said the information on Mr. Arar came ‘from a number of agencies globally,’ including Canada. ‘I think I can say that our discussions indicate that this information didn’t just come from Canada alone,’
Mr. Easter said.”
Headline: “RCMP passed along Arar’s name, U.S. says” (Globe & Mail,
November 8, 2003). Story: “…. ‘Arar first came to our attention from information from the Canadian government,’ a U.S. official who has been closely
involved in the case said…. it was of sufficient interest to the Federal
Bureau of Investigation and U.S. immigration officials for them to place the
Canadian man’s name on a computerized watch list known as Viper.”
Headline: “CSIS, RCMP alerted U.S. about Arar, Powell says” (Globe & Mail,
December 20, 2003). Story: “Both the RCMP and CSIS fingered Maher Arar
to U.S. anti-terrorist agencies, Foreign Minister Bill Graham says he was told
by U.S. Secretary of State Colin Powell…. ‘Both [CSIS and the RCMP] provided information to the U.S.,’ Mr. Graham said.”
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FACTUAL BACKGROUND: VOLUME II
Conclusions drawn by Canadian authorities about Mr. Arar
Official release
•
•
•
•
•
•
On October 18, 2002, the RCMP stated that it had no information concerning any threat associated with/by Mr. Arar (Exhibit P-19, Garvie
report, p.30).
In November, 2002, the RCMP declined to provide Mr. Michael Edelson,
counsel for Mr. Arar, with a letter stating that Mr. Arar was not wanted in
Canada for any offence, that there was not a warrant for his arrest, and that
he was not a suspect with respect to any terrorist crime (Exhibit P-19, Garvie
report p.33).
On June 26, 2003, Deputy Commissioner Loeppky informed another government official that Mr. Arar was “currently subject of a national security
investigation in Canada” and that he “remains a subject of great interest”
(Exhibit P-19, Garvie report p.41).
In response to a possible question about Mr. Arar’s links to terrorism and
“clear evidence”, provided by the U.S. to the RCMP, of Mr. Arar’s involvement in Al Qaeda, the Solicitor General was briefed to say: “For national security reasons, we do not comment on ongoing investigations nor how they
are conducted” (ATIP release).
On October 10, 2003, RCMP Chief Superintendant Killam determined, concerning the RCMP criminal investigation with respect to Mr. Arar, that Mr.
Arar was “a person of interest” and that arrangements were made to conduct surveillance on Mr. Arar upon his release and return to Canada (Exhibit
P-19, Garvie report p.48). A request for surveillance resources was prepared
by Project A-O Canada but not acted upon (p.70).
Chief Superintendant Garvie concluded that the members of A-O Canada
had legitimate reasons to initiate an investigation with respect to Mr. Arar
and that Mr. Arar was a “person of interest,” and that direct and indirect
links had been established with other individuals who were suspected of
being members of, or associated with, Al Qaeda (Exhibit P-19, Garvie
report p.67).
Media reports based on statements of unnamed government officials
•
Headline: “U.S. ready to cooperate in Arar probe: Wants assurances intelligence reports on case will remain secret” (Ottawa Citizen, January 30, 2004).
Story: “…. ‘This guy is not a virgin. There is more than meets the eye here,’
said a senior Canadian intelligence source, speaking on background. ‘If the
�APPENDICES
Americans were ever to declassify the stuff, there would be some hair standing on end.’”
Conclusions drawn by U.S. authorities about Mr. Arar
Official release
•
•
U.S. authorities concluded that Mr. Arar was a member of Al Qaeda (ATIP
release).
Chief Superintendant Garvie concluded that Mr. Arar was, at the very least,
a person of interest to U.S. authorities (Exhibit P-19, Garvie report p.67).
Media reports based on statements of named government officials
•
Headline: “U.S. ready to cooperate in Arar probe: Wants assurances intelligence reports on case will remain secret” (Ottawa Citizen, January 30, 2004).
Story: “…. U.S. Justice Department spokesman Charles Miller said yesterday
Mr. Ashcroft had ‘no position’ on Canada’s inquiry, but maintained the U.S.
considers Mr. Arar a security threat. ‘We have information indicating that Mr.
Arar is a member of al-Qaeda and, therefore, remains a threat to U.S. national security…. the information sought involves sensitive national security
information that is classified and cannot be released publicly.’”
Media reports based on statements of unnamed government officials
•
Headline: “Deporting Arar was right thing to do: U.S.: Easter admits Canada
gave information to U.S. about Ottawa man’s alleged terror links” (Ottawa
Citizen, November 20, 2003). Story: “…. U.S. officials have been reportedly
leaking details of the circumstances surrounding Mr. Arar’s deportation….
The Washington Post yesterday quoted an unnamed U.S. official who
claimed that Mr. Arar had the names of ‘a large number of known al-Qaeda
operatives, affiliates or associates’ in his wallets and pockets when he was
detained after arriving in New York….’”
Conclusions drawn by Syrian authorities about Mr. Arar
Official release
•
In November 2002, an unidentified party provided Ambassador Pillarella
with a verbal briefing of the results of the Syrian investigation of Mr. Arar
to that point. A copy of a written report of this information, in Arabic, was
translated and forwarded to CSIS in November 2002. The report indicated
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FACTUAL BACKGROUND: VOLUME II
•
•
•
•
that, in 1993, Mr. Arar traveled to Afghanistan (Exhibit P-18, SIRC report, p.18).
In a report of January 8, 2003, DFAIT informed CSIS that the Syrians believed that Mr. Arar was involved with the Muslim Brotherhood (noting that
this organization “has resorted to acts of political violence” and “has given
rise to a number of more militant and violent organizations, including
Hamas and Islamic Jihad”) and that Mr. Arar was part of a terrorist cell.
DFAIT also informed CSIS that, when Syrian officials were asked about
Mr. Arar’s future, they responded that Mr. Arar would likely be detained for
a lengthy period and would be prosecuted (Exhibit P-18, SIRC report, p.22).
Unredacted fragments of a DFAIT document state: “of Mr. Arar and question him as to his alleged affiliation with al-Qaida.”; “Mr. Arar could be connected to al-Qaida”; and “Mr. Arar had finished and it was their intention
to have him stand trial on charges of belonging to al-Qaida and for having
received military training in an al-Qaida camps in Afghanistan”; and
“Mr. Arar was not wanted for any criminal activity in Canada and again emphasized the humanitarian and compassionate situation with respect to
Mr. Arar” (ATIP release).
The Canadian Ambassador and Canadian Members of Parliament Catterall
and Assadourian met with SMFA (Syrian Ministry of Foreign Affairs) and
SyMI (Syrian Military Intelligence Service) officials. The SyMI officials informed the MPs that their investigation of Mr. Arar was completed and that
he would soon stand trial on charges of belonging to Al Qaeda and having
received military training in Al Qaeda camps in Afghanistan (Exhibit P-18,
SIRC report, p24, supplemented by ATIP release).
DFAIT reported that Syrian authorities stated that Mr. Arar was a member
of Al Qaeda, noting that this assertion was the same as that used by the
Americans when Mr. Arar was ordered deported to Syria (ATIP release).
Media reports based on statements of named government officials
•
Headline: “Syrians couldn’t link Arar to al-Qaeda” (Globe & Mail, October 9,
2003). Story: “Syria says it never had enough evidence to link Maher Arar
to al-Qaeda…. ‘we didn’t find complete [or] concrete evidence of his link,’
Ahmad Arnous, Syria’s ambassador in Ottawa, said in an interview yesterday…. Mr. Arnous said U.S. authorities turned over to Syria an extensive
dossier on Mr. Arar that, according to the Americans, showed involvement
with the al-Qaeda terrorist group. This included information obtained during an interrogation of Mr. Arar that took place while he was detained in
�APPENDICES
Jordan…. Syria also provided Canadian officials with the information in the
Arar dossier ‘as a goodwill gesture,’ Mr. Arnous said.”
APPENDIX 6(G)
Amendment to Ruling on National Security
Confidentiality
Paragraph 14 of my Ruling of December 3, 2004 was based on information provided to me. As it turns out that information, through a misunderstanding, was
not precisely accurate. An accurate statement of what occurred is set out below.
This change has no effect on the conclusions that I reached in my Ruling. My
Ruling should therefore be amended to substitute the following paragraph for
paragraph 14.
14. Following the hearing, Mr. Atkey appointed Mr. Gordon Cameron to assist him
in his role as amicus curiae. Mr. Cameron has extensive experience with matters of
national security. He has been an outside counsel for SIRC for the past ten years. At
my request, Mr. Cameron reviewed the material leading to the preparation of the
summary, something that Mr. Atkey had done earlier. Mr. Cameron also reviewed the
evidence upon which the government relied for its NSC claims, as well as the oral and
written submissions of the government made at the October 29th hearing. Having
done so, Mr. Cameron consulted with Mr. Atkey and confirmed that Mr. Atkey remained of the view that the draft summary in Appendix C could be disclosed to the
public, a view that Mr. Cameron shared. Mr. Cameron communicated this position
to Commission Counsel, who advised me of it.
January 19, 2005
Justice Dennis R. O’Connor
Commissioner
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APPENDIX 6(H)
Ruling on Summaries
The Terms of Reference for this Inquiry contemplate that I may, from time to
time, prepare summaries of those portions of the in camera evidence that, in my
opinion, can be disclosed publicly in accordance with the process set out in the
Terms of Reference. With that in mind, I developed Rules of Procedure and
Practice that provided for the preparation of periodic summaries of the in camera evidence. The purpose of periodic summaries was twofold: to keep the public informed, to the extent possible, of the evidence being heard in camera; and
to provide the parties with as much information as possible about the in camera evidence before the public hearings took place.
In accordance with the contemplated process, I prepared a summary of a
relatively small portion of the CSIS in camera evidence that, I considered, could
be disclosed to the public in accordance with the Terms of Reference. Without
belabouring the point, the discussions with the government about the contents
of that summary and what parts of it could be disclosed publicly were extremely
time-consuming. In the end, no agreement was reached and the government
filed an application in the Federal Court challenging the disclosure of some parts
of the summary.
In light of that experience, it became obvious to me that, from a practical
standpoint, the summary process is unworkable. Were that process to be continued, discussions with the government about the contents of summaries and
what parts may be disclosed publicly would be both complex and time-consuming. Further, based on the experience with the first summary, the government and I appear to have differing views with respect to disclosure of at least
some of the information over which the government claims national security
confidentiality. The summary process, if continued, could lead to a series of potentially lengthy court applications, with ensuing delays of the work of the
Commission and a substantial increase in the cost of the Inquiry.
As a result, I have decided to implement a new procedure for the Inquiry.
The Rules of Practice and Procedure will be amended so that I may prepare
summaries of the evidence heard in camera, but I will no longer be committed
to do so. At the present time I do not intend to prepare any further summaries.
Before making this decision I sought submissions from the parties and intervenors about discontinuing the summary process. It is fair to say that while
Mr. Arar and the intervenors think it unfortunate that the summary process must
�APPENDICES
be abandoned, they also accept that, in the circumstances, the new procedure
that I set out below is the best way to proceed. The government accepts that I
have the authority to establish the procedures I think best for the Inquiry.
Given that the new procedure will not involve the preparation of summaries, I have agreed not to seek disclosure of the CSIS summary at the present time on the understanding that the issues raised in the government’s
challenge to the disclosure of that summary can be litigated later, if necessary.
The government has accordingly withdrawn its court application.
Before turning to the new procedure, I want to make it clear that the adoption of this new procedure does not constitute a change of view on my part
with respect to the information in the CSIS summary. I maintain the view that
that information should be disclosed to the public.1
The new procedure is designed to develop a more efficient, expeditious
and workable process for the Inquiry. It provides an approach in which disagreements about what should be disclosed publicly, if they arise, can be addressed at one time and in the context of a report containing findings of fact,
rather than on the basis of a series of summaries of the evidence heard in
camera.
The new procedure will be as follows:
1.
2.
3.
4.
1
Rule 55 of the Rules of Procedure and Practice, which currently provides
that “the Commissioner shall prepare a summary” of evidence heard in
camera, shall be amended to provide that “the Commissioner may prepare
a summary” of that evidence.
The Commission will complete the in camera hearings and then commence
the public hearings in May. A schedule of the evidence to be called during
the public hearings will be published shortly. A schedule for closing submissions will be prepared.
After hearing submissions, I will submit a report to the government with
those findings of fact and conclusions in respect of the actions of Canadian
officials in relation to Mr. Arar that I am able to make on the basis of the
in camera and public evidence heard to that point.
The question remains how I will communicate to the government my opinion as to what portions of my report should be made public in accordance
However, I recognize that in response to a new concern raised by the government after my ruling on the CSIS summary was released, I agreed to hear further evidence and submissions from
the government with respect to one specific area in the summary. I will hear that evidence and
those submissions before forming any view as to whether that information should be disclosed
to the public.
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5.
6.
7.
with the Terms of Reference. Currently, I am inclined to prepare a second
“public” report containing those findings of fact and conclusions from the
report referred to in the preceding paragraph that, in my opinion, can be
disclosed to the public. However, as the Inquiry proceeds, it may be that
some other way of approaching the issue of public disclosure of my report
will appear more desirable.
For the time being. I leave open the possibility that further evidence may
be called after the disclosure referred to in the previous paragraph has occurred. It is possible, but by no means certain, that upon reviewing the
public report, the parties, and in particular Mr. Arar, may seek to have
the Commission call further evidence. At this stage, I do not foreclose that
possibility.
I will convene an in camera hearing prior to submitting my report. At that
time, the Attorney General will be given an opportunity to lead evidence
and make submissions with respect to the government’s claims of national
security confidentiality.
If the government disagrees for reasons of national security confidentiality
with the disclosure to the public of parts of my report that I consider should
be disclosed, such disagreements may be addressed pursuant to the Terms
of Reference.
There will be a procedural hearing on May 3rd, 2005 to deal with three other
issues that have arisen in the course of considering this new procedure. The
three issues relate to Mr. Arar’s testimony, the process by which the government’s national security confidentiality claims will be addressed in the public
hearings, and the role of the amicus curiae. A notice calling that hearing is attached to this ruling.
April 7, 2005
Justice Dennis R. O’Connor
Commissioner
�APPENDICES
APPENDIX 6(I)
Ruling on Process and Procedural Issues
I held a public hearing on May 3, 2005 to address a number of process and procedural issues. The Notice of Hearing raised four issues. One other issue was
raised by the intervenors during the course of the hearing. This is my ruling on
four of the issues.
1.
MR. ARAR’S TESTIMONY
The Notice of Hearing asked for submissions on what parts, if any, of Mr. Arar’s
potential testimony are essential to fulfilling my mandate, when his testimony
should be heard and, importantly, how to minimize any potential unfairness to
Mr. Arar arising from the fact that he does not have access to many documents
and much of the in camera evidence relating to matters about which he would
testify.
My mandate requires me to investigate and report on the actions of
Canadian officials in relation to Mr. Arar, including with regard to:
•
•
•
•
•
the detention of Mr. Arar in the United States;
the deportation of Mr. Arar to Syria via Jordan;
the imprisonment and treatment of Mr. Arar in Syria;
the return of Mr. Arar to Canada; and
any other circumstance directly related to Mr. Arar that I consider relevant
to fulfilling this mandate.
The mandate does not direct me to investigate Mr. Arar. There are no allegations of wrongdoing made against Mr. Arar. That said, Mr. Arar is obviously
a central figure in the events that I am directed to investigate and, absent problems related to fairness to Mr. Arar, there would be no question that he should
testify and testify fully about events within his knowledge and relevant to the
mandate.
Mr. Arar, through his counsel, submits that he should not be compelled to
testify at this time and that the decision on whether he should testify should be
deferred until the release of the interim report that has been discussed in a previous ruling. I agree with this submission. For reasons of minimizing the potential for unfairness to Mr. Arar, I think it prudent to delay the decision about
Mr. Arar testifying until that time. I emphasize that this is not a decision that
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Mr. Arar will not testify nor that he will not be cross-examined at some point.
This is a decision only to defer a ruling in that regard until a later point in time.
That said, I also wish to emphasize that Mr. Arar wants to testify. I have no
doubt that this is a genuine wish. Indeed, were it not for the fairness concerns
discussed here, Mr. Arar would insist on testifying as soon as possible. However,
in the unusual circumstances of this Inquiry, I am satisfied that the fairness concerns inherent in the process justify his counsel’s concerns.
The fairness concerns arise from two points. First, Mr. Arar has a strong
reputational interest that may be affected by what happens at this Inquiry.
Although Mr. Arar’s actions are not the focus of the mandate, it would be naïve
to suggest that his reputation is not, at least in the public’s mind, an issue in this
Inquiry. By that I mean, given the publicity that has surrounded the Inquiry,
many in the public understandably question whether Mr. Arar is connected to
terrorist activities or not. Rightly or wrongly, many in the public consider this to
be one of the central issues for this Inquiry. Mr. Arar has a significant interest in
this issue. I cannot ignore this reality in determining the issue of fairness as it
relates to Mr. Arar.
Although Mr. Arar has not received a notice under section 13 of the
Inquiries Act, there being no allegations of wrongdoing against him, I am satisfied that because of his reputational interest, he has a considerable stake in the
way the proceedings are conducted and, likely, in the report as well. As a result, I am satisfied that I should consider the issue of fairness to Mr. Arar should
he testify. He is in a different position than most other witnesses, who give evidence about their knowledge of events, but do not bring to the witness stand
the significant reputational interests that are present in the case of Mr. Arar. That
said, I am not suggesting that Mr. Arar has anything to hide or that he has done
anything wrong.
The second factor that relates to fairness for Mr. Arar arises from the unusual
nature of this Inquiry. Because of National Security Confidentiality (NSC) claims,
it is not possible to provide Mr. Arar with access to many of the documents and
much of the in camera evidence relating to matters about which he could testify. Should he testify now, he would be unable to comment on those documents and that evidence.
As a matter of course, witnesses at this Inquiry have been given disclosure
of and access to documents and evidence of other witnesses relating to matters
about which they will testify. In this Inquiry, most of the government witnesses
have had, or will have, this type of disclosure and access prior to testifying. This
is possible because they have the appropriate security clearances. Mr. Arar does
not. It is fair that witnesses, particularly those with a personal interest at stake
�APPENDICES
in the outcome of a proceeding, be accorded as much access as possible to the
information that may affect their interest before they testify. Further, if information is introduced into evidence after they testify that affects their interest they
should be given an opportunity to respond to it.
Parties who have an interest in the outcome of legal proceedings generally
are entitled to a broad range of discovery or disclosure about the matters in
issue. Procedural fairness, in general terms at least, requires that parties (those
who will be affected by the outcome) have access to information that may affect their interests so that they can adequately respond if necessary.
David J. Mullan, in his text Administrative Law (Irwin Law: Toronto, 2001)
refers, at page 165, to the paradigmatic situation for the implication of procedural
fairness as being that described by Le Dain J. in Cardinal v. Director of Kent
Institution [1985] 2 S.C.R. 643. At paragraph 14, Le Dain J. states that “as a general common law principle, a duty of procedural fairness [lies] in every public
authority making an administrative decision which is not of a legislative nature
and which affects the rights, privileges or interests of an individual.” In my view,
Mr. Arar’s interests in this Inquiry come within this principle. Mr. Arar’s situation
is quite unique because of the enormous publicity about his circumstances and
the questions in the public mind about what involvement, if any, he has had
with terrorist activities. His reputational interests could be seriously affected by
testifying in public and possibly also by my report.
In terms of the content of the duty of procedural fairness, I am satisfied
that Mr. Arar should be provided with as much disclosure of information relevant to his proposed testimony as possible. At that time, a decision can be made
whether he should testify or not. In Baker v. Canada (Minister of Citizenship
and Immigration), [1999] 2 S.C.R. 817, Justice L’Heureux-Dubé listed several
factors to consider in determining the content of procedural fairness. These include the nature of the decision being made, the precise statutory context (the
absence of an appeal or an inability to otherwise seek reconsideration), the significance of the decision to those affected, and the legitimate expectations of a
certain procedure. L’Heureux-Dubé also suggests in Baker that one should accord a certain degree of respect to the procedural choices of the administrative
decision-maker: Baker, supra at paragraphs. 23-28.
I recognize that this Inquiry is not a civil or criminal proceeding and that
Mr. Arar is not directly the focus of the mandate. However, as I said above, the
reality is that his reputational interest could be significantly affected, positively
or otherwise, both by the evidence called at the public hearings and possibly by
my report.
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With that in mind, I accept Ms. Edwardh’s submission that the decision
whether to call Mr. Arar as a witness should be deferred until there has been
made available to him the maximum amount of information relating to the matters about which he could testify. That situation will likely occur following the
release of the interim report.
Delaying the decision about whether Mr. Arar should testify will not adversely affect the progress for this Inquiry, as I presently envision it. Mr. Arar’s
testimony, if and when I hear it, will have little to do with a large portion of my
mandate. My mandate is to investigate and report on the actions of Canadian officials that relate to Mr. Arar. However, Mr. Arar has no direct knowledge about
most of those actions. He was not involved and his testimony would add little,
if anything, to my deliberations. Thus, deferring Mr. Arar’s testimony as I discuss
above should not adversely affect the progress of this Inquiry.
That said, there is one area about which Mr. Arar could provide information that, while not affecting Canadian officials, is nevertheless important for me
to receive at this stage of the Inquiry. Here I refer to his treatment in Jordan and
Syria. Ms. Edwardh submits, on behalf of Mr. Arar, and I agree, that were I to
proceed even to the point of issuing an interim report without receiving
information about Mr. Arar’s treatment in Jordan and Syria directly from Mr. Arar,
I would be leaving out important, even essential, background information. The
reason this Inquiry was called was because of Mr. Arar’s allegations of mistreatment. People are shocked and want to know if Canadian officials were in
any way involved in what happened. Because Mr. Arar’s allegations of mistreatment triggered this Inquiry, I think it is important that, at this stage, I receive
information about Mr. Arar’s treatment in Jordan and Syria and also about the
effects of that treatment on him and his family.
No one, including the government, disagrees. The question then is how to
receive that information. Importantly, in essence, the information that I am considering receiving at this stage does not involve allegations against Canadian officials. I realize that it may well be critical of Jordanian and Syrian officials.
However, I invited Jordan and Syria to participate in this Inquiry and they declined. In these circumstances, I do not consider the fact that the information
sought may reflect unfavourably on Jordanian and Syrian officials is a reason not
to receive it.
During the hearing, two options for receiving this information were discussed. First, Ms. Edwardh proposed that I appoint an independent fact finder
to investigate Mr. Arar’s treatment and its effect on him and his family and to report his or her findings to me. By analogy, Ms. Edwardh pointed to the practice
�APPENDICES
of the United Nations Human Rights Commission using fact finders for collecting evidence of torture and other potential human rights violations.
The government, on the other hand, submitted that I need not appoint a
fact finder because I am a fact finder and that I could do the same investigation
as the fact finder, myself. Very fairly, the government took the position that so
long as the information that Mr. Arar provides does not make allegations against
Canadian officials, there would be no need for cross-examination. Indeed, the
government accepted that the information may or may not be received under
oath and that some of it might be heard in private because of the privacy interests of Mr. Arar and his family.
I would be amenable to adopting either model. From an evidentiary standpoint, the two proposals are similar. Both would provide a mechanism for me
to receive the information without the legal requirements attendant on receiving evidence pursuant to the normal evidentiary model. Both avoid the potential procedural unfairness to Mr. Arar about which I spoke above. And both are
able to protect the privacy interests of Mr. Arar and his family. In neither case
would I receive information that constitutes an allegation against Canadian officials. Because of the lack of opportunity for officials who might be criticized
to cross-examine Mr. Arar, it would be unfair to do so.
Mr. Arar prefers the fact finder approach and I am prepared to accede to
that wish. As Ms. Edwardh fairly points out, the fact finder process will likely be
more sensitive to the privacy and personal concerns of Mr. Arar and his family.
One of the areas to be covered is a description of the effect of Mr. Arar’s treatment in Jordan and Syria on his family relations and his health. As the government noted, Mr. Arar is a victim. Evidentiary processes are often customized to
protect victims. The use of a victim impact statement in criminal sentencing proceedings is one example. The United Nations Human Rights process is another.
The fact finder will likely be able to explore these very private areas in Mr. Arar’s
case in a more sensitive manner than would be the case if the various individuals necessary to tell this story appeared before me.
I wish to repeat that using a fact finder is not designed to shield Mr. Arar
from a cross-examination that he would otherwise face. The information he provides will be limited solely to his treatment in Jordan and Syria and the impact
on him. As I said, none of the parties wish to cross-examine him on these
matters.
Thus, I will appoint a fact finder. The mandate of the fact finder will be to
investigate and report to me on Mr. Arar’s treatment during his detention in
Jordan and Syria and the effect of that on him and his family. I will ask my
counsel to consult with Mr. Arar’s counsel about suggestions for a suitable
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person to conduct the fact finding investigation. Given the nature of that mandate, I do not consider it necessary that the fact finder examine any documents
over which the government claims NSC except, if the government agrees, the
government’s annual review of the legal, political and penal situation in Syria.
The fact finder will have access to the public testimony about Mr. Arar’s interactions with Canadian consular officials. The fact finder should interview
Mr. Arar and others he or she considers necessary to fulfill the mandate. The fact
finder may also wish to review publicly available information about detention
and imprisonment conditions in Jordan and Syria and any other information that
may be helpful to fulfilling the mandate.
The fact finder’s report will be delivered to me and will be made available
to the parties prior to its disclosure to the public. I will receive submissions from
the parties and intervenors, if they deem necessary, about any portions of the
report that should not form part of the record of this Inquiry or should not be
disclosed publicly.
I think that the fact finder approach to this delicate issue is a creative solution. I thank all counsel for their submissions in regard to minimizing the unfairness to Mr. Arar inherent in the process of this unique public inquiry.
2.
THE RCMP TESTIMONY
Mr. Bayne, on behalf of members of Project A-O Canada, submits that this
Inquiry should not hear evidence from members of Project A-O Canada in public. The government takes this submission one step further and submits that no
RCMP evidence should be called in public. I will deal with their submissions in
a separate ruling to be released shortly.
3.
CONDUCT OF PUBLIC HEARINGS
The issue is how the Inquiry should receive and address the government’s objections to the introduction of evidence in the public hearings because of its
NSC claims. The comments that follow relate to all of the public evidence other
than the evidence of RCMP officers, should I rule that they be called. If necessary, in the ruling on RCMP testimony, I may address what limitations, if any,
there would be on the matters about which RCMP officers will be required to
testify.
As to the manner in which the government would raise its objections, there
are two approaches put forward. The first, the government’s preference, would
have me rule in advance that questions not be asked in specified areas because
of the government’s NSC claims. Under the second, a more traditional approach,
the government would raise its objections during the hearing when questions
�APPENDICES
were asked that it considered required an answer based on confidential
information.
I prefer the second approach. Although the advance ruling approach may
be intended to simplify the proceedings and to save time, I think it would probably have the opposite effect. It would be necessary first to agree upon the excluded areas and then to work out precise language that would cover all
questions. The danger of casting the exclusionary net too broadly is significant.
Moreover, experience in this Inquiry indicates that the government would take
a broader view of what needs to be excluded because of NSC than I would.
Finally, even if I did direct areas for exclusion, I can envision arguments from
both sides about whether certain questions came within or fell outside the exclusionary direction. I do not think that the advance ruling approach will work
very well.
As to the more traditional approach that requires an objecting party to raise
an objection when a question is asked, I recognize that this could involve some
exchanges where there are repeated objections. However, I expect that once it
is clear that there will be objections to a certain line of questions, the line of
questions may be dealt with by summarizing the line of questions rather than
by asking each question individually. I will control the process so that the questions a party wishes to ask are recorded and, hopefully, so that there is not
undue delay or waste of time.
The process will be as follows. When there is an objection to a question on
NSC grounds, the question will be noted but not answered. I do not propose to
rule on the validity of the government’s objections to questions on the basis of
NSC during the public hearings. To do so would likely raise all of the problems
that led me to conclude that the summary process was unworkable. Instead, in
my report, I will summarize at least in general terms the questions that were
objected to.
Furthermore, if the questions have already been answered in camera,
Commission counsel or I will indicate that this is the case. In some instances, it
may be necessary to review the transcripts to be certain. If questions have not
been asked in camera, and if the questions are relevant, Commission counsel
will ask those questions at future in camera hearings. Thus, when the government objects to answering questions because of NSC concerns, assuming the
questions are relevant, an assurance will be given that the questions either have
been or will be asked in camera. I will include in my report the information received when the questions were answered in camera.
Having said all of the above, I encourage all counsel to approach this issue
cooperatively. If Mr. Arar’s counsel has questions to which they know the
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government will object, it will not be necessary to ask all of those questions.
Rather, after discussions with Commission counsel, they could indicate on the
record the nature of the questions and their wish to ensure those questions are
asked in camera. Similarly, I would ask government counsel to not raise objections that are overly broad and to ensure that there is made available to the
public as much information as possible during the public hearings. The fact that
objections will result in answers not being given publicly should be an impetus
to use the objection procedure only when necessary. It should never be used
solely to shield potentially embarrassing evidence.
All told, I am satisfied that the above procedure will satisfy the obligation
in the Terms of Reference to prevent disclosure of information that in my opinion would be injurious to international relations, national defence or national
security.
4.
THE ROLE OF AMICUS CURIAE
The Notice of Hearing for May 3rd, 2005 invited submissions on the role of the
amicus curiae. Mr. Atkey, the amicus, and Mr. Gordon Cameron, who assists
him, both attended the hearing. Mr. Atkey filed written submissions and made
oral submissions. I want to thank Mr. Atkey and Mr. Cameron for the work they
have done to date and for their thoughtful submissions.
On page 7 of their written submissions, Mr. Atkey and Mr. Cameron set out
their views on the role of the amicus for the balance of the Inquiry. They make
seven points. They are as follows:
1.
2.
Amicus curiae will continue to familiarize itself with the transcripts of
oral testimony and exhibits filed in in camera proceedings held during the months of September 2004 – April 2005 and will attend public
hearings in May and June, 2005 so as to be in a position to test government claims to national security confidentiality and to participate in
in camera proceedings that occur as a result.
Amicus curiae will prepare a written brief on August 19, 2005 containing submissions on the legal basis for national security confidentiality claims in practice and as set forth in the jurisprudence, and will
also comment generally on the evidence adduced from witnesses representing CSIS, the RCMP, DFAIT and other Canadian agencies in relation to Maher Arar. However, amicus curiae in its written brief and
oral submissions to follow will not make reference to specific pieces
of evidence until it is determined later in the proceedings which evidence Commission counsel will be relying upon in his response to
�APPENDICES
3.
4.
5.
6.
7.
various submissions-in-chief, suggesting alternative findings or conclusions that are available to the Commissioner.
Until such time as the Commissioner makes findings of fact and conclusion in his interim report, all amicus curiae submissions related to
evidence for which national security confidentiality is claimed should
be received in camera.
Amicus curiae shall have an opportunity to file a written reply brief by
August 26, 2005 commenting on various submissions-in-chief as may
relate to issues of national security confidentiality.
In submitting any interim report to the government with findings of fact
and conclusions, the Commissioner will consider the submissions of
amicus curiae in expressing his opinion as to which parts of the interim report shall be disclosed to the public.
If there is a disagreement in relation to what parts of the interim report
may be disclosed to the public, an NSC hearing will be conducted in
accordance with Order in Council P-C 2004-48 with full standing given
to the amicus curiae.
Upon public disclosure of the interim report, if there are further witnesses to testify, amicus curiae will continue to participate in the proceedings and reserves the right to make submissions to the
Commissioner respecting claims to national security confidentiality.
I agree with their submissions and would for clarity add the following
comments.
I note that in paragraph 1 the amicus indicates that he will attend public
hearings (for simplicity I will use the singular, however, in doing so I intend to
refer to either Mr. Atkey or Mr. Cameron, or both). Currently it is expected that
there will be some in camera hearings in late July and in early August. The
amicus is welcome to attend those hearings as he sees fit having regard to his
mandate.
A suggestion was made that the amicus not only deal with NSC issues, but
that the amicus should also make submissions on the substance of the findings
I will make in my report. The amicus has not suggested this role and I do not
think it essential. Unlike many other types of proceedings, I have had the benefit of Commission counsel, whose task has been to present all the evidence and
to assist me as Commissioner in getting to the bottom of what occurred. That
said, I would welcome any assistance or submissions the amicus sees fit to give
in this regard, but I stop short of directing that the amicus must do so. It occurs
to me, however, that if the amicus, as a result of his involvement, feels that
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there are useful submissions that he can make on some aspects of my mandate,
he should feel free to do so. I would welcome such submissions.
Finally, as has been the practice throughout, all submissions received from
the amicus will be disclosed to the government, and the government will be
given an opportunity to reply.
5.
TESTIMONY OF MESSRS. EL MAATI, ALMALKI AND NUREDDIN
This issue was not raised in the Notice of Hearing. In their written and oral submissions, the intervenors submitted that if I were to appoint a fact finder, as
suggested by Mr. Arar’s counsel, I should direct the fact finder to bring evidence
from the above-named individuals, each of whom was detained in Syria in
or about the same time as Mr. Arar. (They referred to the fact finder as a
Rapporteur.)
The submissions of the intervenors suggest that the evidence of these three
individuals could be of assistance to me in two ways. First, as all three were imprisoned in Syria, and all have alleged being tortured there, they would be able
to provide evidence that will assist in understanding Mr. Arar’s experience in
Syria. Their evidence of mistreatment and torture would be helpful in evaluating Mr. Arar’s evidence in this regard. Second, the intervenors suggest that the
circumstances under which these individuals ended up in Syrian detention raise
troubling questions about whether Canadian officials were complicit in their detention. The evidence of what happened to them could possibly show a pattern
of misconduct by Canadian officials. If so, that pattern could shed light on what
happened to Mr. Arar and could also help me in the Policy Review part of my
mandate.
I will deal with Mr. Ahmad El Maati first. Through his counsel, he has indicated that he will not cooperate with this Inquiry. Mr. El Maati alleges that he
was tortured in Syria. I do not intend, nor have I been asked, to compel anyone who alleges torture to give evidence or otherwise become involved in this
Inquiry. Thus, I will not direct the fact finder to include Mr. El Maati in his
investigation.
Mr. Abdullah Almalki is represented by counsel who has indicated to
Commission counsel that his client would be prepared to cooperate with a fact
finder, but I am told that he does not wish to give evidence, in the traditional
manner, at this Inquiry.
As I said above, the intervenors seek to elicit information from these witnesses about two subjects: mistreatment in Syria and complicity of Canadian officials in their removal to Syria. In my view only the first subject - mistreatment
in Syria - would be appropriate for investigation by a fact finder. I say this for
�APPENDICES
the same reasons that I directed that, in regard to Mr. Arar, the fact finder should
not look into any allegations of misconduct against Canadian officials.
Information of that nature would have to be introduced through evidence at the
Inquiry and be subject to cross-examination. It would be unfair to receive information for evidentiary purposes, alleging wrongdoing without giving those
who are subject to the allegation an opportunity to directly challenge the evidence by way of cross-examination.
I do not know if what Mr. Almalki has to say about his detention in Syria
will be helpful to me in assessing what happened to Mr. Arar. In any event, I
do not see that there is prejudice to any Canadian official or institution if I direct the fact finder to interview Mr. Almalki and to report on matters relating to
his treatment in Syria. The prejudice, if any, would be to Syrian officials. As I said
above, Syrian officials were invited to participate in this Inquiry, but declined
the invitation.
Further, I do not think that obtaining this information by way of the fact
finder unduly expands my mandate. The fact finder process should not delay the
progress of the Inquiry. Finally, when the fact finder report is received, it will
be provided to the parties and, if necessary, submissions can be made about the
use, if any, to be made of it.
Mr. Muayyed Nureddin was also detained in Syria and he alleges torture.
For the same reasons that apply to Mr. Almalki, I will direct the fact finder to interview Mr. Nureddin and to report to me on his treatment. His lawyer also takes
the position that he should not testify at the Inquiry.
I note that the reasons that Messrs. Almalki and Nureddin do not want to
testify arise from concerns (similar to those that I discussed in relation to
Mr. Arar) about lack of disclosure of information relating to those matters about
which they could testify. The result is that I will direct the fact finder to interview Mr. Almalki and Mr. Nureddin about their treatment in Syria. I think that
information is sufficiently related to the terms of my mandate to warrant gathering the information in this fashion, reserving a decision on its use until after
the receipt of the fact finder report.
It is worth noting that the Commission has heard some in camera evidence
about the circumstances of these three individuals that may be useful to my
mandate. Because of NSC claims, I cannot disclose that evidence at this time. I
will be hearing submissions in camera about what use, if any, I may make of
the evidence relating to individuals other than Mr. Arar who were detained in
Syria. In making these comments, however, I am not suggesting that I have conducted a full investigation into the cases of Messrs. El Maati, Almalki and
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Nureddin. To do so would be beyond my mandate and would add considerable
time to the issuance of any report.
Finally, I have heard the submissions of the intervenors that complicity evidence would assist me in the Policy Review. If there were such evidence it
would reveal the type of problem that a review process would need to address.
However, it is important to bear in mind that a new review process, if one is to
be recommended, would have jurisdiction to address the types of problems that
may occur in security intelligence activities generally. It would not be designed
in response to a single problem or set of problems that may emerge for one or
a few investigations. Clearly one of the types of problems that could be reviewed would be abuses of human rights that could take place in a variety of
ways, including interactions with foreign governments. During the Policy
Review, we have conducted research about the types of problems that may
occur in security-related activities and the types of review mechanisms that are
best suited to deal with them. I will consider this information in formulating my
recommendations.
May 9, 2005
Justice Dennis R. O’Connor
Commissioner
APPENDIX 6(J)
Ruling on RCMP Testimony
A) OVERVIEW
It is accepted that the RCMP, and particularly Project A-O Canada, played a central role in the events giving rise to my mandate. The Inquiry has received virtually all of the relevant RCMP evidence in camera. Because of national security
confidentiality (NSC) claims, some of the evidence cannot be disclosed in the
public hearings.
Mr. Bayne, counsel on behalf of some members of Project A-O Canada,
and the government argue that because the evidence of RCMP officers that can
be given in public will not be complete, individual officers and the RCMP itself
�APPENDICES
could be unfairly prejudiced. The public, it is said, will only hear “half truths”
and parts of the story, thus giving an incomplete and inaccurate picture of what
occurred. RCMP witnesses will not be able to answer some questions because
their answers would involve referring to information over which the government claims NSC. Moreover, Mr. Bayne and the government argue that RCMP
witnesses will not be able to provide the proper context for all the RCMP evidence because of NSC claims. They also submit that if the RCMP evidence is
called in public there is a concern that the public will be misled and draw unfair conclusions about the role of RCMP officers and the RCMP because they
will not have heard the full story or seen the complete picture. The public should
await my report and whatever disclosure of that report eventually takes place.
Mr. Bayne and the government therefore ask me to make what would in
effect be a blanket ruling at this stage that no RCMP witness be called in the public portion of this Inquiry. They contend that I should make this blanket ruling
without even attempting the public process to determine what problems may in
fact arise.
I asked Mr. Bayne for specific examples of the problems he envisions. He
said that he was unable to comment publicly. I convened an in camera hearing on Thursday, May 5, 2005 and have now heard those submissions. Because
of the government’s NSC claims, I can only comment in a general way on those
submissions in this ruling.
I do not accept the submission that the Commission should not call any
RCMP witnesses in the public hearings of this Inquiry. The government chose
to call a public inquiry, not a private investigation. Implicit in the Terms of
Reference is a direction that I maximize the disclosure of information to the
public, not just in my report, but during the course of the hearings. The reason
for that direction is consistent with what are now broadly accepted as two of the
main purposes of public inquiries: to hear the evidence relating to the events in
public so that the public can be informed directly about those events, and to provide those who are affected by the events an opportunity to participate in the
inquiry process.
It has often been said that this is not a normal public inquiry, where it is
possible to hear virtually all of the evidence in public. On the contrary, because
of the NSC claims, only part of the evidence can be heard in public, only part
of the story can be told. That is the reality. However, that reality does not mean
that I should readily abandon the concept of public hearings for all or even part
of the evidence that is not subject to NSC claims. I think it behooves me as
Commissioner in a public inquiry to take reasonable steps to attempt to maximize, during the hearing stage of the Inquiry, the disclosure of information to
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the public. In addition, I should try to maximize, to the extent possible, the participation of the parties in the hearing process, particularly Mr. Arar.
That said, I readily accept that the public hearing process should be conducted in a way that avoids unfairness to individuals or institutions and also
avoids misleading the public about what in fact occurred. What I do not accept,
at this point, is that RCMP evidence cannot be called in such a way as to avoid
both of these unacceptable results.
Although some of the RCMP evidence cannot be disclosed publicly, much
can and already has been. Commission counsel has prepared a timeline of
events concerning RCMP witnesses and containing information over which the
government does not claim NSC. This timeline is based entirely on information
that is now in the public domain, which includes information in documents released by this Inquiry, information in reports of the Security Intelligence Review
Committee and the Commission for Public Complaints against the RCMP and
public statements by government officials. In this ruling, I refer in summary form
to some of the types of information from that timeline that would form part of
the examination of RCMP witnesses.
B) ADVANTAGES OF PUBLIC RCMP TESTIMONY
In my view, there are four advantages to having the RCMP evidence that can be
heard publicly introduced in the public hearings of this Inquiry.
First, the information that is not subject to an NSC claim would provide an
interesting and informative description about the way the RCMP at the relevant
times was coping with national security investigations in the aftermath of 9/11.
In particular, that evidence would provide a description about the way one investigation, Project A-O Canada, was conducted. There would be evidence about
the creation of Project A-O Canada, its composition, the reporting structure
under which it operated, its relationship with other sections of the RCMP and
the way, in general terms at least, that it carried out a national security investigation. For example, the evidence, as I envision it, would describe how the
RCMP worked in an integrated fashion with other domestic agencies, including
CSIS, the Ontario Provincial Police, and the Ottawa Police Service. It would also
describe how Project A-O Canada worked cooperatively with American agencies – a cooperative approach that is an important reality in the post 9/11 national security landscape. The evidence would describe, in general terms at least,
the type of information that was provided to the American agencies, the importance of information sharing among agencies, and the policies of the RCMP
that applied to those activities. There would also be evidence about what role
the RCMP played in the Canadian efforts to have Mr. Arar returned from Syria.
�APPENDICES
While clearly some of the steps that were taken in the Project A-O Canada
investigation cannot be disclosed publicly, and many of the details or specifics
of the investigation also cannot be disclosed, a good deal already has been. I
believe that some of this information should be introduced into the public record
of this Inquiry.
Thus, I am satisfied that the information that can be introduced in the public hearings would provide a useful and informative story for the public. Further,
it would synthesize information already in the public domain in a more coherent and understandable fashion than is now the case. That in itself is a worthwhile exercise.
I do not accept the argument that because the description will not be complete it will necessarily be misleading. The public need not be misled into believing that they are hearing the entire story. I will make it clear at the outset that
there are constraints on what evidence may be called, and I will repeat that explanation periodically as the Inquiry proceeds. I am confident that with clear instructions from me the public will be able to fully appreciate that there are areas
of information, even some important ones, that can only be canvassed in
camera.
The second advantage of calling RCMP evidence in public is to give the parties, particularly Mr. Arar, an opportunity to ask questions about this information. It is worth remembering that Mr. Arar was granted standing for a reason.
Clearly, he has an interest in this Inquiry. He has been excluded from all of the
in camera evidence. Although Mr. Arar’s counsel have had an opportunity to
suggest questions to Commission counsel to be asked in camera, the value of
this opportunity is somewhat diluted because Mr. Arar’s counsel have not heard
any evidence before proposing questions. In my view, the opportunity to hear
the evidence, as I envision it, and to pose questions directly, adds significant
value to Mr. Arar’s participation as a party in this Inquiry. Maximizing the participation of parties is a legitimate objective when considering what evidence
should be called in the public hearings. Indeed, giving the opportunity to
Mr. Arar and other parties to question the RCMP witnesses directly, from these
parties’ unique perspectives, maximizes the chance of a fuller picture emerging
from this Inquiry.
The third advantage of calling RCMP evidence publicly relates to the Policy
Review. The government joined the Factual Inquiry and the Policy Review in
one mandate and appointed a single commissioner for both. The public has
been invited to participate in the policy review process. The information that I
envision being led through RCMP evidence will be helpful to those making submissions for the Policy Review. The descriptive type of information to which I
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referred above will provide a useful examination of a national security investigation and its place within the RCMP organization. This description will benefit
those in the public who are participating in the policy review process.
As an aside, I note that I have been asked by some intervenors to defer receiving public submissions in the policy review process until after publication
of my findings in the Factual Inquiry. To date, I have not accepted this suggestion. I am of the view that the decision whether a new review mechanism is required, and, if so, what form it should take, should not be greatly influenced by
what may or may not have gone wrong in a single investigation. More relevant
to the Policy Review, in my view, is the type of evidence that I envision can be
led from RCMP witnesses describing the RCMP organization for national security activities, the Project A-O Canada investigation, and its relationship with
other agencies, even if that description may have to be given in general terms
in some areas. Thus, I think that the public RCMP evidence will be of assistance
to the Policy Review part of my mandate.
The final advantage of calling RCMP evidence in public has to do with the
credibility of this Inquiry. The RCMP played a central role in the events that
gave rise to the Inquiry. If possible, this being a public inquiry, the public should
hear evidence about the RCMP’s involvement. It has been suggested that the
public can wait for the publication of my report to be informed about the RCMP
investigation activities, to the extent that this information can be made public at
that time. The difficulty with this suggestion is that it ignores the fact that public inquiries are intended to be conducted in public and there is an advantage
in doing so. This advantage was discussed by Justice Cory in Phillips v. Nova
Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97
at paragraphs 60-63.
I recently read portions of the United States report on the events of 9/11
(the 9/11 Commission Report). I was impressed by the open way in which the
Americans were able to conduct that Inquiry and the forthcoming way in which
they made public so much of the information leading up to those tragic events,
particularly when the information was critical of or embarrassing to individuals
or agencies. As I read the report, it struck me that the openness of the 9/11
Commission’s work fostered public confidence in the report. Indeed, in the long
term it will foster public confidence in the institutions it investigated.
The reason I refer to the 9/11 Commission Report is to make the point that
I believe that the public credibility of this Inquiry, and the government who
called it, will be enhanced if we work together to make public as much
information as possible during the public hearings.
�APPENDICES
B) UNFAIR PREJUDICE
I now turn to Mr. Bayne’s and the government’s arguments that calling RCMP
evidence – any RCMP evidence – publicly will unfairly prejudice members of
Project A-O Canada and the RCMP itself.
Mr. Bayne argues that, if the senior officer of Project A-O Canada is compelled to testify publicly, procedural fairness requires that he have an opportunity to tell the full story. In effect, Mr. Bayne is saying that, because NSC claims
prevent the senior officer from telling the full story in public, procedural fairness
requires that he not testify at all. I cannot accept this submission for the reasons
that follow.
First, I agree with Mr. Bayne that the officer in charge of Project A-O Canada
has, like Mr. Arar, a reputational interest in the outcome of this Inquiry which
requires that I reach my final conclusions through an “open and fair procedure
… with an opportunity for those affected by the decision to put forward their
views and evidence fully and have them considered by the decision-maker”:
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817
at paragraph 22. To my mind, however, all RCMP officers affected by the Inquiry
have had ample opportunity to be heard and present their views, including the
senior officer from Project A-O Canada. The RCMP and its officers have, through
their counsel, been privy to nearly every step of this Inquiry, both in camera and
in public. They have had full disclosure, and there have been many days of
hearings during which RCMP officers presented their views. In this sense, the
procedural rights of the RCMP and its officers have been protected, and will
continue to be protected. Should there be critical comment in my report, the
RCMP and individual officers will have had an opportunity to be heard and to
have been represented by counsel.
Mr. Bayne argues, though, that procedural fairness requires that his client
be allowed to tell the full story, not just to me, but to the public at large. I am
not satisfied that the content of procedural fairness can be stretched so far, especially when the ironic result of this argument would be that the public would
hear nothing at all from the witness. It must also be remembered that Baker,
supra at paragraph 22, stands for the proposition that the content of procedural
fairness is “eminently variable” and its content should be “decided in the specific context of each case.” The unusual nature of this Inquiry, in particular the
NSC concerns, calls for a degree of flexibility.
I have emphasized time and again the importance of the public aspect of
this Inquiry. I readily accept that the public hearing process should be conducted in a way that avoids unfairness to individuals or institutions, and avoids
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misleading the public about what in fact occurred. I think it is important to understand the process that I propose for calling RCMP evidence in public, as I
think that process should address the concerns of unfair prejudice expressed
by Mr. Bayne and government counsel.
To start, I will give a clear direction to the public and to the media that
they should not draw conclusions adverse to any witness or to the RCMP from
the evidence heard during the public hearings. I will point out that they have
not heard the in camera evidence and, as a result, they should refrain from
drawing conclusions at this point. I will also say that there may be in camera
evidence that would provide an explanation or context for certain actions, making it unfair to form a judgement on the public evidence alone.
I will also indicate that my report will be based on all of the evidence, in
camera and in public, and that the public should refrain from prematurely drawing conclusions critical to individuals and to the RCMP when they have not had
the opportunity to hear all of the evidence. I will repeat this direction as I consider necessary throughout the RCMP evidence.
This direction is relatively straightforward and one that I think the public
and the media are capable of understanding. Routinely, juries are asked to suspend judgement when they have heard only part of a case. My observation is
that they are able to do so. In legal proceedings, not all of the evidence can be
introduced at one time. It is not unusual to hear discussions in the media about
cases that are in progress that emphasize that the other side of the story has yet
to be heard – the full story has not yet emerged. I am confident that the public
will understand my directions to keep an open mind and not to draw premature conclusions.
Next, I expect Commission counsel to lead the publicly available evidence
in what I would describe as a primarily descriptive manner. Commission counsel will try to avoid questions to which the answers would require a witness to
refer to information over which the government claims NSC. This will mean that
in some areas Commission counsel will not be able to ask questions challenging the witness or suggesting something was not done in a proper fashion. In
making this comment, I am not suggesting one way or the other whether there
are such areas. I am simply indicating that Commission counsel’s examination
will be primarily directed at eliciting information. It will not be, to use
Mr. Bayne’s words, based on innuendo, insinuation, critical suggestions or other
types of questions which the witness is unable to answer and that could reflect
badly on the witness because of NSC claims. Thus, I do not foresee a problem
of unfair prejudice to witnesses or the RCMP arising during the examination by
Commission counsel.
�APPENDICES
The problem, if any, could arise in cross-examination. I am not suggesting
that it will. Because of the limits on what can be publicly disclosed, it will not
be possible for Mr. Arar’s counsel to fully cross-examine the RCMP witnesses as
they would in a normal case. The witnesses will not be able to answer some
questions if those questions are directed towards the propriety of certain actions or the reasons why certain decisions were taken. If the answers to those
questions require reference to information over which the government claims
NSC, it would be unfair to require witnesses to answer the questions if they are
unable to give a complete answer or in some cases the context within which an
action or a decision was taken.
In general terms, these are the restrictions that must be placed on cross-examination. This, however, does not mean that there should be no cross-examination. There may be cross-examination for the purpose of clarifying evidence
that has already been given. Moreover, there may be some areas in which a
cross-examination, probing the reasons why actions were taken and challenging the basis for doing or not doing certain things, can be answered without reference to information over which the government claims NSC. It is difficult for
me at this stage to foresee all of the possibilities.
I asked Mr. Bayne to give me examples of the types of issues that he considered would cause problems for examination in the public hearings. He gave
me several. I do not think it useful to go into detail with regard to each of those
examples. However, I will mention two to illustrate the point I am making.
The first relates to the reason why the Americans made the decision to deport Mr. Arar to Syria. This is obviously an important issue for me in this Inquiry.
The difficulty is that the answer, if there is sufficient evidence to give one, will
depend to a large extent on evidence heard in camera. It would not be productive and would be potentially unfair to a witness to explore this issue in
public. Thus, suggestions, insinuations or innuendos, again using Mr. Bayne’s
words, that one particular action or set of actions of the RCMP caused the United
States to deport Mr. Arar would not be useful and could contribute to the type
of problem Mr. Bayne raises.
Similarly, questions about the strength of the RCMP’s investigations and the
reasonableness of the bases for taking certain steps could lead to the same type
of difficulty.
That said, I am reluctant to block out in advance areas of cross-examination that are off-limits. I think that the general directions that I have given in this
ruling will suffice for the present time. During the course of the hearing, if problematic questions are asked, I will direct that they need not be answered and will
explain why. It seems to me, at this stage at least, that objections can be dealt
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with on a question by question basis rather than in the abstract. As the hearing
progresses, it may be possible to summarize lines of questions that cannot be
answered.
It is worth noting that the Commission is currently scheduled to hear the
evidence of a number of witnesses from the Department of Foreign Affairs. Some
of the evidence will be heard in public and some has been or will be heard in
camera because of NSC claims. To this point in time at least, there has been no
objection to hearing this evidence in public, although the public will hear only
some of the evidence. No one so far has raised issues of prejudice or misleading the public. What is contemplated is that, if concerns about prejudice or misleading arise from a particular question or line of questioning, objections will be
made. I will direct that the questions not be answered and be set aside to be
dealt with, as discussed in my ruling dated May 9, 2005. I am satisfied that the
same process that I envision for the Foreign Affairs evidence should be followed
for the RCMP evidence.
In summary, it is my view that it is premature to abandon the efforts to call
any RCMP evidence in the public hearings. The mandate to maximize public disclosure requires more. I am optimistic that if all counsel approach this matter in
a spirit of cooperation with a view to maximizing public disclosure, this Inquiry
should be able to hear some evidence from the RCMP without creating unfair
prejudice or misleading the public.
D) THE RCMP WITNESSES
This brings me to the question of who should testify. Commission counsel has
proposed calling two witnesses: the senior officer of Project A-O Canada and
Deputy Commissioner Garry Loeppky. There is good sense in this proposal.
In terms of the senior officer from Project A-O Canada, the public will benefit from hearing from someone directly involved in Project A-O Canada. That
witness will have direct knowledge of many of the events that will form part of
the public evidence. I agree with the government’s submission that it makes little sense to call a third party who would inform himself or herself about those
events in order to give evidence. I am confident that, if the introduction of the
evidence is managed as I have set out above, the senior officer from Project
A-O Canada can give evidence without being judged unfairly by the public or
in the media. I reject the suggestion that the officers should not be called because there is a danger that parties or intervenors in this Inquiry or others may,
outside the hearing room, attempt to unfairly “spin” the evidence. This is mere
speculation and I do not think that I should comment further on that prospect
at this point.
�APPENDICES
As for Deputy Commissioner Loeppky, I also think it makes sense to call
someone from RCMP headquarters who could speak with authority about the
RCMP organization for dealing with national security investigations, the background for Project A-O Canada and the way in which that project was managed
from the perspective of headquarters.
In conclusion, I am directing that the officer in charge of Project A-O
Canada and Deputy Commissioner Garry Loeppky be called as witnesses in the
public hearings for this Inquiry.
May 12, 2005
Justice Dennis R. O’Connor
Commissioner
APPENDIX 6(K)
Ruling on Parliamentary Privilege
Counsel for Mr. Arar seeks to introduce into evidence extracts of Hansard containing answers given during Question Period in the House of Commons by
Ministers of the government who will be called to testify at the Inquiry. They also
seek to introduce minutes of parliamentary committee proceedings at which
one or more of the Ministers participated.
For the purposes of this Ruling, it is not necessary to distinguish between
the extracts in Hansard and the minutes of the committee meetings. Hereafter,
for simplicity, I will refer to the information sought to be introduced into evidence as statements made in Parliament.
The House of Commons (the “House”) opposes the introduction of this material on the basis of parliamentary privilege protecting freedom of speech in
Parliament. In written submissions, the Office of the Law Clerk and
Parliamentary Counsel describes the privilege as follows:
“Over the centuries this privilege has come to be accepted to mean that what is said
in the House of Commons or its Committees cannot be referred to or used outside
of the House of Commons in any way that may require Members to reflect upon,
comment upon or justify anything that they have said in the House of Commons or
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its proceedings. As well, the words said in proceedings cannot be used as evidence
that may itself be subject to submissions, debate, measuring or interpretation.”
The House argues that I should not admit evidence of statements made in
Parliament if the result would be that this Inquiry would question or assess the
accuracy of those statements and thereby impugn the credibility of the speaker.
The rationale underlying this privilege is that Members must be able to speak
freely in Parliament without concern that what they say may be used against
them in legal or other proceedings outside Parliament to attack their credibility.
In response, Mr. Arar’s counsel raises two arguments. First, he argues that
parliamentary privilege protecting freedom of speech in Parliament is limited to
providing immunity from criminal prosecution or civil liability. The scope of the
privilege does not extend, as the House contends, to protecting statements made
in Parliament from impeachment in proceedings outside Parliament. In the alternative, he submits that the purpose for which he seeks to introduce the parliamentary statements is to show the history of what was said and not to impeach
or question the accuracy of those statements or to challenge the credibility of
the Ministers who made the statements.
For the reasons that follow, I am not prepared to admit the evidence of the
parliamentary proceedings at this stage of the Inquiry. At the outset, I want to
emphasize that excluding this evidence will not impair the ability of this Inquiry
to investigate the matters referred to in the mandate. The matters covered by the
parliamentary statements in issue will be fully canvassed in the evidence of the
Ministers who made the statements, and in the evidence of government officials
who were involved in the relevant activities. There is a significant amount of evidence dealing with these matters. I am satisfied that I will be able to properly
assess the credibility of the Ministers and the officials involved without the need
to refer to what was said in Parliament or its committees.
Let me now turn to the reasons for excluding the statements. I do not accept the argument that the parliamentary privilege protecting free speech is limited to immunity from criminal or civil action. In my view, the privilege extends
as well to protect parliamentary speech from attack in legal or other proceedings that are separate from those conducted in Parliament.
In this regard, I agree with the decision of Tremblay-Lamer J. in Gagliano
v. House of Commons, [2005] F.C. 576 at paragraphs 66-97. I accept, for sake of
argument, that the parliamentary free speech privilege, with the scope I have referred to above, has not been authoritatively established in Canada. I am satisfied, however, that the doctrine of necessity requires that statements made in
Parliament must be immune from challenge in other tribunals. It is necessary that
�APPENDICES
Members of Parliament be free to express themselves in parliamentary debate
without concern that some other tribunal – in this case a public inquiry – will
at a later date assess or call into question the accuracy or credibility of statements
they made in Parliament. Parliament has its own procedures and powers for addressing challenges to parliamentary statements. In this regard, it is the master
of its own house. In my view, the need to ensure that Members are able to express positions and ideas in Parliament free from outside interference is so
closely and directly connected to the proper functioning of Parliament that it is
necessary to extend the parliamentary privilege in the manner I have described.
As for the second point made by Mr. Arar’s counsel, I have difficulty understanding what evidentiary value the statements sought to be introduced
would have other than to show that those statements were inaccurate. There will
be a significant body of evidence dealing with the same matters as those referred to in the parliamentary statements. It has not been suggested that the parliamentary statements sought to be introduced contain facts that could only be
established through the introduction of those statements. If the statements are
consistent with the other evidence, there would be no need to admit them into
evidence. The difficulty arises because of the risk that the statements will be
contradicted by or inconsistent with other evidence introduced in the Inquiry.
I recognize that Mr. Arar’s counsel has indicated that he will not seek to
challenge the statements by way of cross-examination. In this way, he seeks to
distinguish this situation from that in Gagliano, supra. However, impeachment
of statements can result from more than cross-examination. The introduction of
conflicting evidence would inevitably lead to questioning or assessing the credibility of parliamentary statements, particularly if they had been entered into evidence in the same proceeding. Submissions based on conflicting evidence, and
indeed findings in my report, that are inconsistent with the parliamentary statements would be ways in which those statements could be impeached or questioned by this Inquiry. In my view, the scope of the privilege protecting free
speech in Parliament includes challenges to parliamentary statements by means
other than cross-examination.
Mr. Arar’s counsel points out that, at this stage, we do not know if there will
be evidence that conflicts with the parliamentary statements. I agree. However,
I think it is prudent to conduct this Inquiry so as to avoid the unacceptable outcome of breaching the privilege should such evidence be introduced. The way
to do this, in my view, is to not admit the statements at this time. There is no
need to do so. As I pointed out, Mr. Arar’s counsel does not intend to cross-examine on these statements for credibility, but only for clarity, if necessary. When
all of the evidence has been called, counsel for Mr. Arar may apply, if he
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chooses, to have the parliamentary statements admitted. I would be inclined to
admit them if there was no evidence conflicting with those statements, and if it
can be shown that there is some utility to doing so.
Given my conclusion on the scope of the parliamentary privilege, I do not
find it necessary to address the House of Commons alternative argument that a
Member of Parliament is not at liberty to give evidence of statements made in
the House absent permission being granted by the House.
May 30, 2005
Justice Dennis R. O’Connor
Commissioner
APPENDIX 6(L)
Directions re: Closing Submissions
The schedule to make closing submissions is revised as set out below. Those
making submissions are divided into two groups: those who wish to make oral
submissions and those making written submissions only.
ORAL SUBMISSIONS
1.
2.
3.
Any party making oral submissions in public shall file written submissions
with the Commission by 5 pm on Saturday, September 10th. Those submissions shall be served on other parties making oral submissions by the same
time and upon parties making written submissions only by 5 pm on
September 12th.
The government shall file its in camera submissions with the Commission
by 5 pm on Saturday, September 10th.
Public oral submissions will be heard on September 12th and 13th as follows:
September 12: 10 am to 1 pm – Arar
2 pm to 5 pm – Government
September 13: 10 am to 1 pm – Government
2 pm to 4 pm – Intervenors
4 pm to 5 pm – Ottawa Police, OPP
�APPENDICES
4.
In camera oral submissions:
September 14: 10 am to 1 pm – Government
2 pm to 5 pm – Government
September 15: 10 am to 1 pm – Overflow
WRITTEN SUBMISSIONS ONLY
1.
2.
3.
4.
This direction assumes that the parties not mentioned above will make only
written submissions and that each submissions may in part refer to NSC
material. Those submissions shall be filed with the Commission and served
on the Government and parties with NSC clearances by 5 pm on
September 19th.
Parties making written submissions only shall indicate, as fully as possible,
what parts of those submissions may in their view be made public. The
Government shall review and redact those submissions for purposes of
making NSC claims. The Government shall provide the redacted submissions to the Commission on or before October 3rd.
The Commission will forward the submissions redacted for NSC claims to
parties who do not have NSC clearances by October 5th.
All parties may file written responses to the submissions of others on or before October 14th.
August 10, 2005
Justice Dennis R. O’Connor
Commissioner
APPENDIX 6(M)
Ruling on Motion to File Chronologies
On August 31, 2005, Counsel, on behalf of Messrs. Abdullah Almalki, Ahmad
El Maati and Muayyed Nureddin brought a motion to file chronologies of events
relating to their detentions in Syria. Counsel asked that those chronologies be
made part of the public record of this Inquiry.
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FACTUAL BACKGROUND: VOLUME II
Importantly, in making this request Counsel does not seek to have the
chronologies entered as proof of the truth of the facts set out therein nor did they
ask that these documents be used to establish “complicity or pattern”. Thus the
chronologies would not be factual evidence. Rather, Counsel seek to have the
chronologies entered for three purposes: as background or contextual information, as information that would be relevant to the reputational interest of the
three individuals, and as information that might assist me in making recommendations to the government, either with respect to the specific cases of the
three individuals or with respect to a review mechanism for the RCMP’s national
security activities generally.
In an earlier ruling, I appointed Mr. Stephen Toope as a Fact Finder. I
asked Mr. Toope to interview Messrs. Almalki, El Maati and Nureddin as part of
a fact finding exercise in respect of Mr. Arar’s treatment in Syria. Clearly, it
would be helpful to Mr. Toope to have the chronologies and I have forwarded
them to him.
The question remains whether the chronologies should form part of the
record of this Inquiry. I think that they should. They were referred to during
the motion and, at a minimum, they will be used by Mr. Toope. Not uncommonly, I have marked as exhibits documents for reference purposes only and
not because they were intended to prove the truth of their contents.
Accordingly, I direct the three chronologies with the accompanying documents be marked as the next three public exhibits. I reiterate, however, that
they are not entered as proof of the facts set out in the chronologies. I leave to
my report what, if any, use beyond Mr. Toope’s fact finding process, will be
made of these chronologies. However, it will be open to parties and intervenors, if they choose, to refer to the chronologies in their submissions.
October 25, 2005
Justice Dennis R. O’Connor
Commissioner
�APPENDICES
APPENDIX 6(N)
Ruling on Motion to Further Redact
Written Submissions of Certain Individuals
On August 10, 2005, I issued a Directive setting out the schedule for closing
submissions, providing parties and interveners the opportunity of making oral
or written submissions. I also set out the procedure that would be followed for
NSC claims by the Government and the manner in which written submissions
would be then distributed to parties and interveners for the purpose of written
reply submissions.
The closing written submission procedure was further modified as outlined
in Commission Counsel’s letter to concerned parties dated September 30, 2005.
The Commission has now received the written closing submissions of certain individuals who participated in this Inquiry and the OPP. The submissions
have been redacted, in some cases substantially, because of the process that
has been adopted in this Inquiry. A good deal of evidence was heard in camera and may not be referred to in public submissions.
The parties making submissions, who had access to the in camera evidence, have made submissions based on both in camera evidence and public
evidence. I have the benefit of their full submissions and will consider all of
their submissions in preparing my report.
The submissions have been redacted to remove information over which
the Government claims National Security Confidentiality, evidence heard in camera, and information or submissions which the parties making them consider to
be unfair because there can only be partial disclosure to the public.
Mr. Arar’s counsel also had an opportunity to review and comment on the
independent party submissions and seek further redactions on the basis of concerns for fairness to Mr. Arar. Mr. Arar’s counsel quite properly point out that certain submissions, because of the redactions, invite speculation about the content
of in camera evidence in a manner that is unfair to Mr. Arar because he has not
had access to the evidence and, therefore, cannot respond.
This Inquiry has been conducted with public and in camera hearings. It is
inevitable that those, like Mr. Arar, who only have had access to the public
record will be placed at some disadvantage. Mr. Arar does not have access to
in camera evidence and will not be able to adequately respond to any argument
that is based on a party’s assessment or interpretation of that evidence. However,
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FACTUAL BACKGROUND: VOLUME II
I do have access to all of the evidence and I will base my report on the entirety
of that evidence.
It is important to keep in mind that the submissions or statements to which
Mr. Arar’s counsel object are in essence submissions and nothing more. They
should not be treated as statements of fact. They are not evidence. A reader
must not assume that the submissions made by those parties will necessarily be
accepted. The in camera evidence may not support the submissions at all. By
definition, a submission exposes an advocate’s view of the case and nothing
more.
There is no perfect solution to the difficulty encountered by Mr. Arar’s counsel in not being able to respond to some of the submissions. However, given that
these are only submissions, and that the fundamental mandate of this public inquiry is to review and report on the conduct of Canadian Officials, I think that,
on balance, the submitting parties should be allowed to assert their positions
publicly. The fact that Mr. Arar’s counsel cannot fully respond is an unfortunate
result of the process in this Inquiry. In the end, I am satisfied that I will be able
to address all of the arguments in my report.
Mr. Arar’s counsel also argue that in a few instances assertions are made in
the submissions that are unsupported on the public record and which give rise
to inferences that could harm Mr. Arar’s reputational interests. I note, however,
that the instances that could be harmful to Mr. Arar’s reputation are only indirect, at best. Moreover, there is now a substantial body of evidence on the public record that has gone a great distance to addressing Mr. Arar’s reputational
concerns. Further, I repeat that the assertions objected to are also contained in
submissions, not evidence. I caution readers, again, that they should not assume
that the in camera evidence referred to in the submissions necessarily supports
the submissions being made. In my report I will fairly address the evidence as
it relates to Mr. Arar. In these circumstances, I do not think that the passages objected to by Mr. Arar’s counsel that may cause Mr. Arar any reputational damage need be further redacted.
In the result, I am directing that the submissions be released without the
redactions sought by Mr. Arar’s counsel. Reply submissions, if any, shall be filed
by 3:00 pm on Wednesday, November 2, 2005.
October 25, 2005
Justice Dennis R. O’Connor
Commissioner
�APPENDICES
APPENDIX 7
Report of Professor Stephen J. Toope,
Fact Finder, October 14, 2005
Contents
Mandate of the Fact Finder
790
Process
Review of Written Materials
Interviews
In Camera Testimony and Unredacted Documents
790
790
791
792
What Constitutes “Torture”?
792
Findings of Fact
Assessing Credibility
Torture in Syria
795
795
805
Effects of Torture
Physical Effects
Psychological Effects
Family and Community Effects
Economic Effects
812
812
813
815
816
Conclusion and Summary of Findings
818
Appendix A
Bibliography
818
818
Appendix B
Interviews
819
819
789
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FACTUAL BACKGROUND: VOLUME II
MANDATE OF THE FACT FINDER
On 27 July 2005, Mr. Justice Dennis O’Connor, Commissioner of Inquiry into the
Actions of Canadian Officials in Relation to Maher Arar, issued terms of reference
appointing me as Fact Finder for the Commission. My mandate was set out in
precise terms:
Pursuant to the Commission’s “Ruling on Process and Procedural Issues” of May 12,
2005, I hereby appoint Prof. Stephen J. Toope as a fact finder for the Commission,
with the following terms of reference:
To investigate and report to the Commission on Mr. Maher Arar’s treatment
during his detention in Jordan and Syria and its effects upon him and his family.
My role is not to reach factual conclusions on the role of Canadian officials
in the saga of Maher Arar. Rather, I am to determine with as much specificity
as possible what happened to Mr. Arar in Jordan and Syria and to assess the effects of those events and experiences upon Mr. Arar and his family. Given the
short time that Mr. Arar spent in Jordan, and his very limited interactions with
Jordanian security officials, I determined at the outset of my inquiries that the
Jordanian leg of his difficult travels would not be material to an assessment of
his experiences or their effects. In the course of my investigations it became
clear that to assess effects it was also necessary to consider what happened to
Mr. Arar upon his return to Canada, and in the months and years following his
return. These events and experiences are the direct consequence of what happened in Syria, and so fall within my terms of reference. In other words, it is
not possible to consider “effects” without considering the interplay of the raw
events in Syria with the reactions to Mr. Arar upon his return and the experience
of the Commission of Inquiry itself.
PROCESS
Review of Written Materials
I began my investigations by reviewing publicly available reports detailing the
human rights situation in Syria. In considering the materials on Syria, I focussed
upon admittedly rather sketchy descriptions of detention facilities and reports of
interrogation techniques employed by the Syrian security services. I paid particular attention to any references to the Far Falestin detention centre, where
Mr. Arar had reportedly been held for most of his time in Syria. The reports consulted, which were authored by both governmental and non-governmental entities, are listed in Appendix A to this report.
�APPENDICES
I also requested and received from Dr. Donald Payne, Board Member of the
Canadian Centre for Victims of Torture and expert witness before the Arar
Inquiry, case reports of four patients he had worked with in the early-to-mid1990s, who claimed to have been tortured while in Syrian detention. I determined that these reports might help to establish patterns that persisted over a
period of time. These case notes were, of course, private, but there was no
nominate information in the reports; nor were any personal details provided
that might allow for the identification of the patients.
I then reviewed all of the relevant public testimony before the Arar
Commission that related to Mr. Arar’s conditions of detention and his experiences in interrogation. In particular, I focussed upon the expert testimony of
Professor Peter Burns, Former Chair of the United Nations Committee Against
Torture; Dr. Donald Payne, who testified on the physical and psychological effects of torture; and Prof. Richard Ofshe, an expert on the classification of true
and false confessions.
Interviews
With this background information in mind, I then interviewed Mr. Abdullah
Almalki, Mr. Ahmad Abou El Maati and Mr. Muayyed Nureddin, each of whom
described in vivid detail their experiences in Syrian detention facilities, and in
particular in Far Falestin. The testimony of these men was not taken under oath,
but my purpose was to compare their descriptions with the information that I
had gleaned from the case reports of Dr. Payne and the publicly available reports concerning the conditions of detention at Far Falestin and the interrogation “techniques” of the Syrian security forces. I would later have to assess the
credibility of this testimony, and then relate it to what I would be told by
Mr. Arar himself. In gathering the information from Messrs. Almalki, El Maati and
Nureddin, I was careful to allow them to tell their stories in an unfiltered way,
never posing leading questions. I wanted to let as much detail come forward
as possible, detail that I would later use to compare with the testimony of Mr.
Arar.
I also interviewed people who had worked closely with Mr. Arar since his
return to Canada from Syria, and health professionals with whom Mr. Arar had
consulted. In these interviews, I focussed primarily upon the effects of Mr. Arar’s
experiences on his physical and psychological health, on his social and familial
relationships, and on his economic prospects. A complete list of interviews is
found in Appendix B.
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FACTUAL BACKGROUND: VOLUME II
Finally, I interviewed Dr. Monia Mazigh, Mr. Arar’s wife, and conducted
two long in-person interviews with Mr. Arar, and one short telephone interview.
In total, I spent almost 10 hours with Mr. Arar.
In Camera Testimony and Unredacted Documents
The last step in my investigations was to review some in-camera testimony and
a small selection of unredacted documents that were of direct relevance to my
assessment of Mr. Arar’s experiences in Syria. I chose the testimony and documents to examine after consulting with the Commissioner and with Commission
counsel. I was not refused access to any material that I requested to see. This
included the Canadian government’s annual reviews of the legal, political and
penal situation in Syria, notes taken by the Canadian consular officer, Mr. Leo
Martel, after his consular visits with Mr. Arar (and some variations of these notes
communicated to other Canadian government officials), and protected email
communications amongst Canadian government officials during and after
Mr. Arar’s detention. It is important to state that there was nothing in the in-camera testimony or the unredacted documents that caused me to materially modify my assessment of the facts surrounding Mr. Arar’s detention. I discovered no
“secret” material that caused me to re-evaluate the information that had been
provided in public sources.
WHAT CONSTITUTES “TORTURE”?
Even while Mr. Arar was in detention in Syria, reports circulated that he was
being subjected to torture. A report of the Syrian Human Rights Committee, an
NGO based in London, provided certain details that Mr. Arar himself later contradicted and clarified. In his first public statement on the conditions of his detention, delivered on November 4, 2003, a month after his return to Canada,
Mr. Arar described his treatment in the context of torture. He stated:
The next day I was taken upstairs again. The beating started that day and was very
intense for a week, and then less intense for another week. That second and the
third days were the worst. I could hear other prisoners being tortured, and screaming and screaming. Interrogations are carried out in different rooms.
One tactic they use is to question prisoners for two hours, and then put them
in a waiting room, so they can hear the others screaming, and then bring them back
to continue the interrogation.
The cable is a black electrical cable, about two inches thick. They hit me with
it everywhere on my body. They mostly aimed for my palms, but sometimes missed
and hit my wrists they were sore and red for three weeks. They also struck me on
�APPENDICES
my hips, and lower back. Interrogators constantly threatened me with the metal
chair, tire and electric shocks.
The tire is used to restrain prisoners while they torture them with beating on
the sole of their feet. I guess I was lucky, because they put me in the tire, but only
as a threat. I was not beaten while in tire.
They used the cable on the second and third day, and after that mostly beat
me with their hands, hitting me in the stomach and on the back of my neck, and
slapping me on the face. Where they hit me with the cables, my skin turned blue
for two or three weeks, but there was no bleeding. At the end of the day they told
me tomorrow would be worse. So I could not sleep.
Then on the third day, the interrogation lasted about eighteen hours.
From the earliest descriptions of his ordeal, to the first public statement,
and in all the subsequent representations of his counsel before the Commission,
Mr. Arar has asserted that he was tortured. It is therefore necessary for me to
enter the grim realms of defining what is meant by the term torture.
In assessing what constitutes torture, I am assisted by well-established international law standards and by clear testimony before the Commission. In the
United Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment of 1984 [hereinafter Convention Against
Torture], “torture” is defined in Article 1 as:
…any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has
committed or is suspected of having committed, or intimidating or coercing him or
a third person, or for any reason based on discrimination of any kind, when such
pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
The Convention Against Torture is ratified by 140 states, including Canada
(in 1985) and the Syrian Arab Republic (in 2004).1 The definition of torture contained in the Convention is widely supported, and can serve as the appropriate
basis for assessing whether or not Mr. Arar was indeed subjected to torture.
1
See the website of the UN High Commissioner for Human Rights: http://www.ohchr.org/
english/countries/ratification/9.htm
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FACTUAL BACKGROUND: VOLUME II
The definition in the Convention Against Torture contains five elements:
(1) the intentional (2) infliction of severe pain or suffering, (3) whether mental
or physical, (4) for a range of purposes (5) when inflicted by, or at the instigation of, or with the consent or acquiescence of a public official or a person acting in an official capacity.
In his expert testimony before the Commission, Professor Peter Burns reviewed the experience of the Committee Against Torture, the treaty body set up
to hear state reports and individual complaints under the Convention Against
Torture. Professor Burns is a former Chair of the Committee. He emphasised
that the Committee has paid much attention to the severity of the pain or suffering that is necessary to constitute torture and to the purposive requirement
of the definition. When asked directly by counsel for Mr. Arar whether being
“beaten repeatedly with an electrical cord during the course of interrogations that
sometimes lasted as long as 18 hours” would meet the Committee’s requirements for severity, Professor Burns replied: “If that was established, in my view
that would certainly be torture.” (Burns testimony, pp. 5920-5921)
The questioning of Prof. Burns then turned to the conditions of detention
described by Mr. Arar. Mr. Arar’s lawyer described the cell in which Mr. Arar
said that he was held for over 10 months, and was asked if these conditions of
detention might in and of themselves constitute severe pain or suffering as understood by the Committee Against Torture. Prof. Burns answered:
Assuming that that was established, and assuming the medical evidence supported
it, I would regard it as torture, again subject to the purposive aspect of the definition. (Burns testimony, p. 5922)
On the “purposive” requirement of the definition, Prof. Burns went on to
explain that to constitute torture, it would not be enough that conditions of detention might be appalling or that Syrian officials were conducting interrogations and applying severe force. The infliction of severe pain or suffering would
have to be for a purpose, such as the extraction of a confession, or another purpose referred to in Article 1 of the Convention.
In determining whether or not Mr. Arar was tortured, I looked for each of
the elements contained in the definition of the Convention Against Torture. I
was especially attentive to the issues of severity of pain and suffering, and purpose. The other three elements of the definition are more straightforward, with
the possible exception of intention. Although intention is often considered a difficult problem in the imposition of criminal liability, it is less problematic in the
definition of torture for two reasons. First, the types of force used in torture typ-
�APPENDICES
ically reveal intention. One does not apply electric shocks without intending to
produce pain and suffering. Second, if one can discern a purpose in the application of force, the intention to harm is relatively easy to impute.
FINDINGS OF FACT
Assessing Credibility
In finding facts concerning Mr. Arar’s experiences in Syria, I must conclude as
to the credibility of his testimony, which was not taken under oath. Given the
very nature of detention and interrogation, much of the detail concerning what
happened to Mr. Arar in Jordan and Syria cannot be verified by eyewitness observers. None of the jailers or interrogators was available for me to interview.
To assess credibility, I have obviously had to judge the person sitting before me
and telling me his story. I have listened to Mr. Arar attentively and watched him
closely. I have tried to compare his demeanour and his reactions to the scores
of other torture victims and detainees I have interviewed on human rights monitoring missions in numerous countries, and in testimony before me at the United
Nations Working Group on Enforced or Involuntary Disappearances where torture victims have also appeared. I have also undertaken a careful comparison
of public sources about detention conditions and interrogation practices in Syria
and the testimony before me. Finally, I have cross-referenced the detailed descriptions provided to me by the four men I interviewed who discussed their detention and treatment in Far Falestin. In undertaking that cross-referencing, I
have also implicitly had to assess the credibility of the descriptions offered by
Messrs. Almalki, El Maati and Nureddin. To do this, I have repeated the same
practices used to judge the reliability of Mr. Arar.
I must emphasise that in assessing credibility, I am limiting myself to the parameters of my mandate: I am judging only whether or not the stories told to
me concerning the conditions of detention in Syria and the practices of Syrian
security services are believable and likely to be true. Within these parameters,
I am confident in concluding that the descriptions offered by Messrs. Almalki,
El Maati and Nureddin were convincing.
Mr. El Maati was held in Syrian detention from November 2001 to January
25, 2002, when he was transferred to Egyptian custody. During his first interrogation he was mocked and insulted. In what may seem surprising at first
blush, insults were highlighted by Mr. El Maati as a particularly troubling feature
of his first interrogation, even though he was also punched and kicked. This is
a pattern repeated by all the men I interviewed who had been held in Far
Falestin. Each described in vivid detail the dehumanizing effect of the “dirty”
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FACTUAL BACKGROUND: VOLUME II
or “nasty” words used by the interrogators. None of them even wanted to repeat
these words. Mr. Almalki, who was detained from 3 May 2002 to 29 February
2004, explained the psychological effect most directly: he suggested that when
the dirty words were used, he realized that he was going to be treated very
badly. It was a shock delivered to his whole system.
The words also worked harm and created fear at a deep cultural level. The
men I interviewed were all committed Muslims. They found the words deeply
offensive from a religious perspective, especially when the words were used in
relation to mothers, sisters or wives, and linked to threats. It must also be said
that the use of “dirty” words seems to have confirmed cultural stereotypes. Two
of the men I interviewed emphasized that the interrogators at Far Falestin were
not traditional Sunni Moslems, but Alawites (a favoured group under the Baathist
regime). There was a high level of distrust, even disgust that I sensed in their
descriptions of the interrogators, rooted not only in suffering but in cultural
incompatibility.
Mr. El Maati also offered a lengthy and highly specific description of the cell
in which he was held. He remembered cell Number 5 with horror, describing
it as a “hell hole”. The cell was downstairs from the interrogation rooms, in a
basement. It was approximately “190 cms high by 180 cms long by 90 cms
wide”. A small window in the door was blocked. There was a small hole in
the ceiling covered by bars. Mr. El Maati found two blankets that smelled of
urine. The cell was freezing cold, as it was winter and there was no heating.
This description of a cell at Far Falestin was mirrored almost exactly by
Mr. Almalki. His cell was also downstairs from the interrogation rooms. It was
small and dark, approximately 198 cms high by 185 cms long by 86 cms wide.
Mr. Almalki was quite precise about the dimensions; he had decided to make a
special effort to remember the conditions of the cell with care. For example, he
remembered that the width was the length of his arm, plus the diameter of four
fingers. He also described a hole in the ceiling some 25 by 15 cms, and mentioned that cats would sometimes urinate through the hole. The side and back
walls were slick with condensation, and lice and cockroaches infested the cell.
Large rats would sometimes squeeze under the cell door, presumably to look for
food. On one very rare occasion when he was allowed to go outside for
roughly 20 minutes, in July of 2002, Mr. Almalki took his blankets with him to
air them. In the light he could see yellow and black growth on the blankets and
“insulator” (two pieces of cloth stitched together to place under his blankets),
that he had not seen in the dark cell. In winter the cell was freezing: “I used
one of my underwears to put on my head just to warm my ears, I used socks
on my hands…and all the clothes I have I was basically wearing.” In summer
�APPENDICES
it was stifling hot. Mr. Almalki told me that his interrogators referred to the cell
as “the grave”.
Mr. Nureddin was detained from 11 December 2003 to 14 January 2004.
He struck me as a simple man: his descriptions were unembellished and visceral.
He described his fear at being shown in an interrogation room a few links of
chain on a wall and an open chair frame which he immediately deduced were
used for torture. Many details of his testimony correlated closely to descriptions offered by Messrs. Almalki and El Maati. For example, in one interrogation session two days after his arrest, Mr. Nureddin described how he was
stripped to his underwear and had cold water poured over him while lying on
his stomach under a fan. He was asked to raise his feet. He then saw a “black
cable” which was used to beat him on the soles of his feet. This cable – which
figures prominently in all the descriptions of beatings that I heard – was brought
down on his feet some fifteen times. Then Mr. Nureddin was told to stand up.
Cold water was poured on his feet to ease the searing pain, and he was ordered
to run in one place before the procedure was repeated two more times.
Mr. Almalki described a similar pattern with even greater intensity. In his
first interrogation session, on the night of his detention, Mr. Almalki was also
partially stripped and told to lie on his stomach with his legs in the air. He was
beaten with a black cable, in his case all over his body, but especially on the
soles of his feet. Cold water was then poured on his feet and he was ordered
to run in one place. He explained that this procedure actually restored feeling
to the soles of the feet, and allowed the interrogators to begin the process again.
Mr. El Maati was also treated to a stripping down to his underwear, pouring of cold water over him, and intense beatings with what he described as a
“black electric cable roughly an inch thick”.
In the case of all three men, it is important to specify that they were being
beaten explicitly to gain information and a confession to involvement in a terrorist organization or plot. Mr. El Maati was asked about a map of a government
complex in Ottawa that he knew had been discovered in the truck that he drove
for a haulage company. He was specifically asked to “tell us the story of the
map.” Mr. Nureddin was asked if he belonged to “Ansari Islam”. Mr. Almalki
was asked “why everyone is looking for him” and was told to admit that he was
“the right hand of Osama bin Laden.” At one point well into his detention, an
interrogator told Mr. Almalki that he would be tortured for 3 days straight, that
he would “not get out until you need to be hospitalized.” Or Mr. Almalki could
confess to being a member of Al Qaeda and he might be released.
In each case, the men ultimately signed confessions or wrote out what they
say they thought that interrogators wanted to read. Mr. El Maati said that after
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FACTUAL BACKGROUND: VOLUME II
three days of beatings he just could not resist any longer. Mr. Nureddin testified that he signed three documents that he had not read; he did so after hearing the screams of other torture victims, including women – which he found
particularly upsetting. Mr. Almalki told me that after severe beatings he “was
prepared to say more or less anything about myself”, but that it was “another
thing to implicate someone else I did not know or did not know to have done
anything”.
In his testimony before the Commission of Inquiry, Professor Richard Ofshe,
a leading expert on the classification of true and false confessions from the
University of California, Berkeley, emphasised that the use of physical force –
he was questioned in the context of “torture” – is a “powerful motivator” for confessions (Ofshe testimony, pp. 5982-5983). He went on:
If the individual has already been convinced that the interrogator is immovable,
then it makes no sense to resist the torture. The only thing in front of them is to
minimize the torture. That is the only choice they’ve got. And they can do that by
complying. …And if you can succeed in cutting it [the torture] off by giving a false
confession, that can start to look like a very attractive alternative… .(Ofshe testimony, p. 5983)
This testimony is relevant because it helps to explain the psychological state
of the men I interviewed who had been interrogated in Far Falestine. Each told
me that at some point they concluded that they had to tell the interrogators
whatever they wanted to hear. Prof. Ofshe explains why the truth or falsity of
a statement may come to mean nothing to a detainee in the face of continuing
physical violence.
Dr. Donald Payne explained the psychological effects of torture slightly differently, but the consequences he describes align with those suggested by
Prof. Ofshe:
[T]orture has usually been…viewed as pain and suffering that is inflicted on somebody and people respond to reduce the pain, whereas seeing many individuals you
come to realize it is really destroying the will, humanity, spirit of the individual so
that they lose control of themselves and are willing to give up control of themselves
to their torturers. (Payne testimony, p. 6052)
This description is consonant with the statements of the men I interviewed
who often spoke of their “humiliation” or of attacks on their “dignity”. But, like
Prof. Ofshe’s account, it helps to explain why one might “say anything” to stop
�APPENDICES
physical abuse: one may simply give up control, including control over the truth
about oneself.
Of all the testimony I heard, Mr. Almalki’s revealed the most intense pain
and suffering. It is important to recount aspects of this testimony because it is
the closest in certain descriptive elements to what I later heard from Mr. Arar.
It is also important because Mr. Arar and Mr. Almalki overlapped in their
respective periods of detention; the conditions they describe are closely
interconnected.
When Mr. Almalki first arrived at Far Falestin, he was asked routine questions, and he was treated “decently”. Indeed, he thought that he could still convince the Syrian authorities with whom he had to deal that his arrest was “a
mistake.” He was even told that he might be out in a “couple [of] hours.” He
was then blindfolded and taken to another room, where he was asked whether
he knew certain people. He remained blindfolded for roughly two days. After
being asked about one person who Mr. Almalki said that he did not know, suddenly he received a hard slap across the face. Mr. Almalki described how he
felt “transferred…to another world”:
I still remember that slap as if it’s happening right now, and I got, just so vivid in
my memory…because I felt just that he, in humiliation that they sacked my dignity,
they crushed my, you know, my personality, just, it felt so bad when they slapped
me…
Thus began an interrogation session that continued for between seven and
eight hours. That was when he was asked to strip to his underwear and to lie
on his stomach on the floor. The “whole point [was] to have my legs at 90 degrees”. They started “hammering my soles. Basically it felt like lava just being
poured over.” In later session when he was not blindfolded, Mr. Almalki saw
that the interrogators used a black cable that “looks something like a, the alternator belt in the car.” He also saw black hoses “but they didn’t use them too
much because they said this is not as painful as the cables”. Mr. Almalki specified that there were different styles of the cables used at different times, of “different thicknesses, different length, different ways of putting it together and
taping it and twisting it on itself.”
After enduring beatings on his soles for some time, Mr. Almalki felt he could
bear no more, and he flipped over. The five or six interrogators were angry, so
they began kicking Mr. Almalki, and beating him all over with the cable. They
stood on his back to restrain him. After more lashes on Mr. Almalki’s soles, the
interrogators used the cooling method (cold water and running in place)
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described previously. The interrogation only stopped when Mr. Almalki lost
consciousness, and woke up with a doctor checking his blood pressure.
Mr. Almalki was then taken to the dark cell described above. He later
learned that he was in cell number three; he was called “Number Three” for the
entire period of his detention. On this first day the cell was a refuge:
I just felt that I don’t want to go through the hell again so if they would just keep
the door shut… . Well, few minutes in there I just felt like crying, I just cried, I, I
just didn’t know what to do.
Over the course of a few months, the cell would take on an overwhelmingly negative power, and Mr. Almalki would almost hope to be taken for interrogations (which by this time were much less violent) to escape from the
conditions of his solitary detention.
Mr. Almalki also described in detail the bathroom routine for prisoners in
the basement cells. The two cockroach infested washrooms were made available to prisoners one-by-one three times a day. A bottle was in his cell for urination. At first Mr. Almalki was allowed exactly two minutes for each bathroom
visit. This limit was enforced rigidly, and forcefully. Mr. Almalki complained that
two minutes was not always enough for bodily functions, and that he would
have to stop eating. One guard began to allow Mr. Almalki an extra minute in
the bathroom. Even this was not much of a help when a prisoner had diarrhoea,
which was common because of the bad food and water. In such circumstances,
waiting to use the bathroom could be excruciating. On Fridays, he remembered
that roughly ten minutes was allowed for pre-prayer ablutions.
Early the next morning, his second day at Far Falestin, and only about four
hours after the previous interrogation had ended, Mr. Almalki was called up
again. He was interrogated for approximately eighteen hours straight, but the
focus was on intense questioning, not intense physical pressure.
On the third day, he was called in the morning and immediately told to take
off most of his clothes. Mr. Almalki was forced into a car tire, his neck shoved
against an inner rim, his back bent double and his knees against the other side
of the inner rim. He was then beaten severely, especially on his head, his soles
and his genitals. The motivation was clear:
…for every point they were asking me about…keep on beating me till I answer with
something that they were satisfied; and then they would move on to another point
and they would keep on beating me for that point till, you know, they get satisfied
either that what I was saying was true or I get them what they wanted.
�APPENDICES
This treatment lasted for some three or four hours. In a surprisingly mundane twist, lunch was then brought in and Mr. Almalki was given some chicken
and a piece of orange. He remembered that the orange was very hard to eat
because “the inner skin of my mouth was almost gone because of the screaming so it was burning to eat anything acidic, I guess”.
Interrogation continued for roughly forty days, but without applications of
force comparable to those of the first three days. Then around the fortieth day,
Mr. Almalki was called in for an interrogation and asked for the first time about
any connection he might have with Mr. Maher Arar. This was part of a wider
ranging set of questions involving a number of Mr. Almalki’s friends and acquaintances, and about Mr. Almalki’s business dealings. This questioning involved a new interrogator, who Mr. Almalki later discovered, was a Mr. George
Salloum, the “head of interrogation” at Far Falestin.
On July 17th 2002, Mr. Almalki was called up for another session of interrogation. He remembers that
…the tone of the treatment was different. They asked me to wear the blindfold immediately once I got up. Basically this blindfold was a, you know, you have the
prison floor then stairs up to the interrogation floor, once you are at the gate, the
door from the stairs to the interrogation floor, at the right-hand side there is a bucket
of water which has these rubber pieces, blindfolds, they keep in the water I guess
to keep them soft. … But at same time for annoying the prisoners and humiliating
them their water is the filthiest I have ever seen.
Blindfolded, Mr. Almalki was taken into an interrogation room and immediately slapped, punched and questioned aggressively for roughly an hour or
two. He was accused of lying to the interrogators during his past sessions. He
was then taken back to his cell, but remembers that he could hear almost constant screaming from other prisoners being interrogated. He stressed that this
was a common denominator throughout his stay at Far Falestin: hearing screams.
It reached a point where “I could distinguish if someone is being tortured by the
tire, the chair, electricity; each one had a different type of screaming…”.
The next day, July 19th, Mr. Almalki was brought up for interrogation in the
morning, but the approach was less aggressive. He was returned to his cell, then
called back up at roughly 11 am, and “the humiliation started again…beating and
calling names.” Mr. Almalki was forced to stand on one foot facing the wall.
When he lost balance or tried to change legs, he would be beaten. Then the
chief interrogator, Mr. George Salloum, arrived and asked Mr. Almalki why he
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had lied. Mr. Almalki was then blindfolded and the beating recommenced, with
repeated and powerful slaps across the face.
Then Mr. Almalki was forced onto his stomach, just as in the first three
days’ of interrogation, and the black cable was used to “hammer” the soles of
his feet. He was once again accused of supporting Osama bin Laden and of
training with Al Qaeda in Afghanistan. After more beatings, which lasted until
after midnight, Mr. Almalki said that he told the interrogators whatever they
wanted to hear.
On July 20th, Mr. Almalki was brought back to a different, high-ceilinged,
interrogation room. More brutal questioning began. He was partially stripped
and slapped. The room had a border at the bottom of the wall, a cement projection about 10 cms wide, which was probably part of the building’s foundation. At the top of the wall there was a metal window with bars. Mr. Almalki
was forced to face outward with his back against the wall, his hands above his
head holding the bars on the window while standing on the cement projection
at the bottom of the wall. He then had to let his feet slide from the ledge and
hang, the window sill cutting into his wrists. When he slid down or fell, he
would be beaten and told to suspend himself again. His hands and wrists were
bleeding and the pain was intense. He was finally tied in this same manner to
the bars, using strips of cloth, with his hands behind his head. The slapping continued, and Mr. Almalki was also hit with a belt and a black cable.
Mr. Almalki cannot remember how long he was kept in this position, as the
pain blocked out his mental faculties. Finally, he was let down, but beatings
continued all night. After this experience, Mr. Almalki gave in to the interrogators completely:
My policy after that was I wasn’t willing to take any beating… I told them ‘Whatever
you want, I’ll tell you what I know. If you want something else, I will sign a piece
of paper, blank, and you fill it up with whatever you want or you can tell me what
you want me to fill it up;’ and I was really, I, I got to the point where I felt I cannot take any, you know, one more lash…
In fact, during the period in late July the interrogations continued to be
harsh, though there were fewer intense beatings. Until August 24th. On that
day another intensive session of beatings took place involving an unspecified
number of interrogators. Mr. Almalki was again blindfolded.
In September and October, Mr. Almalki was questioned but without the
application of physical force. Instead, he was threatened with new forms of
punishment, including “the chair” which Mr. Almalki knew to be a brutal method
�APPENDICES
in which a victim’s back was twisted over the empty frame of a metal chair,
producing intense pain. Many of the questions began to revolve around his relationship with Maher Arar. From November 2002 to August 2003, Mr. Almalki
remained in the same dark cell, and was questioned regularly, but not with the
same use of physical force that he had previously experienced. He emphasises
that he spent 483 days in that horrible cell. In August of 2003, Mr. Almalki was
transferred to Sednaya military prison, where he experienced some further beatings, but not of quite the intensity of those in Far Falestin. Here, however, the
beatings were not to gain information, merely to punish or intimidate. Nor were
the living conditions quite so harsh, except for a period of ten days at the beginning of his detention in Sednaya that he spent in another subterranean cell.
He was released from Syrian detention on March 1st, 2004.
Messrs. Arar and Almalki overlapped in Sednaya prison, where they were
able to talk at some length. However, they apparently did not share all the details of their respective detention and interrogation experiences. They both told
me that they were more preoccupied with daily survival and with discussing
how to get out of detention. Since then, they have been in touch from time-totime in Canada, but Mr. Arar says that they have not spoken for more than a total
of five to six hours in person or on the telephone since their respective returns
to this country. Mr. Arar states that when he saw the chronology of Mr. Almalki’s
detention that was published in the media, more than eighty per cent was new
information to Mr. Arar. Mr. Arar and Mr. El Maati did not know each other well,
but apparently have become mildly acquainted recently as a result of the Inquiry.
They had not discussed the details of their detention and treatment in Syria before Mr. Arar’s story became public. Mr. Nureddin and Mr. Arar did not know
each other and to my knowledge have still not been in touch.
Although there are strong similarities in the descriptions of Syrian detention
and interrogation techniques offered by Messrs. Almalki, Arar, El Maati, and
Nureddin, I have been given no reason to suspect any collusion. Indeed, there
are also some telling differences in what they described, differences that help me
conclude that the similarities are based on authentic patterns and not on any
collaboration to produce coherent stories.
The descriptions provided by Messrs. Almalki, El Maati, and Nureddin were
also consistent with the descriptions of Far Falestin available in public sources,
but were much more detailed. For example, the 2004 Country Report on Human
Rights Practices for Syria, published by the United States Department of State,
notes that former detainees “reported torture methods” including “beating, sometimes while the victim is suspended from the ceiling.” The State Department reports that “torture was most likely to occur while detainees were being held at
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one of the many detention centers run by the various security services throughout the country” (State Department 2004, p. 2). The State Department’s Report
for 2002 contained essentially the same information (State Department 2002,
p. 2). Amnesty International’s Report of 2002 states that in Syria “[t]orture and
ill-treatment continued to be inflicted routinely on political prisoners, especially
during incommunicado detention at the Palestine Branch [Far Falestin]...”
(Amnesty International 2002, p. 2).
The practices described by Messrs. Almalki, Arar, El Maati, and Nureddin
also found strong echoes in the case notes provided to me by Dr. Payne.
Refugee claimants previously held in Syrian detention in the early 1990s also described tiny basement cells that were damp and dirty, hearing people screaming between their own interrogation sessions, being hit by cables, and being
forced into a tire for beatings. The pattern of brutal beatings at the very beginning of detention followed by less “intense” interrogation was also reported by
one of Dr. Payne’s patients.
The 2003 Annual Report of the Syrian Human Rights Committee provided
more specific information. It refered to detainees in “Palestine Branch for
Military Interrogation” who were “severely tortured and subject to immense
physical and psychological abuse”. The report specifically mentioned Mr. Arar,
who was said to have been subjected “to severe torture and intensive interrogation and charged with cooperating with Al-Qaeda” (Syrian Human Rights
Committee 2003, pp. 3-4). In a letter to Mr. Arar’s wife, Dr. Monia Mazigh, dated
July 29th, 2003, the Committee asserted that Mr. Arar was being subjected to
extreme torture including “hitting with a baton and a fraying cable on the soles
of his feet and on his body, the use of electricity and bending in an automobile
tire for many hours.”
As will soon become apparent, the description of the Syrian Human Rights
Committee was exaggerated. I take it to be a positive sign of his credibility that
Mr. Arar was clear both in public and to me that his treatment was not as bad
as suggested by the Committee. Mr. Arar knew what had been reported by the
Committee before he made his first public statement detailing his treatment, yet
his own description was more restrained. What is more, Mr. Arar also knew
some of what Mr. Almalki had experienced but never sought to “out bid”
Mr. Almalki in suffering. Indeed, Mr. Arar stated to me directly that he thought
Mr. Almalki’s experience had been worse than his own. Throughout his testimony, Mr. Arar was remarkably measured. He was able to recall significant detail, but adjectives and adverbs were notably absent. He struggled to remember
at times, and only rarely lost his composure. When he did, it was almost always
�APPENDICES
in reference to the suffering of someone else: Mr. Almalki, women that he heard
being tortured, the idea of his children being left without him for a long time.
When I compare information available from public sources with the crossreferenced testimony of Messrs. Almalki, El Maati, and Nureddin, I conclude that
the stories they tell are credible. I believe that they suffered severe physical
and psychological trauma while in detention in Syria. Mr. Almalki was especially
badly treated, and for an extended period. When I compare all of this information to the story told to me by Mr. Arar, I am convinced that his description
of his treatment in Syria is accurate. It is now time to turn to that story.
Torture in Syria
When Mr. Arar was taken across the border from Jordan to Syria on October 9th,
2002, he was already extremely worried and distraught. It is important to consider his state of mind even before he found himself in Far Falestin. He had
been arrested in New York, and strip searched, which he found “humiliating.”
He had been held in the Metropolitan Detention Centre in Manhattan for eleven
days (September 27th to October 7th), being interrogated. He was denied access to a lawyer, and had little food or sleep. His request to pray during the interrogation sessions had also been denied. His interrogators had insulted him
and used “bad words”, which he found deeply upsetting. At 3:00 a.m. one
morning, he was awakened and told that the Director of the US Immigration and
Naturalization Service had ordered that Mr. Arar be sent, not to Canada, as he
says that he constantly requested, but to Syria. He told me that at this moment
he began to cry and immediately said that he would be tortured. He felt
“destroyed”.
Mr. Arar was then bundled into a van to New Jersey where he was loaded
onto a private plane that began a long journey to Syria, via Washington, Portland
Maine, Rome, and Amman. Throughout this trip of many, many hours, he was
chained and shackled in the back of the plane. Only in the last couple of hours
were the shackles removed; he was then invited to eat some dinner with his
guards. He could not eat. He recalls that he had plenty of time to remember
stories he had heard from his parents in the 1980s about abuse in Syrian prisons. He was terribly frightened, and assumed that he would face torture.
Mr. Arar arrived in Jordan in the middle of the night. While being transported to a detention centre, his Jordanian guards apparently hit him repeatedly on the back of the head. Mr. Arar was blindfolded. He had not slept since
he left New York. He was brought into a room and his blindfold was taken off.
He was asked some routine questions and then blindfolded again and taken to
a cell. He could not sleep for fear. The next morning he was taken to a doctor
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who asked if he had any chronic diseases or conditions. Then he was taken to
an interrogation room and asked more routine questions before being told what
he already knew: “You are clear you are going to Syria.”
That same day he was bundled into a car or van. Being blindfolded again,
he was not sure exactly what was happening. He was told by one guard that
he was going back to Montreal, and he was desperate to believe him. Instead,
he was transferred twice into other vehicles. He was driven fast over bad roads;
from time-to-time, he was struck by one of his guards.
At around 5:00 p.m. that same day, he was taken into a building and his
blindfold removed. He saw pictures of Presidents Assad, father and son. Some
of his luggage that had been given back to him in Jordan after the plane ride
was searched and gifts for his family – chocolates and perfume – were stolen.
Later, Mr. Arar learned that he was in the Far Falestin detention centre. He had
arrived exhausted, hungry and terrified. He ventured to me that he was so
frightened at that moment that if he could have figured out some way to kill himself he would have done it.
I must pause at this point to offer some impressions of Mr. Arar, gleaned
from our extended conversations and from the way he tells his story. The impressions are relevant to my assessment of his credibility and, even more, to
my later evaluation of the effects of his experiences upon Mr. Arar and his family. Mr. Arar strikes me as a person with what one might describe as moral
courage. By that I mean that he is willing to take risks when he feels that he
must to make a point or to vindicate a belief. However, he does not seem to
be particularly physically courageous. He is not “tough”; the prospect of physical pain frightens him a lot. When frightened, he loses composure. On many
occasions he told me that a particular circumstance had caused him to break into
tears. This observation is not a criticism. Far from it. There are few people in
our era in Canada who must ever test their own physical courage. I cannot
imagine how I would react if threatened with the prospect of torture or if confronted with its reality. My point is only that when one considers Mr. Arar’s situation as he entered Far Falestin, it is relevant to note that his fear seems already
to have been intense and his resources to cope with violence limited.
Later on the same day he arrived at Far Falestin, Mr. Arar was taken for
questioning from around 8:00 p.m. to midnight. He was questioned by a man
named “George”, who Mr. Arar later discovered was George Salloum, the head
of interrogation at Far Falestin, who also interrogated Mr. Almalki, but in his
case, only later in the period of detention. Two other interrogators were taking
notes while George asked the questions, which were mostly about Mr. Arar’s
family. George said he knew one of Mr. Arar’s brothers, but this later turned out
�APPENDICES
to be a lie. Mr. Arar said that he was already crying and “destroyed” during this
interview. He had already decided to “say anything” necessary to avoid torture.
It should be recalled that the other men I interviewed who had been in Far
Falestin each made the same point, reflected as well in the extensive experience
of Prof. Ofshe: telling interrogators what they seemed to want to hear was simply a way to avoid physical abuse. Alternatively, in Dr. Payne’s framework,
saying what interrogators want to hear is simply a giving up of control, including control over the truth about oneself. There was in fact no physical violence
during this interrogation, but there were ominous threats. If Mr. Arar was slow
to answer, George said that he would use “the chair” which Mr. Arar did not understand, but assumed to be a form of torture.
After receiving some bread and potatoes to eat, Mr. Arar was taken downstairs to the basement. He was shown to the end of a hall and turned right and
pushed through an open door. His reaction was one of shock, as he found
himself in a tiny cell, roughly seven feet high by six feet long by 3 feet wide.
The dimensions, though expressed in feet, rather than centimetres, correspond
closely to the descriptions of Messrs. Almalki and El Maati. So do other details.
Mr. Arar mentioned that the cell contained only two thin blankets and a “humidity isolator” as well as two bottles, “one for water and one for pee”. He also
described an opening in the middle of the ceiling, roughly one foot by two feet.
There was no light in the cell at all, except what filtered through from the opening in the ceiling. He recalled two or three times when cats peed through that
opening. He later discovered rats in the building, seeing them in the bathroom.
He found rats “scary” and began to stuff some Chinese-made shoes that he had
been given in New York under the cell door to prevent rats from slithering in.
The cell was damp and very cold in winter and stifling in summer. Mr. Arar was
known to guards only by his cell number: Two.
Mr. Arar’s description of the bathroom routine also matches the detail offered by Mr. Almalki. Each prisoner was called to the bathroom three times a
day, usually before the serving of meals. The guards would randomly start at
different cells and would stand by the toilet. Each prisoner was given two or
three minutes. One guard, with whom Arar had a slightly better relationship,
would allow a little extra time in the bathroom. As other prisoners remembered,
the bathroom routine was excruciating when one had diarrhoea. Mr. Arar was
relatively lucky in that he had been able to bring in two tins that had been filled
with Tunisian sweets. He used these tins when necessary and cleaned them in
the bathroom. On Friday, fifteen minutes was allowed for washing before
prayers.
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On the day after he was brought to Far Falestin, October 9th, 2002, Mr. Arar
was even more exhausted, as he could not sleep in the horrible cell. He was
called up for interrogation. When George arrived, he immediately started hitting Mr. Arar. The chair on which Mr. Arar was sitting was taken away, so that
he was now on the floor. Being put on the floor is a pattern repeated by the
other men I interviewed. They interpreted it as a form of humiliation – lowering the status of the detainee in respect of the interrogators.
George brought with him into the room a black cable, which might have
been a shredded electrical cable. It was about two feet long. It was probably
made of rubber, but was not hollow. Mr. Arar says that as soon as he saw the
cable he started to cry. George told Mr. Arar to open his right hand. George
then raised the cable high and brought it down hard. Mr. Arar remembers the
moment vividly. He says that he felt like a bad Syrian school boy. He stood
up and started jumping, but was forced back down and the process was repeated with his left hand. Again Mr. Arar jumped up. No question had yet
been asked. This technique seems to parallel the sudden slap used on
Mr. Almalki, which snapped him into another world. Mr. Arar’s reaction was the
same. He really began to fear what was coming.
From then on, Mr. Arar was forced to stand near the door, and the questions began. The constant theme was “you are a liar.” He was given breaks and
put in another room where he could hear other people screaming. Sometimes
he was blindfolded and left to stand in the hallway for an hour or more. The
screaming continued. It is notable that the only time Mr. Arar completely broke
down while I was interviewing him was when he described the screams of
women being beaten and the cries of the babies that some of the women had
with them in the detention centre. Mr. Arar was made “very fearful” hearing any
screams. When he was brought back into the interrogation room, he would be
beaten about the upper body and asked more questions. Mostly, he was asked
about his relations with various people. On the second day in Far Falestin, the
interrogation lasted for roughly ten hours.
Day three, October 11th, 2002, was the most “intensive” for Mr. Arar. He
was questioned for sixteen to eighteen hours, with great physical and psychological abuse. The questions focussed in part on Mr. Almalki. Mr. Arar was
beaten with the black cable on numerous occasions throughout the day, and
threatened with electric shocks, “the chair” and “the tire”. The pattern was for
Mr. Arar to receive three or four lashes with the cable, then to be questioned,
and then for the beating to begin again. After a while, he became so weak that
he was disoriented. He remembers being asked if he had trained in Afghanistan.
By this time, he was so afraid and in so much pain that he replied: “if you want
�APPENDICES
me to say so.” He was asked which border he crossed and whether he had seen
Mr. Almalki in Afghanistan. Mr. Arar remembers urinating on himself twice during this questioning. He had to wear the same clothes for the next two and a
half months. He was “humiliated.”
The questions continued to be focussed upon relationships with various
people, his family, his bank accounts, and his salary. Mr. Arar remembers with
some bemusement that the interrogators could not understand what he did for
a living; the concept of “services” in the IT business did not ring true to them.
Nor did his salary which they thought was impossibly high. He was beaten for
all these “lies”.
After these beatings on day three, the interrogation became less intense
physically. There was much less use of the cables, and more punching and hitting. On the sixteenth or seventeenth day in detention at Far Falestin, even this
beating diminished. But the threats intensified, so that the psychological pressure was extreme. For example, in the second week of detention he was put
in “the tire” but, unlike Mr. Almalki, was not beaten. But the threat was real.
The “chair” was also invoked to scare him. At the end of each interrogation session an interrogator would say “tomorrow will be tough” or “tomorrow will be
worse for you.” Mr. Arar found it almost impossible to sleep for more than two
or three hours a night.
Mr. Arar describes a similar reaction to that of Mr. Almalki. Over time, as
the beatings became less intense, it was the daily horror of living in the tiny, dark
and damp cell all alone and with no reading material (except later, the Koran)
that came to be the most disturbing aspect of the detention. Whereas at first the
cell was a refuge from the infliction of physical pain, later it became a “torture”
in its own right. Mr. Arar describes nights alone in his cell where he could not
sleep on the cold concrete floor. He had to turn every fifteen minutes or so. He
was constantly thinking of his family, and worried about their finances and their
safety. He was “bombarded by memories”. He remained in this cell for ten
months and ten days, and saw almost no sunlight except for when he was transferred for consular visits. His first visit to the courtyard of the prison did not take
place until April 2003. Mr. Arar describes the cell as “a grave” and as a “slow
death”. He remembers that by June or July of 2003, he had reached his limit.
He had tried to keep in shape by doing push ups and pacing in his cell, but he
was losing all hope, and he stopped his modest exercise regime.
On at least two occasions in his cell he completely lost control, and began
to scream and to bang his head against the wall. He felt “dizzy and tired and
breathless” and his heart started beating wildly. Each time, a guard came and
let him wash his face. He was not punished, which surprised him. Over time,
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Mr. Arar also found himself becoming, as he described it, “more selfish”.
Whereas at first his thoughts were mostly about his family, after a few months
in detention he cared only about his daily survival. This is a source of guilt
even today.
One of his interrogators, “Khalid”, had not seen Mr. Arar for a few months.
When he saw Mr. Arar in July 2003, Khalid said that Mr. Arar’s wife would divorce him if she saw him as he was now, thin, listless and crying. The consular
visits with Mr. Leo Martel provided some small hope, and some connection to
Mr. Arar’s family, but they were also immensely “frustrating”.
Mr. Arar remembered one particularly telling detail when I asked him about
the walk up and down the stairs to the interrogation rooms. I simply asked
whether he remembered seeing anything on the stairs. For some time, he could
not recollect anything in particular, but then remembered the presence of a
bucket with water on the stairs and what seemed like rubber shoes. It seems
likely that this was the same bucket that Mr. Almalki remembered holding rubber blindfolds. Mr. Arar never took anything out of the bucket, unlike
Mr. Almalki, but on one occasion when he was mistaken for another prisoner,
Mr. Arar was asked to carry the bucket. That is why he remembered it on the
stairs.
On August 20th, 2003, Mr. Arar was transferred to Sednaya Prison, where
conditions were “like heaven” compared to those in Far Falestin. He was released from custody on October 5th, 2003 after signing a “confession” given to
him in court by a Syrian prosecutor.
I conclude that the treatment of Mr. Arar in Far Falestin constituted torture
as understood in international law. The interrogation techniques used on
Mr. Arar, especially in the first three days but also sporadically in the first two
weeks of his detention amounted to torture. The use of the black cable in particular, and the generalized beatings he endured, could only have been “intentional”. They were meant to inflict severe pain and suffering. The pain was
clearly physical. But in addition, the techniques of humiliation and the creation
of intense fear were forms of psychological torture. This is particularly true of
the strategy of blindfolding Mr. Arar and making him wait for the next interrogation session in a corridor or room where he could hear the screams of other
victims. The threats to use other forms of physical torture, such as the tire and
the chair, also amounted to psychological torture. This was particularly the case
for a man like Mr. Arar who so clearly feared physical violence. The infliction
of pain and suffering was for a purpose considered relevant by international
law: the extraction of a confession. As it happens, Mr. Arar did succumb to the
pain and suffering he experienced, and he did “confess”. But even if he had not
�APPENDICES
done so, the purpose of the interrogation techniques would have been the same.
For the purposes of determining if torture occurred, it does not matter whether
or not the confession was “true”. Finally, there is no doubt that the perpetrators of the torture were Syrian public officials. Far Falestin is known to be run
by Syrian military intelligence.
Mr. Arar also experienced a second form of torture, created by the appalling
conditions of his detention. In his testimony, recall that Dr. Peter Burns
suggested that the conditions of the cell in which Mr. Arar were held might constitute torture as understood by the Committee Against Torture:
Assuming that that was established, and assuming the medical evidence supported
it, I would regard it as torture, again subject to the purposive aspect of the definition. (Burns testimony, p. 5922)
The conditions of the cell are established to my satisfaction. The descriptions offered by Mr. Arar are matched by those of Messers.. El Maati and Almalki.
The parallels amongst their respective testimony are so close as to be entirely
convincing. The idea of spending months in such conditions is horrifying. It
was meant to be horrifying. The pain and suffering were terrible, especially at
a psychological level. The purpose was to break down the victim so that he
would confess. The conditions were created and managed by officials of the
Syrian state.
As to the medical evidence, it fully supports both the physical and psychological torture during interrogation, and the torture of the cell conditions.
Mr. Arar authorized me to speak with the two principal medical practitioners
who have cared for him since shortly after his return to Canada, and he allowed
them to share details of his medical history with me. Both expressed complete
confidence in the authenticity of Mr. Arar’s story.
Dr. Doug Gruner is a family physician in Ottawa with experience in posttraumatic stress disorders. He also works as an emergency room doctor in two
communities outside Ottawa. Practicing for roughly a decade, he has worked
in Malawi and Tanzania and was with the International Committee of the Red
Cross in East Timor in 2000. In the latter context he saw people who had been
tortured, and who had experienced severe physical and emotional trauma.
Mr. Arar first visited Dr. Gruner in October 2003 on the advice of Amnesty
International and has scheduled regular appointments since then, though they
have tailed off in recent months. Dr. Gruner is also the physician for another
person in a position similar to that of Mr. Arar, but the doctor was assiduous in
not confounding the cases. Dr. Gruner did not answer questions if he feared
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FACTUAL BACKGROUND: VOLUME II
that some of the information might derive not from Mr. Arar, but from the other
person.
Dr. Gruner told me that the symptoms displayed by Mr. Arar, physically
and psychologically, were completely consistent with the story Mr. Arar told of
his confinement and torture. They were also consistent with similar stories told
to Dr. Gruner by torture victims in East Timor. The details will be discussed
later, in the section on the effects of Mr. Arar’s experiences on him and on his
family.
Dr. Marta Young holds a Ph.D. in clinical psychology and is a tenured professor at the University of Ottawa. She specializes in cross-cultural psychology
and works on issues related to refugees, specifically those who have suffered
from trauma and torture. Mr. Arar came to see her five days after his return
from Syria on October 10th, 2003, again on the recommendation of Amnesty
International. He continued with a cycle of approximately 12 visits.
Dr. Young found that Mr. Arar initially presented as a case completely consistent with recent trauma. He was in what she described as an “acute post-traumatic phase”. She conducted certain standard tests for post-traumatic stress and
depression, and discovered that on two occasions separated by over six months
Mr. Arar scored as “severely” stressed and “moderately to severely” depressed.
These assessments were confirmed by her clinical observations. Dr. Young
stated that the details of the story told to her by Mr. Arar were entirely aligned
with the public chronology of what he said had happened to him, and she emphasized that he began to tell her his story very soon after arriving back in
Canada. She discerned “no sense of exaggeration or malingering”. Indeed, her
observations convinced her that Mr. Arar is “a straight, honest person”. As she
put it: “he is not making things up”. The story is simply too congruent with her
own experience and with the literature on torture victims for that to be at all
likely.
In short, the medical reports are consistent with Mr. Arar’s testimony which
is confirmed by published reports of patterns of torture in Syria and with the testimony of the three other men I interviewed who had experienced detention and
interrogation in Far Falestin. I find that Mr. Arar was tortured in Syria.
EFFECTS OF TORTURE
Physical Effects
Fortunately, the purely physical effects of the torture suffered by Mr. Arar have
mostly proven to be short-lived. Dr. Gruner reports that when he first examined
Mr. Arar there were few physical signs of torture. This is consistent with
�APPENDICES
Mr. Arar’s story that the physical force applied against him took place in the
earliest days of his detention. By the time Dr. Gruner saw Mr. Arar, the latter
had been spared from torture as a part of interrogation for many months. What
is more, Mr. Arar told me that during his detention in Sednaya Prison he had
been able to “regain his physical shape.” He had been able to eat better and to
exercise.
However, Mr. Arar did have significant physical complaints initially upon his
return to Canada and over the next three to four months. In particular he complained of hip pain, which was likely associated with sleeping in cramped and
damp quarters on a hard floor for over ten months. Mr. Arar also complained
of pain around his face, head, neck, shoulders, and lower back. As Dr. Gruner
emphasised: “Pain is a difficult thing to pin down. There might not be a lot of
objective findings, yet [it is] still there.” In any event, the initial pain has now
“resolved definitively” except that recently Mr. Arar has developed new pain at
the top of his two shoulders which hurt with the lightest pressure. In addition,
some of the psychological issues that I will describe shortly have real physical
consequences. For example, teeth grinding caused by stress contributed to facial pain. Continuing bad dreams disrupt Mr. Arar’s sleep to this day.
Psychological Effects
Psychologically, Mr. Arar’s experiences in Syria have been devastating, though
it must also be said that some of his most difficult psychological challenges arise
from his experiences since his return to Canada. Yet even these experiences can
be connected to the Syrian events in that the detention and torture there has
caused many of the events in Canada to take place, notably the Commission of
Inquiry.
Mr. Arar told me that when he was flying home to Canada he was in a
“fragile” state. He did not know who to trust. Dr. Young testified that this lack
of trust is a classic symptom of post-traumatic stress when it is caused by human
intervention, what she called “interpersonal trauma”, rather than by a natural
occurrence. Every person who has dealt closely with Mr. Arar since his return
emphasised that he is still distrustful. Dr. Monia Mazigh, Mr. Arar’s wife, said
that it took him many months to trust anyone apart from her and a few close
advisors that she told him he should trust because of their past work on his
behalf.
The distrust is based on continuing fear. Mr. Arar cannot yet contemplate
travel by air, even within Canada. He is afraid that the plane might be diverted
to the United States, that he might be seized and that the ordeal could begin
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FACTUAL BACKGROUND: VOLUME II
again. He is afraid that he will not be able to resume any “normal” life. He is
afraid that his story will not be believed.
This fear and distrust have actually been compounded by his experience of
the Commission of Inquiry. He was particularly disturbed by certain “leaks”
from sources allegedly inside the Canadian Government that cast him in a negative light. These events compounded his sense of injustice dating from his detention and torture in Syria. All his advisers that I interviewed emphasised that
Mr. Arar was “devastated” by these leaks. Some described him as “hysterical”.
He simply could not control his emotions, and it took many hours of constant
conversation to calm him down each time new information surfaced in the press
that he thought to be misleading and unfair.
Dr. Gruner described how Mr. Arar would tire easily. Whereas before the
Syrian detention, Mr. Arar was described by his wife as an energetic, even
driven, person now he found it hard to stay focussed on anything. He would
feel overwhelmed if he had more than two meetings in a day. At other times,
his lethargy would break into an unpredictable rage.
One of the most difficult psychological effects of the detention was that
Mr. Arar kept sensing that bugs were crawling over his body, and particularly
around his genitals. He thought that the bugs were real, but they turned out to
be psychological creations. In Dr. Gruner’s experience, such thoughts are not
unusual for people who have lived for a long time in completely unsanitary
conditions of detention.
I have already mentioned that Dr. Young’s observations confirmed testing
that showed that Mr. Arar was suffering from acute post-traumatic stress disorder and moderate to severe depression. In her dealings with Mr. Arar, she found
him to be a person who likely was “highly functioning psychologically” before
the trauma in Syria. She believed that he must have had a “good core sense of
self” to emerge as he has. However, she noted that for some months he was
“scattered”, with a relatively weak attention span, and difficulty staying on topic.
Dr. Mazigh stressed that the man she had married was very focused. He
had strong “family values”, and an easygoing nature. Mr. Arar was religiously
observant, which was important to Dr. Mazigh. He did not tend to argue and
he could reach compromises. He was also “patient” and “flexible” with her as
a woman who wanted to work outside the home. She described him as an optimistic person who believed that he could work hard and make a good life for
his family. Dr. Mazigh believes that Mr. Arar always had a strong sense of duty
towards his immediate family. In his religion and culture, as she put it, “a man
should work and feed his children and wife”. But she sensed that this attitude
was not about power, but about a man’s duty to protect his family. Mr. Arar was
�APPENDICES
apparently very caring to their daughter born in 1997 and was “a patient father”.
When his son was born in 2002, he turned out to be colicky. Mr. Arar would
take the baby for car rides to try to settle him. Of course, Mr. Arar was absent
for much of the boy’s second year of life.
Dr. Mazigh met Mr. Arar at the airport in Montreal upon his return from
Syria. She was shocked to discover a man who was submissive, without any
light in his eyes. As she put it, he “looked like a dog” and he seemed “lost”. He
was preoccupied with his safety and was completely distrustful. Over the next
few days, as the family spent time together in Montreal, Mr. Arar began to tell
his story. He was completely disjointed, with random memories and continuous crying. He could not eat or sleep for two or three days.
Dr. Mazigh reported that for many weeks Mr. Arar seemed “confused”. He
would pace back and forth, as if still in his cell, as he talked to his wife. He was
always tired. He told Dr. Mazigh that he just wanted “a normal life”, a phrase
he repeated to me on several occasions. Normalcy meant no conflict. Mr. Arar
told his wife: “I am not going to argue with you at all”. She thought that he
hoped to be “an ideal person”.
Instead, over the next few months, Mr. Arar continued to have nightmares,
especially about “George”. He was continually afraid and fragile. He was often
suspicious and believed that he was being watched. [I do not imply necessarily that he was not being watched]. His memory has been far weaker than before his time in Syria. He felt so overwhelmed that he forgot to pay bills, and
he often lost his keys. He still complains often of headaches and of the “stress”
that he feels.
A particularly telling indication of the psychological trauma still facing
Mr. Arar is that he has found it very hard to read the Koran since returning to
Canada. He read the Koran every day in Far Falestin, as soon as the holy book
was provided to him. He has been a devout and observant Muslin at least since
his student days at McGill. Dr. Gruner emphasized how often Mr. Arar had spoken about this problem of not reading the Koran. Mr. Arar is not sure why he
has faced this difficulty.
Family and Community Effects
Mr. Arar told me that he feels guilty about how he now relates to his own family. He often feels emotionally distant and preoccupied with his own concerns.
He is impatient with the children, and finds that he cannot spend time with
them on their terms. He often takes phone calls when he is supposed to be with
the children in the park, for example. His daughter gets angry when this
815
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FACTUAL BACKGROUND: VOLUME II
happens. Although both children seem to be functioning well, Mr. Arar thinks
that they must feel his distance.
Dr. Mazigh certainly senses this distance. She also noted that Mr. Arar defers to her on almost all decisions. That aspect of their relationship has become
“awkward”, to employ the word chosen by Dr. Mazigh. Mr. Arar seems to need
his wife to be strong and in control, while he feels weak and disoriented. But
at the same time, he is not comfortable with his position of dependence.
Although both spouses were circumspect on the question, I could sense that
Mr. Arar’s focus on the Commission of Inquiry and upon his concerns over “security” issues generally have become a significant source of tension. Other close
observers told me that Mr. Arar was “fixated” and “obsessed” with having his
story told, with the proceedings of the Commission of Inquiry, and with the fate
of other people in detention. Dr. Mazigh mentioned that when the Commission
of Inquiry was not sitting, Mr. Arar was calmer than when it was in session. A
friend of Mr. Arar’s told me that even on a family hike in the Gatineau Hills near
Ottawa the only thing Mr. Arar could talk about was the Inquiry.
Since his return, Mr. Arar has had a difficult relationship with the Muslim
community in Canada. Dr. Young noted that socially isolating behaviour is common for victims of torture. This may relate to feelings of distrust. Mr. Arar
stopped going to the mosque that he had previously attended. He told me that
he is disappointed with the reaction of many Muslims to him and his story.
Whereas other Canadians sometimes come up to him on the street to share a
sense of solidarity, most Muslims stay far away from him. Mr. Arar thought
that this distancing was exacerbated after the press “leaks” mentioned previously. He feared that many Muslims “do not understand the principle of justice”
and the need for its constant defence. Although many members of the Muslim
community had helped Dr. Mazigh during the period of Mr. Arar’s detention in
Syria, he had received little help since returning to Canada. Mr. Arar’s sense of
isolation from the Muslim community was emphasized by other close observers
that I interviewed
Economic Effects
Although the psychological effects of Mr. Arar’s detention and torture in Syria
have been serious, the economic effects have been close to catastrophic, at least
from the perspective of a middle class engineer who has had to rely on social
assistance to feed, clothe and house his family. Every person I interviewed who
knows Mr. Arar well stressed that his inability to find a job since returning to
Canada has had a devastating effect upon both his psychological state and his
family finances.
�APPENDICES
Mr. Arar told me that his lack of employment was “destroying” him.
Dr. Mazigh noted that it was a source of tension between her and her husband.
She was encouraging him to look as widely as possible for any job, whereas he
was still fixed upon finding a job in his field, computer engineering. Dr. Young
believed that Mr. Arar’s employment status was one of the “most distressing” aspects of his current situation. Failing to find a job has also encouraged Mr. Arar’s
sense of estrangement from the Muslim community: it is the most concrete example of a failure to help him when he needed help. Mr. Arar has sent out hundreds of email inquiries and letters, and has had few responses. When he has
been able to speak directly with prospective employers, some of his advisors
told me that he has been dealt with abruptly and coldly. In various contacts it
has been made abundantly clear that he is not hireable because of his negative
notoriety.
To put Mr. Arar’s inability to find a job in proper context, it is important to
note that Mr. Arar seems to find much of his self-worth through his work. He
is the most educated member of his family, the youngest child of a mother who
pushed him to succeed in his studies. He is immensely proud of his engineering credentials, and has a strong self image as a successful and highly competent professional. He was pleased to be asked to travel for his work. As he
described his past work experience and his commitment to various projects, a
picture emerged of a man who might even be described as a workaholic.
Mr. Arar took a job in Boston while leaving his wife behind in Canada with their
first child while she completed her Ph.D. He did so because he was ambitious
and thought that this was the best job on offer at the time, with the best
prospects for the future. Mr. Arar cared deeply about his earning potential.
In the light of subsequent events, it is ironic that Mr. Arar seemed to harbour strongly positive feelings about American business culture. He told me,
and this was confirmed by other observers, that he found American business
people more professional, more competent and more committed than most
Canadians he had dealt with. He seemed to believe that his future would lie in
business contacts in the United States. He returned to Canada from the United
States hoping to remain a consultant for his American employer. Boston was
exciting professionally, but too expensive. He wanted to re-unite his family in
the safe and relatively inexpensive environment of Ottawa where the family’s
standard of living would be best protected.
That dream has collapsed utterly. The most recent information available to
me is that Mr. Arar has finally been offered a small part time position as a computer advisor in his daughter’s school. This is small comfort for a man who
prided himself on his growing earning capacity.
817
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FACTUAL BACKGROUND: VOLUME II
CONCLUSION AND SUMMARY OF FINDINGS
I conclude that Mr. Maher Arar was subjected to torture in Syria. The effects of
that experience, and of consequent events and experiences in Canada, have
been profoundly negative for Mr. Arar and his family. Although there have been
few lasting physical effects, Mr. Arar’s psychological state was seriously damaged
and he remains fragile. His relationships with members of his immediate family have been significantly impaired. Economically, the family has been
devastated.
Appendix A
Bibliography
Amnesty International,
Report 2002, Syria (2002)
Case Notes of Dr. Donald Payne
(1992-94).
Human Rights Watch,
World Report 2003, Syria
(2003)
Syrian Human Rights Committee,
SHRC Annual Report-2003,
www.shrc.org/english/
reports/2003/annual_report/
c5.htm (2003)
United Nations, Convention
Against Torture and Other
Cruel, Inhuman or Degrading
Treatment or Punishment
(1984).
United States Department of State,
2004 Country Report on
Human Rights Practices, Syria
(2005)
United States Department of State,
2002 Country Report on
Human Rights Practices, Syria
(2003)
Testimony before the Public and
In Camera Sessions of the
Commission of Inquiry
Top Secret Canadian Government
Assessments of Human Rights
in Syria and other classified
documents
�APPENDICES
Appendix B
Interviews
Abdullah Almalki
Maher Arar
Ahmad Abou El Maati
Doug Gruner
Monia Mazigh
Alex Neve
Muayyed Nureddin
Kerry Pither
Riad Saloojee
Marta Young
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FACTUAL BACKGROUND: VOLUME II
APPENDIX 8
Commission Staff and Advisors
FACTUAL INQUIRY
Paul J.J. Cavalluzzo
Lead Commission Counsel
Marc David
Commission Counsel
Brian Gover
Commission Counsel
Danielle Barot
Commission Counsel
Veena Verma
Commission Counsel
Adela Mall
Commission Counsel
Lara Tessaro
Commission Counsel
Tanya Bowes
Legal Counsel
Alexandra Dosman
Legal Counsel
Gus Van Harten
Legal Counsel
Nigel Marshman
Legal Counsel
Jeff Mailhot
Investigator
FINANCE AND
ADMINISTRATION
Nicole Viau-Cheney
Director
Céline Lalonde
Deputy Director
Gilles Brisson
Registrar
Patrick Brodeur
Mailroom
Daniel Carroll
Registry Clerk/Mailroom
Holly DeCoste
Registry Clerk/Finance
Gilles Desjardins
Records Manager
Isabelle Dumas
Administrative Assistant,
Finance
Marie Lamarre
Administrative Assistant,
Finance
Gisèle Malette
Administrative Assistant,
Finance
Mary O’Farrell
Commissioner’s Executive
Assistant
Françoise Roy-Lalonde
Receptionist
Nicholas St-Pierre
Registrar
�APPENDICES
MEDIA RELATIONS
EDITING/TRANSLATION
Francine Bastien
Guylaine Beauchamp
Jane Chapman
Centre for Translation and Legal
Documentation (University of
Ottawa)
Marie Rodrigue
Jean-Pierre Thouin
Carole Chamberlin
Pierre Cremer
gordongroup marketing +
communications
Brian Cameron
Judith Richer
Mélanie Lefebvre (research)
Alphonse Morissette
Société canadienne de traduction
assistée (Socatra) Inc.
Jean-Marc Vaillancourt
AMICUS CURIAE
Ronald Atkey
Gordon Cameron
EXPERT WITNESSES
Rachad Antonious
Reem Bahdi
Peter Burns
Maurice Copithorne
Craig Forcese
Julia Hall
Henry Hogger
Dr. Sheema Khan
Flynt Leverett
Reid Morden
Richard Ofshe
Dr. Donald Payne
Stephen Yale-Loehr
FACT FINDER
Stephen J. Toope
SPECIAL ADVISOR
Harry Swain
RESEARCH
Andrew Fraser
Shawna Godbolt
Rosalind Hunter
Shawn Laubman
William Thompson
CONSULTANTS
BMB Consulting
Bowdens Media Monitoring
Canada NewsWire Ltd.
Consulting and Audit Canada
eSCAPE Marketing Solutions
Tyler Gibbs
StenoTran Services Inc.
PUBLICATION DESIGN
Expression Communications
Miriam Bloom
821
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FACTUAL BACKGROUND: VOLUME II
POLICY REVIEW
Ron Foerster
Legal Counsel
Freya Kristjanson
Legal Counsel
Andrea Wright
Legal Counsel
Martin Friedland
Special Advisor
Sanjay Patil
Junior Legal Counsel
Erin Shaw
Junior Legal Counsel
ADVISORY COMMITTEE
Monique Bégin
Alphonse Breau
Kent Roach
Martin Rudner
Reginald Whitaker
���
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4ce7b74c25198ea90bef06b1e3ee9d41
PDF Text
Text
A New Review Mechanism
for the RCMP’s
National Security Activities
Commission
of Inquiry into
the Actions
of Canadian
Officials
in Relation
to Maher Arar
�©
Her Majesty the Queen in Right of Canada,
represented by the Minister of Public Works
and Government Services, 2006
Cat. No: CP32-88/2-2006E
ISBN 0-660-19666-2
Available through your local bookseller or through
Publishing and Depository Services
Public Works and Government Services Canada
Ottawa, Ontario
KIA OS5
Telephone: (613) 941-5995
Orders only: 1 800 635-7943
Fax: (613) 954-5779 or 1 800 565-7757
Internet: http://publications.gc.ca
Printed by: Gilmore Print Group
Ce document est également publié en français sous le titre
Un nouveau mécanisme d’examen des activités de la GRC
en matière de sécurité nationale
www.ararcommission.ca
���A NEW REVIEW MECHANISM FOR THE RCMP’S
NATIONAL SECURITY ACTIVITIES
Contents
I
INTRODUCTION AND OVERVIEW
17
1.
Introduction
17
2.
Organization of the Report
17
3.
Overview of my Conclusions and Recommendations
18
II
THE HISTORY AND EVOLUTION OF CANADA’S NATIONAL
SECURITY ACTIVITIES
23
1.
Introduction
23
2.
Confederation to World War II
25
3.
National Security After World War II
26
4.
The 1970 October Crisis and Its Aftermath
29
5.
The McDonald Commission
32
6.
1984-2001
6.1 Overview
6.2 Introduction to the RCMP in the CSIS Era
6.3 RCMP National Security Activities After the Creation of CSIS
6.4 Intelligence-Led Policing
6.5 The Internal Organization of the RCMP’s National Security
Activities Before 9/11
6.6 Interaction with CSIS
6.7 The Air India Bombings of 1985
36
36
38
40
42
45
46
47
III
LEGISLATIVE CHANGES FOLLOWING THE TERRORIST
ATTACKS OF SEPTEMBER 11, 2001
55
1.
Introduction
55
2.
New Offences
2.1 Anti-terrorism Act
2.2 New Definitions: Terrorist Activity and Terrorist Group
55
55
56
�2
A NEW REVIEW MECHANISM FOR THE RCMP’S
NATIONAL SECURITY ACTIVITIES
2.3
2.4
2.5
2.6
2.7
2.8
2.9
2.10
New Terrorism Offences
New Terrorist Financing Offences
Definition of Terrorism Offences
Forfeiture Orders and Terrorist Financing Offences
Consent of Provincial or Federal Attorney General
Other New Offences
Security of Information Act
Proceeds of Crime (Money Laundering) and
Terrorist Financing Act
2.11 United Nations Suppression of Terrorism Regulations
58
59
59
60
60
61
61
New Police Powers
3.1 Investigative Hearings
3.2 Recognizance With Conditions (Preventive Arrest)
3.3 Enhanced Electronic Surveillance Provisions
3.4 An Act to amend the Foreign Missions and
International Organizations Act
66
66
68
69
4.
Enhanced Protections for National Security Confidentiality
4.1 Canada Evidence Act
4.2 Access to Information and Privacy Legislation
70
70
72
5.
Increased Information Sharing and Integration of
National Security Activities
5.1 United Nations Security Council Resolution 1373
5.2 Canada-U.S. Smart Border Agreement
5.3 New Department: Public Safety and Emergency
Preparedness Canada
5.4 New National Security Policy
5.5 Public Safety Act
3.
63
65
69
73
73
75
76
77
77
IV
CURRENT NATIONAL SECURITY ACTIVITIES OF THE RCMP
83
1.
Introduction
83
2.
Organizational Overview
2.1 Organization of RCMP National Security Activities
2.2 Ministerial Directives
2.3 Internal Policies
2.4 Internal Accountability Mechanisms
2.5 Personnel Involved in the National Security Mandate
2.6 Recruiting and Training
84
84
85
90
91
94
94
3.
Scope of RCMP’s Current National Security Activities
3.1 National Security Intelligence Branch
3.2 National Security Operations Branch
3.3 Threat Assessment Branch
96
96
98
100
�CONTENTS
3.4 Criminal Extremism Analysis Section
3.5 NSISs, INSETs and IBETs
101
102
4.
Overlap With Other Areas of RCMP
107
5.
Information and Intelligence Management, Retention and Sharing
5.1 Information Coming Into the RCMP
5.2 Information Storage and Maintenance
5.3 Information Sharing and Dissemination
108
109
111
112
6.
Integration and Interaction with Other Forces and Agencies
6.1 Integration
6.2 Interaction
6.2.1 Other Federal National Security Actors
6.2.2 Provincial and Municipal Police Agencies
6.2.3 U.S. and Other Foreign Agencies
116
118
119
119
120
121
V
CANADA’S NATIONAL SECURITY LANDSCAPE
127
1.
Introduction
127
2.
Canadian Security Intelligence Service
2.1 Relevant Legislation
2.2 Mandate
2.3 Priority Areas
2.3.1 Terrorism
2.3.2 Proliferation of Weapons of Mass Destruction
2.3.3 Espionage and Foreign-Influenced Activities
2.3.4 Transnational Criminal Activity
2.3.5 Information Security Threats
2.3.6 Security Screening and Assessments
2.3.6.1 Government Screening
2.3.6.2 Sensitive-Site Screening
2.3.6.3 Foreign Screening
2.3.6.4 Immigration and Citizenship Screening
2.3.6.5 Refugee Screening
2.4 Assistance to Enforcement
2.5 Information Disclosure Practices
2.6 Interaction Between CSIS and the RCMP
2.7 Operations Abroad
128
128
129
130
131
132
132
133
133
134
134
135
135
136
136
136
138
139
140
3.
Integrated Threat Assessment Centre
3.1 Relevant Legislation
3.2 Mandate
141
141
141
4.
Communications Security Establishment
4.1 Relevant Legislation
4.2 Mandate
143
143
143
3
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A NEW REVIEW MECHANISM FOR THE RCMP’S
NATIONAL SECURITY ACTIVITIES
147
147
147
149
5.
Department of National Defence
5.1 Relevant Legislation
5.2 Mandate
5.3 Domestic National Security Activities
6.
Canada Border Services Agency
151
6.1 Relevant Legislation
151
6.2 Mandate
152
6.3 Police Powers of CBSA Officers
154
6.4 CBSA Intelligence
155
6.5 Immigration Detention Facilities
157
6.6 National Security Activities
157
6.6.1 Screening of People Entering Canada
157
6.6.2 Lookouts
157
6.6.3 Advance Passenger Information/
Passenger Name Record Information Program
159
6.6.4 National Risk Assessment Centre
160
6.6.5 Cargo Security Mandate
162
6.6.6 Participation in Integrated Teams
163
6.6.6.1 The CBSA and the RCMP
163
6.6.6.2 The CBSA and Other Agencies and Departments 165
6.7 Information Sharing
166
6.7.1 International Partners
168
7.
Citizenship and Immigration Canada
7.1 Relevant Legislation
7.2 Mandate
7.3 National Security Activities
7.3.1 Pre-removal Risk Assessments
7.4 Information-Sharing Role
169
169
169
170
171
172
8.
Transport Canada
8.1 Relevant Legislation
8.2 Mandate
8.3 Transport Canada Intelligence
8.4 Transport Security Initiatives
8.4.1 Maritime Security
8.4.1.1 Marine Security Operations Centres
8.4.1.2 MIMDEX
8.4.2 Aviation Security
8.4.2.1 Security Screening
8.4.2.2 Air Passenger Scrutiny
175
175
175
176
177
177
177
178
179
179
179
9.
Canadian Air Transport Security Authority
9.1 Relevant Legislation
9.2 Mandate
181
181
181
�CONTENTS
10. Canadian Coast Guard
10.1 Relevant Legislation
10.2 Mandate
10.3 On-Water Operations in Support of National Security
183
183
183
184
11. Financial Transactions and Reports Analysis Centre of Canada
11.1 Relevant Legislation
11.2 Mandate
185
185
186
12. Canada Revenue Agency
12.1 Relevant Legislation
12.2 National Security Mandate
12.3 Information Sharing
189
189
189
190
13. Foreign Affairs and International Trade Canada
13.1 Relevant Legislation
13.2 Mandate
13.3 National Security Activities
13.3.1 DFAIT Intelligence
13.3.2 RCMP Foreign Liaison Officers and Secondees to DFAIT
191
191
191
192
193
194
14. Privy Council Office
14.1 Mandate
14.2 National Security Advisor
14.3 Security and Intelligence Secretariat
14.4 International Assessment Staff
196
196
196
197
198
15. Public Safety and Emergency Preparedness Canada
15.1 Relevant Legislation
15.2 Mandate
15.3 National Security Activities
15.4 Intelligence and Information Sharing
199
199
200
201
202
16. Other Federal Departments and Agencies Involved in
National Security Operations
16.1 Health Canada and the Public Health Agency of Canada
16.2 Canadian Food Inspection Agency
16.3 Environment Canada
16.4 Natural Resources Canada
16.5 Canadian Nuclear Safety Commission
16.6 Department of Justice
16.7 Treasury Board Secretariat
16.8 Department of Finance
16.9 Provincial and Municipal Police Forces
16.9.1 Federally-Led Permanent Integrated Teams and
Ad Hoc Joint-Force Operations
16.9.2 Provincially-Led Integrated Anti-terrorism Teams
203
204
205
205
207
208
209
210
210
210
211
213
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A NEW REVIEW MECHANISM FOR THE RCMP’S
NATIONAL SECURITY ACTIVITIES
16.9.3 Day-to-Day Interaction
16.9.3.1 Examples of Interaction with the RCMP
16.9.3.2 Examples of Interaction with CSIS
214
215
216
VI
REVIEW OF NATIONAL SECURITY ACTIVITIES:
THE CANADIAN EXPERIENCE
243
1.
Introduction
243
2.
Law Enforcement Review Bodies
2.1 Police Complaints Bodies
2.1.1 Commission for Public Complaints Against
the RCMP (CPC)
2.1.1.1 Marin and McDonald Commission Reports
2.1.1.2 Creation of CPC
2.1.1.3 Statutory Framework for CPC
2.1.2 Military Police Complaints Commission
2.1.2.1 Procedural Powers
2.1.3 Provincial Police Review Bodies
2.1.3.1 Ontario
2.1.3.2 Quebec
2.1.3.3 British Columbia’s Variation
2.2 Judicial Review of Police Actions
244
244
3.
4.
244
244
247
248
253
255
257
257
260
262
263
265
265
266
267
274
276
278
278
279
280
Security Intelligence Review Bodies
3.1 Security Intelligence Review Committee (SIRC)
3.1.1 SIRC Mandate and Operations
3.1.2 Review
3.1.3 Complaints
3.1.4 CSIS and RCMP
3.1.5 SIRC and Other Review Bodies
3.1.6 Obtaining Information
3.1.7 Reporting by SIRC
3.1.8 Inspector General of CSIS
3.2 Office of the Communications Security Establishment
Commissioner
3.2.1 Review Function
3.2.2 Complaints Function
3.2.3 Implementation of Recommendations
281
282
283
284
General Review Bodies
4.1 Office of Privacy Commissioner of Canada
4.2 Office of the Information Commissioner of Canada
4.3 Canadian Human Rights Commission
4.4 Office of the Auditor General of Canada
4.4.1 Mandate
284
285
287
288
291
292
�CONTENTS
VII
REVIEW OF NATIONAL SECURITY ACTIVITIES:
THE INTERNATIONAL EXPERIENCE
1.
Introduction
1.1 Overview
1.1.1 Structure of Review Mechanisms
1.1.2 Common Challenges
1.1.3 Essential Review Features
309
309
310
310
313
316
Detailed Observations
317
2.
Australia
2.1 Overview
2.2 Law Enforcement and Security Intelligence
2.2.1 Australian Federal Police
2.2.2 Australian Crime Commission
2.2.3 Australian Security Intelligence Organisation
2.2.4 Australian Secret Intelligence Service
2.2.5 Defence Signals Directorate
2.2.6 Office of National Assessments
2.2.7 Defence Imagery and Geospatial Organisation
2.2.8 Defence Intelligence Organisation
2.3 Review and Oversight
2.3.1 Commonwealth Ombudsman
2.3.1.1 Jurisdiction
2.3.1.2 Mandate
2.3.1.3 Functions
2.3.1.4 Powers
2.3.1.5 Reporting
2.3.1.6 Appointment
2.3.2 Inspector-General of Intelligence and Security
2.3.2.1 Jurisdiction
2.3.2.2 Mandate
2.3.2.3 Functions
2.3.2.4 Powers
2.3.2.5 Reporting
2.3.2.6 Appointment
317
317
318
318
318
319
320
320
320
321
321
321
321
321
322
322
324
325
325
326
326
326
326
327
328
328
3.
Belgium
3.1 Overview
3.2 Law Enforcement and Intelligence
3.2.1 Federal Police and Judicial Police
3.2.2 State Security Service and Intelligence and
Security Service
329
329
330
330
331
7
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A NEW REVIEW MECHANISM FOR THE RCMP’S
NATIONAL SECURITY ACTIVITIES
3.3 Review and Oversight
3.3.1 Committee P
3.3.1.1 Jurisdiction
3.3.1.2 Mandate
3.3.1.3 Functions
3.3.1.4 Powers
3.3.1.5 Reporting
3.3.1.6 Appointment and Composition
3.3.2 Committee I
3.3.2.1 Jurisdiction
3.3.2.2 Mandate
3.3.2.3 Functions
3.3.2.4 Powers
3.3.2.5 Reporting
3.3.2.6 Appointment and Composition
331
331
331
332
332
333
335
335
335
335
336
336
336
337
337
4.
Germany
4.1 Overview
4.2 Security Intelligence
4.2.1 Federal Office for the Protection of the Constitution
4.2.2 Military Counterintelligence Service
4.2.3 Federal Intelligence Service
4.2.4 Commissioner for the Federal Intelligence Services
4.3 Review and Oversight
4.3.1 Parliamentary Control Panel
4.3.1.1 Jurisdiction
4.3.1.2 Mandate
4.3.1.3 Functions
4.3.1.4 Powers
4.1.3.5 Reporting
4.3.1.6 Appointment and Composition
4.3.2 G-10 Commission
4.3.2.1 Jurisdiction
4.3.2.2 Mandate and Functions
4.3.2.3 Powers
4.3.2.4 Reporting
4.3.2.5 Appointment and Composition
338
338
339
339
340
340
340
341
341
341
341
342
342
343
343
344
344
344
345
345
345
5.
New Zealand
5.1 Overview
5.2 Law Enforcement and Intelligence
5.2.1 Police
5.2.2 Intelligence Agencies
5.2.2.1 New Zealand Security Intelligence Service
5.2.2.2 Government Communications Security Bureau
346
346
346
346
346
347
347
�CONTENTS
5.3 Review and Oversight
5.3.1 Police Complaints Authority
5.3.1.1 Jurisdiction
5.3.1.2 Mandate and Functions
5.3.1.3 Powers
5.3.1.4 Reporting
5.3.1.5 Appointment
5.3.1.6 Other
5.3.2 Inspector-General of Intelligence and Security
5.3.2.1 Jurisdiction
5.3.2.2 Mandate
5.3.2.3 Functions
5.3.2.4 Powers
5.3.2.5 Reporting
5.3.2.6 Appointment
6.
7.
348
348
348
348
348
349
349
349
350
350
350
350
351
351
351
Norway
6.1 Overview
6.2 Law Enforcement and Intelligence
6.2.1 National Police Force
6.2.2 Police Security Service
6.2.3 Intelligence Service
6.2.4 National Security Authority
6.3 Review and Oversight
6.3.1 Complaints Against the Police
6.3.2 Norwegian Parliamentary Intelligence Oversight
Committee (EOS Committee)
6.3.2.1 Jurisdiction
6.3.2.2 Mandate
6.3.2.3 Functions
6.3.2.4 Powers
6.3.2.5 Reporting
6.3.2.6 Appointment and Composition
352
352
352
352
353
353
353
354
354
Sweden
7.1 Overview
7.2 Law Enforcement and Security Intelligence
7.2.1 National Police Service
7.2.2 Security Service
7.2.3 Military Intelligence and Security Service
7.2.4 National Defence Radio Centre
7.2.5 Other
7.3 Review and Oversight
7.3.1 Parliamentary Ombudsmen’s Office
7.3.1.1 Jurisdiction
7.3.1.2 Mandate
359
359
360
360
360
361
361
361
361
361
361
362
355
355
356
357
358
358
359
9
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A NEW REVIEW MECHANISM FOR THE RCMP’S
NATIONAL SECURITY ACTIVITIES
7.3.2
8.
9.
7.3.1.3 Functions
7.3.1.4 Powers
7.3.1.5 Reporting
7.3.1.6 Appointment and Composition
Other Forms of Review
362
363
363
363
364
364
364
365
365
365
366
366
367
367
United Kingdom
8.1 Overview
8.2 Law Enforcement and Intelligence
8.2.1 Metropolitan Police Service
8.2.2 Special Branch
8.2.3 Police Service of Northern Ireland
8.2.4 Serious Organised Crime Agency
8.2.5 MI-5
8.2.6 MI-6
8.2.7 Government Communications Headquarters and
Defence Intelligence Staff
8.3 Review and Oversight
8.3.1 Independent Police Complaints Commission
8.3.1.1 Jurisdiction
8.3.1.2 Mandate
8.3.1.3 Functions
8.3.1.4 Powers
8.3.1.5 Reporting
8.3.1.6 Appointment and Composition
8.3.2 Police Ombudsman for Northern Ireland
8.3.2.1 Jurisdiction
8.3.2.2 Mandate
8.3.2.3 Functions
8.3.2.4 Powers
8.3.2.5 Reporting
8.3.2.6 Appointment and Composition
8.3.3 RIPA Authorities
8.3.3.1 Jurisdiction
8.3.3.2 Mandate and Functions
8.3.3.3 Powers
8.3.3.4 Reporting
8.3.3.5 Appointment
367
368
369
369
371
371
372
373
373
373
373
374
374
376
376
377
377
377
378
380
380
381
United States
9.1 Overview
9.2 Law Enforcement and Security Intelligence
9.2.1 The Office of the Director of National Intelligence
9.2.2 Federal Bureau of Investigation
9.2.3 Department of Homeland Security
9.2.4 Central Intelligence Agency
9.2.5 National Security Agency
381
381
382
382
383
383
384
385
�CONTENTS
9.3 Review and Oversight
9.3.1 Inspectors General
9.3.1.1 Jurisdiction
9.3.1.2 Mandate
9.3.1.3 Functions
9.3.1.4 Powers
9.3.1.5 Reporting
9.3.1.6 Appointment and Composition
9.3.2 New Civil Liberties Protection Officers
386
386
386
388
388
390
391
392
392
10. List of Acronyms Used in This Chapter
393
VIII
CHARACTERISTICS OF NATIONAL SECURITY ACTIVITIES
REQUIRING ENHANCED REVIEW
425
1.
Introduction
425
2.
Secrecy
426
3.
Police Powers and Terrorism Offences
3.1 Powers Under Anti-terrorism Act
3.2 Police Powers
428
429
430
4.
International Co-operation
431
5.
Privacy and the Collection, Use and Sharing of Information
5.1 Privacy
5.2 Use of Personal Information in National Security Investigations
433
433
434
6.
Scope and Exercise of Discretionary Powers
436
7.
Potential for Discrimination
7.1 Racial, Ethnic and Religious Profiling
7.2 Inquiry into Religious or Political Beliefs
7.3 Expression and Association
437
437
438
438
8.
Role of Courts
8.1 Authorizations
8.1.1 Criminal Code
8.1.2 Communications Security Establishment
8.2 Prosecutions
439
440
440
443
444
9.
Conclusion
445
11
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A NEW REVIEW MECHANISM FOR THE RCMP’S
NATIONAL SECURITY ACTIVITIES
IX
FUNDAMENTAL OBJECTIVES OF REVIEW
455
1.
Introduction
455
2.
Review Versus Oversight
2.1 Police Independence and Accountability
2.2 Summary
456
458
463
3.
Primary Objectives of a Review Mechanism
3.1 Assurance of Conformity with the Law and
Standards of Propriety
3.2 Foster Accountability to Government
3.3 Foster Accountability to the Public and Facilitate Public
Trust and Confidence
3.4 Not to Impair National Security
3.4.1 Police Independence
3.4.2 Operation of the Criminal Justice System
3.4.3 The Importance of Secrecy and the Protection of
Sensitive Information
3.4.4 Excessive Review
3.4.5 Ability to Deal with the Integrated Nature of
National Security Activities
464
464
468
469
472
473
474
476
476
477
X
IS THE STATUS QUO ADEQUATE?
483
1.
Introduction
483
2.
Why the RCMP’s Internal Controls Are Not Adequate
487
3.
Why Ministerial Controls Are Not Adequate
488
4.
Why Judicial Controls Are Not Adequate
490
5.
Why the CPC’s Existing Powers Are Not Adequate
491
6.
Why the Existing Powers of Other Accountability Bodies
Are Not Adequate
494
XI
RECOMMENDATIONS
499
1.
Introduction
1.1 Review Versus Oversight
1.2 Characteristics Requiring Enhanced Review
1.3 Objectives of Review
499
499
500
502
2.
Recommendations and Rationales
2.1 Recommendation 1
503
503
�CONTENTS
2.2 Recommendation 2
2.2.1 Background
2.2.1.1 Law Enforcement / Security Intelligence
Operations
2.2.1.2 Function-Based Versus Agency-Based Review
2.2.1.3 Existing Arrangements in Canada and
Elsewhere
2.2.2 Rationale for Recommendation
2.2.2.1 Effectiveness
2.2.2.2 Practicality
2.2.2.3 Integrated Activities
2.2.3 A Restructured CPC
2.3 Recommendation 3 (a)
2.3.1 Scope of National Security Activities Subject to Review
2.3.2 Specific Review Subjects
2.3.3 Review for Efficacy
2.4 Recommendation 3 (b)
2.4.1 Third-Party Complaints
2.4.2 No Initiation of Complaints by Review Body
2.4.3 No Evidentiary Threshold Needed for Complaints
2.5 Recommendation 3 (c)
2.6 Recommendation 3 (d)
2.7 Recommendations 3 (e) and (f)
2.8 Recommendation 4 (a)
2.8.1 Need for Extensive Powers
2.8.2 Authority to Decide What Is Necessary
2.8.3 Confidential Information
2.8.4 Information From Outside the RCMP
2.8.5 Exceptions to Access to Information
2.9 Recommendation 4 (b)
2.10 Recommendation 4 (c)
2.11 Recommendation 4 (d)
2.12 Recommendations 5 (a) and (b)
2.13 Recommendation 5 (c)
2.14 Recommendation 5 (d)
2.15 Recommendations 5 (e) and (f)
2.16 Recommendation 5 (g)
2.17 Recommendation 5 (h)
2.18 Recommendation 5 (i)
2.19 Recommendation 6
2.20 Recommendation 7
2.20.1 Recommendation Powers
2.20.2 Annual Reports
2.20.3 Transparency of Reports
2.21 Recommendation 8
505
505
505
506
508
509
509
513
513
514
516
518
520
523
524
524
526
526
527
529
530
531
531
533
534
534
536
539
541
542
543
545
546
547
548
549
552
552
554
555
556
557
558
13
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A NEW REVIEW MECHANISM FOR THE RCMP’S
NATIONAL SECURITY ACTIVITIES
2.22 Recommendation 9
2.22.1 Introduction
2.22.2 Need for Independent Review
2.22.3 Canada Border Services Agency (CBSA)
2.22.4 Citizenship and Immigration Canada (CIC)
2.22.5 Transport Canada
2.22.6 Financial Transactions and Reports Analysis
Centre of Canada (FINTRAC)
2.22.7 Foreign Affairs and International Trade Canada (DFAIT)
2.22.8 Rationale for Independent Review
2.22.8.1 Nature of Entities’ National Security Activities
2.22.8.2 Integrated Activity
2.23 Recommendation 10
2.23.1 Expanded SIRC
2.23.2 Review of CBSA
2.23.3 Resources
2.23.4 Amendment to SIRC Powers
2.23.5 Other Issues
2.23.5.1 Identifying National Security Activities
2.23.5.2 CSE Commissioner
2.23.5.3 Department of National Defence
2.23.5.4 Other Federal Agencies and Departments
2.23.5.5 Other Countries
2.24 Recommendation 11
2.24.1 Integrated Activities
2.24.2 Need for Integrated Review
2.24.3 Statutory Gateways – General
2.24.4 Statutory Gateways – Specific Goals
2.24.4.1 Exchange of Information
2.24.4.2 Referral of Investigations
2.24.4.3 Joint Investigations
2.24.4.4 Coordination in the Preparation of Reports
2.25 Recommendation 12
2.25.1 Operation of Statutory Gateways
2.25.2 Avoiding Duplication
2.25.3 Centralized Complaint Intake
2.25.4 Reports on Accountability Issues
2.25.5 Public Information Role
2.25.6 Provincial and Municipal Police Forces
2.25.7 Composition
2.25.8 Staffing
2.25.9 Reporting
2.25.10 Arguments Against INSRCC
2.25.10.1 Super Agency
558
559
561
562
564
565
567
568
569
569
572
573
573
576
577
578
578
578
578
579
579
580
580
580
582
585
587
587
588
588
590
591
591
593
594
595
596
596
598
598
599
599
599
�CONTENTS
2.26 Recommendation 13
2.26.1 Need for Review
2.26.2 Review Process
3.
600
600
601
Summary List of Recommendations Arising from Policy Review
603
XII
POLICY REVIEW PROCESS
611
1.
Introduction
611
2.
Guiding Principles
2.1 Openness/Accessibility
2.2 Thoroughness
2.3 Fairness
2.4 Expedition
611
612
612
613
614
3.
Process
3.1 Appointment of Advisory Panel
3.2 Information Gathering and Public Consultations
3.2.1 Initial Information Gathering and Publications
3.2.2 Public Input
3.3 Further Information Gathering and Publications
3.3.1 Integrated Nature of the RCMP’s National Security
Activities
3.3.2 International Models
3.3.3 Invitations for Comment from Provincial/Municipal
Actors
3.3.4 Review of Certain Factual Inquiry Evidence
3.3.5 Roundtables
3.4 Public Hearings and Final Public Consultations
615
615
616
616
617
618
4.
Budget
622
5.
Expert Advice
622
6.
Appreciation
622
APPENDICES
618
618
620
620
621
621
625
15
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A NEW REVIEW MECHANISM FOR THE RCMP’S
NATIONAL SECURITY ACTIVITIES
�I
Introduction and Overview
1.
INTRODUCTION
The Order in Council establishing this Inquiry provided a two-part mandate.
The first part, called the Factual Inquiry, directed that I investigate and report on
the actions of Canadian officials in relation to what happened to Maher Arar. I
have already delivered my report on the Factual Inquiry to the government.
The second part, the Policy Review, requires that I make recommendations
for an independent, arm’s-length review mechanism with respect to the RCMP’s
national security activities. This is my report on the Policy Review.
2.
ORGANIZATION OF THE REPORT
The following six chapters of this Report are descriptive in nature, setting out
the results of the Inquiry’s extensive research and information-gathering process.
After an historical survey of the evolution of Canada’s national security activities
(Chapter II), I examine the major legislative changes enacted following the terrorist attacks of September 11, 2001 (Chapter III). I then review the RCMP’s current national security activities (Chapter IV) as well as those of the other
Canadian national security actors (Chapter V). Finally, I examine the Canadian
(Chapter VI) and international (Chapter VII) experience in review of national security activities.
The information in these chapters provides the context for my subsequent
analysis of the unique features of national security activities that call for enhanced review (Chapter VIII); the objectives of the review process (Chapter IX);
and my conclusion that existing review mechanisms for the RCMP’s national security activities are not adequate (Chapter X). In Chapter XI, I set out my detailed
recommendations and rationales for a new single review body for the RCMP’s
�18
A NEW REVIEW MECHANISM FOR THE RCMP’S
NATIONAL SECURITY ACTIVITIES
national security activities. I also recommend independent review of five other
departments and agencies, and mechanisms to coordinate the work of all national security review bodies. Finally, in Chapter XII, I describe the process followed for the Policy Review.1
3.
OVERVIEW OF MY CONCLUSIONS AND
RECOMMENDATIONS
I conclude that existing accountability and review mechanisms for the RCMP’s
national security activities are not adequate in large part because of the evolution and increased importance of that national security role. Among the more
significant changes have been enhanced information sharing, new legal powers
and responsibilities, and increased integration in national security policing. I
have also been influenced by the Canadian and international experience with
both policing and security intelligence review, and the inability of a complaintbased approach to provide a firm foundation for ensuring that the often secret
national security activities respect the law and rights and freedoms. Finally, I
conclude that the difficulties that the CPC has encountered in obtaining access
to information from the RCMP can undermine the effectiveness of its review
function and public confidence in the effectiveness of the review.
In light of these conclusions, my main recommendations are as follows.
Enhanced Powers — In order to provide effective review, the powers of the
new review mechanism for the national security activities of the RCMP should
be enhanced in two significant respects. First, in addition to the power to investigate and report on complaints, the review mechanism must have the authority to conduct self-initiated reviews, similar to those currently conducted by
the Security Intelligence Review Committee (SIRC) in respect of CSIS operations,
in order to review the RCMP’s national security activities for compliance with
laws, policies, ministerial directives and international obligations, as well as for
standards of propriety that are expected in Canadian society.
The need for self-initiated reviews stems from the fact that most of the
RCMP’s national security activities are conducted in secret and receive little, if
any, judicial scrutiny, yet have the potential to significantly affect individual
rights and freedoms. It is vital that those within the Force involved in national
security activities be held accountable for such activities by a body that is independent of the RCMP and government. Providing the review mechanism with
the authority to conduct self-initiated systemic reviews will be a major step towards ensuring appropriate and effective review of those activities and engendering public confidence and trust in the review process.
�INTRODUCTION AND OVERVIEW
The second major enhancement involves giving the review mechanism extensive investigative powers, similar to those applicable to public inquiries under
the Inquiries Act, to allow it to obtain all of the information and evidence necessary to conduct thorough and complete reviews and complaint investigations.
These powers should allow the review mechanism to decide what information
is necessary to fulfill its mandate and to subpoena documents and compel testimony from any federal, provincial, municipal or private sector person or entity.
The RCMP’s national security investigations are increasingly integrated with
the activities of other federal, provincial and municipal agencies. Integration is
desirable and should be encouraged. However, it is critical that the review mechanism have access to all information that may be relevant to an investigation or
a review, wherever that information may be found. When collecting information,
the review mechanism must not be hampered by jurisdictional boundaries. It
must be able to follow the trail wherever it leads, to ensure full and effective investigation or review of the RCMP’s national security activities.
Independent Complaints and National Security Review Agency for the
RCMP — The most effective review of the RCMP’s national security activities
will be achieved by a review mechanism that has jurisdiction to review all of the
RCMP’s activities, including those related to national security. That mechanism
should be located within a restructured Commission for Public Complaints
Against the RCMP (CPC) with the significantly enhanced powers that I recommend in this report and a new name, the Independent Complaints and National
Security Review Agency for the RCMP (ICRA), to reflect its broader mandate.
In my view, there are significant advantages to having a single review
agency for all of the RCMP’s activities. The RCMP is a law enforcement agency.
Reviewing law enforcement activities requires special expertise and experience
that can best be developed and maintained by a review body that specializes in
the review of law enforcement activities. Broad exposure to all of the RCMP’s
activities will enhance the review body’s expertise.
The RCMP’s national security activities make up a relatively small proportion of its overall workload. There could be serious risks in entrusting review of
national security activities to one body and review of the balance of the RCMP’s
activities to another. To start, the different bodies might apply different and possibly inconsistent standards to the same or similar law enforcement activities.
Moreover, separating what is properly considered a national security activity
from other activities conducted by the RCMP could in many circumstances be
difficult, and the existence of separate review bodies could lead to disagreements and jurisdictional disputes.
19
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A NEW REVIEW MECHANISM FOR THE RCMP’S
NATIONAL SECURITY ACTIVITIES
In making this recommendation, I recognize that, in the past, there have
been tensions between the RCMP and CPC that may have impeded effective review. However, I am satisfied that, if properly structured in the manner I suggest below and given the enhanced powers I recommend, ICRA can provide the
most effective review of the RCMP’s national security activities.
Mandate and Powers — In Chapter XI, I make detailed recommendations
regarding ICRA’s mandate for the review of the RCMP’s national security activities. Specifically, I recommend that ICRA conduct self-initiated reviews to ensure that the RCMP’s national security activities fall within its law enforcement
mandate; that its information sharing practices are appropriate and conform to
policy; that its relationships with other domestic and foreign agencies are properly regulated; that its national security investigators are properly trained and
show proper respect for human rights and individual liberties; that its communications with foreign countries, including communications when Canadians are
being detained abroad, are appropriate; and also to ensure that there is effective review of any operational activities of the RCMP that are integrated with
those of other agencies.
I also make detailed recommendations respecting the process for investigating complaints, the composition of ICRA and the manner in which ICRA
should report to the government. The credibility of ICRA is crucial. I recommend that appointees be highly-regarded individuals whose judgements would
be broadly respected—individuals with a stature similar to SIRC appointees.
Independent Review for Other Departments and Agencies — I recommend
that the government extend independent review to the national security activities of the Canada Border Services Agency (CBSA), Citizenship and Immigration
Canada (CIC), Transport Canada, the Financial Transactions and Reports Analysis
Centre of Canada (FINTRAC) and Foreign Affairs and International Trade Canada
(DFAIT). My mandate directs that, in making recommendations in relation to
the RCMP’s national security activities, I consider how a review body for the
RCMP’s national security activities would interact with existing review mechanisms for other federal departments and agencies involved in the field. The five
departments and agencies mentioned above have significant involvement in the
national security field. Their activities are frequently integrated with those of the
RCMP and other federal entities that carry out national security activities.
However, at present, none is subject to independent review of the kind I propose for the RCMP or the kind provided by SIRC and the CSE Commissioner in
respect of CSIS and the Communications Security Establishment (CSE).
The reasons for this recommendation are, in the main, the same as those
for independent review of the RCMP’s national security activities and the
�INTRODUCTION AND OVERVIEW
activities of CSIS and the CSE. The national security activities of the five entities
in question are integrated to a significant degree with those of the RCMP.
Integration of national security activities is a critical component of Canadian policy, and co-operation among Canadian agencies involved with national security
should be encouraged. However, effective review of RCMP national security activities that are integrated with those of the five entities requires that the latter’s
activities be subject to a similar type of review. Otherwise, there is a serious potential for gaps in accountability for integrated national security activities and inconsistent or incoherent results in the review of the same activities.
In my view, SIRC is the body best positioned to review the national security activities of four of the above-mentioned entities: CIC, Transport Canada,
FINTRAC and DFAIT. Since the national security activities of the CBSA are largely
related to law enforcement, I consider ICRA to be best suited to provide independent review of those activities.
These recommendations have the advantage of building upon existing institutions that have developed expertise and experience that can be applied to
similar types of activities that will fall within their expanded jurisdictions.
Statutory Gateways — In order to provide integrated review of integrated
national security activities, I recommend that the government enact statutory
gateways linking the three independent review bodies — ICRA, SIRC, and the
CSE Commissioner — to provide for the exchange of information, referral of investigations, conduct of joint investigations, and coordination and preparation
of reports.
As I state above, the RCMP’s national security activities are significantly integrated with those of other federal agencies. The Factual Inquiry showed how
they were integrated with those of CSIS, Canada Customs (now part of the
CBSA) and DFAIT. Since the events of September 11, 2001, the amount of integration of national security activities has increased substantially. The primary
federal agencies involved in national security activities are or will be (if my recommendations are implemented) subject to independent review by one of three
separate review bodies: ICRA, SIRC and the CSE Commissioner. It is essential that
there be extensive co-operation among these review bodies when integrated
operational activities involving those agencies are being reviewed. The statutory gateways I recommend are designed to achieve the necessary co-operation
in review.
I note that several other countries have adopted statutory gateways for similar situations.
Integrated National Security Review Coordinating Committee — The government should establish a committee, to be known as the Integrated National
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A NEW REVIEW MECHANISM FOR THE RCMP’S
NATIONAL SECURITY ACTIVITIES
Security Review Coordinating Committee (INSRCC), comprising the chairs of
ICRA and SIRC, the CSE Commissioner and an outside person to act as committee chair, to oversee the review of integrated national security activities. In particular, INSRCC would ensure that the statutory gateways are functioning as
intended, provide a unified intake mechanism for complaints regarding national
security activities of federal entities, and report to the federal government on accountability issues relating to Canada’s national security practices and trends, including the effects of those practices and trends on human rights and freedoms.
INSRCC would not conduct any reviews itself. The independent review
bodies would have sole responsibility in that regard. However, in my view, it is
essential that there be a specifically mandated process for ensuring that the integrated review that I propose is working effectively. It is also important that
there be a single point for filing complaints about national security activities.
Given the amount of integration of operational activities and the secret nature
of those activities, it is sometimes difficult, if not impossible for complainants to
know where to file a complaint. The federal government should provide a mechanism to allow for a single body, INSRCC, to receive complaints and subsequently direct them to the appropriate review authority or authorities. Finally, it
is important that a single body monitor trends and practices in national security
activities, particularly as they affect human rights and freedoms. INSRCC would
be ideally positioned to carry out this type of overview function and periodically
report to the government.
Review in Five Years — I recommend that, in five years’ time, the government appoint an independent person to examine how the review structure I
propose is functioning. The national security landscape in Canada is constantly
evolving to keep abreast of threats to our national security. It is vital that review
and accountability mechanisms keep pace with operational changes. A review
in five years’ time should assist in this respect.
As a concluding observation, I believe that a credible review process that
is able to fully address integrated national security activities should obviate the
need for public inquiries or ad hoc reviews of individual cases.
My complete list of recommendations, with detailed rationales, can be
found in Chapter XI.
Notes
1
In the course of the Policy Review, Commission counsel and staff prepared a Consultation
Paper and Background Papers for the roundtables of Canadian and international experts on
review and oversight. These papers, as well as transcripts of hearings and roundtables and
other information about the Policy Review, are included in the CD that accompanies this
Report; they are also available on the Inquiry’s website, at www.ararcommission.ca.
�II
The History and Evolution of Canada’s
National Security Activities
1.
INTRODUCTION
A fundamental obligation of any state is to protect public safety and national security. All states are concerned about protecting national security from both external threats to the state and threats to individuals that are of such a magnitude
that they threaten the stable functioning of the state and its sense of well-being.
Democracies like Canada face particular restraints and challenges in pursuing the
vital goal of national security.
Well before 9/11, the 1985 terrorist bombings of two Air India flights that
killed 331 people signalled the grave threats that terrorism presents to national
security and the safety of Canadians. Canada has committed itself internationally to taking reasonable steps to combat terrorism by signing and ratifying 13
international conventions and instruments against terrorism. The first convention,
the Tokyo Convention on Offences and Certain Other Acts Committed on Board
Aircraft, was signed by Canada in 1963 and ratified in 1969. The most recent, the
International Convention for the Suppression of Acts of Nuclear Terrorism, was
signed by Canada in September 2005.
Since 9/11, there has been greater emphasis on matters of national security
and public safety within government, and increased intensity and integration of
the Government’s counter-terrorism activities. In addition to police and security
intelligence agencies, many other government departments and agencies are
being mandated to pursue national security responsibilities. Canada has enacted
new laws — the Anti-terrorism Act and the Public Safety Act — to try to prevent future acts of terrorism. The federal government has a new Department of
Public Safety and Emergency Preparedness and has issued its first national security policy. This policy stresses the need for the Government of Canada to
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A NEW REVIEW MECHANISM FOR THE RCMP’S
NATIONAL SECURITY ACTIVITIES
take an integrated approach to threat assessment, threat prevention, consequence management and review with respect to threats to national security ranging from terrorism to natural disasters.
Canada has faced threats to its national security and the safety of Canadians
from Confederation on. The focus of the threats has evolved over time from
Fenians, to “enemy aliens” during the World Wars, to Communists in the Cold
War, to terrorists in a modern era that includes the October Crisis, the Air India
bombings and the events of 9/11. Failure to prevent terrorism and other threats
to national security can have devastating consequences, as witnessed by the
deaths of 331 people in the Air India bombings and almost 3,000 people, including Canadians, in the 9/11 attacks. At the same time, the past contains reminders of the harms of overreacting in trying to achieve national security — the
internment of Japanese Canadians during World War II, and excesses with respect to investigating Communists and those affiliated with the Quebec sovereignty movement are examples. As the McDonald Commission eloquently stated,
the purpose of national security in a democracy is to preserve democracy, including respect for the rule of law and the right of dissent.1 The Supreme Court
of Canada has recently issued similar warnings, reminding us that a response to
terrorism “within the rule of law preserves and enhances the cherished liberties
that are essential to democracy”2 and that “it would be a Pyrrhic victory if terrorism were defeated at the cost of sacrificing our commitment to those values”3
such as liberty, the rule of law and the principles of fundamental justice. The
RCMP has a significant role in Canada’s response to threats to national security.
In the post-9/11 world, however, the RCMP’s national security activities are only
one element of Canada’s national security landscape. To understand the RCMP’s
role, and to address the issue of the type of review required for this role, it is
necessary to put it in the context of Canada’s national security activities as a
whole. This chapter begins with that context by describing the history of national
security activities in Canada from Confederation through the events of
September 11, 2001. The next three chapters complete the context by setting out
the changes since September 11, 2001; the RCMP’s current national security activities; and Canada’s current national security landscape.
Throughout this report, I use the term “national security” as equivalent to
the term “threats to the security of Canada” as defined in section 2 of the
Canadian Security Intelligence Service Act (CSIS Act):4 espionage or sabotage
that is against Canada or is detrimental to the interests of Canada or activities directed toward or in support of such espionage or sabotage; foreign-influenced
activities within or relating to Canada that are detrimental to the interests of
Canada and are clandestine or deceptive or involve a threat to any person;
�HISTORY OF CANADA’S NATIONAL SECURITY ACTIVITIES
activities within or relating to Canada directed toward or in support of the
threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective within Canada or
a foreign state; and activities directed toward undermining by covert unlawful
acts, or directed toward or intended ultimately to lead to the destruction or
overthrow by violence of, the constitutionally established system of government
in Canada.5
2.
6
CONFEDERATION TO WORLD WAR II
At the time of Confederation, matters of national security were primarily within
the authority of the Dominion Police Force, which was created by Parliament to
protect federal buildings in Ottawa and eventually expanded to provide all national security requirements of the federal government. Important elements of
national security work from the outset were the collection of information and the
development of intelligence about potential threats to Canada.7 The Dominion
Police supervised a network of undercover agents operating in Canada and the
United States, mainly to obtain information about Fenian activities.8
The need for national security intelligence intensified during World War I.
The Dominion Police Force grew from 12 individuals in 1868 to 140 in 1919. At
this time, the RCMP9 also became increasingly involved in gathering national
security intelligence: for example, RCMP personnel investigated allegations of
pro-German sympathies among European immigrants. In 1920, the RCMP absorbed the Dominion Police Force and became the primary federal agency responsible for both collecting national security intelligence and enforcing laws
concerning national security. The McDonald Commission report noted that “one
of the principal purposes of this change was to unify and strengthen the federal
security intelligence capability.”10 The primacy of the RCMP in both national security intelligence gathering and law enforcement was to continue until
the 1980s.
Between 1920 and 1946, national security activities were the responsibility
of the RCMP’s Criminal Investigation Branch (CIB). Until the mid-1930s there
was little to differentiate national security intelligence gathering from national security criminal investigations, or national security work in general from the CIB’s
other work — the same personnel did all types of work and reported to the
same superiors. It was not until 1936 that an Intelligence Section, tasked with
collecting and analyzing national security information, was established within the
CIB. The Section remained small up until World War II.
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NATIONAL SECURITY ACTIVITIES
World War II brought considerable, although temporary, growth in the
RCMP’s national security intelligence collection work. At its peak, in 1943, the
Intelligence Section at Headquarters had three officers and 95 other personnel.
In addition, specialized intelligence units were developed within certain divisional headquarters, including Toronto (20 personnel), Montreal (19 personnel)
and Vancouver (9 personnel).
From the 1930s onward, the communist movement was a major focus of national security intelligence collection work. With the rise to power of Hitler and
Mussolini, increased emphasis was placed on fascist and Nazi organizations in
Canada. It is important to note that from the 1920s on, the RCMP had a policy
of restricting covert intelligence-gathering operations to Canadian territory, and
relied on liaisons with British and American agencies to obtain information from
outside Canada. Aside from intelligence gathering, the RCMP’s major national security activity during World War II concerned the registration and internment of
what were referred to as “enemy aliens.”
3.
NATIONAL SECURITY AFTER WORLD WAR II
After the Second World War, the Gouzenko spy affair11 became a catalyst for
changes to the RCMP’s national security responsibilities. The Government implemented a security screening system in response to the affair to help ensure
that individuals with access to sensitive information were trustworthy. The RCMP
was made responsible for carrying out the screening process, which was eventually expanded to include screening for citizenship, identity certification (travel
documents for non-citizens) and immigration.
Another program with which the RCMP became involved after the war was
the compilation of lists of persons to be interned in the event of an emergency.
Its role was to provide information about individuals or groups to an Advisory
Committee on Internment appointed by the Department of Justice, which decided which names would be included on internment lists. The program focused on the Communist Party and other communist organizations.
A significant component of the RCMP’s national security mandate at that
time concerned foreign intelligence agencies operating in Canada and various
forms of domestic subversion. The RCMP conducted surveillance of foreign intelligence agency groups and individuals and took preventative measures against
them, sometimes referred to as “countering” or “counter-subversion.” The work
included both keeping check on foreign diplomats suspected of carrying out
secret intelligence functions in Canada and investigating persons suspected of
being long-term, deep-cover foreign agents. The Force assisted in several
�HISTORY OF CANADA’S NATIONAL SECURITY ACTIVITIES
prosecutions under the former Official Secrets Act12 and decisions by the government to declare diplomats personae non gratae.13 From World War II until
1980, there were about 20 charges under the Official Secrets Act, and 42 diplomats were declared personae non gratae.
The main focus in the area of domestic subversion in the immediate
post-war period was on organizations suspected of being related to communism. By the 1960s, there was also increasing focus on several new perceived
threats to national security. One such threat was terrorism which, while it had
always been part of the Canadian national security landscape (for example,
Fenian activities), began to increase in scale and in the level of concern to
Canadians. International terrorism came into particular focus after the events of
the 1972 Munich Olympics,14 especially since Montreal was to host the Olympics
in 1976. Other perceived threats included the Quebec separatist movement; and
what was called the “New Left,” which included anti-war, radical student and
certain labour organizations.
The RCMP became increasingly involved in counter-subversion. Their activities were designed to disrupt groups considered to be subversive. In support
of its countering activities, the RCMP relied primarily on information collected
through covert sources, including electronic surveillance, mail opening, searches
without warrant and the use of confidential personal information. It also used
human sources such as informants and undercover agents.
RCMP national security activities during this period continued to involve
the collection of significant amounts of information and intelligence. The
McDonald Commission observed that very little of this information was actually
used for prosecutions. Instead, most of it was stored and eventually used to provide reports to others, including other police forces and various government departments and agencies.15
The structure of the RCMP continued to evolve after the war. In 1946, the
Intelligence Section became a Special Branch, but still reported to the Director
of the CIB. In 1950, the officer in charge of Special Branch began to report directly to the Commissioner of the RCMP. In 1956, the officer in charge was elevated to the directorate level and the branch became known as the Directorate
of Security and Intelligence, or “I” Directorate. This structure remained essentially
unchanged until 1970, when the head of the “I” Directorate was appointed a director general — the same rank as a deputy commissioner — and the name of
the Directorate was changed to the Security Service. The evolution of the RCMP’s
organizational structure reflected an increasing separation of the intelligencegathering and analysis function from the criminal investigation function in relation to national security.
27
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A NEW REVIEW MECHANISM FOR THE RCMP’S
NATIONAL SECURITY ACTIVITIES
The number of RCMP personnel working on national security matters began
to grow again during this period, and by the end of the 1960s had increased
fifty-fold. Not all those involved in such work were regular members of the
RCMP. Since 1951, individuals involved in national security work had been divided into four categories. The largest component was regular members of the
RCMP. In addition, there were special constables, who were recruited for specialized investigative work but were not on the regular RCMP career path; public servants, who carried out support staff functions; and several civilian
members, whose role was mainly to analyze information and write security
reports.
Until the mid-1960s, Canadians seemed content by and large to let national
security agencies do their work in secret, unchecked by any external scrutiny of
the efficacy or propriety of their operations. Part of the explanation for this may
lie in the relatively consensual and bipartisan nature of debates over national security during the war and the early Cold War years. In 1965, however, two security-related scandals erupted, quickly becoming partisan political issues. The
firing of a Vancouver postal worker as a suspected Soviet spy caused a public
outcry. Then the Gerda Munsinger affair implicated two former Cabinet ministers in a relationship with a woman believed to have connections to Soviet espionage. Under considerable pressure from Parliament and the press, Prime
Minister Lester Pearson called two separate commissions of inquiry into these affairs, and then followed these up with a wider royal commission on security,
known as the Mackenzie Commission. The Mackenzie Commission’s terms of
reference were to examine:
the operation of [Canada’s] security procedures . . . with a view to ascertaining firstly
whether they [were] adequate . . . for the protection of the state against subversive
action [and,] secondly, whether they sufficiently protect[ed] the rights of private individuals in any investigations which [were] made under existing procedures.”16
The Mackenzie Commission reported in 1969. One of its principal recommendations was for the Security Service to be detached from the RCMP and reformed as a “new civilian non-police agency . . . quite separate from the RCMP
. . . without law enforcement powers.”17 The Commission concluded that it was
inappropriate for a law enforcement body to be involved in national security intelligence work and that such work was incompatible with the role of ordinary
police. Specifically, it expressed concern about combining a mandate to collect
security intelligence with the coercive powers of a police force. The Mackenzie
Commission also concluded that the Security Service within the RCMP lacked the
necessary sophistication and powers of analysis to perform the security
�HISTORY OF CANADA’S NATIONAL SECURITY ACTIVITIES
intelligence function competently. It was felt that security intelligence work
should be undertaken by a civilian agency with more expertise and sophistication, and with greater direct accountability to the Government. The Commission
also made recommendations for legislation to regulate intrusive investigative
techniques and security screenings.
The MacKenzie Commission recommended creating a Security Review
Board nominated by the Governor in Council, but “independent of any government department or agency.”18 The Board’s main job would be to hear appeals from public servants, immigrants and citizenship applicants denied security
clearance. The Board would also receive periodic reports from the head of the
Security Service and would have “authority to draw to the attention of the Prime
Minister any matter it considers appropriate.”19 This recommendation was linked
to the recommendation to create a civilian security service separate from the
RCMP in that the status of the Security Service as a branch of a police force was
seen as an obstacle to developing accountability, in part due to concerns about
“police independence.”20
Most of the Mackenzie Commission’s major recommendations were not implemented by the Government. In particular, the Government rejected the complete “civilianization” of the Special Branch and the Branch’s removal from the
RCMP. Instead, it adopted a compromise: the Security Service was to remain
within the RCMP, but would become “increasingly separate in structure and
civilian in nature.”21
Some civilianization did take place in the late 1960s and early 1970s.
Specifically, a number of civilians were appointed successively to the position
of Director General of the Security Service. Between 1969 and 1979, the civilian
membership of the Security Service increased from 9.9 percent to 17.2 percent.
The McDonald Commission noted, however, that most civilians worked at jobs
considered to be in the lower ranks, and that at the time of the Commission report no civilian held a position equivalent to an officer rank. During the 1970s
many RCMP officers did take advantage of programs to upgrade their educational qualifications. While the composition of the Security Service remained essentially the same during this period, it became increasingly independent from
the rest of the RCMP in matters of policy, budget and operations.
4.
THE 1970 OCTOBER CRISIS AND ITS AFTERMATH
Throughout the 1960s, the Security Service had been directing attention to the
Quebec sovereignty movement, especially the violent terrorist wing that was
engaging in criminal activity. In October 1970, cells of the Front de libération du
29
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A NEW REVIEW MECHANISM FOR THE RCMP’S
NATIONAL SECURITY ACTIVITIES
Québec (FLQ) kidnapped the British trade commissioner, James Cross, and kidnapped and later murdered the Quebec minister of labour, Pierre Laporte. The
Canadian government, acting upon the request of the Quebec government, invoked the War Measures Act on the basis of an “apprehended insurrection,”
suspending normal civil liberties, detaining a number of individuals without
charge and without legal counsel, applying censorship of the press, and declaring certain organizations retroactively illegal.
The October Crisis caused the federal government to conclude that it
needed more information about the nature and scope of the separatist movement. The Government asked the RCMP to undertake a “proactive” strategy to
gather more advance information about the intentions and activities of the organizations involved in the movement, and to “prevent” or “counter” disruptive
acts. In response, the RCMP embarked on what the McDonald Commission later
characterized as a campaign of intelligence gathering, infiltration, harassment
and disruption directed at many forms of nationalist sentiment in Quebec. This
campaign included activities that were clearly not authorized by law, including
(among the more notorious) burning down a barn to prevent a meeting of what
were perceived to be militant nationalists and American radicals; breaking into
a Montreal news agency seen as “left-wing” and stealing and destroying files; and
breaking into a Parti Québécois office and stealing membership lists.
Such extensively criticized activities on the part of the RCMP were not restricted to Quebec or the FLQ. Examples of what became known as “dirty tricks,”
aimed in particular at “left wing” or radical groups, took place throughout
Canada.22 When some of these methods and events came to light in the media
during the 1970s, questions arose around national security and the specific role
of the RCMP Security Service in illegal acts. Intrusive methods were now seen
to be used not just against small groups such as the Communist Party allied with
a hostile foreign power like the USSR, but also against domestic political forces,
an inherently more controversial matter.23
In 1974, the Government enacted section 16 of the Official Secrets Act. That
section required the RCMP to seek authorization from the Solicitor General24 for
the interception or seizure of communications if the Minister was satisfied that
the interception was “necessary for the prevention or detection of subversive activity directed against Canada or detrimental to the security of Canada or is necessary for the purpose of gathering foreign intelligence information essential to
the security of Canada.” Subversive activity was defined broadly to include espionage and sabotage; foreign intelligence activities gathering information relating to Canada; activities directed towards accomplishing governmental change
within Canada or elsewhere by force, violence or criminal means; activities by
�HISTORY OF CANADA’S NATIONAL SECURITY ACTIVITIES
a foreign power directed towards hostile acts to Canada; and activities of a foreign terrorist group directed towards the commission of terrorist acts in or
against Canada.
In 1975, Cabinet approved guidelines for Security Service activities in an attempt to address the concern about the lack of a clear mandate. These guidelines provided that:
(a) The RCMP Security Service be authorized to maintain internal security by
discerning, monitoring, investigating, deterring, preventing and countering
individuals and groups in Canada when there are reasonable and probable
grounds to believe that they may be engaged in or may be planning to engage in:
(i) espionage or sabotage;
(ii) foreign intelligence activities directed toward gathering intelligence information relating to Canada;
(iii) activities directed toward accomplishing governmental change within
Canada or elsewhere by force or violence or any criminal means;
(iv) activities by a foreign power directed toward actual or potential attack
or other hostile acts against Canada;
(v) activities of a foreign or domestic group directed toward the commission of terrorist acts in or against Canada; or
(vi) the use or the encouragement of the use of force, violence or any criminal means, or the creation or exploitation of civil disorder, for the purpose of accomplishing any of the activities referred to above;
(b) The RCMP Security Service be required to report on its activities on an annual basis to the Cabinet Committee on Security and Intelligence;
(c) The Solicitor General prepare for consideration by the Prime Minister a
public statement concerning the role of the RCMP Security Service.25
The guidelines were criticized as being both too broad and too vague. They
were also silent on methods of investigation or of countering that the Security
Service could use.
By 1976, the Parti Québécois (PQ) was in power in Quebec and launched
its own inquiry into police activities.26 It was unclear to what extent the federal
government, through its Security Service, distinguished between threats to national security clearly posed by the terrorist wing of the sovereignty movement
and threats to national unity posed by the democratic and strictly law-abiding
PQ. If the PQ proved to be a target of extra-legal surveillance methods, the matter would raise serious issues about liberal democracy of much wider concern
to Canadians than to Quebec sovereignists alone. These developments gave rise
31
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A NEW REVIEW MECHANISM FOR THE RCMP’S
NATIONAL SECURITY ACTIVITIES
to increasingly vocal demands for greater accountability and transparency in the
operations of the federal Security Service.
5.
THE McDONALD COMMISSION
In July 1977, the McDonald Commission was appointed to inquire into “certain
activities of the RCMP.”27 The immediate cause of its appointment was guilty
pleas by a member of the RCMP, and by members of the Quebec and Montreal
police forces, arising out of a break-in at the Agence de Presse Libre du Québec.
The McDonald Commission’s mandate was both to report on RCMP activities that
were not authorized by law and to make recommendations on the adequacy of
laws and procedures relating to RCMP national security activities.
By the time the McDonald Commission was established, there was considerable public concern about the operation of the Security Service in Canada.
The Commission validated this concern, cataloguing a long list of substandard,
inappropriate and illegal activity, as well as numerous infractions of civil liberties resulting from the Service’s surreptitious investigative methods. It found that
almost all of these illegalities and improprieties were undertaken without the
knowledge of the political officials charged with overseeing the RCMP.
The McDonald Commission concluded that the Security Service lacked a
precise mandate, effective political control or adequate review of its activities.
It was critical of the combination of law enforcement and security intelligence
collection in one agency. It was also critical of the Security Service itself, which
it saw as lacking sophistication and analytical ability. For example, it observed
that there was an inability to distinguish subversion from dissent, and a related
anti-“left wing” bias.28
The Commission made several significant recommendations for a reformulated security intelligence agency. These recommendations focused on setting
out a clear mandate for the Security Service; establishing clear guidelines for the
Service’s operational activities; implementing management, recruiting and other
personnel policies appropriate to a security intelligence agency; and developing suitable structures and procedures to ensure that the entity responsible for
security intelligence was under the direction and control of government, including both parliamentary and non-parliamentary review and oversight
mechanisms.29
The overarching, and most significant, recommendation was the removal of
the Security Service from the RCMP. The commissioners strongly felt that the
power to collect security intelligence should not be contained in the same
organization as the coercive power of a police force — the same concern that
�HISTORY OF CANADA’S NATIONAL SECURITY ACTIVITIES
the Mackenzie Commission had raised. As the McDonald Commission stated in
support of its recommendation that the security intelligence agency not be authorized to enforce security measures:
First, as we argued in Part III, we think it is unacceptable in Canada that the state
should use a secret intelligence agency to inflict harm on Canadian citizens directly.
This position, it must be noted, does not prevent a police force or a government department from using intelligence supplied by the security intelligence agency to enforce a law or security measure against an individual. Second, we think the liberty
of Canadians would be best protected if measures to ensure security were not enforced by the organization with the prime responsibility for collecting information
about threats to that security. The assignment of executive enforcement responsibilities to agencies other than the security intelligence organization assures desirable
countervailing powers and avoids the danger that the security intelligence organization might be both judge and executor, in security matters.30
Further reasons the Commission gave for this recommendation included
the following:
i)
Appropriate management and personnel policies: The Commission saw the
RCMP management structure as inimical to the structure proposed for an
improved security intelligence agency. It recommended recruitment of more
mature, more experienced, better-educated personnel; a new approach to
career paths; a more participatory, less authoritarian style of management;
and substantially different training and development approaches. This was
contrary to the authoritarian, military-style approach and structure that were
seen to be entrenched in the RCMP. While it was possible to have two very
different management structures in the same organization, the Commission
concluded that such an arrangement would too likely create conflict that
was detrimental to the much smaller Security Service.31
ii)
Direction and control by government: A central aim of the reforms the
McDonald Commission recommended was to improve the direction and
control exercised over the security intelligence function by other parts of
government, including Parliament, the minister responsible, other Cabinet
members, and other senior officials in various departments and agencies.
It was felt that effective oversight could best be achieved by placing the security intelligence function in a separate agency for two reasons.
First, while the report identified several similarities for the two agencies,
including the requirement for ministerial guidance on policy issues,
allocation of resources and liaison arrangements, it noted one fundamental
33
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difference. This difference related to the degree to which the Minister and
other senior governmental officials should be involved in decisions about
what groups and individuals to investigate and how such investigations
should proceed. The Commission concluded that in the case of a security
intelligence agency, the Minister should be actively involved, because such
decisions can have ramifications for Canada’s system of government and its
relations with other countries. In the case of a police force, involvement by
the Minister and senior officials “in decisions about whom to investigate
and how these investigations should be conducted should be on an advisory basis only and limited to matters with significant policy implications.”32
Second, the McDonald Commission noted that “the traditional, and we
believe unhealthy, semi-independent relationship which the R.C.M.P. has
enjoyed with government will not easily be changed.”33 In the Commission’s
opinion, the RCMP needed to be more accountable to government even in
policing functions, especially on broader policy issues and general approaches. It was felt that there was great resistance to increased accountability within the Force at that time. This culture would hinder the
development of greater accountability on the security intelligence side.
iii) Trust in the RCMP: In the McDonald Commission’s view, the questionable
activities that they had investigated, involving both the Security Service and
the criminal investigations side of the Force, “have diminished significantly
the trust that Canadians and their governments have in the R.C.M.P.”34 The
report acknowledged that the RCMP Commissioner and many others in the
Force were working very hard to restore trust, but felt that it would be some
time before this goal was accomplished.
iv) Checks and balances could develop between the RCMP and the Security
Service: Finally, by making one organization responsible for collecting security intelligence and the other responsible for enforcing it, it was hoped
that a system of checks and balances would develop between the RCMP
and the security intelligence agency. It is important to note that the
McDonald Commission also recommended that the security intelligence
agency not have powers of arrest, search and seizure, and that a police officer accompany security agents on surreptitious entries under judicial warrants. It was felt that this division of responsibilities would create an
interdependency between the agencies that in turn would allow the two organizations to monitor each other. Moreover, having two agencies would
give the Minister two separate systems to assess against each other.35
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The McDonald Commission recommended three forms of “external controls” for the proposed security intelligence agency. The first was judicial oversight. The Commission recommended that the Federal Court have a role in
releasing confidential information and in authorizing the use of intrusive surveillance methods such as electronic surveillance, mail interception and surreptitious entry.36 It also recommended creating a Security Appeals Tribunal
associated with the Federal Court and specifically tasked with hearing security
screening appeals.37
The second form of external control recommended was an Advisory
Council on Security and Intelligence, which was to be an independent, arm’slength review body. Such a body was seen as necessary because of the extreme
secrecy of many national security intelligence operations and the potential impact on the civil liberties of individuals who are the subject of national security
investigations. As the report noted,
With normal operations of government the citizen knows what the government has
done to him, and can decide whether he wishes to question the propriety or legality of government action. However, with regard to security intelligence investigations
which a citizen may fear are encroaching on his privacy or his political liberty, he
has no way of knowing whether he has been investigated as a threat to security and,
if he has, whether the investigation has been carried out in a legal and proper
manner.38
The Advisory Council’s basic function was to carry out “a continuous review
of security intelligence activities to ensure that they are lawful, morally acceptable and within the statutory mandate established by Parliament.”39 The Advisory
Council was to report regularly to the Solicitor General and at least on an annual basis to a parliamentary committee. The subjects of the review were to include the interpretation of the security intelligence agency’s statutory mandate;
the implementation of administrative directives and guidelines; the operation of
a system of controlling intrusive intelligence collection techniques; and relationships with other agencies.40 The McDonald Commission also recommended
that the Advisory Council review activities after they had occurred, partly to ensure independence. It noted that if the Advisory Council were to pre-approve
actions, the Council members themselves would be implicated in the actions.
The Advisory Council’s jurisdiction was to extend to all organizations employed
by the federal government to collect intelligence through clandestine means,
other than the RCMP.41
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Third, the McDonald Commission recommended establishing a parliamentary committee to oversee the security intelligence agency. The committee’s main
function would be “to scrutinize the activities of the security intelligence organization with a view to ensuring that it fulfills the intentions of Parliament as
set out in the organization’s legislative charter.”42 Unlike the Advisory Council,
the parliamentary committee was to “be as much concerned with the effectiveness of the security intelligence organization as with the legality or propriety of
its operations.”43 The Commission recommended that the parliamentary committee be relatively small (no more than 10 members) and include members
from all major political parties, and that efforts be made to maintain continuity
of membership for a reasonable period of time. It also recommended that all parliamentary committee sessions be held in camera.
Recommendations were also made on a review mechanism for the RCMP,
once the security intelligence function had been removed. The Commission recommended establishing a complaints commissioner, which they called the Office
of Inspector of Police Practices.44 This Office was to have two functions: the
power “in exceptional circumstances” to investigate complaints of RCMP wrongdoing and make recommendations to the Solicitor General; and the right to
monitor the RCMP’s own investigations of its alleged misconduct and to evaluate its complaint-handling procedure. The Office of Inspector was to report directly to the Solicitor General.45
The McDonald Commission did not recommend entirely removing the
RCMP from national security work. Instead, it envisioned a system where the
proposed security intelligence agency would have primary responsibility for intelligence gathering, but would be assisted by the RCMP in such matters as executing warrants. The RCMP would keep responsibility for preventing crime,
and for investigating and arresting criminals in the national security field. There
was no discussion in the McDonald Commission report about an intelligencegathering role for the RCMP arising out of its crime prevention and criminal apprehension role.
6.
1984-2001
6.1
OVERVIEW
Following the McDonald Commission’s recommendations, the Government of
Canada accepted that combining security intelligence and policing responsibilities in a single policing agency was inappropriate. Consequently, in 1984
�HISTORY OF CANADA’S NATIONAL SECURITY ACTIVITIES
Parliament passed the Canadian Security Intelligence Service Act creating the
Canadian Security Intelligence Service (CSIS) as a civilian security intelligence
service with no powers of criminal investigation or prosecution. CSIS’ mandate
and activities are described in detail in Chapter V. In general terms, CSIS is required to collect, by investigation or otherwise, to the extent that it is strictly necessary, and analyze and retain information and intelligence about activities that
may on reasonable grounds be suspected of constituting threats to the security
of Canada. CSIS may advise any minister of the Crown on matters relating to the
security of Canada, or provide any minister of the Crown with information relating to security matters or criminal activities, that is relevant to the exercise of
any power or the performance of any duty or function by that minister under
the Citizenship Act or the Immigration and Refugee Protection Act. CSIS may
also, in prescribed circumstances, within Canada, assist the Minister of National
Defence or the Minister of Foreign Affairs in collecting information or intelligence relating to the capabilities, intentions or activities of any foreign state or
group of states, or of any person who is not a Canadian citizen, a permanent resident of Canada or a corporation incorporated by or under an Act of Parliament
or a provincial legislature.
National security was not placed exclusively in the domain of CSIS. At the
same time it passed the CSIS Act, the Government also passed the Security
Offences Act,46 which gave the RCMP primary responsibility over national security law enforcement. As concern about terrorist threats increased, a number of
other departments and agencies were given national security roles. Canada’s national security landscape, as it exists today, is described in Chapter V.
In this section, I examine the RCMP’s national security activities following
the creation of CSIS and before the events of 9/11. It is useful to see this period
as the foundation for the RCMP’s current national security role, which is discussed in detail in Chapter IV. The section is divided into an introduction to the
RCMP in the CSIS era; an examination of the RCMP’s national security activities
after the creation of CSIS; a discussion of the concept of intelligence-led policing; a description of the internal organization of the RCMP’s national security activities before 9/11; a description of the interaction between the RCMP and CSIS;
and a brief discussion of the most notable national security event during this period — the Air India bombings of 1985.
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6.2
INTRODUCTION TO THE RCMP IN THE CSIS ERA
The Royal Canadian Mounted Police Act (RCMP Act)47 establishes and authorizes the RCMP to be Canada’s national police force. Section 4 of the Act provides
that the RCMP may be deployed both within and outside Canada.
As a result of Canada’s Constitution;48 the historical development of the
Force; various federal statutes;49 and arrangements that certain provinces, territories, municipalities and First Nations communities have made to contract policing duties out to the RCMP, the Force’s responsibilities today consist of a
patchwork of law enforcement activities.
The RCMP has inherent responsibility for enforcing all federal laws, except
significant parts of the Criminal Code, in all Canadian provinces and territories.
It also has responsibility for enforcing all of the Criminal Code, as well as provincial and municipal laws, in jurisdictions that have contracted its policing services. All provinces except Ontario and Quebec have contracted the RCMP to
provide policing services, as have the three territories, 197 municipalities and
192 First Nations communities.50
The RCMP’s many statutory and contractual duties result in a long list of
functions. These can be grouped under six broad headings:
(a) federal policing, including drug enforcement, economic crime and national
security investigations;
(b) contract policing, including its provincial, territorial and municipal policing;
(c) national policing, including its forensic laboratory services, technical operations, the Criminal Intelligence Service Canada and the Canadian Police
College;
(d) protective policing, including airport policing and protection of Canadian
and foreign officials;
(e) international peacekeeping; and
(f) corporate services.51
Section 5 of the RCMP Act authorizes the Governor in Council to appoint
a Commissioner who “under the direction of the Minister, has the control and
management of the Force and all matters connected therewith.”52 This relationship has evolved into one where the Minister provides directions to the
Commissioner setting out relatively broad policy guidelines and standards. As
�HISTORY OF CANADA’S NATIONAL SECURITY ACTIVITIES
described in a document entitled “The Directives System” prepared by the
Solicitor General’s department in 1984:
Solicitor General Directives set standards for the RCMP in selected areas of policing
activity. The Directive procedure is one of the most important means by which the
Minister exercises his responsibility over the Royal Canadian Mounted Police.
Effective policing requires the continued confidence and support of the public. In order to ensure that that confidence is maintained the Solicitor General must
establish certain standards which balance individual rights with effective policing
practices.53
In addition to the Commissioner, there are seven deputy commissioners,
24 assistant commissioners, and several chief superintendents, superintendents
and inspectors, all appointed by the Governor in Council pursuant to the
RCMP Act.54
The RCMP comprises more than 22,000 members, including over 15,500
regular members, over 2,500 civilian members and approximately 4,000 public
servants.55 The Force is divided into four regions, 14 divisions and over 750 detachments. Its headquarters are in Ottawa.56
Every officer and every other person designated as a peace officer under
subsection 7(1) of the RCMP Act is a peace officer in every part of Canada, with
the power, authority, protection and privileges that a peace officer has by law.
Under section 18 of the RCMP Act, it is the duty of members who are peace officers, subject to the orders of the Commissioner:
•
•
•
•
to perform all duties that are assigned to peace officers in relation to the
preservation of the peace, the prevention of crime and of offences against
the laws of Canada and the laws in force in any province in which they are
employed, and the apprehension of criminals and offenders and others
who may be lawfully taken into custody;
to execute all warrants, and perform all duties and services in relation
thereto that may, under the RCMP Act, the laws of Canada or the laws in
force in any province, be lawfully executed and performed by peace
officers;
to perform all duties that may be lawfully performed by peace officers in
relation to the escort and conveyance of convicts and other persons in custody to or from any courts, places of punishment or confinement, asylums
or other places; and
to perform such other duties and functions as are prescribed by the
Governor in Council or the Commissioner.
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This definition of the duties of peace officers includes not only the enforcement of federal and provincial laws and the execution of warrants, but also
“the preservation of the peace” and the “prevention of crime.”
6.3
RCMP NATIONAL SECURITY ACTIVITIES AFTER THE CREATION
OF CSIS
As noted above, the McDonald Commission report did not call for eliminating
RCMP involvement in all matters relating to national security. In carrying out
many of the McDonald Commission’s recommendations, the Government maintained a significant national security role for the RCMP. While CSIS was established to carry out the national security intelligence function that the Security
Service had performed, the RCMP retained responsibility for national security law
enforcement. The scope of that role was set out originally in the Security
Offences Act.
The same year the CSIS Act was enacted to provide Canada with a civilian
intelligence agency, the Security Offences Act was enacted. Section 6 of that Act
provides that RCMP peace officers “have the primary responsibility to perform
the duties that are assigned to peace officers” in relation to offences that arise
“out of conduct constituting a threat to the security of Canada within the meaning of the [CSIS Act]”57 or if “the victim of the alleged offence is an internationally protected person within the meaning of section 2 of the Criminal Code.”
Thus, the Act recognized that the RCMP, as the federal police force, as opposed
to municipal or provincial forces, should have primary responsibility for investigating such criminal offences.
The definition of threats to the security of Canada set out in the CSIS Act
includes references to sabotage, espionage, foreign-influenced activities, clandestine activities, threat or use of serious violence, and undermining by covert
unlawful acts. On the basis of this definition there is a potentially long list of offences that could be national security crimes. The list includes sabotage (section
52 of the Criminal Code); and espionage; wrongful communication with a foreign power; and harbouring spies (sections 3, 4 and 8 respectively of the former Official Secrets Act).58 In addition, offences such as treason and seditious
speech or conspiracy (sections 46 and 61 of the Criminal Code), while rarely
charged, could be national security offences. Offences that would otherwise not
be national security offences could become so in certain circumstances. For example, the threat or use of serious violence against persons or property could
include a wide range of Criminal Code offences relating to air or maritime safety,
explosives, kidnapping, murder, mischief and arson. Foreign-influenced and
�HISTORY OF CANADA’S NATIONAL SECURITY ACTIVITIES
clandestine events that involved uttering threats contrary to section 264.1 of the
Criminal Code could also be national security offences. The RCMP’s primary responsibility for policing if the victim is an “internationally protected person”59
also potentially involves many crimes.
Before the Anti-terrorism Act was enacted at the end of 2001, the RCMP’s
powers with respect to national security offences were largely the same as its
powers with respect to its other responsibilities. As noted above, section 18 of
the RCMP Act establishes that the duties of RCMP officers include the enforcement of laws and the execution of warrants, as well as the “preservation of the
peace” and “the prevention of crime.”
Even before the enactment of the Anti-terrorism Act, the RCMP and other
police forces had a broad range of police powers that could be used in criminal investigations, including those involving threats to the security of Canada.
One of the more important powers in the national security context is the ability to use electronic surveillance. Under Part VI of the Criminal Code, the police can in certain circumstances obtain a judicial warrant authorizing the
interception of private communications. Normally, the warrant application must
demonstrate that “other investigative procedures have been tried and have failed
or why it appears they are unlikely to succeed or that the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.”60 As will be seen, the
Anti-terrorism Act changed this requirement.
In addition to the specific provisions for authorizing electronic surveillance
under Part VI of the Criminal Code, there are also a wide variety of search powers under Part XV of the Criminal Code. These powers include search warrants,
search warrants to make an arrest in a dwelling, warrants to obtain DNA samples, and a general warrant provision that allows judicial authorization of the use
of any investigative technique or procedure that would otherwise constitute an
unreasonable search or seizure. In general, warrants are granted on a demonstration under oath that there are reasonable grounds to believe an offence has
been committed and that the search will reveal evidence of the offence. Limited
powers of warrantless searches in exigent circumstances where it is not practicable to obtain a warrant are recognized in both the Criminal Code and under
the jurisprudence of the Charter of Rights and Freedoms. Other police powers
include arrest powers and warrants,61 and the ability to apply for recognizances
or peace bonds.62 As will be discussed, the Anti-terrorism Act increased the ability to obtain recognizances.
In 2001, the Criminal Code63 was amended to give public officers, including customs officers and police officers, the power to commit acts that would
41
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otherwise constitute an offence. The police officer must be engaged in the
investigation of criminal activity or enforcement of an act of Parliament, must be
designated by a senior officer responsible for law enforcement and must
believe on reasonable grounds that the commission of the act or omission as
compared to the nature of the offence or criminal activity being investigated is
reasonable and proportional in the circumstances.64 If the activity is likely to result in loss of or serious damage to property, additional authorization from a senior officer is required. There are also provisions for public officers directing third
parties to commit offences. The intentional or criminally negligent causing of
death or bodily harm to another person, the willful attempt to obstruct justice
and the violation of an individual’s sexual integrity is never justified under
this section.65
This provision provides several accountability measures short of the requirement for a judicial warrant that is generally required for searches and
seizures, including the use of electronic surveillance. The peace officer who
commits the act must as soon as is feasible file a written report to a senior officer under section 25.2. Public annual reports must be filed under section 25.3.
As soon as feasible, and no later than a year later, a person whose property was
lost or seriously damaged must be notified under section 25.4, unless the minister responsible for the RCMP is of the opinion that notification would compromise an ongoing investigation, an undercover officer or a confidential
informant; endanger the life or safety of any person; prejudice a legal proceeding; or be otherwise contrary to the public interest.
6.4
INTELLIGENCE-LED POLICING
As noted above, the McDonald Commission Report envisioned a clear division
between the security intelligence function (CSIS) and the law enforcement function (the RCMP and other police agencies). However, experience has shown
there remains a significant overlap between these functions. An important element of this overlap was the development by the RCMP of an approach to policing that became known as intelligence-led policing.
Intelligence-led policing arose primarily from a new approach to policing
developed in the 1980s and 1990s referred to as “Community Policing.”
Community Policing focused on developing better relations with the communities the Force served and engaging such communities in problem solving. It
brought a general change in approach and a change in the training of front-line
police officers, including an increased focus on working in the community
and acquiring information about the community’s needs; and an emphasis on
�HISTORY OF CANADA’S NATIONAL SECURITY ACTIVITIES
preventing crime through problem solving rather than strictly reacting to it after
it occurs.66
It soon became evident that for the Community Policing approach to work
effectively, the RCMP needed an accessible bank of information on which to
base its problem-solving and crime prevention activities. Events like the Oka
Crisis in the summer of 1990 underscored the need for better information and
intelligence, as there was a perception that this event had taken the Force by
surprise.67 As stated in the RCMP’s 1991 Criminal Intelligence Program
Implementation Guide:
Up to this time, the failure to develop a sophisticated strategic as well as tactical intelligence capability within the RCMP has seriously hindered the Force’s ability to
accurately measure and prevent crime having an organized, serious or national security dimension in Canada, or internationally as it affects Canada. This, in turn, has
prevented the development of a more effective crime control strategy that would
have a measurable impact on reducing the serious effects of crime on Canadian
society.68
By the late 1990s, the new approach to policing was referred to as intelligence-led policing.
The basic concept of intelligence-led policing is relatively straightforward.
As set out on the RCMP website:
Most would agree, however, that at its most fundamental, intelligence-led policing
involves the collection and analysis of information to produce an intelligence end
product designed to inform police decision-making at both the tactical and strategic levels. It is a model of policing in which intelligence serves as a guide to operations, rather than the reverse. It is innovative and, by some standards, even radical,
but it is predicated on the notion that a principal task of the police is to prevent and
detect crime rather than simply to react to it.69
Intelligence-led policing has developed into an RCMP-wide approach and
is not restricted to any particular type of criminal activity.70 Indeed, the approach
is employed by most major police forces in the Western world.71 In my view, it
is both logically and practically linked to policing, and as I noted in the Factual
Inquiry report, has been an important and reasonable response to the increasingly complex and sophisticated criminal activities that the RCMP must investigate. However, in the national security context, intelligence-led policing has
resulted in the RCMP engaging in activities very similar to those CSIS engages
in, albeit for different ultimate purposes. As the government report On Course:
National Security for the 1990s noted in 1991,
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Both employ similar investigative methods and techniques to acquire information
on the activities of individuals and groups, the RCMP to enable the force to prevent
crime or to lay charges, CSIS in order to report to and advise the Government with
respect to threats.72
The different ultimate purpose for which intelligence is collected has
resulted in the use of the term “criminal intelligence” as distinct from the
“security intelligence” that CSIS collects.73 Criminal intelligence is characterized
as intelligence with a link to criminal activity, gathered in support of investigations, with the goal of preventing or deterring a criminal act or of arresting a
criminal. Security intelligence, on the other hand, refers to information relating
to threats to the security of Canada that is collected for the purpose of advising
the Government.74
It seems clear, however, that in the national security context, the very same
information can be both criminal intelligence and security intelligence. It is also
clear that both forms of intelligence can be gathered and analyzed in the same
way.75 In addition, while “criminal intelligence” is collected to further the RCMP’s
criminal mandate, the link between the collection of intelligence and a criminal
prosecution can be somewhat distant. For example, the RCMP recognizes a difference between intelligence gathering and traditional investigative work. In its
Criminal Intelligence Program Guide, the RCMP states
The development of intelligence should not be confused with traditional investigative work. Although the two are related, they are only cousins in the police and law
enforcement system. Investigative reporting is evidentiary in nature. Intelligence reporting is like an early warning system — what are the capabilities, vulnerabilities,
limitations and intentions of criminal organizations or individual criminals?76
Thus, while the purposes for collecting security intelligence may be different than those for collecting criminal intelligence, the distinction between the
two may blur in practical application. I note in the Factual Inquiry report that
while it is appropriate for the RCMP to continue with its intelligence-led policing approach, it is critical that in doing so, the Force remains within its law enforcement mandate. Given the potential for blurring, it is important that the
policing purpose for which the RCMP gathers intelligence is respected.
�HISTORY OF CANADA’S NATIONAL SECURITY ACTIVITIES
6.5
THE INTERNAL ORGANIZATION OF THE RCMP’S NATIONAL
SECURITY ACTIVITIES BEFORE 9/11
After CSIS had been created, the RCMP made several organizational changes
concerning its national security mandate. In 1988, the Force established a
National Security Investigation Directorate (NSID) and a National Security
Operations Branch (NSOB) at Headquarters to provide expertise and dedicated
resources for investigating offences with a national security dimension, and to
supply investigative and related support for its protective policing program (including government officials and internationally protected persons). National
Security Investigation Sections (NSIS) were created in 1988 and given responsibility for the operational aspects of national security investigations. From the
outset, they had a centralized reporting function.77
To facilitate the new intelligence-led policing approach, a Criminal
Intelligence Directorate (CID) was created in 1991. The CID mission statement
provides the following:
The mission of the Criminal Intelligence Directorate is to provide a national program
for the management of criminal information and intelligence which will permit the
RCMP to detect and prevent crime having an organized, serious or national security dimension in Canada, or internationally as it affects Canada.78
The establishment of CID also involved reorganizing the national security
function. All Headquarters departments involved directly in the RCMP’s national
security mandate were located within CID. CID included a Security Offences
Branch to coordinate investigations of national security offences. In addition to
CID at Headquarters, there were also criminal intelligence sections in the divisions. Their role was to bring together various pieces of information in the
provinces and to provide those to Headquarters.
An important component of CID’s creation in 1991 was the establishment
of the Secure Criminal Information System (SCIS). SCIS, which is described in
greater detail in Chapter IV, is a centralized database used exclusively for national security information and intelligence. Because of its connection to national security, all such information is classified by the RCMP. Access to SCIS is
restricted to personnel with the appropriate security clearance who “need to
know” the information to perform their functions.
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6.6
INTERACTION WITH CSIS
The RCMP developed its relationship with CSIS in the 1980s and 1990s. In July
1984, a ministerial directive was issued describing the expected relationship between the RCMP and CSIS. A further directive in August 1986 established the
RCMP/CSIS liaison officer program to facilitate communication and coordination between the two organizations. This program involved appointing personnel within each organization as point persons for information and consultation.
In 1986, the Minister also approved a memorandum of understanding (MOU) between the RCMP and CSIS dealing with co-operation between the two organizations, including the exchange of information as it relates to law enforcement.79
The MOU was amended in 1991. Together with relevant legislative provisions,
it continues to govern the relationship between the RCMP and CSIS.80
The MOU sets out the following guiding principles:
•
•
•
•
•
•
The RCMP will rely on CSIS for intelligence relevant to national security
offences.
CSIS will provide to the RCMP intelligence relevant to the RCMP’s security
enforcement and protective security responsibilities.81
The RCMP will provide to CSIS information relevant to the CSIS mandate.
The RCMP will be the primary recipient of security intelligence on national
security offences.
The RCMP and CSIS will consult each other with respect to the conduct of
[national] security investigations.
The RCMP and CSIS will conduct security investigations in accordance with
guidelines, standards and directions provided by the Solicitor General.
Part I of the MOU deals with the exchange of information and intelligence,
and in particular the types of information that will be exchanged. Part II deals
with operational support and assistance, specifically with support that will be
provided for special events, security assessments, air services, protective security, photographic services, foreign liaison and incident management. On some
occasions, when CSIS is unable to do so, the RCMP provides investigative assistance such as surveillance.82
Part III of the MOU sets out principles and mechanisms to facilitate co-operation in the exchange of information. Specifically, four principles are set out:
(a) All information, documentation or material provided under the MOU shall
be fully protected and any caveats imposed by either party shall be fully respected to the extent provided by law.
�HISTORY OF CANADA’S NATIONAL SECURITY ACTIVITIES
(b) National security investigative files shall be maintained separately from
other investigative records and access to these files shall be strictly governed by the “need to know” principle.
(c) Subject only to the requirements of the courts, information provided by either party to the MOU shall not be used for the purposes of obtaining
search warrants or authorizations to intercept private communications produced as evidence in court proceedings or disclosed to Crown prosecutors
or any third party without the prior express approval of the party that provided the information.
(d) The MOU shall not be interpreted as compelling either party to disclose
the identity of its sources or caveated information from a third party.
These principles reflect the secrecy appropriate to national security intelligence. They also reflect the fact that it is necessary to protect the identity of
sources and to respect the conditions imposed on the sharing of information
from foreign agencies to ensure the continued flow of such information. Further,
they suggest that much security intelligence (at least what CSIS provides) will
never be used as evidence in court.
The CSIS/RCMP MOU provides for a liaison officer program and a liaison
committee. The liaison officer program has been replaced by an officer exchange
program through which personnel from each entity are seconded. These liaison
and exchange programs are intended to foster co-operation in the identification
and exchange of information and intelligence; the provision of operational assistance; the investigation of targets of mutual interests; and the establishment
of combined operations.
6.7
THE AIR INDIA BOMBINGS OF 1985
Before turning to the changes to the Government’s approach to national security after the 9/11 terrorist attacks, it is important to mention the most notable
national security event that occurred in the post-CSIS era up to 9/11 — the terrorist bombing of Air India Flight 182. That bombing killed 329 people in what
remained, until 9/11, the world’s most deadly act of aviation terrorism. Two
other people were killed in Narita, Japan, when a bomb placed on an Air India
flight out of Vancouver also exploded. As Bob Rae recently stated in his report:
“. . . the bombing of the Air India flight was the result of a conspiracy conceived, planned, and executed in Canada. Most of its victims were Canadians.
This is a Canadian catastrophe, whose dimension and meaning must be understood by all Canadians.”83
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The bombing of the Air India flights revealed many new and deadly threats
to Canada’s national security. It showed how events in foreign lands may affect
the security of Canadians in Canada and abroad. The conspiracy to bomb Air
India originated in the Babbar Khalsa movement, a Sikh group that wished to
separate from India, especially in light of the Indian government’s raid on the
Golden Temple in 1984. In response to these events, which included attacks on
the acting Indian high commissioner in Canada and a diplomatic note from the
state of India, the Government of Canada established an interdepartmental committee on Sikh terrorism in May 1985 with representatives from the Department
of Foreign Affairs, the RCMP, CSIS and the Solicitor General.84 This demonstrates,
even before 9/11, a recognition of the need for increased integration within the
federal government with respect to threats to national security.
The Air India bombings show how modern-day threats to national security
require co-operation and integration among agencies responsible for national security. Mr. Rae’s report identified several issues relating to how these agencies
should best function together. In March of 1985, CSIS obtained a warrant to intercept the communications of Talwinder Singh Parmar, one of the conspiracy
leaders. CSIS agents also carried out physical surveillance of Parmar and his associates, including Inderjit Singh Reyat, who has been convicted of manslaughter in both the bombing of Air India Flight 182 and the related Narita bombing.
At the same time, there were problems within CSIS around translating and keeping the electronic surveillance tapes, and around informing the RCMP of information relevant to its crime-based mandate. At the time, CSIS was devoting 80
percent of its resources to counter-intelligence and counter-espionage, and the
experience of the Cold War “had created a culture of secrecy and only telling
others on a ‘need to know’ basis.”85 Thus, the situation raises issues about the
desirable degree of consultation and co-operation between the RCMP and CSIS,
and how information and intelligence gathered from a security intelligence
agency can and should be passed on to police forces. Air India stands as a chilling reminder of the importance of co-operation between CSIS and the RCMP,
and the need for information sharing between two institutions that have distinct
but complementary and vital roles in protecting the national security of Canada.
The Air India bombings also illustrate how government institutions beyond
the police and security intelligence agencies have responsibilities for national security and the public safety of Canadians. Given intelligence and the political situation, Canadian authorities were aware that Air India flights originating in
Canada could be terrorist targets. As a result, special precautions were being
taken to screen luggage and to match it with passengers on Air India flights.
Tragically, the luggage containing bombs was allowed to travel from Vancouver
�HISTORY OF CANADA’S NATIONAL SECURITY ACTIVITIES
both on the Narita-bound flight and with connections through Toronto to Air
India Flight 182, even though the passenger who checked in the luggage did not
travel on either flight. An X-ray machine used to screen the luggage before it was
loaded onto Air India Flight 182 in Toronto broke down, and a hand-held explosive sniffer of doubtful reliability was used on the remainder of the luggage.
The Air India bombings, like the October Crisis, are painful reminders that
Canada and Canadians are not immune from terrorism. Canada has agreed to 13
different international conventions and instruments relating to various forms of
terrorism. Three of these instruments from the 1960s and 1970s relate to offences
on aircraft and hijackings.86 Another relates to violence at airports,87 and two
others to terrorism on the seas.88 Two relate to crimes against internationally
protected persons and the taking of hostages.89 Two others, including the most
recent, relate to nuclear material and terrorism.90 One relates to plastic explosives
and another to terrorist bombings.91 One of the more recent conventions relates
to the financing of terrorism.92 Canada has committed itself to the prevention of
terrorism as a key component of its national security and public safety strategy.
Notes
1
2
3
4
5
6
7
8
Canada, Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted
Police, Freedom and Security under the Law, Second Report, vol. 1 (Ottawa: Supply and
Services Canada, 1981), p. 44, para. 19 (Chair; D.C. McDonald) [McDonald Commission report,
vol. 1].
Re s. 83.28 of the Criminal Code, [2004] 2 S.C.R. 248 at para. 7.
Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 at para. 4.
R.S.C. 1985, c. C-23 [CSIS Act].
The definition is broad and, as discussed below, encompasses grey areas. The specific activities included in the definition are discussed in more detail throughout this chapter.
The history and background set out in this chapter are based largely on the McDonald
Commission report. The primary purpose of the background information is to provide context. As such, I did not consider it an efficient use of resources to undertake extensive research in this regard. More detail on the topics discussed in this section can be found in Part I,
Chapter 2 (vol. 1), and Part VI, Chapter 1 (vol. 2), of the McDonald Commission report.
For the purposes of this report, I adopt the distinction between “information” and “intelligence” used by the RCMP. The RCMP Operational Manual provides that information is unprocessed data that may be used in the production of intelligence. Intelligence is the end
product of information that has been subject to the intelligence process, which involves collection, evaluation, collation, analysis reporting and dissemination. (See Exhibit P-12, Tab 32A,
Arar Commission Factual Inquiry.)
The Fenian Brotherhood was an American organization of mainly Irish and Irish Americans.
The organization’s primary goal was the separation of Ireland from Great Britain. In support
of this goal, factions of the Fenian Brotherhood favoured an invasion of Canada (or British
North America, as it then was). Indeed, such an invasion was attempted in 1866.
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9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
Until 1920 the RCMP was known as the Royal North-West Mounted Police, but will be referred to throughout this section as the RCMP.
McDonald Commission Report, vol. 1, p. 58, para. 36.
In 1945, Igor Gouzenko, a cypher clerk in the Soviet Union’s Ottawa embassy, defected to
Canada with documentary evidence of an extensive Soviet spy ring operating in Canada. The
ring included Canadian civil servants and scientists who passed information important to the
defence of Canada to the Soviet Union.
The Official Secrets Act was renamed the Security of Information Act (R.S.C. 1985, c. O-5)
in 2001. (See the Anti-terrorism Act, S.C. 2001, c. 41.)
The Official Secrets Act was first enacted in 1890 and substantially revised in 1939. Until it was
amended in 2001 to include prohibitions against communications to further terrorist activities,
the Official Secrets Act focused on wrongful communications with and unauthorized use of
Canadian government information by foreign powers.
During the Munich Olympics, terrorists claiming to be from Black September, a Palestinian
guerrilla group, entered the Olympic Village, killed two Israelis and took nine hostages. By
the time the incident ended, all the hostages, five of the captors and two West German police
officers had been killed.
McDonald Commission report, vol. 1, p. 68.
House of Commons Debates, March 7, 1966, v. III, p. 2297.
Canada, MacKenzie Commission, Report of the Royal Commission on Security (Abridged)
(Ottawa: The Queen’s Printer, 1969), p. 105, para. 297 (Chair: M.W. MacKenzie [MacKenzie
Commission report].
Ibid., p. 109, para. 299.
Ibid., p. 110, para. 299(d).
See further discussion on police independence in Chapter IX.
House of Commons Debates, June 26, 1969, p. 10637.
See the McDonald Commission Report, vol. 1, p. 7 on.
Journalistic accounts of the public scandals surrounding the RCMP include John Sawatsky,
Men in the Shadows: The RCMP Security Service (Toronto: Doubleday, 1980) and Jeff Sallot,
Nobody Said No (Toronto: Lorimer, 1979). See also Reg Whitaker, “Canada: the RCMP scandals,” in Andrei S. Markovits and Mark Silverstein, eds., The Politics of Scandal: Power and
Process in Liberal Democracies (New York: Holmes & Meier, 1988), pp. 38–61.
In 1965–1966, the Solicitor General replaced the Minister of Justice as the minister responsible for the RCMP.
McDonald Commission report, vol. 1, p. 75, para. 96.
Quebec, Department of Justice, Report of the Commission of inquiry into police operations on
Québec territory (Quebec: Department of Justice, 1981) (Chair: Jean F. Keable).
Order in Council PC 1977-1911, Canada Gazette, 6 July 1977.
McDonald Commission report, vol. 1, pp. 445–513, 599–604.
Canada, Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted
Police, Freedom and Security under the Law, Second Report, vol. 2 (Ottawa: Supply and
Services Canada, 1981), p. 754 (Chair: D.C. McDonald) [McDonald Commission report, vol. 2].
McDonald Commission report, vol. 1, p. 613, para. 2.
McDonald Commission report, vol. 2, pp. 755–756.
Ibid., p. 757, para. 11. See also the background paper “Police Independence.”
McDonald Commission report, vol. 2, p. 756, para. 9.
Ibid., p. 758, para. 15.
Ibid., p. 759.
Ibid., p. 882.
�HISTORY OF CANADA’S NATIONAL SECURITY ACTIVITIES
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
Ibid., p. 883.
Ibid., p. 884, para. 10.
Ibid., p. 884, para 11.
Ibid., p. 888.
Ibid., p. 885.
Ibid., p. 898, para 40.
Ibid., p. 899, para. 43.
Ibid., p. 985, para. 49.
See also the background paper “Domestic Models of Review of Police Forces.”
R.S.C. 1985, c. S-7.
Ibid., c. R-10 [RCMP Act].
Pursuant to subsection 91(27) of the Constitution Act, the federal government has the responsibility for formulating criminal law and procedure. The courts have interpreted this to include the power of enforcement (including the power to create police forces to do so.) Indeed,
the federal enforcement power extends to the enforcement of all federal legislation. It is important to note that subsection 92(14) of the Constitution Act, 1867 provides that the provinces
have responsibility for the “administration of justice,” which also includes the power to enforce
the criminal law. In cases of conflicts between the exercise of these powers, the doctrine of
paramountcy would apply and the federal exercise of power would prevail. See for example
O’Hara v. British Columbia, [1987] 2 S.C.R. 591; Reference re Adoption Act (Ontario), [1938]
S.C.R. 398; Di Iorio v. Montreal (City) Common Jail, [1978] 1 S.C.R. 152. The enforcement of
the Criminal Code has evolved so that the provinces enforce most aspects of the Code, but
some such offences are reserved for the RCMP. The provinces do not enforce non-criminal federal offences, such as those found in the Narcotic Control Act, R.S.C. 1985, c. N-1; the Income
Tax Act, R.S.C. 1985, c. 1 (5th Supp.); or the Official Secrets Act. For a discussion, see Peter W.
Hogg, Constitutional Law of Canada, 2nd ed., (Toronto: Carswell, 1999) pp. 425–430.
For example, the Security Offences Act. (See discussion in next section.)
Loeppky testimony, Arar Commission Factual Inquiry Public Hearing (June 30, 2004), p. 701;
“Organization of the RCMP,” online, RCMP, http://www.rcmp.ca/html/organi_e.htm (accessed
July 11, 2006) [RCMP, “Organization of the RCMP”].
“Corporate Facts,” online, RCMP, http://www.rcmp-grc.ca/factsheets/pdfs/corporate_.pdf
(accessed July 11, 2006) [RCMP, “Corporate Facts”]. See also the RCMP’s Report on Plans and
Priorities 2003–2004, p. 25, online, http://www.rcmp.ca/pdfs/rpp_2003_e.pdf (accessed
July 11, 2006).
The “Minister” was the Solicitor General and is now the Minister of Public Safety.
Exhibit P-12, Tab 21, Arar Commission Factual Inquiry. See also the discussion of the Minister’s
role concerning the RCMP in light of the doctrine of police independence in Chapter IX.
RCMP Act, s. 6.
RCMP, “Organization of the RCMP” (see note 50). See also Loeppky testimony (June 30, 2004),
pp. 722–723, June 30, 2004.
RCMP, “Corporate Facts” (see note 51).
Set out in s. 2 of the CSIS Act.
As discussed in Chapter III, the Official Secrets Act (now called the Security of Information Act)
has been significantly expanded by the Anti-terrorism Act to cover various forms of prohibited assistance to terrorist groups.
Defined in s. 2 of the Criminal Code as a foreign head of state, minister of foreign affairs or
other representative of states and international organizations, and the family members who
accompany such persons on foreign trips.
Criminal Code, R.S.C. 1985, c. C-46, paras. 185(1)(h), 186(1)(b).
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61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
77
78
79
80
81
Ibid., c. C-46, ss. 494–495, 511, 529.1–5.
Ibid., ss. 810–810.2.
An Act to amend the Criminal Code (organized crime and law enforcement) and to make
consequential amendments to other acts, S.C. 2001, c. 32.
Criminal Code, s. 25.1(8).
Ibid., subss. 25.1(9), (10), (11).
Loeppky Testimony (June 30, 2004), pp. 742–743, 747–749.
Ibid., p. 745.
Exhibit P-12, Factual Inquiry, Tab 42, p. 1.
“Intelligence-Led Policing: A Definition,” online, RCMP, www.rcmp-grc.gc.ca/crimint/intelligence_e.htm; Exhibit P-12, Tab 16, Arar Commission Factual Inquiry.
Indeed, before the events of 9/11, the core of the RCMP’s intelligence activities seem to have
been more clearly linked to its mandate on organized crime.
See Peter Gill, “Rounding Up the Usual Suspects: Developments in Contemporary Law
Enforcement Intelligence” (Alderstet: Ashgate, 2000).
Exhibit P-12, Tab 20, p. 48, Arar Commission Factual Inquiry.
The two types of intelligence have also been referred to by the courts (see for example the
decision of the Supreme Court of Canada in Canada (Minister of Employment and
Immigration) v. Chiarelli, [1992] 1 S.C.R. 711 at 744) and in legislation (see for example the
Charities Registration (Security Information) Act, S.C. 2001, c. 41, and the Immigration and
Refugee Protection Act, S.C. 2001, c. 27.
I note that the Department of National Defence refers to the intelligence it collects as “military
intelligence.” This term similarly relates to that department’s mandate.
See Loeppky testimony (June 30, 2004), pp. 784–785; (July 6, 2004), pp. 1289–1290.
Exhibit P-12, Tab 44, p. 19, Arar Commission Factual Inquiry.
Four of the 14 NSISs were converted to INSETs after 9/11.
Exhibit P-12, Tab 42, p. 13, Arar Commission Factual Inquiry.
Exhibit P-12, Tab 49, Arar Commission Factual Inquiry.
After the research in the Policy Review was completed, but before this Report was published,
the RCMP and CSIS signed a new Memorandum of Understanding. The 2006 MOU is, like its
predecessor, focussed on cooperation between the two organizations and in particular on the
exchange of information. One of the most significant differences is that the 2006 MOU provides for the creation of a committee at the senior level of both organizations, the primary role
of which is to “coordinate the investigations of both agencies through meaningful, timely and
ongoing exchange of information, and by: (a) developing a common counter-terrorism
overview and priorities; and (b) developing joint training to ensure that personnel in both
counter-terrorism programs are trained to common standards with common understandings of
roles and policies”. Significantly, the MOU continues to recognize the important differences
in the roles of the RCMP and CSIS in regard to national security. In general terms each agency
agrees to provide the other with information and intelligence in its possession relating to the
“assigned security related responsibilities” of the other agency. As in the previous MOU, it is
specifically provided that nothing in it shall be interpreted as compelling either party to disclose the identity of its sources or caveated information from a third party.
As noted above, these responsibilities were defined as the prevention, detection, investigation
and laying of charges in relation to any offence referred to in s. 2 of the Security Offences Act,
or the apprehension of the commission of such an offence included in the Criminal Code,
Official Secrets Act or any other federal statute having a national security dimension; the
protective security measures to safeguard VIPs, federal properties, airports and vital points
from security offences or threats; the provision of advice to departments and agencies of
�HISTORY OF CANADA’S NATIONAL SECURITY ACTIVITIES
82
83
84
85
86.
87
88
89
90
.
91
92
government respecting protective security measures; and the consolidation of threat assessments from CSIS and other sources to provide appropriate protection to VIPs and for special
events.
Loeppky testimony (July 6, 2004), p. 1141. Deputy Commissioner Loeppky testified that such
assistance would be provided if CSIS was “absolutely strapped.”
The Hon. Bob Rae, Lessons to be Learned (Ottawa: Air India Review Secretariat, 2005), p. 2.
Ibid., p. 6.
Ibid., p. 23.
Convention on Offences and Certain Other Acts Committed on Board Aircraft, 14 September
1963, 704 U.N.T.S. 219, online, http://untreaty.un.org/English/Terrorism/Conv1.pdf
(accessed July 11, 2006); Convention for the Suppression of Unlawful Seizure of Aircraft,
16 December 1970, 860 U.N.T.S. 105, online, http://untreaty.un.org/English/Terrorism/
Conv2.pdf (accessed July 11, 2006); Convention for the Suppression of Unlawful Acts Against
the Safety of Civil Aviation, 23 September 1971, 974 U.N.T.S. 177, online,
http://untreaty.un.org/English/Terrorism/Conv3.pdf (accessed July 11, 2006).
Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving
International Civil Aviation (supplementary to the Convention for the Suppression of
Unlawful Acts Against the Safety of Civil Aviation), 24 February 1988, online,
http://untreaty.un.org/English/Terrorism/Conv7.pdf (accessed July 11, 2006).
Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 10
March 1988, 1678 U.N.T.S. 201, online, http://untreaty.un.org/English/Terrorism/Conv8.pdf
(accessed July 11, 2006); Protocol to the Convention for the Suppression of Unlawful Acts
Against the Safety of Fixed Platforms Located on the Continental Shelf, 10 March 1988,
1678 U.N.T.S. 201, online, http://untreaty.un.org/English/Terrorism/Conv8.pdf (accessed
July 11, 2006).
Convention on the Prevention and Punishment of Crimes against Internationally Protected
Persons, Including Diplomatic Agents, 14 December 1973, 1035 U.N.T.S. 167, online,
http://untreaty.un.org/English/Terrorism/Conv4.pdf (accessed July 11, 2006); International
Convention Against the Taking of Hostages, 17 December 1979, 1316 U.N.T.S. 205, online,
http://untreaty.un.org/English/Terrorism/Conv5.pdf (accessed July 11, 2006).
Convention on the Physical Protection of Nuclear Material (with annexes), 3 March 1980, 1456
U.N.T.S. 101, online, http://untreaty.un.org/English/Terrorism/Conv6.pdf (accessed July 11,
2006); International Convention for the Suppression of Acts of Nuclear Terrorism, 14 September
2005, A/RES/59/290, online, http://untreaty.un.org/English/Terrorism/English_18_15.pdf
(accessed July 11, 2006).
Convention on the Marking of Plastic Explosives for the Purpose of Detection,
1 March 1991, U.S. Treaty Doc. 103-8, online, http://www.unodc.org/unodc/en/
terrorism_convention_plastic_explosives.html (accessed July 11, 2006); International
Convention for the Suppression of Terrorist Bombings, 15 December 1997, A/RES/52/164, online, http://untreaty.un.org/English/Terrorism/Conv11.pdf (accessed July 11, 2006).
International Convention for the Suppression of the Financing of Terrorism, 9 December 1999,
online, http://untreaty.un.org/English/Terrorism/Conv12.pdf (accessed July 11, 2006).
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�III
Legislative Changes
Following the Terrorist Attacks
of September 11, 200 1
1.
INTRODUCTION
The terrorist attacks of September 11, 2001 gave rise to significant changes in the
way the federal government responds to threats to the security of Canada.
In this chapter, I focus on the post-9/11 legislative changes of particular
relevance to the RCMP’s national security activities: the creation of a number of
new national security offences; new police powers designed to assist the RCMP
in carrying out its national security activities; enhanced provisions for safeguarding information the disclosure of which would harm national security; and
an increased emphasis on co-operation and integration among agencies, both
foreign and domestic, particularly in regard to the sharing of information relating to terrorism.
2.
NEW OFFENCES
The federal response to the events of 9/11 included the creation of a number of
new national security offences. The changes were, for the most part, contained
in the Anti-terrorism Act, which I discuss below.
2.1
ANTI-TERRORISM ACT
The Anti-terrorism Act1 created measures to deter, disable, identify, prosecute,
convict and punish terrorist groups and to prevent and punish the financing,
preparation, facilitation and commission of acts of terrorism. It also provided
law enforcement agencies with new preventive and investigative tools and established stronger laws against hate crimes and propaganda. Government of
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Canada training material on the Act described its purpose and operational impact as follows:
A key element of Canada’s Anti-terrorism Act is prevention. The focus on prevention is something of a cultural shift for our law enforcement community. It places
the emphasis on the collection of intelligence, rather than the investigation of crimes
that have already occurred.2
The Act amended the Criminal Code, Official Secrets Act (renamed the
Security of Information Act), Canada Evidence Act, and Proceeds of Crime
(Money Laundering) Act (renamed the Proceeds of Crime (Money Laundering)
and Terrorist Financing Act), as well as the National Defence Act as it related
to the activities and review of the Communications Security Establishment. It
also enacted the Charities Registration (Security Information) Act. In this chapter, I focus on the new offences created by the Anti-terrorism Act, as they most
directly affect the RCMP’s responsibilities to prevent and investigate crime and
its national security activities.
2.2
NEW DEFINITIONS: TERRORIST ACTIVITY AND TERRORIST GROUP
The Anti-terrorism Act added Part II.1, “Terrorism,” to the Criminal Code.
Significant changes included an expansive definition of “terrorist activity,” a new
definition of “terrorist group” and new terrorism offences.
The definition of “terrorist activity” in the Criminal Code does not in itself
create a crime, but it is incorporated into new offences and new police powers.
A terrorist activity is defined in part as an act or omission committed in or outside Canada that, if committed in Canada, would constitute one of various offences under subsections 7(2) through 7(3.37) of the Criminal Code.3 This
definition is designed to implement various international law instruments in relation to hijacking and damage to aircraft and ships, the taking of hostages, use
of nuclear material, crimes against internationally protected persons, terrorist
bombings and terrorist financing.
In addition, a “terrorist activity” is an act or omission that is committed
within or outside Canada
•
•
in whole or in part for a political, religious or ideological purpose, objective and cause
with the intent of intimidating the public or a segment of the public with
regard to its security, including its economic security, or compelling a
�LEGISLATIVE CHANGES FOLLOWING 9/11
person, government, or domestic or international organization to do or to
refrain from doing any act
and
•
•
intentionally causes death or serious bodily harm by the use of violence, intentionally endangers a person’s life, intentionally causes a serious risk to
the health or safety of the public or any segment of the public or intentionally causes substantial property damage that is likely to seriously harm
or endanger a person or cause a serious risk to public health or safety, or
intentionally causes serious interference with or disruption of an essential
public or private service, facility or system other than as a result of advocacy, protest, dissent or stoppage of work not intended to harm or endanger a person or pose a serious risk to public health and safety.4
The fact of expressing political, religious or ideological thought, belief or
opinion alone is not a “terrorist activity” unless it constitutes an act or omission
that satisfies the above criteria.5 A “terrorist activity” includes a conspiracy, attempt or threat to commit any of the above acts or omissions, counselling or
procuring a person to commit any such acts, and being an accessory after the
fact in relation to any such acts or omissions.
Another important definition that is incorporated into many of the new offences is the following definition of a “terrorist group”:
•
•
an entity that has as one of its purposes or activities facilitating or carrying
out any terrorist activity (and includes an association of such entities), or
an entity that has been listed by the Governor in Council on the basis that
there are reasonable grounds to believe that it has knowingly carried out,
attempted to carry out, participated in or facilitated a terrorist activity or
that it is knowingly acting on behalf of, at the direction of or in association
with such an entity (listed entity).
A listed entity may include a person, group, trust, partnership, fund or unincorporated association or organization. The Governor in Council has so far
listed 39 groups, pursuant to section 83.05 of the Criminal Code.6
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2.3
NEW TERRORISM OFFENCES
The Anti-terrorism Act also created the following new terrorism offences under
the Criminal Code:
•
•
•
•
•
•
knowingly participating in or contributing to, directly or indirectly, any activity of a terrorist group for the purpose of enhancing the ability of a terrorist group to facilitate or carry out terrorist activities — this may include
recruiting, providing or receiving training, or entering or remaining in any
country for the benefit or at the direction of or in association with any terrorist group; the offence may be committed regardless of whether any terrorist activity was facilitated, whether the participation actually enhanced
the ability to carry out a terrorist activity, or whether the accused knew the
specific nature of any terrorist activity;
knowingly facilitating a terrorist activity, regardless of whether the person
knows that a particular terrorist activity was planned, whether any particular terrorist activity was foreseen or planned when facilitated, or whether it
was actually carried out;
committing any indictable offence for the benefit or at the direction of, or
in association with a terrorist group;
knowingly instructing another person to carry out any activity for the purpose of enhancing the ability of any terrorist group to carry out a terrorist
activity, regardless of whether the activity instructed is carried out, a particular person is instructed to carry it out, the person knows that the activity being instructed will benefit a terrorist group, or the activity actually
enhances the ability of a terrorist group to facilitate or carry out a terrorist
activity;
knowingly instructing another person to carry out a terrorist activity, regardless of whether the terrorist activity is carried out, a particular person
is instructed to carry it out, or the person knows that the activity being instructed is a terrorist activity; and
knowingly harbouring or concealing someone he or she knows has carried out or is likely to carry out a terrorist activity, for the purpose of enabling the person to facilitate or carry out any terrorist activity.7
�LEGISLATIVE CHANGES FOLLOWING 9/11
2.4
NEW TERRORIST FINANCING OFFENCES
The Anti-terrorism Act also created a number of new offences respecting the financing of terrorism, as follows:
•
•
•
•
•
•
wilfully and without lawful justification or excuse providing or collecting
property, either directly or indirectly, intending that it be used or knowing
that it will be used to carry out certain terrorist activities or acts intended
to cause death or serious bodily harm to a civilian for the purpose of intimidating the public or compelling a government or international organization to do or refrain from doing any act;
collecting, providing, inviting to provide, or making available property or
financial services knowing that they will be used by or will benefit a terrorist group or intending or knowing that they will be used for the purpose of facilitating a terrorist activity or for benefiting any person who is
facilitating or carrying out a terrorist activity;
using or possessing property for the purpose of facilitating or carrying out
a terrorist activity or possessing property intending or knowing that it will
be used, directly or indirectly, in whole or in part, for the purpose of facilitating or carrying out a terrorist activity;
for a person in Canada or a Canadian outside Canada, knowingly dealing
with property owned or controlled by a terrorist group or providing financial or other related services in relation to such property for the benefit or
at the direction of a terrorist group;
for a person in Canada or a Canadian outside Canada, failing to disclose
forthwith to the RCMP Commissioner and the Director of CSIS property in
his or her possession or control that he or she knows is owned or controlled by a terrorist group or information about a transaction or proposed
transaction in respect of such property; and
for various financial institutions, failing to report monthly on whether or
not they are in possession or control of property owned or controlled by a
listed entity.8
2.5
DEFINITION OF TERRORISM OFFENCES
The definition of terrorism offences in section 2 of the Criminal Code includes
not only the new terrorism and financing of terrorism offences set out above, but
also any indictable offence committed for the benefit of, at the direction of or
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in association with a terrorist group. Although a robbery or a fraud would not
normally be a terrorist offence, it could be, if one of the above circumstances
applied. Terrorism offences as defined in the Criminal Code moreover include
indictable offences that also constitute terrorist activity as defined in the Code.
An example would be a murder or other act of violence that satisfies the definition of a terrorist activity discussed above.
The Supreme Court has affirmed that terrorism offences as defined in the
Criminal Code include offences, such as murder, that existed before the enactment of the Anti-terrorism Act in 2001. Justices Iacobucci and Arbour have expressed agreement with the “characterization of a ‘terrorism offence’ as ‘a
descriptive compendium of offences created elsewhere in the Criminal Code.’”9
A terrorism offence is not limited to an offence that incorporates or satisfies the
definition of terrorist activity added to the Code in 2001, but could be almost any
indictable offence in the Criminal Code, including an attempt, conspiracy, counselling or being accessory after the fact, if the indictable offence is committed
for the benefit of, at the direction of or in association with a terrorist group or
if it would constitute terrorist activity as broadly defined in section 83.01 of
the Code.
2.6
FORFEITURE ORDERS AND TERRORIST FINANCING OFFENCES
The Attorney General of Canada now has the power under sections 83.13 and
83.14 of the Criminal Code to seize and forfeit property that is owned or controlled by a terrorist group or that has been or would have been used to facilitate or carry out a terrorist activity. Search warrants and restraint orders are
obtained from a Federal Court judge, who examines applications in private and
issues warrants or restraint orders if there are reasonable grounds to believe that
forfeiture orders may be made.10
2.7
CONSENT OF PROVINCIAL OR FEDERAL ATTORNEY GENERAL
The consent of either the provincial or the federal Attorney General is required
to commence proceedings in respect of a terrorism offence.11 Although most
crimes are prosecuted provincially, the Anti-terrorism Act amended the Criminal
Code to give the Attorney General of Canada concurrent jurisdiction for prosecuting offences relating to terrorism and certain offences pertaining to internationally protected persons.12 Similarly, under the Security Offences Act, the
Attorney General of Canada may choose to prosecute an offence that would
�LEGISLATIVE CHANGES FOLLOWING 9/11
otherwise be prosecuted by a provincial attorney general where it involves a
threat to the security of Canada or an internationally protected person.13
2.8
OTHER NEW OFFENCES
In addition to broadening the definition of first-degree murder to include causing death during terrorist activities14 and also amplifying the definition of a threat
against an internationally protected person,15 the Anti-terrorism Act added the
following offences to the Criminal Code: threats against United Nations personnel or attacks on them, hate-motivated mischief relating to religious property,
and the placement of explosives or other lethal devices in public places.16
The Public Safety Act also added a new terrorism offence to the Criminal
Code, that of perpetrating a hoax regarding terrorist activity, which covers a person causing a reasonable apprehension that terrorist activity is occurring or will
occur, without believing in its truth and with the intent of causing a person to
fear death, bodily harm, or substantial damage to or interference with property.17 As with other terrorism offences, the consent of the federal or provincial Attorney General is required to commence proceedings in relation to
such hoaxes.
2.9
SECURITY OF INFORMATION ACT
The Anti-terrorism Act substantially amended the Official Secrets Act and renamed it the Security of Information Act. Before the 2001 amendments, neither
terrorist groups nor terrorist activities were subject to the Act, which focused on
foreign states. Now, the Security of Information Act is an important piece of the
legislative framework for national security, covering terrorist groups and nonstate entities, as well as foreign entities. Moreover, the definition of a foreign entity now includes governments in waiting, governments in exile, and associations
of foreign governments, governments in waiting, or governments in exile with
one or more terrorist groups. The Act uses the definitions of “terrorist group” and
“terrorist activity” found in the Criminal Code.
The Act moreover provides a new and comprehensive definition of
“a purpose prejudicial to the safety or interests of the State,”18 which includes
the following:
•
•
offences against the laws of Canada for a political, religious or ideological
purpose or to benefit a foreign entity or terrorist group;
a terrorist activity inside or outside Canada;
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•
•
•
•
•
•
•
•
•
endangerment of life, health or safety;
interference with public or private services or computer programs in a
manner that has a significant adverse impact on health, safety, security or
economic or financial well-being of the people or the functioning of any
government;
damage to certain persons or property outside Canada;
impairment of or interference with the Canadian Forces;
impairment of Canadian security and intelligence capabilities;
impairment of Canadian responses to economic threats or instability;
impairment of Canadian diplomatic or consular relations or international
negotiations;
use of toxic, radioactive or explosive devices, contrary to international
treaty; and
an act or omission in preparation of the undertaking of any of the above
activities.
The phrase “purpose prejudicial to the safety or interests of the State”
is incorporated into many offences under the Act, including the offence
of wrongfully communicating, using, receiving or retaining confidential or
other information.19
The following are offences under the Act: unauthorized use of uniforms, falsification of reports, forgery, impersonation and use of false documents for the
purpose of gaining admission to a prohibited place or for any other purpose
prejudicial to the safety or interests of the State.20 It is also an offence under the
Act to approach or pass over a prohibited place for any purpose prejudicial to
the safety or interests of the State at the direction or for the benefit of, or in association with a foreign entity or terrorist group.21 The Act moreover has complex provisions relating to individuals bound to secrecy that create offences for
leaks and establish a limited public interest defence.22
Other offences target the communication, without lawful authority, of various forms of safeguarded information to a foreign entity or a terrorist group, and
the actual or attempted inducement of any person, by threat, accusation or menace, to do anything that will harm Canadian interests or increase the capacity of
a foreign entity or terrorist group to harm Canadian interests.23 The threat, accusation, menace or violence in question need not occur in Canada.
It is also an offence for a person to knowingly harbour or conceal someone he or she knows has committed an offence under the Act, or is likely to do
so, for the purpose of enabling or facilitating an offence under the Act.24
�LEGISLATIVE CHANGES FOLLOWING 9/11
The Act further provides that it is an offence to do anything specifically directed towards or done in preparation of the commission of certain offences,25
including the following:
•
•
•
•
•
entering Canada at the direction of or for the benefit of a foreign entity or
terrorist group;
obtaining, retaining or gaining access to any information;
knowingly communicating to a foreign entity or terrorist group a willingness to commit the offence;
asking a person to commit the offence, at the direction of a foreign entity
or terrorist group; and
possessing any device or software useful for concealing the content of information or for covertly communicating information.
Liability for all offences under the Act is extended to persons who conspire
or attempt to commit such offences, counsel in relation to such offences or are
accessories after the fact.26 Moreover, when committed by certain persons, including Canadian citizens, acts or omissions outside Canada that would be offences under the Act if committed in Canada are deemed to have been
committed in Canada.27
As with terrorism offences, the consent of the Attorney General of Canada is
required for any prosecution.28 This limits normal police powers to lay charges.
2.10
PROCEEDS OF CRIME (MONEY LAUNDERING) AND TERRORIST
FINANCING ACT
The Anti-terrorism Act substantially amended the Proceeds of Crime (Money
Laundering) Act and renamed it the Proceeds of Crime (Money Laundering) and
Terrorist Financing Act. The amended Act provides for both new terrorist financing offences relevant to national security investigations and new powers
for information sharing between the private sector and government, within government, with the RCMP, and with foreign agencies.
The Proceeds of Crime (Money Laundering) and Terrorist Financing Act
defines “terrorist activity financing offence” as an offence under section 83.02,
83.03 or 83.04 of the Criminal Code or under section 83.12 of the Code arising
out of a contravention of section 83.08 of the Code. “Terrorist activity” has the
same meaning as in the Criminal Code and “threat to the security of Canada,”
the same meaning as in section 2 of the Canadian Security Intelligence
Service Act.
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The stated objects of the Proceeds of Crime (Money Laundering) and
Terrorist Financing Act are as follows:
a)
b)
c)
to implement specific measures to detect and deter money laundering and
the financing of terrorist activities and to facilitate the investigation and
prosecution of money laundering offences and terrorist activity financing offences, including
i. establishing record keeping and client identification requirements for
financial services providers and other persons or entities that engage
in businesses, professions or activities that are susceptible to being
used for money laundering or the financing of terrorist activities;
ii. requiring the reporting of suspicious financial transactions and of crossborder movements of currency and monetary instruments; and
iii. establishing an agency that is responsible for dealing with reported
and other information.
to respond to the threat posed by organized crime by providing law enforcement officials with the information they need to deprive criminals of
the proceeds of their criminal activities, while ensuring that appropriate
safeguards are put in place to protect the privacy of persons with respect
to personal information about themselves; and
to assist in fulfilling Canada’s international commitments to participate in the
fight against trans-national crime, particularly money laundering, and the
fight against terrorist activity.29
Part 1 of the Act focuses on record keeping and reporting of suspicious
and prescribed financial transactions. It stipulates that entities such as banks,
credit unions and certain other companies or persons must report every financial transaction in respect of which there are reasonable grounds to suspect that
the transaction is related to a money laundering or terrorist activity financing offence to the Financial Transactions and Reports Analysis Centre of Canada
(FINTRAC). I discuss this further below. They must also report certain other
transactions to FINTRAC, including international electronic fund transfers over
$10,000 and large cash transactions over $10,000.
Part 2 focuses on the cross-border movement of currency and monetary instruments. It imposes reporting duties and provides for searches of persons,
conveyances, baggage and mail on the basis of reasonable suspicion of unreported currency. It also contains forfeiture provisions.
Part 3 deals with FINTRAC, an independent agency established in 2000 that
is at arm’s length from law enforcement agencies and other entities to which it
is authorized to disclose information. I examine the role of FINTRAC in the
�LEGISLATIVE CHANGES FOLLOWING 9/11
national security landscape in greater detail in Chapter V. After analyzing and assessing reports and information, FINTRAC is required to disclose “designated
information” to the appropriate police force if it has reasonable grounds to suspect that the information would be relevant to investigating or prosecuting a
money laundering offence or a terrorist activity financing offence.30 Where
FINTRAC has reasonable grounds to suspect that designated information would
be relevant to threats to the security of Canada, it is required to disclose that information to CSIS.31 “Designated information” as defined in the Act is limited information relating to a financial transaction or an importation or exportation of
currency or monetary instruments, such as names, addresses, amounts and account numbers.32 FINTRAC must record its reasons in writing for disclosing information to a police force.33 As I discuss in Chapter V, FINTRAC may also
disclose certain information to institutions or agencies of foreign governments
or international organizations that have powers or duties similar to its own.
The Act sets out the procedure under which the Attorney General may
apply for a production order for the purposes of a money laundering or terrorist financing investigation.34 CSIS may also apply to a judge for the disclosure of
information to enable it to investigate a threat to the security of Canada after obtaining the approval of the Minister of Public Safety. These applications are heard
in private.35
Part 4 of the Act focuses on regulations and Part 5 deals with offences and
punishment. There are exemption provisions in respect of peace officers or persons acting under the direction of peace officers who commit certain offences
under the act if they are committed for the purpose of investigating a money
laundering offence or a terrorist activity financing offence.36
2.11
UNITED NATIONS SUPPRESSION OF TERRORISM REGULATIONS
Canada’s United Nations Suppression of Terrorism Regulations were enacted on
October 2, 2001 pursuant to the United Nations Act. They establish a list of persons who there are reasonable grounds to believe have carried out, attempted
to carry out or participated in or facilitated the carrying out of a terrorist activity. Important aspects include:
•
•
prohibitions on the provision and collection of funds for the use of a listed
person by any person in Canada or any Canadian outside Canada, or the
assistance or promotion of such activities;37
prohibitions on knowingly dealing directly or indirectly in any asset owned
or controlled by a listed person, or assisting or promoting such activity;38
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•
•
a duty for financial institutions to determine whether they are in possession
or control of assets owned by a listed person and to disclose any such assets; and
a requirement for persons in Canada and Canadians outside Canada in possession or control of assets they believe are owned or controlled by a listed
person to disclose this information to the RCMP or CSIS.
Like the Proceeds of Crime (Money Laundering) and Terrorist Financing
Act, the Regulations provide for means by which the RCMP may receive information relevant to national security investigations and offences that could be
charged in national security investigations.
3.
NEW POLICE POWERS
The Anti-terrorism Act provides the police, including the RCMP, with new powers in relation to terrorism investigations. I note that, in a recent decision, the
Supreme Court indicated that the purpose of one of these new powers, the investigative hearing, should be the prevention and prosecution of terrorism offences and not the broader protection of national security.39
3.1
INVESTIGATIVE HEARINGS
The Criminal Code provides for a procedural mechanism to gather information
for investigating or preventing terrorism offences from persons believed on reasonable grounds to have relevant information.40 On the consent of the Attorney
General, a peace officer may apply to a judge in private for an order directing
individuals with information relevant to an ongoing investigation of a terrorism
offence to appear before a judge and provide information.
Investigative hearings may be ordered where the judge is satisfied of the
following:
•
•
there are reasonable grounds to believe that a terrorism offence has been
committed and that information about the offence or the whereabouts of
the suspected perpetrator is likely to be obtained as a result of the order;
or
there are reasonable grounds to believe that a terrorism offence will be
committed and that the person has direct and material information relating
to the offence or information that may reveal the whereabouts of the suspected perpetrator, and that reasonable attempts have been made to get the
information from the person against whom the order is sought.
�LEGISLATIVE CHANGES FOLLOWING 9/11
The person named in the order has the right to legal counsel, but must answer questions and produce things as required by the order, subject only to
claims of privilege or non-disclosure, which are to be decided by the judge presiding at the investigative hearing. The person has no right to refuse to comply
on the ground that it might incriminate him or her, but such information and any
evidence derived from it may not be used in current or future criminal proceedings against the person except in prosecutions for perjury or giving contradictory evidence.
The Supreme Court of Canada reviewed this new procedure in proceedings
relating to trials arising from the terrorist bombing of Air India Flight 182. In
Application under s. 83.28 of the Criminal Code (Re), it upheld the constitutionality of the procedure. Speaking for the majority, Justices Iacobucci and
Arbour held that the procedure did not violate section 7 of the Canadian
Charter of Rights and Freedoms. In doing so, the justices relied on the protections in subsection 83.28(10), which provides that compelled evidence or evidence derived from such evidence may not be used against the person in
subsequent criminal proceedings. They also indicated that evidence compelled
at the investigative hearing should not be used in subsequent extradition and deportation proceedings.41 The Court noted the important role that the presiding
judge and counsel representing the subject of the investigative hearing would
play in the procedure. It indicated that section 7 of the Charter would prevent
the use of an investigative hearing if the predominant purpose was to determine penal liability. The majority of the Court rejected arguments that the procedure violated judicial independence and impartiality and stressed the
important role of the judge in investigative hearings in ensuring the protection
of common law, evidentiary and constitutional rights, and the presumption that
such hearings should be open.42
In the companion case of Vancouver Sun (Re),43 the Court held that there
is a rebuttable presumption that investigative hearings should be held in open
court, with the burden of demonstrating the need for secrecy resting on the government.44 However, the Court agreed that the application for a judge to authorize an investigative hearing must be heard in private.45
Under the Criminal Code, federal and provincial attorneys general are required to prepare annual reports on the use of investigative hearings,46 although
such reports must not reveal any confidential national security information. The
RCMP and the federal Department of Justice reported no investigative hearings
from December 24, 2001 to December 23, 2005. Only one application to conduct such a hearing was made, retrospectively, with respect to the Air India matter. However, the investigative hearing was not actually held.47
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3.2
RECOGNIZANCE WITH CONDITIONS (PREVENTIVE ARREST)
The Anti-terrorism Act also created a new power of “preventive arrest.” Different
provisions govern arrest with warrant and arrest without warrant. A recognizance (peace bond) with conditions may then be imposed by a judge to prevent
terrorist activity.
With regard to preventive arrest with warrant, the Criminal Code states that,
with the consent of the Attorney General, a police officer, who
•
•
believes on reasonable grounds that a terrorist activity will be carried out;
and
suspects on reasonable grounds that the imposition of a recognizance with
conditions on a person, or the arrest of a person, is necessary to prevent
the carrying out of the terrorist activity
may lay an information under oath before a provincial court judge. The judge
may then compel the person named to appear before the judge.48
In order to make a preventive arrest without warrant, a peace officer must
have a reasonably grounded suspicion that detention of the person is necessary
to prevent a terrorist activity, and one of the following requirements must
be met:
•
•
the conditions for the laying of an information exist but exigent circumstances make it impracticable to do so; or
an information has already been laid and a summons issued.49
If an information has not been laid and the person is subject to arrest without warrant, the police officer is to lay an information and obtain the consent
of the Attorney General without unreasonable delay, within a period of 24 hours
or as soon as possible, unless the person has been released.
The person detained in custody must be taken before a provincial court
judge within 24 hours or as soon as possible.50 A show cause hearing must
be held to determine if further detention is necessary to ensure the person’s
appearance before a judge, prevent a terrorist activity or interference with the
administration of justice, or for any other just cause, including maintaining
confidence in the administration of justice.51 The matter may be adjourned by
a judge, but only for a maximum of a further 48 hours if the person is
not released.
If satisfied that there are reasonable grounds for suspecting that the imposition of a recognizance is necessary to prevent a terrorist activity, the judge
�LEGISLATIVE CHANGES FOLLOWING 9/11
may order that the person enter into a recognizance to keep the peace for a
period not exceeding 12 months and to comply with other reasonable conditions. Further, if the person refuses to enter into the recognizance, the judge
may commit the person to prison for a term not exceeding 12 months.52
Federal and provincial attorneys general are required to prepare annual reports on the use of the recognizance with conditions provisions and the ministers responsible for policing at the federal and provincial levels are required to
report on the use of the arrest without warrant provisions set out in section
83.3.53 I note that the RCMP and the federal Department of Justice reported no
use of preventive arrests from December 24, 2001 to December 23, 2005.54
The Anti-terrorism Act also amended section 810.01 of the Criminal Code
to enable any person who fears on reasonable grounds that another person will
commit a terrorism offence to apply, with the consent of the Attorney General,
for a recognizance similar in terms to those available under section 83.3. The
Attorney General’s reporting requirements under section 83.31 do not apply to
such peace bonds.
3.3
ENHANCED ELECTRONIC SURVEILLANCE PROVISIONS
The Anti-terrorism Act amended the Criminal Code to make wiretapping provisions apply to all terrorism offences and to new offences relating to internationally protected persons and explosives. Amendments were also made to
except terrorism offences from the requirement pertaining to the actual or likely
failure of other less intrusive investigative techniques.55 Moreover, the authorization period for the interception of communications was increased to one
year,56 and a judge may grant an extension of no more than three years for notifying a person of the electronic surveillance.57
3.4
AN ACT TO AMEND THE FOREIGN MISSIONS AND INTERNATIONAL
ORGANIZATIONS ACT
This Act provides that the RCMP has primary responsibility for ensuring the security of intergovernmental conferences in which two or more states participate.
The RCMP “may take appropriate measures, including controlling, limiting or
prohibiting access to any area to the extent and in a manner that is reasonable
in the circumstances.”58
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4.
ENHANCED PROTECTIONS FOR NATIONAL SECURITY
CONFIDENTIALITY
Part of the federal government’s response to the events of 9/11 has been increased legislative protection of information that, if publicly disclosed, would injure national security. This enhanced protection is relevant to my mandate
because it may increase the secrecy of the RCMP’s national security activities
and affect the work of the body that reviews such activities. Amendments to the
Security of Information Act are discussed above. In this section, I examine the
amendments to the Canada Evidence Act and to federal privacy and access to
information legislation.
4.1
CANADA EVIDENCE ACT
Part 3 of the Anti-terrorism Act amended sections of the Canada Evidence Act.
This Act provides that a government official may object to the disclosure of information before a court, person or body on the grounds of a specified public
interest. The appropriate court may authorize or prohibit disclosure after weighing the public interest in disclosure against the importance of the specified public interest.59 The provisions as originally enacted stated that a hearing or an
appeal of an order was to be heard in private. However, in 2004, they were repealed so that, rather than being required to conduct the hearing in private, a
court may now exercise its inherent jurisdiction to provide for such a hearing
when the need arises.60
The Act also deals with the disclosure of sensitive or potentially injurious
information in the course of legal proceedings, providing that
[e]very participant who, in connection with a proceeding, is required to disclose, or
expects to disclose or cause the disclosure of, information that the participant believes is sensitive information or potentially injurious information shall, as soon as
possible, notify the Attorney General of Canada in writing of the possibility of the
disclosure, and of the nature, date and place of the proceeding61
and that
[a]n official, other than a participant, who believes that sensitive information or potentially injurious information may be disclosed in connection with a proceeding
may notify the Attorney General of Canada in writing of the possibility of the disclosure, and of the nature, date and place of the proceeding.62
�LEGISLATIVE CHANGES FOLLOWING 9/11
“Sensitive information” means:
information relating to international relations or national defence or national security that is in the possession of the Government of Canada, whether originating from
inside or outside Canada, and is of a type that the Government of Canada is taking
measures to safeguard
and “potentially injurious information” means:
information of a type that, if it were disclosed to the public, could injure international relations or national defence or national security.63
The Attorney General may apply to the Federal Court for an order with respect to the disclosure of information about which notice was given.64 Moreover,
a person, other than a witness, who is required to disclose information must, in
certain circumstances, apply to the Federal Court for an order with respect to
disclosure, and a person who is not required to, but wishes to disclose or cause
the disclosure of information in connection with a proceeding may apply to the
Federal Court for such an order.65 Applications are confidential and measures
may be taken by the court to protect their confidentiality.
Under the Act,
[u]nless the judge concludes that the disclosure of the information would be injurious to international relations or national defence or national security, the judge may,
by order, authorize the disclosure of the information.66
Moreover,
[i]f the judge concludes that the disclosure of the information would be injurious to
international relations or national defence or national security but that the public interest in disclosure outweighs in importance the public interest in non-disclosure,
the judge may by order, after considering both the public interest in disclosure and
the form of and conditions to disclosure that are most likely to limit any injury to
international relations or national defence or national security resulting from disclosure, authorize the disclosure, subject to any conditions the judge considers appropriate, of all of the information, a part or summary of the information, or a
written admission of facts relating to the information.67
Further, “[i]f the judge does not authorize disclosure under subsection (1)
or (2), the judge shall, by order, confirm the prohibition of disclosure.”68
A hearing or an appeal or review of an order made pursuant to any of the
above provisions must be heard in private, and the judge or court may give any
person who makes representations, and must give the Attorney General (and in
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some cases the Minister of National Defence) the opportunity to make representations without the other side being present.69 The judge or court may make
any order deemed appropriate in the circumstances to protect the confidentiality of the information to which the hearing, appeal or review relates.70 The court
records are confidential, and a judge may order that the records be sealed and
not be made accessible to the public.
The Attorney General may personally issue a certificate that prohibits the
disclosure of information in connection with a proceeding for the purpose of
protecting information obtained in confidence from, or in relation to, a foreign
entity (as defined in the Security of Information Act) or for the purpose of protecting national defence or national security.71 The certificate may only be issued
after an order or decision that would result in the disclosure of the information
has been made under an act of Parliament, and expires 15 years after the day
on which it was issued.
A party to a proceeding for the purpose of protecting information obtained
in confidence from, or in relation to, a foreign entity or for the purpose of protecting national defence or national security may apply to the Federal Court of
Appeal for an order varying or cancelling the certificate.72 The judge who hears
the application must make an order to this effect if part or all of the information
is found not to relate to information obtained in confidence from or in relation
to a foreign entity or to national defence or national security. However, if all of
the information subject to the certificate does so relate, the judge must make an
order to confirm the certificate. The judge’s determination of the matter is final
and is not subject to appeal.
The Act recognizes that a criminal trial judge may make any order that is
appropriate to protect the right of the accused to a fair trial, such as an order to
stay proceedings, provided it complies with a valid certificate prohibiting disclosure of information issued under 38.13, any order authorizing or prohibiting
disclosure made under section 38.06, or any judgment made on appeal from or
review of such an order.73
4.2
ACCESS TO INFORMATION AND PRIVACY LEGISLATION
The Anti-terrorism Act amended the Access to Information Act,74 Personal
Information Protection and Electronic Documents Act75 and Privacy Act,76 providing that, where a certificate under section 38.13 of the Canada Evidence Act
prohibiting disclosure of information in a record or of the personal information
of a specific individual is issued before a complaint is filed under any of the
above acts in respect of a request for access to that information, those acts do
�LEGISLATIVE CHANGES FOLLOWING 9/11
not apply to that information. Moreover, where a section 38.13 certificate is issued after the filing of a complaint under any of those acts, then all proceedings
under the acts are discontinued and the Access to Information Commissioner or
Privacy Commissioner, as the case may be, must take precautions to ensure that
the information is not disclosed and must return the information to the head of
the government institution that controls or provided the information.
5.
INCREASED INFORMATION SHARING AND INTEGRATION
OF NATIONAL SECURITY ACTIVITIES
Although the RCMP frequently interacted and shared information with other domestic and foreign agencies in the past, the events of 9/11 have led to a sharper
focus on information sharing and integrated activities.
A significant number of domestic agencies, both federal and provincial,
have a role to play in Canada’s response to threats to its national security. As I
discuss in chapters IV and V, co-operation between those agencies ranges from
information sharing, to joint operations, to full integration, where members from
various home agencies work together in an integrated unit. In this section, I describe the domestic and international responses to 9/11 that establish the legal
basis for such increased co-operation.
5.1
UNITED NATIONS SECURITY COUNCIL RESOLUTION 1373
The international nature of recent terrorist threats has given rise to greater
co-operation among governments in combating terrorism. Shortly after the terrorist attacks of 9/11, the UN Security Council adopted Resolution 1373 calling
for suppression of the financing of terrorism and for international co-operation
between states. The Resolution, which was adopted under Chapter VII of the
Charter of the United Nations, making it binding on all member states, provided
important background for changes to Canadian law and policies after 9/11. For
example, the preamble to Canada’s Anti-terrorism Act provides that “Canada
must act in concert with other nations in combating terrorism, including
fully implementing United Nations and other international instruments relating
to terrorism.”
Resolution 1373 sets out the following obligations for all states:
•
to prevent and suppress the financing of terrorism, and criminalize the willful provision or collection of funds for such acts;
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•
•
to freeze the funds, financial assets and economic resources of those who
commit or attempt to commit terrorist acts or participate in or facilitate the
commission of terrorist acts and of their entities, as well as of persons and
entities acting on behalf of or at the direction of terrorists; and
to prohibit their nationals or any persons and entities within their territories
from making funds, financial assets, economic resources, and financial or
other related services available to persons who commit or attempt to commit, facilitate or participate in the commission of terrorist acts.77
The focus on terrorism financing in Resolution 1373 has resulted in the creation of many new terrorist financing offences in Canada, as well as requirements for financial reporting and information sharing.
The Resolution also addresses support of terrorist acts, imposing the following obligations on all states:
•
•
•
•
•
•
•
to refrain from providing any form of support to entities or persons involved in terrorist acts;
to take the necessary steps to prevent the commission of terrorist acts, including by provision of early warning to other States by exchange of information;
to deny safe haven to those who finance, plan, support, or commit terrorist acts, or provide safe havens;
to prevent those who finance, plan, facilitate or commit terrorist acts from
using their respective territories for those purposes;
to ensure that any person who participates in the financing, planning,
preparation or perpetration of terrorist acts or in supporting terrorist acts is
brought to justice and ensure that such terrorist acts are established as serious criminal offences in domestic laws and regulations;
to afford one another the greatest measure of assistance in connection with
criminal investigations or criminal proceedings relating to the financing or
support of terrorist acts; and
to prevent the movement of terrorists or terrorist groups by effective border controls and controls on issuance of identity and travel documents and
through measures for preventing counterfeiting, forgery or fraudulent use
of such documents.78
Resolution 1373 specifically addresses the need for information sharing,
calling upon all states to take the following action:
•
find ways to intensify and accelerate the exchange of operational information, especially regarding terrorist movements or actions, false travel
�LEGISLATIVE CHANGES FOLLOWING 9/11
•
•
•
•
•
•
documents, arms and explosives trafficking, trafficking in sensitive materials, and terrorist use of communications technologies and possession of
weapons of mass destruction;
exchange information and co-operate on administrative and judicial matters
to prevent terrorist acts;
co-operate, particularly through arrangements and agreements, to prevent
and suppress terrorist attacks and take action against perpetrators of such
acts;
become parties to the relevant international conventions and protocols relating to terrorism;
increase co-operation and fully implement international conventions and
protocols relating to terrorism and Security Council resolutions 1269 and
1368;
take appropriate steps before granting refugee status to ensure that asylum
seekers have not planned, facilitated or participated in the commission of
terrorist acts; and
ensure that refugee status is not abused by the perpetrators, organizers or
facilitators of terrorist acts and that political motivation is not recognized as
a ground for refusing extradition requests in regard to alleged terrorists.79
The link drawn in the Resolution between terrorism and refugee applications suggests that terrorism investigations may involve co-operative efforts by
the police and other parts of government, including immigration officials.
A Committee of the Security Council has been set up to monitor implementation of Resolution 1373.80 Canada has thus far filed five reports with the
Committee, outlining its various anti-terrorism efforts and steps taken to implement the Resolution.81
5.2
CANADA-U.S. SMART BORDER AGREEMENT
Canada’s physical proximity to the United States, the length of the shared border and the two countries’ significant economic interdependence have resulted
in particular pressures for greater co-operation and interaction between
Canadian and American agencies with regard to matters related to terrorism.
In December 2001, Canada and the United States signed the Smart Border
Declaration82 and companion 32-point Action Plan,83 which includes a number
of measures to enhance border security. The Action Plan has four pillars: the secure flow of people, the secure flow of goods, secure infrastructure, and information sharing and coordination in the enforcement of those objectives.
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Two of the thirteen action points related to the “secure flow of people” involve sharing advance passenger information and passenger name records
(API/PNRs) for flights between Canada and the United States, including in-transit flights, and exploring means of identifying risks posed by passengers on international flights arriving in each other’s territory. The two governments plan
to establish joint passenger analysis units at key international airports in
both countries.
Four of the eight action points under “coordination and information sharing in the enforcement of these objectives” concern joint enforcement coordination, whereby the two governments will work towards ensuring
comprehensive and permanent coordination of law enforcement, anti-terrorism
efforts and information sharing; integrated intelligence, involving the establishment of joint teams to analyze and disseminate information and intelligence,
and the production of threat and intelligence assessments; removal of deportees,
whereby the governments will address legal and operational challenges to joint
removals and coordinate initiatives to encourage unco-operative countries to
accept their nationals; and freezing of terrorist assets, involving the exchange of
advance information on designated individuals and organizations in a
timely manner.
5.3
NEW DEPARTMENT: PUBLIC SAFETY AND EMERGENCY
PREPAREDNESS CANADA
On December 12, 2003, then Prime Minister Paul Martin announced restructuring changes to government on “Securing Canada’s Public Health and Safety.”
The resulting Public Safety and Emergency Preparedness portfolio, headed by
the Minister of Public Safety, integrates the activities of the former Department
of the Solicitor General, the Office of Critical Infrastructure Protection and
Emergency Preparedness (formerly part of the Department of National Defence),
the National Crime Prevention Centre (formerly part of the Department of
Justice), and the new Canada Border Services Agency, which includes the domestic enforcement units formerly under the Department of Citizenship and
Immigration and Canada Customs. The RCMP and CSIS, which were part of the
Solicitor General portfolio, come within this new portfolio. In 2005, the
Department of Public Safety and Emergency Preparedness Act was enacted to
codify this reorganization.
The Minister of Public Safety has power over all public safety and emergency preparedness matters within federal jurisdiction that have not been assigned in law to another federal government entity and is required to exercise
�LEGISLATIVE CHANGES FOLLOWING 9/11
leadership relating to public safety and emergency preparedness at the national
level.84 To this end, he or she may coordinate policies with regard to public
safety and emergency preparedness, co-operate with any province, foreign state,
international organization or other entity, and facilitate the sharing of information, where authorized, to promote public safety objectives.85
5.4
NEW NATIONAL SECURITY POLICY
On April 28, 2004, the Government of Canada released a new national security policy entitled Securing an Open Society: Canada’s National Security
Policy.86 The Policy emphasizes the importance of co-operation among agencies
in protecting national security. It identifies three core national security interests: protecting Canada and Canadians at home and abroad, ensuring that
Canada is not a base for threats to our allies, and contributing to international
security. It focuses on six key security activities: intelligence, emergency planning and management, public health emergency response, transportation security, border security and international security. It contains a commitment to an
arm’s-length review mechanism for RCMP national security activities and a
National Security Committee of Parliamentarians, and articulates the general principle that review should keep pace with the evolving nature of national security activities.
5.5
PUBLIC SAFETY ACT
In 2004, Parliament enacted the Public Safety Act, 2002.87 The main provisions
of this lengthy act can usefully be divided into those aimed at enhancing security for sites such as airports and airplanes that are vulnerable to terrorism, and
substances such as explosives and toxins that can be used for terrorism; those
directed at enhancing information sharing within and between governments;
and those dealing with various emergencies.
Several parts of the Act relate to substances that can be used to commit
acts of terrorism. Part 7 amends the Explosives Act to implement the Organization
of American States’ Inter-American Convention against the Illicit Manufacturing
of and Trafficking in Firearms, Ammunition, Explosives, and Other Related
Materials as it relates to explosives and ammunition. It prohibits the illicit manufacturing of and illicit trafficking in explosives. It allows for increased control
over explosives and provides increased penalties for certain offences.
Part 8 amends the Export and Import Permits Act by providing for control
over the export and transfer of technology, and authorizes the Minister of
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NATIONAL SECURITY ACTIVITIES
Foreign Affairs to address security concerns when considering applications for
permits to export or transfer goods or technology.
Part 23 enacts the Biological and Toxin Weapons Convention
Implementation Act, which prohibits the possession, use or transfer of certain biological agents or toxins, as well as weapons to deliver such materials, and provides for regulation and inspections for authorized use of such materials.
Several parts of the Act address the security of sites that may be vulnerable
to terrorist attacks. Parts 1 and 2 relate to aviation security and the screening of
passengers. They create a new offence concerning passengers who are unruly
or who jeopardize the safety or security of an aircraft in flight. They also require the provision of information for transportation security purposes and national security purposes and provide a legislative basis for security clearances.
Part 13 amends the National Defence Act to allow for the identification and
prevention of the harmful unauthorized use of or interference with computer
systems and networks of the Department of National Defence or the Canadian
Forces, and to ensure protection of those systems and networks.
Part 14 amends the National Energy Board Act by extending the powers
and duties of the National Energy Board to include matters relating to the security of pipelines and international power lines.
Several parts of the Act relate to information sharing. Part 5 amends the
Department of Citizenship and Immigration Act to permit the Minister to enter
into agreements or arrangements to share information with a province or group
of provinces, foreign governments or international organizations.
Part 11 amends the Immigration and Refugee Protection Act to allow for the
making of regulations relating to the collection, retention, disposal and disclosure of information for the purposes of that Act. The amendments also allow for
the making of regulations providing for the disclosure of information for national security, the defence of Canada or the conduct of international affairs.
Part 16 of the Act amends the Office of the Superintendent of Financial
Institutions Act by authorizing the Superintendent of Financial Institutions to
disclose to the Financial Transactions and Reports Analysis Centre of Canada
(FINTRAC) information related to compliance by financial institutions with the
Proceeds of Crime (Money Laundering) and Terrorist Financing Act.
Part 17 amends the Personal Information Protection and Electronic
Documents Act to permit the collection and use of personal information for reasons of national security, the defence of Canada or the conduct of international
affairs, or when the disclosure of the information is required by law.
Part 19 amends the Proceeds of Crime (Money Laundering) and Terrorist
Financing Act by extending the types of government databases from which
�LEGISLATIVE CHANGES FOLLOWING 9/11
FINTRAC may collect information considered relevant to money laundering or
terrorist financing to include national security databases. The increased flow of
information within government authorized under these amendments may affect
the national security activities of the RCMP and its interaction with other parts
of government and the private sector.
Finally, various parts of the Act allow the ministers of
Transport, Environment, Health, and Foreign Affairs to make temporary directions in emergencies.
Notes
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
S.C. 2001, c. 41. The Act was introduced in Parliament on October 15, 2001. It was considered by committees of both the House of Commons and Senate, and amendments were
introduced to place restrictions on the definition of terrorist activities and provide for increased judicial review. Technical amendments generally relating to translation issues
were subsequently made in An Act to Amend the Criminal Code and other Acts, S.C. 2004,
c. 12.
Department of Justice Canada, The Anti-terrorism Act: An Act of Prevention, CD-ROM (2002).
R.S.C. 1985, c. C-46, s. 83.01(1)(a) (as am. by the Anti-terrorism Act, S.C. 2001, c. 41).
Ibid., s. 83.01(1)(b).
Ibid., s. 83.01(1.1).
See Canada, Public Safety and Emergency Preparedness, Currently listed entities (2006), online,
http://www.psepc-sppcc.gc.ca/prg/ns/le/cle-en.asp (accessed May 24, 2006).
Criminal Code, ss. 83.18–83.23.
Ibid., ss. 83.02–83.04, 83.08, 83.1–83.12.
Application under s. 83.28 of the Criminal Code (Re), [2004] 2 S.C.R. 248 at para. 59.
This is subject to notice provisions for those with an interest in the property. Property will not
be subject to forfeiture if the judge is satisfied that a person with interest in the property has
exercised reasonable care to ensure that the property not be used to facilitate or carry out a
terrorist activity and is not a member of a terrorist group. In the case of a dwelling that is a
principal residence, the judge must also consider the impact of forfeiture on the immediate
family and whether such family members appear innocent of any collusion or complicity in
terrorist activity.
Criminal Code, s. 83.24.
Ibid., s. 2.
R.S.C. 1985, c. S-7, s. 4.
Criminal Code, s. 231(6.01).
Ibid., s. 424.
Ibid., ss. 424.1, 430(4.1), 431.1, 431.2(2).
Ibid., s. 83.231 (as am. by the Public Safety Act, S.C. 2004, c. 15, Part 4).
R.S.C. 1985, c. O-5, s. 3 (as am. by the Anti-terrorism Act, S.C. 2001, c. 41).
Ibid., s. 4. This section has been referred to Parliament for review, to determine whether it
should be amended in response to concerns about its breadth.
Ibid., s. 5.
Ibid., s. 6.
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22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
Ibid., ss. 8–15
Ibid., ss. 16–18, 20.
Ibid., s. 21.
Ibid., s. 22. The offence of economic espionage is also included, but I do not discuss it here,
as my focus is on national security.
Ibid., s. 23.
Ibid., s. 26.
Ibid., s. 24.
S.C. 2000, c. 17.
Ibid., s. 55(3)(a). FINTRAC is also required to disclose designated information relevant to
the offence of evading or attempting to evade taxes or duties to the Canada Revenue
Agency and/or the Canada Border Services Agency (CBSA) and disclose designated
information for defined immigration and refugee determination and offence purposes to the
CBSA (ibid., s. 55(3)(d)).
Ibid., s. 55.1.
Ibid., s. 55(7).
Ibid., s. 55(5.1).
Ibid., s. 60.
Ibid., ss. 60.1, 60.2.
Ibid., s. 80.
United Nations Suppression of Terrorism Regulations, S.O.R./2001-360, ss. 3 and 6.
Ibid., ss. 4, 6.
Application under s. 83.28 of the Criminal Code (Re), [2004] 2 S.C.R. 248 at paras. 39–40
[Application under s. 83.28].
Ss. 83.28, 83.29.
Application under s. 83.28 at paras. 78–79.
Two of the dissenting judges concluded that the procedure violated the institutional
independence of the judiciary by requiring it to preside over police investigations. All three
dissenting judges concluded that the particular use of the investigative hearing in relation to
the Air India trial constituted an abuse of process because it was an attempt by the Crown to
gain information about a witness in an ongoing criminal trial: ibid. at para. 180.
[2004] 2 S.C.R. 332.
The Court added this caveat: “It may very well be that by necessity large parts of judicial
investigative hearings will be held in secret. It may also very well be that the very
existence of these hearings will at times have to be kept secret. It is too early to determine,
in reality, how many hearings will be resorted to and what form they will take. This is
an entirely novel procedure, and this is the first case -- to our knowledge -- in which it
has been used”: ibid at para. 41. The Court went on to say that, “[e]ven in cases where
the veryexistence of an investigative hearing would have been the subject of a sealing
order, the investigative judge should put in place, at the end of the hearing, a mechanism
whereby its existence, and as much as possible of its content, should be publicly released”:
ibid. at para. 58.
Two judges dissented on the basis that the open court presumption “would normally defeat
the purpose of the proceedings by rendering them ineffective as an investigative tool” and
would harm the rights of third parties and the administration of justice: ibid. at para. 60.
S. 83.31.
Canada, Department of Justice, The Anti-terrorism Act – Reports (2005), online,
http://canada.justice.gc.ca/en/anti_terr/reports.html [Anti-terrorism Act reports].
Criminal Code, s. 83.3.
�LEGISLATIVE CHANGES FOLLOWING 9/11
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
70
71
72
73
74
75
76
77
78
79
80
81
82
83
84
85
Ibid., ss. 83.3(4), 83.3(5).
Ibid., s.83.3(6).
Ibid., s. 83.3(7).
Ibid., ss. 83.3(8), 83.3(9).
Ibid., s. 83.31. Section 83.3 is subject to a renewable five-year sunset provision pursuant to
s. 83.32.
Anti-terrorism Act reports (see note 47).
Criminal Code, ss. 185 (1.1), 186 (1.1).
Ibid., s. 186.1.
Ibid., s. 196(5).
An Act to amend the Foreign Missions and International Organizations Act, S.C. 2002, c. 12,
s. 10.1(2).
Canada Evidence Act, R.S.C. 1985, c. C-5, s. 37.
See An Act to amend the Criminal Code and other Acts, S.C. 2004, c. 12.
Canada Evidence Act, s. 38.01(1).
Ibid., s. 38.01(3).
Ibid, s. 38.
Ibid., s. 38.04.
Ibid., ss. 38.04(2)(b), 38.04(2)(c).
Ibid., s. 38.06(1).
Ibid., s. 38.06(2).
Ibid., s. 38.06(3).
Ibid., ss. 38.11(1), 38.11(2).
Ibid., s. 38.12.
Ibid., s. 38.13.
Ibid., s. 38.131.
Ibid., s. 38.14.
R.S.C. 1985, c. A-1.
S.C. 2000, c. 5.
R.S.C. 1985, c. P-21.
United Nations Security Council Resolution 1373, UN SCOR, 56th Sess., 4385th mtg., UN Doc.
S/RES/1373 (2001), online, UN Security Council, http://daccessdds.un.org/doc/UNDOC/GEN/
N01/557/43/PDF/N0155743.pdf?OpenElement (accessed June 5, 2006).
Ibid., para. 2.
Ibid., para. 3.
Ibid., para. 6.
The last report from Canada is dated May 4, 2006: United Nations Counter-Terrorism
Committee,
Reports from Member States
(UNSC
CTC,
2004),
online,
http://www.un.org/Docs/sc/committees/1373/c.htm (accessed Aug. 9, 2006).
Smart Border Declaration: Building a Smart Border for the 21st Century on the Foundation
of a North American Zone of Confidence, Ottawa, Canada, December 12, 2001, online,
Foreign Affairs and International Trade Canada, www.dfait.gc.ca/can-am/main/border/
smart_border_declaration-en.asp (accessed July 20, 2006).
32-point Action Plan, Ottawa, Canada, December 12, 2001, online, Foreign
Affairs and International Trade Canada, www.dfait-maeci.gc.ca/can-am/main/border/
32_point_action-en.asp (accessed July 20, 2006).
Department of Public Safety and Emergency Preparedness Act, S.C. 2005, c. 10, s. 4.
Ibid., s. 6(1).
81
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NATIONAL SECURITY ACTIVITIES
86
87
Canada, Privy Council Office (Ottawa: PCO, 2004), online, http://www.pco bcp.gc.ca/
docs/Publications/NatSecurnat/natsecurnat_e.pdf (accessed July 20, 2006). See also
Canada, Privy Council Office, Securing an Open Society: One Year Later – Progress
Report on the Implementation of Canada’s National Security Policy (Ottawa: PCO, 2005),
(accessed
online,
http://www.pco-bcp.gc.ca/docs/ministers/deputypm/secure_e.pdf
Aug. 25, 2006).
S.C. 2004, c. 15.
�IV
Current National Security Activities
of the RCMP
1.
INTRODUCTION
In the preceding chapters, I set out the history of national security activities in
Canada up to the events of September 11, 2001, with particular focus on the
RCMP’s national security role and the Canadian government’s response to 9/11.
In this chapter, I detail the RCMP’s national security activities since those terrorist
attacks. Together with the next chapter, in which I describe the other government actors involved in protecting Canada’s national security, these four chapters provide a foundation for meaningfully addressing the issue at the centre of
my mandate in the Policy Review: the need for and necessary features of a review mechanism for the RCMP’s national security activities. My recommendations for a review mechanism set out in Chapter XI are directly linked to the
characteristics of Canada’s national security landscape as a whole, as well as the
features of the RCMP’s current national security activities and the context in
which they are carried out.
The RCMP is currently involved in a broad range of activities in support of
its national security mandate. In general terms, these include collecting, maintaining and analyzing information and intelligence related to national security;
sharing such information and intelligence with other agencies, both domestic
and foreign; preparing analyses and threat assessments and developing other
methods of support for internal and external purposes; investigating crimes related to national security; investigating and countering activities to prevent the
commission of crimes related to national security; and protecting specific national security targets.1
My discussion of these national security activities is divided into five parts:
an organizational overview; a description of activities carried out by RCMP
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NATIONAL SECURITY ACTIVITIES
branches and units involved in national security; a discussion of the overlap between the national security activities and other law enforcement activities carried out by the Force; a description of the information and intelligence
management mechanisms employed by the RCMP; and an introduction to the
RCMP’s interaction with other national security actors.
Before I begin, however, I wish to draw attention to one pervasive feature
of the RCMP’s national security role: the Force’s response to criminal threats to
national security, like the government’s response to national security threats in
general, is continuously evolving. Many of the threats currently faced by Canada
are different from in the past. It is therefore not surprising that the response to
them is modified and adapted regularly. Significant changes have been made to
the RCMP’s national security activities even during the conduct of this Inquiry
and, as I drafted this Report, I became aware of further proposals for changes.
Two points thus arise: first, some of the details discussed herein may be out of
date soon after this report is published; second, it is important that the evolving
nature of RCMP national security activities — indeed, of the government’s approach in general — be borne in mind in addressing the issue of a review mechanism. An effective mechanism must have the capability to adapt to change.
2.
ORGANIZATIONAL OVERVIEW
A discussion of the RCMP’s national security activities requires a look at the context in which the Force carries out those activities, including how the activities
fit into the organization as a whole and into the RCMP chain of command. I
therefore begin with a description of the administrative organization in relation
to the RCMP’s national security activities. Following that, I set out a number of
factors relevant to context, including ministerial directives and internal policies
governing national security activities, the RCMP’s internal accountability mechanisms, the number of RCMP personnel engaged in national security, and recruitment and training requirements in respect of those activities.
2.1
ORGANIZATION OF RCMP NATIONAL SECURITY ACTIVITIES
The Commissioner of the RCMP is assisted in the management and control of
the Force by a number of deputy commissioners: one for each RCMP region or
division (Atlantic, Central, North West and Pacific) and one each for Strategic
Direction, Corporate Management and Operations (see Chart 1, p. 86). The
Deputy Commissioner, Operations, is responsible for the RCMP’s national security mandate, as well as for federal and international operations, protective
�RCMP’S CURRENT NATIONAL SECURITY ACTIVITIES
policing, community, contract and Aboriginal police services (CCAPS), criminal
intelligence, and technical operations.
National security matters have come within the ambit of the Criminal
Intelligence Directorate (CID) since this important component of intelligence-led
policing was created in 1991. CID is headed by the Assistant Commissioner,
CID, who reports to the Deputy Commissioner, Operations. In addition to its national security function, discussed below, CID includes the Criminal Intelligence
Support Branch, Organized Crime Intelligence Branch, National Operations
Centre and Director General, Intelligence Analysis and Communications.
In 2003, a new reporting function was created directly under the Assistant
Commissioner, CID: the Director General, National Security. The Director
General heads the National Security Directorate, which has three branches: the
National Security Intelligence Branch (NSIB), National Security Operations
Branch (NSOB) and Threat Assessment Branch (see Chart 2, p. 87).
Pursuant to ministerial directive (discussed below), RCMP National
Headquarters is responsible for coordinating virtually all activities relating to
the RCMP’s national security mandate. In addition, the various branches, sections
and units within the National Security Directorate are responsible for the analysis and management of national security information and intelligence, as well as
the preparation of threat assessments and other national security information
products. Much of the investigative work on national security matters is done
at the divisional level. Such work is undertaken either by Integrated National
Security Enforcement Teams (INSETs) or National Security Investigation
Sections (NSISs). As discussed below, INSETs are teams made up of RCMP members and personnel seconded from other police forces and government agencies.
They are located in Vancouver, Toronto, Ottawa and Montreal. RCMP divisions
without an INSET have an NSIS, which carries out the same function, but is
not integrated with other agencies. The work of both INSETs and NSISs is coordinated by National Headquarters and they both report to the NSOB, through
the Division Criminal Operations Branch (see Chart 3, p. 88). I describe the national security work carried out at the headquarters and divisional levels in
Section 3, below.
2.2
MINISTERIAL DIRECTIVES
All of the RCMP’s national security activities are ultimately under the control of
the Commissioner of the RCMP who, pursuant to the Royal Canadian Mounted
Police Act (RCMP Act),2 “has the control and management of the Force and all
matters connected therewith.” As I discuss in Chapter II, this control and
85
�Chief Information
Officer
Chief Human
Resources Officer
Ethics Advisor
Deputy
Commissioner
Central Region
Deputy
Commissioner
Atlantic Region
Deputy
Commissioner
National
Police Services
Deputy
Commissioner
Corporate
Management
& Comptroller
Deputy
Commissioner
Strategic Direction
Deputy
Commissioner
Operations
Deputy
Commissioner
Pacific Region
Deputy
Commissioner
North West Region
Commissioner
RCMP National Organization
CHART 1
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A NEW REVIEW MECHANISM FOR THE RCMP’S
NATIONAL SECURITY ACTIVITIES
�OIC*
National Security
Operations Branch
(NSOB)
Director General
National Security
OIC*
National Security
Intelligence Branch
(NSIB)
Intelligence Support
Branch
*Officer in Charge
Threat Assessment
Branch
Crime Intelligence
Branch
Assistant Commissioner
Criminal Intelligence Directorate (CID)
Deputy Commissioner
Operations
CID Organizational Structure
CHART 2
Director General
Intelligence
Analysis &
Communications
OIC*
Intelligence
Production &
Operational Support
Operations
Centre
OIC*
Criminal
Analysis
Branch
CHAPTER IV: RCMP’S CURRENT NATIONAL SECURITY ACTIVITIES
87
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NATIONAL SECURITY ACTIVITIES
CHART 3
NSIS/INSET Reporting Structure
Commissioner of the RCMP
Deputy Commissioner
Operations
Assistant Commissioner
Criminal Intelligence Directorate (CID)
Director General
National Security
OIC*
National Security
Operations Branch
(NSOB)
OIC*
National Security
Intelligence Branch
(NSIB)
NSIS/INSET
*Officer in Charge
Threat Assessment
Branch
�RCMP’S CURRENT NATIONAL SECURITY ACTIVITIES
management is “under the direction of the Minister,” who exercises his or her
role with respect to the RCMP primarily by issuing directives to the RCMP. A
number of ministerial directives (sometimes called ministerial directions) affect
the RCMP’s national security mandate:
The Ministerial Directive on Police Assistance to Foreign Nations (1981)3
sets out policies and guidelines in respect of the provision by the RCMP of
police training, consultative assistance (providing advice in regard to training or an investigation) and investigative assistance to foreign countries (relocating RCMP staff and/or equipment to a foreign country to help with a
criminal investigation in that country). The directive sets out procedures to
be followed in reviewing such requests and the appropriate considerations.
(ii) The Ministerial Directive on RCMP Agreements (April 2002)4 deals with
“agreements entered into by the RCMP to provide services, information, assets, or assistance to, or receive same from, other departments, agencies
and institutions of municipal, territorial, provincial, federal or foreign governments, or with international organizations.” This directive provides guidance with respect to accountability and consultation requirements for RCMP
agreements.
(iii) The Ministerial Direction – National Security Responsibility and
Accountability (November 2003)5 deals specifically with responsibilities
and accountabilities of the RCMP in relation to investigations that fall
under section 6(1) of the Security Offences Act and investigations related
to a terrorist offence or terrorist activity as defined in section 2 of the
Criminal Code. It affirms that the national security activities of the RCMP
are under the control of the Commissioner, subject to direction by the
Minister, that the Minister is accountable to Parliament for the RCMP, and
that the Commissioner is in turn accountable to the Minister. The directive
also provides that national security investigations should be coordinated
at RCMP National Headquarters. It states that “[s]uch central coordination
will enhance the Commissioner’s operational accountability and in turn,
will enhance ministerial accountability, by facilitating the Commissioner’s
reporting to the Minister.” The Commissioner is required to keep the
Minister apprised of all national security investigations that may give rise
to controversy.
(iv) The Ministerial Direction – National Security Related Arrangements and
Cooperation (November 2003)6 “establishes the process for the Royal
Canadian Mounted Police (RCMP) to follow when entering into an arrangement with foreign security or intelligence organizations for the purpose of
(i)
89
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performing its duties and functions with respect to matters that fall under
subsection 6(1) of the Security Offences Act, and those related to a terrorist offence or terrorist activity, as defined in . . . the Criminal Code.” The
directive states that “[t]he RCMP may, with the Minister’s prior approval,
enter into a written or oral agreement, or otherwise cooperate, with foreign
security or intelligence organizations.” It does not apply to arrangements or
co-operation with foreign law enforcement agencies or organizations. The
directive provides for consultation with Foreign Affairs and International
Trade Canada (DFAIT) and CSIS regarding such arrangements. It also sets
out a requirement that all such arrangements be recorded in writing and that
the Commissioner report annually on their status to the Minister. I note that
the RCMP has relatively few arrangements and/or agreements with foreign
intelligence agencies, as such matters are generally left to CSIS.
(v) The Ministerial Direction – National Security Investigations in Sensitive
Sectors (November 2003)7 defines “sensitive sectors” as “fundamental institutions of Canadian society,” including institutions “in the sectors of academia, politics, religion, the media and trade unions.” All investigations
involving sensitive sectors must be pre-approved by the Assistant
Commissioner, CID, or his or her designate. The directive also states, in regard to university or post-secondary campuses, that “it is paramount that the
investigations undertaken by the RCMP do not impact upon the free flow
and exchange of ideas normally associated with an academic milieu.”
2.3
INTERNAL POLICIES
The activities of RCMP personnel, including personnel engaged in national security activities, are also regulated by a number of internal policies, including a
code of conduct.
In specific relation to national security, there are policy provisions dealing
with national security investigations (including the requirement that the RCMP
not gather information on or investigate organizations engaged in lawful activities unless such action is justified by allegations or intelligence); the requirement
that anti-terrorism investigations be conducted by NSISs or NSETs; the obligation of members to respect the rights of those who are the subject of an investigation; a definition of national security and a threshold for identification of a
matter as a national security matter; reporting requirements; the RCMP/CSIS exchange program; RCMP agreements; and information and human sources. I discuss those policies below.
�RCMP’S CURRENT NATIONAL SECURITY ACTIVITIES
Section 37 of the RCMP Act provides standards for all RCMP officers. These
include respecting the rights of all persons, maintaining the integrity of the law
and the administration of justice, performing duties without abusing their authority as RCMP officers, and ensuring that improper or unlawful conduct of
any member of the Force is not concealed or permitted to continue.
The RCMP’s Code of Conduct8 is prescribed by regulation. Among other
things, it requires RCMP officers to obey lawful orders and assist those in danger and prohibits them from making false, misleading or inaccurate statements
or neglecting their duties. It also requires respect for rights and freedoms and
prohibits discrimination.
2.4
INTERNAL ACCOUNTABILITY MECHANISMS
The RCMP has established various internal controls and accountability structures
with respect to its mandate, including its national security activities. These mechanisms provide an opportunity for internal assessment of the conduct of the
RCMP and its officers. In addition to the accountability and control framework
inherent in its command structure, the RCMP has three internal accountability
mechanisms: the disciplinary process, the Audit and Evaluation Branch and the
board of inquiry. It also has an external accountability mechanism, the
Commission for Public Complaints Against the RCMP (CPC), the role of which
I describe in Chapter VI.
Where formal disciplinary action is required, the RCMP Code of Conduct is
enforced through the establishment of an adjudication board under Part IV of
the RCMP Act. The adjudication board is a formal disciplinary tribunal comprising three officers, one being legally trained. Officers of the Force may also be
recommended for discharge or demotion by discharge and demotion boards,
which are also made up of three officers, one being legally trained, appointed
under the authority of Part V of the Act.9
The Adjudications Branch manages, administers and provides adjudicative
services under the authority of the RCMP Act. The Branch consists of three
legally trained members who act as chairs on both types of boards. Adjudication
hearings are held in public and are formal, court-like processes. The rights of
members are outlined in Part IV of the Act and in the Regulations, and rules of
practice and procedure are set out in a Commissioner’s standing order. Boards
have legal authority to hear evidence, such as sworn testimony, to make determinations as required and, if a contravention is established, to administer different sanctions such as forfeiture of pay, demotion and dismissal. Discharge
and demotion boards may demote or discharge a member. Members appearing
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before an adjudication or discharge and demotion board may be represented by
another member, a member representative or legal counsel. Proceedings are
recorded by a court reporter. The written decision of the board is a public document and the original is kept in the registry of the Adjudications Branch. The
decision of a board may be appealed to the RCMP Commissioner, as outlined
in Parts IV and V of the Act.10
The RCMP External Review Committee provides recommendations on the
disposition of an appeal to the Commissioner. Established by Part II of the
Act, the Committee is an independent, arms-length labour relations tribunal. Its
mandate is to review grievance, disciplinary, discharge and demotion cases
referred to it by the RCMP and provide recommendations in their regard to
the Commissioner. Although the bulk of its workload involves reviewing grievance decisions, the Committee also receives referral of the other matters mentioned above. Essentially, the Committee’s reviews are intended to ensure
transparency, fairness, impartiality and independence in the RCMP’s internal
labour relations process.11
The Committee does not have authority to initiate reviews. Cases must be
referred to it by the Commissioner of the RCMP. The Act sets out the types of
cases that require Committee review. Moreover, the Committee does not have
investigatory powers. In all grievance, discipline, discharge and demotion matters referred to it, it must base its review on the record before it. This includes
all of the original documents, the decision made, and the submissions of the parties. Where a review involves the appeal of a disciplinary or discharge and demotion decision, the Committee is also provided with the transcript of the board
hearing and any exhibits entered at the hearing. The Chair may request that a
party provide additional information or submissions and, if this is done, the
other party is given the chance to respond. The Chair may also hold a hearing
if deemed necessary, although use of this option is rare. The Chair reviews all
the evidence, legal issues, relevant legislation and case law in coming to a determination on the matter.12
The Chair provides the findings and recommendations to the Commissioner
of the RCMP, the final decision-maker in the internal process for these cases, and
to the parties. The Commissioner must consider the Committee’s recommendations, and if he or she decides not to follow them, must provide an explanation
for not doing so in his or her reasons.13
The mandate of the External Review Committee differs significantly from
that of the CPC. The Committee focuses on reviewing labour relations decisions
made within the RCMP, at the appellate level of the process. Files are referred
to the Committee after the initial decision has been made. The Committee has
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no direct contact with the public. The CPC’s mandate, as discussed below, is the
review of public complaints against the RCMP. The CPC may operate either as
a form of appellate review body for RCMP investigations and decisions about
complaints or, when the Chair invokes the public interest, as an external review
body of first instance. It may receive complaints from members of the public or
the Chair may initiate complaints, investigations or hearings.14
The Audit and Evaluation Branch also performs an internal accountability
function within the RCMP. It provides risk management services with respect to
internal controls, activities and culture. Its mandate includes ensuring compliance with laws, regulations and internal policies, and evaluating services. The
Branch submits reports to an audit committee and the RCMP Commissioner, and
also communicates with the Auditor General.15
The mandate of the Audit and Evaluation Branch is to provide risk-based
assurance services to senior management on the soundness of risk management
strategies and practices; management control frameworks, systems and practices; and information for decision making and reporting. The Director General
of the Branch is accountable to the RCMP Commissioner and the Audit
Committee for providing assessments on the adequacy and effectiveness of the
RCMP’s processes for controlling its activities and managing its risks; reporting
significant issues related to the processes for controlling RCMP activities, including potential improvements to those processes, and providing information
concerning such issues through to resolution; periodically providing information
on the status and results of the annual audit plan and the sufficiency of resources
to meet the Branch’s mandate and objectives; and coordinating with other control and monitoring functions such as risk management, compliance, security,
legal, ethics, environmental and external audit.16
Audit and Evaluation Branch officers and civilian members have some
autonomy within the Force, but are not independent from it. They remain
subject to its command structure. While the Branch performs important work,
it is not focused on national security matters or on ensuring respect for rights
and freedoms.
The role of the Audit Committee is to provide advice and counsel to assist
the RCMP Commissioner in discharging his or her responsibilities for risk management, the design and operation of management control frameworks, and the
quality of financial and other performance information used for decision making; ensure that the results of internal audits are incorporated into the RCMP’s
priority setting, planning and decision-making processes; strengthen the independence and effectiveness of the internal audit function; emphasize the
accountability of managers; provide the Commissioner with advice on the im-
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pacts of government-wide initiatives aimed at improving management practices;
and facilitate communication between senior management, the internal audit
function, central agencies and the Office of the Auditor General.17
The third internal accountability mechanism is the board of inquiry. The
Commissioner of the RCMP or the Minister of Public Safety (formerly the Solicitor
General) are empowered under section 24.1 of the RCMP Act to establish a
board of inquiry to investigate and report on a broad range of matters involving the Force, including training, conduct, performance of duties, discipline and
administration. Such boards are given broad powers to summon individuals and
receive evidence under oath. The rights of persons affected by a board of inquiry
are set out in the Act. Unless the RCMP Commissioner or Minister of Public
Safety directs otherwise, investigations and board of inquiry hearings are conducted in private.18
2.5
PERSONNEL INVOLVED IN THE NATIONAL SECURITY MANDATE
RCMP personnel directly involved in national security activities, including individuals working in the National Securities Directorate and Criminal Extremism
Analysis Section19 at the headquarters level and in NSISs and INSETs at the divisional level total 328: 231 regular RCMP members, 67 on secondment from
other police forces and government agencies, and 30 civilians.20
It is difficult to arrive at a precise number of RCMP personnel involved in
national security matters because, in many cases, there is overlap with other departments and areas. I discuss the extent of such overlap below.
2.6
RECRUITING AND TRAINING
The basic requirement for a regular RCMP member to be recruited into a position related to national security is several years of experience in criminal investigation work. When recruiting members to a specialized investigative team,
managers look for specific skills that may be needed to strengthen the team. The
criteria considered include the following:
•
•
•
•
•
top secret security clearance;
experience in investigating major cases (especially in the case of
supervisors);
specific skills, such as affidavit writing or file management;
source development capabilities;
interpersonal skills;
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•
•
•
“above average interest” in worldwide current events;
specialized investigational experience; and
above average written and oral communication skills.
Training is available for members working in national security. The most
pertinent courses are the National Security Enforcement Course and a Bill C-36
anti-terrorism course designed and supervised by the Department of Justice.
Approximately 90 percent of INSET/NSIS members have completed these
courses. Training is also available in the following subject areas:
•
•
•
•
•
•
•
•
•
•
•
•
•
Secure Criminal Information System (SCIS);
National Criminal Databank;
terrorist financing;
source development and handling;
proceeds of crime;
hostage negotiation;
major case management;
Criminal Intelligence Officer position;
cross-cultural issues and cultural awareness;
surveillance techniques;
immigration and passports;
Internet investigations; and
threat assessment.
Criteria for recruiting civilian members into national security positions depend on the requirements of the specific positions. An analyst position, for example, has the following minimum requirements:
•
•
•
•
•
•
top secret security clearance;
Bachelor’s degree;
several years of experience in researching, writing, analyzing and editing
documents, as well as experience in a publishing, research or analytical
environment;
experience with computers and word processing;
above average oral and written communication skills; and
ability to satisfy the language profile for the position.
Training for civilians employed in national security work includes courses
in intelligence analysis at the Canadian Police College and many of the other
courses available to regular members of the RCMP as set out above. I have made
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a number of recommendations with respect to improvements to training in my
Factual Inquiry report.
3.
SCOPE OF RCMP’S CURRENT NATIONAL SECURITY
ACTIVITIES
The following descriptions of each of the RCMP’s branches and units engaged
in national security activities illustrate the scope of these activities.
3.1
NATIONAL SECURITY INTELLIGENCE BRANCH
The National Security Intelligence Branch (NSIB), located at RCMP National
Headquarters, is responsible for the assessment, coordination, monitoring and
direction, when necessary, of all national security investigations and intelligence
at the national and international levels. Its primary mandate is to collect and analyze intelligence in relation to the RCMP’s national security mandate. It is also
responsible for identifying potential strategic approaches to national security investigations and producing tactical analytical products (TAPs), intelligence products that make the case for the commencement of criminal investigations. On
occasion, the NSIB will task INSETs or NSISs to assist with TAP preparation.
The process for creating TAPs begins with review and analysis of information received by the NSIB from a variety of sources, including CSIS,21 Canada’s
allies, other police forces, other intelligence agencies, other domestic government departments and agencies22 and the community. This information is analyzed and prioritized in a manner consistent with the priorities set by Criminal
Operations (CROPS) officers at the annual tactical priorities meeting.23
Prioritization is also informed by discussions with CSIS. In preparing TAPs, the
NSIB also uses RCMP-generated information and information requested from
domestic and foreign agencies24 to supplement the unsolicited information.
Once a TAP is complete, a decision is made about whether or not to proceed with a tactical project (criminal investigation). In matters that proceed to
the criminal investigation stage, the file is delivered to the NSOB for coordination and oversight of the investigation. The complexity and scope of a TAP determines who, within the RCMP, is responsible for authorizing release of the
TAP to the field. Where the TAP is extensive and investigation will likely require a significant investment of resources, a presentation is made to the Director
General, National Security and, in some cases, the Assistant Commissioner, CID,
whose authority is required to approve release of the TAP to the appropriate
divisions for investigation. In such instances, transfer of the package to a field
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unit also entails holding a meeting with all units concerned, including the relevant Division Criminal Operations Branch and the INSET/NSIS commander.
Where the TAP is not as complex and investigation will not likely be resourceintensive, the TAP may be forwarded to a division for follow-up upon approval
of the Officer in Charge (OIC), NSIB. In the majority of cases, the TAP or portions of it are shared with CSIS.
In addition to producing TAPs, the NSIB is involved in the day-to-day flow
of national security information within the RCMP. A significant portion of national security information received by the RCMP comes through the NSIB,
which is the RCMP’s primary contact point for intelligence agencies that have information to relay. While this information may be used in the production of
TAPs, some of it may also need to be directed to the field even before a TAP
is produced.
Another area of responsibility for the NSIB is answering requests for information from entities outside the RCMP. Requests from intelligence agencies and
other government departments, both domestic and foreign, are directed to the
NSIB, while those from police agencies are generally directed to the NSOB.
The final main area of responsibility for the NSIB is the briefing of senior
members of the Force on issues related to national security.
The following are some of the sections or groups that come within the responsibility of the NSIB:
Terrorist and Criminal Extremist Special Projects Group
The Terrorist and Criminal Extremist Special Projects Group is responsible for
the coordination and development of intelligence relating to terrorist activity
and criminal extremism25 from a national perspective, in support of national security investigations and the deployment of counter-terrorism strategies.
Specifically, the Group is responsible for promoting and implementing counterterrorism and anti-terrorist strategies, activities, procedures, policies and standards in order to identify and understand how extremist organizations recruit,
operate and maintain their organizations. It produces intelligence packages to
focus enforcement efforts. It also develops relationships and maintains liaisons
with other entities in the domestic and international law enforcement communities. The Group also collects and collates information, intelligence and evidence to support the listing of terrorist entities pursuant to section 83.05 of the
Criminal Code.26 The RCMP prepares criminal intelligence reports for the
Minister, who uses them, together with security intelligence reports prepared
by CSIS, to make recommendations regarding listing to the Governor in Council.
Also in regard to listing, the Group assists the Department of Justice in judicial
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reviews, monitors appeals and reviews of listings, and assists with the revocation of charitable registrations of terrorist groups.
Anti-terrorist Financing Group
The Anti-terrorist Financing Group supports counter-terrorism strategies, financial intelligence gathering and financial investigations. It also monitors financial
operations from a national perspective and implements counter-terrorism financing strategies, activities, procedures, policies and standards. It is the main
entry point for information provided to the RCMP by the Financial Transactions
and Reports Analysis Centre of Canada (FINTRAC).
Critical Infrastructure Intelligence Section
Managed jointly by the NSIB and the Criminal Analysis Branch of CID, the
Critical Infrastructure Intelligence Section focuses on threats to critical
infrastructure. Its work includes producing threat and risk assessments, indications and warnings, and intelligence assessments relevant to critical infrastructure, as well as providing support for investigations related to threats to
critical infrastructure.
3.2
NATIONAL SECURITY OPERATIONS BRANCH
The National Security Operations Branch (NSOB), also located at National
Headquarters in Ottawa, focuses on coordinating investigations related to
national security across the country. It is also responsible for ensuring compliance with RCMP policies (including policies relating to national security investigations); preparing subject profiles, case briefs and briefing notes for senior
management; and assisting the Commissioner in his responsibility for informing
the Minister of high-profile national security investigations that may give rise
to controversy.
The NSOB is responsible for providing Headquarters’ approval for all national security investigations undertaken by INSETs and NSISs. This includes an
intake responsibility in respect of work originating with the NSIB and other
sources both internal and external to the RCMP. Work comes into the NSOB in
a variety of ways. The TAPs produced by the NSIB, which I discuss above, represent the genesis of approximately 10 percent of the files overseen by the
NSOB. Other files are started as a result of the receipt of information from various sources both within and outside the RCMP.
Information received by the NSOB is initially assessed by either the Officer
in Charge (OIC) or the Operations NCO. The first step in the assessment is to
�RCMP’S CURRENT NATIONAL SECURITY ACTIVITIES
determine whether or not the information involves criminality or potential criminality. If none is apparent, the matter may be referred to CSIS. In some instances, a determination of criminality is made at the outset, but further
investigation leads to the conclusion that no criminality is involved. In such an
event, the investigation stops and the information obtained may be handed over
to CSIS. Nevertheless, information gathered in such an investigation remains on
the SCIS database (the RCMP’s secure database reserved for national security information and intelligence, which I examine in greater detail below) until it is
deleted in the normal course of operations.
The second matter decided at the outset is whether the information relates
to national security. Again, this is not always a permanent determination.
National security crimes overlap with many other forms of criminal behaviour.
If there is a deemed national security link, a file is treated as a national security
file and all national security policies and procedures apply even if the investigation is not being conducted by an INSET or NSIS.27 If, ultimately, it is determined that there is no national security link, the investigation is stopped or
handed over or back to another area within the RCMP or another police agency.
Whenever the OIC or Operations NCO decides to open an investigation on
the basis of information received, the file is assigned to a reviewer within the
NSOB. Reviewers play a pivotal role within the NSOB as the headquarters coordinators of the national security investigations in their portfolios. Virtually all
national security investigations handled by the RCMP are assigned an NSOB reviewer, unless they are “open and shut” cases that last only a very short time.
The reviewer coordinates the flow of information between Headquarters and the
field officers assigned to the matter; finds specialized resources within the RCMP
to support the file; interacts with domestic and foreign police agencies,28 CSIS
and RCMP liaison officers abroad; and ensures compliance with RCMP policies
and procedures, including national security policies and procedures. Another
part of the reviewer’s role is to make sure that all RCMP investigations with a
deemed national security nexus (even those that originate or continue to be investigated outside of INSETs or NSISs) are coordinated through Headquarters.
The NSOB is also responsible for oversight of information sharing with domestic police agencies. While exchanges of information may occur at the field
level, especially when RCMP personnel are co-located with other police agency
personnel,29 the NSOB must be kept advised of any such exchanges. The INSET
Officer in Charge is responsible for approving this type of exchange. Because
of its interaction with RCMP liaison officers abroad, the NSOB has also been
involved in sharing information with foreign police agencies through liaison officers. Approval for such information exchanges is through the NSOB. As I note
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above, information exchanges with foreign intelligence agencies are approved
by the NSIB.
The NSOB includes Source Development Units (SDUs), which are responsible for developing human sources for national security investigations. They
report to and take their instructions from INSETs. In practice, an INSET will identify gaps in investigations on which it is working and task an SDU to develop
human sources to help fill those gaps. However, the existence of SDUs does not
prevent INSETs from carrying out their own source development.
3.3
THREAT ASSESSMENT BRANCH
The primary role of the Threat Assessment Branch is to maintain the National
Threat Assessment Program (NTAP), which provides the RCMP with support for
its protective responsibilities, which include protection of embassies, consulates
or missions within Canada; internationally protected persons;30 airports, carriers
and air routes; and the Canadian executive cadre. The Branch monitors events
and prepares threat assessments on national security issues that may have an impact on threats posed to Canada or to Canadian interests abroad.
The Branch has three units:
International Protective Intelligence Unit
The International Protective Intelligence Unit develops threat assessments for
foreign embassies, consulates and missions within Canada. It also provides threat
assessments in respect of foreign visitors to Canada (internationally protected
persons) and major events in Canada, and handles background checks for
Order-in-Council appointments.
Civil Aviation Protective Intelligence Unit
The Civil Aviation Protective Intelligence Unit identifies flights and routes in
Canada that may face terrorist action or other threats and provides threat assessments to Canadian and international airports and air carriers. It also supports the Canadian Air Carrier Protective Program, which assigns RCMP officers
to certain Canadian flights.
Canadian Executive Protective Intelligence Unit
The Canadian Executive Protective Intelligence Unit develops threat assessments
relating to the Canadian executive cadre (including the Prime Minister, Governor
General, Cabinet ministers, members of Parliament, senators and Supreme
Court, Federal Court and Tax Court judges) both inside Canada and when they
�RCMP’S CURRENT NATIONAL SECURITY ACTIVITIES
travel abroad. It is also responsible for coordinating and maintaining the
VIP Surveillance Subject Program, which identifies, investigates, assesses and
monitors individuals who have shown a criminal or “abnormal” interest in
the Canadian executive cadre, government officials or internationally-protected persons.
The Threat Assessment Branch also includes a Public Safety Act project coordinator, whose function it is to provide support to the Minister of Public Safety
in respect of the Public Safety Act.
3.4
CRIMINAL EXTREMISM ANALYSIS SECTION
The Criminal Extremism Analysis Section (CEAS) is administered outside the
National Security Directorate by the Criminal Analysis Branch. However, Section
analysts perform tactical and strategic analysis in support of the national security program. The Section produces three types of intelligence:
•
•
•
strategic intelligence, which involves assessments in support of operational
and policy decision making by senior managers of the RCMP, including decision making in relation to resources allocated to investigations (this includes “Sleipnir”31 threat measurement assessment and an annual report for
consideration by Criminal Operations (CROPS) officers, when they determine national strategic and tactical priorities for all RCMP operations, including national security);
current intelligence, including assessments in support of operational and
policy decision making by the Threat Assessment Branch and Protective
Policing Services; and
tactical intelligence, in the form of charts and assessments in support of
investigations.
Tactical analysts in CEAS are given specific clients and a tactical analyst is
assigned to each of the NSOB, NSIB and the Anti-Terrorism Financing Group.
These analysts also provide analytical support directly to INSETs and NSISs at
the divisional level, upon request. Tactical analysts in the divisions also support
the INSETs. Specific areas of expertise developed in CEAS include terrorism /
criminal extremism; distinct types of criminal activities used by terrorists, such
as chemical and biological terrorism, money laundering and suicide bombing;
and the intentions, capabilities and activities of specific terrorist groups and
movements operating in Canada.
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3.5
NSISs, INSETs AND IBETs
NSISs and INSETs
National Security Investigation Sections (NSISs) and Integrated National Security
Enforcement Teams (INSETs) operate at the divisional level and have primary
responsibility for carrying out criminal investigations in national security matters.
Created in 1988, NSISs are made up entirely of RCMP personnel. There were
originally 14 sections. After 9/11, four were converted to INSETs, integrated
teams comprising both RCMP officers and personnel from provincial and municipal police forces and non-police agencies. INSETs are an illustration of the
RCMP’s integration strategy. Integrated Border Enforcement Teams (IBETs) are
also involved in national security activities.32 Integrated units are not restricted
to national security matters and are also employed in other areas, such as organized crime.
In addition to RCMP members, INSETs may have members from provincial
and municipal police forces and from various agencies such as CSIS, the Canada
Border Services Agency (CBSA), Citizenship and Immigration Canada (CIC), the
Canada Revenue Agency and other federal and provincial agencies. For example, in 2004, O-INSET (located in Toronto) had members from the Ontario
Provincial Police, Toronto Police Service, York Regional Police, Durham
Regional Police, Peel Regional Police, CSIS and the CBSA. As of August 2004, OINSET comprised 53 RCMP regular members, two RCMP civilian members and
22 people on secondment from other agencies and RCMP units.
O-INSET is moreover co-located with Ontario’s Provincial Anti-Terrorism
Section (PATS), representatives of the Attorney General of Canada and Attorney
General of Ontario, and the Combined Forces Special Enforcement Unit
(CFSEU), the mandate of which centers around organized crime. This latter colocation facilitates communication between O-INSET and the CFSEU. In the
event of a national security emergency requiring a significant increase in strength
to fulfill the RCMP’s national security role, the CFSEU would be a likely source
of personnel. The improved communication arising from co-location would
allow a smoother transition than would be the case if personnel with no knowledge of the INSET’s operations were deployed.
INSET activities are coordinated and overseen by RCMP National
Headquarters. According to the RCMP, it is fully accountable for the operations
of INSETs, and RCMP policies and rules apply to the actions of INSET members. Members of other police services seconded to an INSET are made
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Supernumerary Special Constables in the RCMP. There are agreements in place
between the RCMP and other police services regarding this status. One such
agreement was examined during the Policy Review process. It provides that the
officer from a municipal service shall be supervised by the RCMP, but shall remain under the jurisdiction of the municipal service’s disciplinary process, as
well as the appropriate civilian oversight agency. Pursuant to the agreement,
the municipal service agrees to hold harmless and indemnify the RCMP in respect of claims arising from the conduct of the officer. Information obtained by
officers seconded to the INSET from other agencies may not be passed on to
those other agencies except through normal national security channels.
As I mention above, the focus of INSETs is the investigation of national security crimes. To gain a better understanding of how INSETs operate, the
Commission conducted a detailed examination of O-INSET. In 2003, O-INSET
opened some 1,174 new files, worked on 12 projects and responded to nine
mini-crises. Projects are major investigations reflecting the RCMP’s national tactical priorities, as determined by the CROPS officers. Mini-crises are short-term
emergencies. O-INSET gave the threat to bomb an El Al flight destined for
Toronto in 2003 as an example of a mini-crisis.
O-INSET has a centralized input coordination function, with all external
tasking coming through the O-INSET Intake Officer. As is the case with intake
at the NSOB, two initial determinations are made by the Intake Officer: whether
or not there is a sufficient national security nexus, and whether or not there is
a sufficient criminal nexus. Tasks that do not meet these criteria are rejected or,
on occasion, where there is an insufficient criminal nexus, are sent directly to
CSIS by the Intake Officer.
A large volume of external tasking comes to O-INSET through the NSOB,
which means that a significant amount of screening for the above-noted criteria
has been completed before the matter arrives at O-INSET. Such tasking includes
requests for assistance from foreign agencies. The RCMP informed the
Commission that all requests for assistance from foreign agencies (even those
that may be classified as “life and death”) must go through RCMP National
Headquarters. If a foreign agency contacts an INSET directly, it is referred to
Headquarters.
Information that could trigger a national security investigation may also be
passed on to the INSET Intake Officer by other domestic police agencies. Again,
the Intake Officer decides whether the INSET will take on the work. The NSOB
is notified of the matter as soon as a file is generated. Where a discrete piece of
information is passed on to the INSET and does not lead to investigation or
leads to only minimal investigation by the INSET, the NSOB may be notified
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through the uploading of the information into the SCIS database. A hypothetical example given to the Commission by O-INSET was a telephone call reporting that an envelope containing an unidentified white powder had been found.
The investigation of such a matter might be completed before any file was formally opened. In such a case, pre-approval for the investigation would not be
obtained from the NSOB. Rather, the NSOB would be notified as the investigation was being carried out.
Information from the public received by an INSET is also screened through
the Intake Officer before any action is taken, as is information not related to
INSET officers’ files that comes to the officers’ attention in the course of investigations. In addition, the Intake Officer reviews police reports, such as the
Canadian Police Information Centre printouts of virtually all crimes reported, to
determine whether any might have a national security nexus.
The Intake Officer also monitors investigations in other areas for indications of a national security nexus. If there is a deemed national security link, the
INSET becomes involved. Whether the file is moved to the INSET or INSET officers work with the originating department depends on the nature of the national security link. According to the RCMP, in all such cases, full reporting on
the file takes place through the INSET to the NSOB, and all national security policies and procedures apply.
O-INSET’s work is divided roughly into day-to-day investigations and
long-term projects. Day-to-day investigations may be subdivided into short-term
investigations and mini-crises. A matter that falls in the former category will
usually be handled by a member of O-INSET’s Quick Response Team. Minicrises and exigent circumstances may necessitate on-the-spot decision making,
precluding prior “formal” approval from RCMP Headquarters. In such circumstances, both National Headquarters and the Division Criminal Operations
Branch are notified immediately of any action taken. In addition, both are kept
apprised of developments, and subsequent reviews and approvals are sought as
soon as possible.
Longer-term projects involve a more formalized approval process. They
begin with strategic analysis of criminal intelligence, focusing on emerging
trends, such as what groups or entities appear to be involved in criminal behaviour with national security implications. The analyses are sent to RCMP
Headquarters as part of the priority-setting process. Each spring, strategic priorities are set by National Headquarters in Ottawa. Work continues on a strategic priority until such time as the investigation stops or the matter becomes a
tactical priority. Tactical priorities are set each fall. When a matter becomes a tactical priority, the purpose of the investigation becomes the disruption of criminal
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activities and/or the laying of criminal charges. Both strategic and tactical priorities are ultimately determined by the Criminal Operations Branch. The
Division Criminal Operations Branch is the first line of reporting and approval
before a major investigation is undertaken. The Branch reviews investigative
plans to ensure they comply with policy and procedure and then forwards them,
with its support and approval, to the NSOB, where they are subjected to further
review. The ultimate authority is the Assistant Commissioner, CID.
Both strategic and tactical priorities involve investigation and collection of
information. While prosecution of criminals is a goal, not all information collected meets the criteria of evidence. In any event, all such information remains
in the SCIS database until removed in the ordinary course of operations.33
Although this is not usual procedure, at the time the Commission met with
O-INSET, it had conducted a joint investigation with the FBI. Moreover, the FBI
or other law enforcement agencies have at times conducted criminal investigations involving subjects also being investigated by the RCMP. In those cases, information was shared and the agencies co-operated with one another. On one
occasion, FBI personnel were involved as observers in an investigation in
Toronto because it related to an alleged threat to American interests. According
to the RCMP, investigations in all such cases were coordinated centrally.
O-INSET has its own Source Development Unit, which is tasked by INSET
members who identify human source needs. Once developed by the Source
Development Unit, sources are handed over to the investigating officers who require them.
O-INSET also includes a Special Operations Center. This is a technologically
advanced room with video screens on the walls and five or six rows of computer
stations. The Center is available for monitoring/coordinating major events, such
as the El Al incident mentioned above or a visit to Toronto by a foreign dignitary. Computer stations are available for the use of each of the INSET partners,
providing them with access to their respective home networks. Information may
then be shared in the context of the event being monitored or coordinated.
None of the terminals has SCIS access, but three O-INSET offices in the Center
do have access to that system, and one also has links to Canadian embassies and
high commissions abroad. While foreign agencies do not have stations within
the Special Operations Center, they can be connected to the Center by phone,
computer or video link as necessary.
IBETs
Integrated Border Enforcement Teams (IBETs) also have a mandate related to
national security. IBETs, which are referred to in the 32-point Action Plan
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attached to the Smart Border Declaration,34 are responsible for enhancing border integrity and security by identifying, investigating and interdicting persons
and organizations that pose a threat to national security or are engaged in organized criminal activity. This includes threats from terrorism, as well as the
smuggling of drugs, humans, cigarettes and other substances. There are IBETs
deployed in 25 locations along the Canada-U.S. border. Unlike INSETs, IBETs include both U.S. and Canadian law enforcement agencies. They may have personnel from the CBSA, U.S. Immigration and Customs Enforcement, U.S.
Customs and Border Protection, state, provincial and local police agencies on
both sides of the border, and the U.S. Coast Guard, in addition to RCMP personnel. However, international personnel act as liaison resources only.35 IBET
members pass information to INSETs if the information or intelligence relates to
a national security offence. INSETs take the lead in any ensuing investigation,
supported by the IBET as required.
To gain a better understanding of how these teams operate, the Commission
conducted a detailed examination of the Windsor IBET. It found that the IBET
in question — indeed, as I understand it, IBETs in general — do not have a significant national security role. Currently, their main focus is the illegal movement
of goods and individuals across the Canada-U.S. border between official ports
of entry. With respect to national security, IBETs act as “eyes and ears” for
INSETs at the border, passing on to them any information they identify as related
to national security. In addition, members of IBETs are available to be tasked by
INSETs. The Windsor IBET has received such taskings from time to time, with
O-INSET taking the lead.
The Windsor IBET is made up of the following core partners: the RCMP, the
CBSA, U.S. Immigration and Customs Enforcement, the U.S. Coast Guard and
U.S. Customs and Border Protection. It also has one member seconded from
the Ontario Provincial Police (OPP). In addition, two members of O-INSET are
co-located with the Windsor IBET. IBET core partners are not integrated as a
team in the same way as INSET members. For example, partner personnel do
not go out on an investigation with RCMP officers. Each partner works independently of the others. The primary purpose of co-location is to facilitate information sharing.
One of the O-INSET officers co-located with the IBET reviews IBET activity reports for anything of interest from a national security perspective and reports such information to O-INSET. Access to SCIS and other national security
information is through the INSET only.
In addition to its operations or investigative side, the IBET has an intelligence section, which is involved in producing two intelligence products: the
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monthly IBET Division Report and the annual Canada-U.S. Between-Ports Risk
Assessment (BPRA). The Division Report takes raw information obtained by the
IBET and processes it into intelligence. Its purpose is to establish patterns of
criminal activity and determine the priority to be assigned to investigating individuals and organizations involved in criminal activities that would be of serious consequence in the community. The focus of the report is the illegal
movement of goods and people. It contains protected information, but no national security or top secret information. Although primarily prepared for the
IBET’s use, the Division Report is funnelled through RCMP divisional intelligence into a monthly divisional intelligence report.
The BPRA, compiled with the cooperation of the IBET’s core partners and
other law enforcement agencies, profiles criminal activity in terms of geography, demographics, infrastructure, roots and the criminal organizations involved.
The Commission was informed that the primary purpose of the BPRA is the
identification of risks associated with the illegal movement of goods and people across the border. However, its review of a BPRA revealed that it contained
national security information, including information about suspects and possible links to terrorist groups. When it enquired about this, it was told that the information had been supplied by the INSET, but had not been considered top
secret. The BPRA is distributed to IBET core partners in Canada and the United
States. IBET partners meet regularly to exchange information. No national security information may be shared at the meetings.
4.
OVERLAP WITH OTHER AREAS OF RCMP
The foregoing description of the RCMP’s national security activities may suggest
that such activities are wholly distinct and separate from the Force’s other law
enforcement activities. This is not accurate. While national security activities are
subject to different policies and different chains of command than other
RCMP activities, and while the personnel engaged in those activities generally
work in separate branches, sections and units, there is overlap between those
activities and the Force’s other activities, and between the personnel assigned
primarily to national security operations and those assigned elsewhere. As I
discuss in Chapter XI, such overlap has important implications for the issue of
a review mechanism, particularly in regard to the required scope of the mechanism’s powers.
One reason for the overlap is the previously mentioned fact that not all
criminal investigations start out as national security investigations and not all investigations that begin as or become national security investigations remain so.
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To give a simple illustration of the first circumstance, an RCMP officer might
stop a driver on suspicion of impaired driving and, while investigating, discover
explosives in the vehicle. Further investigation could yield information to suggest the possible commission of a national security offence. The potential for this
type of overlap is illustrated by the nature of the terrorist offences set out in the
Criminal Code. As I note in Chapter III, these include activities that may otherwise be illegal and become terrorist offences when perpetrated in furtherance
of the objectives of a terrorist group. Moreover, the RCMP informed the
Commission that there have been investigations that began as ordinary criminal
investigations, were transferred to an INSET following identification of a potential national security nexus, and were then transferred back when it was determined that there was no national security nexus.
The overlap between the RCMP’s national security operations and other
areas of activity also extends to its personnel. As I mention in the discussion concerning INSETs above, in some cases where a possible national security nexus
is discovered, the INSET does not take over, but an INSET officer works with the
originating department on the investigation. Even when the investigation is overseen by the INSET, non-INSET RCMP personnel continue to work on it.
Although IBET personnel appear at the present time to be primarily engaged in
investigating crimes related to the smuggling of goods or people, they nevertheless are available to assist INSETs. Similarly, in parts of Canada where there
are no INSETs or NSISs, ordinary RCMP officers assist in national security investigations. Finally, in cases of emergency, the RCMP may be compelled to use
personnel from other areas of the Force. As I note above, the co-location of the
CFSEU with O-INSET is deemed beneficial, as CFSEU personnel could conveniently be called upon in the event of a national security crisis situation.
There is overlap with other police agencies as well. An investigation begun
by a provincial or municipal police force may develop into a national security
investigation. In such an instance, it may be transferred to the RCMP or continued in conjunction with it. I discuss the interaction between the RCMP and other
police agencies in Section 6 below.
5.
INFORMATION AND INTELLIGENCE MANAGEMENT,
RETENTION AND SHARING
An important component of the RCMP’s national security activities involves the
collection, management, retention and sharing of information and intelligence.
While the broad range of information and intelligence collected and retained by
the RCMP includes some that is directly related to potential prosecutions or
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could be related to prosecutions, it also includes some better described as
“contextual” or background information or intelligence. I have not undertaken
an analysis of the nature of the contextual information and intelligence collected
and stored by the RCMP. However, I did make recommendations in my Factual
Inquiry report with regard to the mandate of the RCMP and the importance of
ensuring that the RCMP intelligence gathering function is restricted to the RCMP’s
law enforcement mandate.
In this section, I describe the storage and dissemination of such information. The discussion is divided into three topics: where national security information acquired by the RCMP comes from and what information is entered
into the database; how the information is stored and maintained; and how it
is disseminated.
5.1
INFORMATION COMING INTO THE RCMP
At the core of the RCMP’s national security information management system is
the Secure Criminal Information System (SCIS), a classified database that stores
all information and intelligence with a national security dimension. SCIS is separate from all other RCMP databases. There are other criminal intelligence databases, including databases that are shared with other police agencies. An
example is the Automated Criminal Intelligence Information System (ACIIS),
which is available to all police agencies that are members of Criminal
Intelligence Service Canada. However, the RCMP informed the Commission that
national security information and intelligence in its possession is stored exclusively on SCIS.36
National security information and intelligence entered into SCIS comes from
a variety of sources. Some is obtained internally, as a result of investigations by
field officers. A significant portion is acquired from external sources, both domestic (CSIS, other police agencies and government departments, for example)
and international, including foreign police and intelligence agencies. Information
is entered into SCIS either by CID or by INSET or NSIS officers.
The decision to include information in SCIS is left to the judgment of the
person entering it. The criteria applied are straightforward: relevance and importance to a national security investigation. The overall approach is one of
broad inclusion,37 for a number of reasons. First, the RCMP is bound to ensure
that all investigation files are complete, in accordance with the standards set by
the Supreme Court of Canada in the Stinchcombe case.38 Complete files must include both inculpating and exculpating information concerning the accused.
Information often includes some about individuals with whom the target of the
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investigation has come into contact. The RCMP has noted in this regard that
seemingly benign information can provide a potential accused with alibi evidence. Further, given that an individual may surface numerous times during the
course of an investigation, having information in the file about that individual
ensures that he or she is not repeatedly reinvestigated. The RCMP has also noted
that the status of an individual may change during the course of an investigation. An individual who is a complainant, witness or person of interest in the
early stages may ultimately be implicated in a crime.
The broad inclusive approach for national security information is also based
on a risk analysis undertaken by the RCMP. The RCMP has indicated that, given
the extremely serious consequences of national security crimes, there is too
much at stake not to take an inclusive approach in deciding what information
is to be entered into the data bank.
Certain information about the quality of the information is also entered into
SCIS. In many cases, both the source and the information itself are classified according to the following scale:
•
•
•
•
•
Reliable (R) is a combination of proven accuracy of information and proven
dependability as a person. Every effort must be made to validate information before grading it reliable.
Believed Reliable (BR) applies if the qualifying conditions of reliable are not
yet met, but the existing knowledge of the source is favourable and it is believed he/she will eventually prove reliable.
Unknown Reliability (UR) applies if there is insufficient experience with the
source for assessment or when information cannot be verified.
Doubtful Reliability (DR) applies if there is doubt about the source or the
information.
Information for court purposes must include a “C” in the assessment, e.g.,
BRC, Believed Reliable – can be used for court purposes.39
These ratings are not always included with information. For example, in
cases where a field officer observed conduct himself or herself, it is assumed
such information is of the highest quality. In addition, information received from
outside sources may not be classified or may be classified differently. In such
circumstances, all available information on the quality of the source and information is uploaded into the system. I made several recommendations in the
Factual Inquiry report with respect to the assessment of the reliability and accuracy of information.
Much of the information received by the RCMP from outside sources contains caveats, or restrictions on the use to which the information can be put and
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on further dissemination. I discuss caveats in more detail below. I raise them
here merely to note that any caveats are entered into the system as well.
Finally, the level of protection or classification (e.g., Top Secret) of the information is also recorded in the system.
5.2
INFORMATION STORAGE AND MAINTENANCE
SCIS is a protected system and it is RCMP policy to classify all information in the
data bank. However, the system is designed to allow any RCMP program area
to access it under specific conditions. The Commission was advised that general
access is restricted to RCMP personnel involved in national security matters who
have the appropriate security clearance, on a need-to-know basis. Non-RCMP
members seconded to INSETs also have access to SCIS, but for INSET investigative purposes only.40 Non-RCMP members not seconded to INSETs (members
of other agencies with which the RCMP is conducting a joint investigation, for
example) and non-RCMP members assigned to IBETs do not have direct access
to SCIS. However, access to specific information can be provided on a need-toknow basis and information in the system can be shared with others on the
same basis.
The RCMP’s Secure Criminal Information System Section performs periodic
quality reviews of the data entered into the system to ensure the integrity of the
information and compliance with RCMP policies and procedures. Such reviews
must also be conducted by each of the unit commanders in the divisions.
All police files, regardless of the storage medium, have a retention and disposal schedule developed by the Information Management Branch, in accordance with various legislative requirements. All retention and disposal schedules
must conform to federal legislation and policies and be approved by the National
Archivist. When a “concluded date” is entered for a particular occurrence, the
system automatically generates a purge date for the removal of the information.
It should be noted that, given their nature, many national security investigations
remain open and files are therefore not subject to purge for a considerable
length of time. When a file is set to be purged, its contents are either destroyed
or archived as historical data. Historical files are typically major national security-related criminal investigations, such as the investigation into the bombing of
the Air India flight or the attacks on the World Trade Center. These investigations are considered to be of such importance that the file contents are stored
indefinitely. The RCMP informed the Commission that such files are reviewed
regularly and if it is determined that they no longer satisfy this criterion, they
are destroyed.
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5.3
INFORMATION SHARING AND DISSEMINATION
The RCMP obviously makes its national security information and intelligence
available for internal purposes. While National Headquarters assumes responsibility for coordination, RCMP members of NSISs and INSETs have access to such
information and intelligence as needed. Other programs and units within the
RCMP may also be given access, depending on requirements.
The RCMP also shares national security information and intelligence with
other agencies, both domestic and foreign. It is bound by agreement and, in
some circumstances, required by legislation to share information with others. For
example, the RCMP is obligated under the CSIS-RCMP Memorandum of
Understanding41 to provide CSIS with information relevant to the CSIS mandate.
Certain international treaties and conventions contemplate the sharing of information related to terrorism and other national security matters. Moreover, there
are times when circumstances, such as emergencies, will require the RCMP to
share information.
Although National Headquarters generally handles requests for information
and decisions as to whether and what information will be provided to other
agencies, informal information sharing regularly takes place at the field officer
level. For example, in circumstances where there is a joint investigation with
another police agency, information exchanges may take place on an officer-toofficer basis.
The RCMP has well in excess of 1,000 MOUs with other agencies on matters such as training and sharing of police technologies and services, and there
are a number of written agreements in place respecting the sharing of various
types of data such as fingerprints, criminal records and DNA. In contrast, however, RCMP national security information exchanges are not generally governed
by formal written agreements, with the exception of the CSIS–RCMP MOU.
There are few ministerial directives and RCMP policies dealing directly with
the exchange of national security information and intelligence. While a number
of directives and policies relate to agreements with other entities, they are not
interpreted as applying to all such interactions. For example, the April 2002
Ministerial Directive on RCMP Agreements is interpreted by the RCMP as applying only to those agreements that would bind the Government of Canada.
This includes agreements to supply training, equipment or know-how to another country, but not agreements regarding information exchanges. I disagree
with this interpretation.
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A more specific directive, the Ministerial Direction Regarding National
Security Related Arrangements and Cooperation, issued in November 2003, covers exchanges of information by the RCMP, but is restricted to arrangements
and co-operation with foreign security and intelligence organizations. It does
not apply to foreign law enforcement agencies. Thus, while the directive and related policy would apply to arrangements and co-operation between the RCMP
and the CIA, they would not apply to interactions between the RCMP and the
FBI. This directive requires the RCMP to have a written record of oral agreements
with foreign security or intelligence agencies, seek prior ministerial approval,
and report annually to the Minister on the status of written and oral arrangements with foreign security or intelligence organizations.
During this Inquiry, the RCMP has been working on developing an MOU
template and guide respecting criminal information sharing (including national
security information sharing) to help manage the exchange of information and
intelligence with outside agencies and ensure compliance with applicable laws
and regulations. This generic MOU will codify guiding principles and expectations governed by appropriate legislation and serve as a management tool for
information and intelligence sharing. However, the RCMP has told the
Commission that the template is not intended to replace case-by-case information sharing among police agencies in accordance with accepted principles.
Despite the absence of formal written agreements, the RCMP has relationships and information sharing arrangements with many other police agencies in
Canada and abroad. According to the RCMP:
Virtually every major investigation has multi-jurisdictional aspects, as such information sharing among enforcement agencies is crucial to the successful resolution
of these investigations.
To negotiate and maintain written agreements with all agencies that provide
or receive information internationally and domestically would effectively bring investigations and international cooperation to a halt.
There are over 18,000 law enforcement agencies in the U.S. alone.
Some agencies, especially security intelligence agencies, refuse to enter into
written agreements and prefer to rely upon verbal agreements and professional
standards within the law enforcement and intelligence community to protect their
information.42
Consequently, national security information sharing is both frequent and
relatively informal.
The RCMP told the Commission that relationships are governed by common
understandings and protocols. Some are quite clear. An example is the use of
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caveats, which I discuss below. However, others involve relatively general statements, such as statements to the effect that decisions with respect to information sharing are to be guided by “the broader policy objectives and values of the
Canadian government.”43
Some guidance pertaining to information sharing is provided in the RCMP
Policy Manual. For example, in respect of enquiries from foreign governments,
the RCMP’s Operational Manual provides that:
The RCMP will not become involved or appear to be involved in any activity that
might be considered a violation of the rights of an individual, unless there is a need
to comply with the following international conventions:
1.
United Nations Conventions on the Prevention and Punishment of Crimes
Against Internationally Protected Persons, including Diplomatic Agents, article
4(b) or through membership in such bodies as Interpol;
2.
3.
the 1979 International Convention Against the Taking of Hostages;
the 1971 Convention for the Suppression of Unlawful Acts Against the Safety
of Civil Aviation (Montreal);
4.
the 1970 Convention for the Suppression of the Unlawful Seizure of Aircraft
(The Hague); or
5.
the 1963 Convention on Offences and Certain Other Acts Committed on Board
Aircraft (Tokyo).44
In the Factual Inquiry report, I expressed some serious reservations about
this approach, as it appears to exempt some terrorism investigations from the primary requirement of not being involved in rights violations.
The Manual also provides that:
The disclosure of information to an agency of a foreign government that does not
share Canada’s respect for democratic or human rights may be considered if it:
1.
is justified because of Canadian security or law-enforcement interests,
2.
can be controlled by specific terms and conditions, and
3.
does not have a negative human rights connotation.45
Guidance is also provided by the Canadian Charter of Rights and Freedoms
and Canadian privacy legislation. Deputy Commissioner Garry Loeppky testified in the Factual Inquiry hearings that the RCMP would not provide information to a foreign agency if it knew that the agency would use the information
to violate the rights of a Canadian citizen.46 However, I am not aware of any
guidelines covering more specific issues, such as what level of certainty is required that no rights violation will occur before information can be passed on,
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or who should make the assessment about whether such level of certainty exists.47 As I indicated in my recommendations in the Factual Inquiry report, more
formalized rules and guidelines relating to information sharing are required.
RCMP policy48 cautions that disclosure of personal information must be
made in accordance with the Privacy Act. That legislation generally prohibits the
exchange of personal information without the consent of the person to whom
the information relates, subject to specific exceptions, two of which are commonly relied upon by the RCMP. The first is “consistent use disclosure,” which
provides that, where personal information is collected for one law enforcement
purpose, it may be released for another such purpose without the consent of the
individual involved. The term “law enforcement purpose” is interpreted to include law enforcement in other jurisdictions. The second exception is “public
interest disclosure,” which allows disclosure in circumstances where the public interest in disclosure clearly outweighs any privacy interest. Disclosure is
also allowed under agreements or arrangements with other domestic police
bodies or security and intelligence bodies and their international counterparts.
This exception requires written requests for information and permits disclosure
of only that portion of personal information actually required. Other exceptions
set out in RCMP policy are relied on less frequently by the RCMP. The decision
about whether an exception applies is made by the individual who releases
the information.
It is important to note that the use of caveats by the RCMP and the agencies from which it obtains information is common. Caveats outline the conditions
under which information is provided to or by another agency and specify
directions/conditions respecting its use and further dissemination. The RCMP
Operational Manual sets out the following caveats for the dissemination of
national security information by the RCMP:
1.
The following condition must be included in all outgoing correspondence,
messages and documents being passed to CSIS, other federal government
departments, and any Canadian police force.
This record may be subject to mandatory exemption under the Access to
Information and Privacy Acts. If access is requested under that legislation,
no decision to disclose should be taken without prior consultation with
the Departmental Privacy Coordinator of the RCMP.
2.
The following conditions must also be included in all outgoing correspondence, messages and documents being passed to other domestic and foreign
law enforcement agencies/departments.
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This document is the property of the RCMP. It is loaned to your
agency/department in confidence and it is not to be re-classified or further disseminated without the consent of the originator.
This document is the property of the Government of Canada. It is
provided on condition that it is for use solely by the intelligence community of the receiving government and that it not be declassified without the express permission of the Government of Canada.49
The RCMP told the Commission that there is a well-established understanding in law enforcement and security communities that caveats similar to the
ones set out in the RCMP Operational Manual are implied, even when they are
not stated explicitly. I made recommendations in respect to the use of caveats
in the Factual Inquiry report.
In addition to caveats, reliability ratings assigned to information entered
into the SCIS database are provided to outside agencies when information
is shared.
6.
INTEGRATION AND INTERACTION WITH OTHER FORCES
AND AGENCIES
The final topic I address in this chapter is the integration and interaction of the
RCMP and other national security actors. Since 9/11, there has been increasing
participation by a growing list of federal actors in the response to threats to
Canada’s national security, in particular the response to terrorist threats. In
Chapter V, I describe the national security activities of 22 federal actors and selected provincial and municipal police agencies. Concurrent with the growth in
number of national security actors, there has been an increase in interaction and
integration among such agencies.50 This to some extent is an inevitable consequence of Canada’s multi-agency approach to addressing threats to national security. Several agencies may, for their own reasons, have an interest in the same
threats or events. It makes sense, from the viewpoint of efficiency and also to
ensure that each agency has all relevant information at its disposal, to have such
agencies co-operate and share information in appropriate circumstances.
The changing nature of crime has made integration a critical element of effective policing. I agree with the submissions on this point made by Paul
Kennedy, Chair of the CPC, during the Policy Review public hearings. He identified four factors that characterize this change. The first is globalization, which
has resulted in the virtually worldwide rapid movement of goods and people.
In the criminal context, this has manifested itself in transnational organized
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crime, including terrorist crime. The second is the now-widespread availability
of sophisticated means of communication, including the Internet, and publicly
available encryption. The latter provides private individuals with means of communication that are difficult to apprehend and decipher. The availability of such
new forms of communication has changed criminal behaviour. For example,
fraud no longer requires face-to-face interaction or even interaction by phone
or mail. The Internet gives criminals relatively instantaneous access to millions
of people in many jurisdictions. The third factor noted by Mr. Kennedy is the fact
that criminals are forming new partnerships. The traditional silos of organized
crime groups are breaking down and being replaced by new, sometimes temporary alliances that cross jurisdictional boundaries. The final factor is the emergence of new threats, including threats of terrorism. While terrorism is not new,
the last 10 years have seen the proliferation of new forms of terrorism with a
strong international component.51
As a result, to quote Mr. Kennedy:
[M]odern policing reality is that some of these challenges can’t be addressed by individual police forces acting alone. That is just the reality. There is an obvious need
for police to combine resources, both human and financial, and to maximize unique
skillsets. . . .
To address these challenges police forces have integrated their operations and
they have adopted intelligence-led policing models which engage multiple partners
at the municipal, provincial, federal and international level. This is the new norm.
...
This inter-agency co-operation finds expressions at all levels of the public
safety framework. In other words, it isn’t just police doing this.52
Similar views and conclusions were expressed at the public hearings
by Commissioner Giuliano Zaccardelli of the RCMP,53 Commissioner Gwen
Boniface of the OPP54 and Chief Vince Bevan of the Ottawa Police
Service (OPS).55
Today, integration and interaction with other police forces and government
agencies have become key parts of the RCMP’s national security activities, and
there is every indication that they will continue and likely increase. I discuss
some of the interaction that takes place (between the RCMP and CSIS and in
INSETs and IBETs, for example) in Chapter II and earlier in this chapter, and
provide other examples of integration and interaction in Chapter V. Below, I
describe in general terms the types of interaction engaged in by the RCMP in carrying out its national security mandate and the range of other agencies with
which it interacts.
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Interaction between the RCMP and other national security actors generally
fits into one of two categories: formal integration and less formal interaction.
6.1
INTEGRATION
Formal integration involves entities made up of personnel from various agencies,
under the control and direction of one agency. The RCMP is currently involved
in three formally integrated units: INSETs, IBETs, and the Integrated Threat
Assessment Centre (ITAC). INSETs, which are described in detail above, are the
RCMP’s primary integrated national security investigation units. While their
main function is investigative, they also perform intelligence analysis. INSET
members seconded from other police services, both provincial and municipal,
are fully integrated into all INSET functions. While INSETs are headed by members of the RCMP, individual investigations may be led by officers whose home
agencies are provincial or municipal police services. This degree of integration
does not occur with respect to persons seconded from non-police agencies.
For example, CSIS personnel seconded to INSET do not participate as police
officers. Instead, their role is to provide the INSET with the expertise gained as
CSIS members.
IBETs, which are also described above, represent a different form of integration. Even police personnel seconded to an IBET from provincial or municipal services do not generally assist the IBET’s RCMP officers with investigations,
at least not directly. The IBETs are more akin to co-location arrangements than
to full integration in this respect, their primary purpose being information sharing. IBETs also include U.S. agencies, both police and civilian.
At the time the Commission was looking into the RCMP’s national security
activities, the Force also had Integrated Immigration Enforcement Teams (IIETs),
comprising mainly RCMP and CBSA personnel. The Commission visited the
Toronto IIET, which was co-located with the RCMP’s Immigration Task Force
(ITF). Most of the work done at the Toronto IIET was immigration warrant apprehension, which was driven by the CBSA, which transferred work to both the
IIET and the ITF. In the course of its operations, the IIET passed relevant information on to the INSET, and it was open to the INSET’s taking over or supervising IIET investigations.
There were plans for the IIETs to have their own national security projects
(such as passport fraud) and to be tasked by INSETs to undertake investigations. However, on April 1, 2005, the RCMP dismantled the IIETs and redeployed
the resources to INSETs. The ITF (which includes CBSA personnel) has taken
�RCMP’S CURRENT NATIONAL SECURITY ACTIVITIES
over the IIET warrant apprehension function, and supports INSETs by providing both information and investigatory assistance as required.
The last formally integrated entity with which the RCMP is currently involved in the national security area is the Integrated Threat Assessment Centre,
or ITAC, which I describe in detail in Chapter V. It is a unit comprising personnel from many federal and provincial national security actors, the objective of
which is to develop comprehensive national security threat assessments. ITAC
differs from INSETs in that it is not under the direction and control of the RCMP.
Instead, the head of ITAC (who, at the time the Commission met with ITAC,
was an RCMP officer seconded to the Centre) reports to both the Director of CSIS
and the Prime Minister’s National Security Advisor.
Other potentially integrated operations are under development. For example, as part of its National Security Policy, the government has announced the
creation of Marine Security Operations Centres (MSOCs), the role of which will
be to detect, assess and respond to marine threats to national security. MSOCs
will be headed by Canadian Forces Maritime Command, Department of National
Defence (DND), and include staff from the CBSA, Transport Canada, the RCMP
and the Canadian Coast Guard. MSOCs are currently at the development stage
and the precise rules and relationships among participants have not yet been finally settled.56
6.2
INTERACTION
In addition to participating in formally integrated units, the RCMP interacts with
other agencies involved in national security activities on a less structured basis.
Interaction may be with other federal national security actors, provincial and
municipal police services, and foreign agencies.
6.2.1
Other Federal National Security Actors
The RCMP interacts with a broad range of federal actors in the national security
field, including CSIS, the CSE, CIC, the CBSA, DFAIT, FINTRAC, the Canada
Revenue Agency, Transport Canada, the Canadian Air Transport Security
Authority (CATSA), DND and the Canadian Coast Guard. Details concerning
such interaction are set out in Chapter V and I do not repeat them here.
The vast majority of the interaction involves information sharing. In some
instances, however, it takes the form of operational assistance. An illustration is
the joint RCMP-CIC investigation57 into the Ottawa Business College in Toronto
that eventually led to the arrest of 33 people, all but one of whom were from
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Pakistan.58 These arrests received extensive media coverage and were also the
source of a public complaint against the RCMP.59 The joint investigation arose
out of an assignment given by the Government of Canada to the RCMP and CIC
that involved “identifying, locating, and processing individuals illegally in Canada
who were identified as originating from” source countries, including Pakistan,
that had been identified as terrorism threats to Canadian interests.60 In May 2003,
it came to the attention of the RCMP and CIC that the Ottawa Business College
was providing fraudulent student documents to allow individuals to remain in
Canada illegally. The RCMP and CIC identified 31 individuals to be investigated
and arrested pursuant to the Immigration and Refugee Protection Act.
Investigation of those 31 determined that some had engaged in “suspicious” behaviour that, according to the CPC, could be viewed as supporting the premise
that they might pose a threat to national security.61 Arrests were made under the
Immigration and Refugee Protection Act. The RCMP’s role was to assist CIC with
the execution of its arrest warrants. The investigations and arrests were conducted jointly by RCMP and CIC officers.
6.2.2
Provincial and Municipal Police Agencies
The RCMP also interacts regularly with municipal and provincial police agencies
across Canada on matters related to national security. This includes interaction
in the context of integrated units such as INSETs, secondments to the RCMP, including secondments to national security units such as NSISs, joint investigations and also less structured interaction. The interaction includes both
information sharing and operational activities.
Under the Security Offences Act, the RCMP has primary responsibility for the
investigation, prevention and prosecution of criminal activities related to national security.62 However, this does not mean that there is no involvement in
such investigations by provincial or municipal police forces. Such involvement
can take a number of forms.
It is important to bear in mind that it is not always clear at the outset of an
investigation whether or not it will be a national security investigation. During
the public hearings, OPS Chief Vince Bevan provided a hypothetical example
of a 911 call to the Ottawa Police reporting that an individual with a gun has entered a downtown building. Inside the building are offices for private businesses
and for a federal minister. The Ottawa Police have jurisdiction over the entire
building, but not for the Minister — the Minister’s safety and security are the
RCMP’s responsibility. The Ottawa Police would stay in constant contact with the
RCMP, but might not know what the suspect’s motives are, or whether the
�RCMP’S CURRENT NATIONAL SECURITY ACTIVITIES
Minister is present in the office. As more information is obtained and corrected,
jurisdiction over the incident might shift back and forth between the RCMP and
the Ottawa Police.63
Even in cases where a national security nexus is identified and the RCMP
becomes involved, there is often a continuing role for municipal or provincial
police forces. Many national security investigations have local implications. For
example, a terrorist threat in a major Canadian city could raise many issues
within the jurisdiction of the municipal or provincial police force concerned, requiring its involvement as well as that of the RCMP. The RCMP has entered into
formal agreements with a number of provincial and municipal police services to
set out protocols and procedures for dealing with national security criminal investigations, including procedures for determining which agency will take the
lead in an investigation and what the reporting responsibilities will be. These
agreements recognize that the jurisdiction and responsibilities of local police
forces do not necessarily end because national security interests are involved and
that criminal threats to national security are more effectively addressed when all
levels of police work together. I provide a description of the range of such cooperative endeavours in Chapter V.
RCMP and other law enforcement representatives who made submissions
to the Commission emphasized the importance of co-operation and integration
between the RCMP and local police forces in national security policy. Such cooperation represents “a strategic response to the complications arising out of jurisdictional issues, the compartmentalization of information, disparate expertise,
and the financial burden to be shared in complex investigations.”64
6.2.3
U.S. and Other Foreign Agencies
The RCMP has extensive interaction with foreign law enforcement agencies, particularly those in the United States, and such interaction has increased since the
events of 9/11. It also interacts with foreign security intelligence agencies, although it has indicated to the Commission that such contacts are less frequent.
As I discuss above, interaction between the RCMP and foreign security intelligence agencies is subject to the terms of a ministerial directive issued in
November 2003, which requires consultation with CSIS and DFAIT, as well as
ministerial approval before such agreements are entered into. The directive also
requires that all such agreements be in writing. There are no similar requirements with respect to agreements with foreign law enforcement agencies.
Most interaction with both foreign law enforcement agencies and intelligence agencies is for the purpose of information sharing. The importance of
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international co-operation in response to threats of terrorism has been recognized by the international community, particularly since 9/11. UN Security
Council Resolution 1373 (2001) calls upon all states to:
•
•
•
Find ways of intensifying and accelerating the exchange of operational information, especially regarding actions or movements of terrorist persons or
networks; forged or falsified travel documents; traffic in arms, explosives or
sensitive materials; use of communications technologies by terrorist groups;
and the threat posed by the possession of weapons of mass destruction by
terrorist groups;
Exchange information in accordance with international and domestic law
and cooperate on administrative and judicial matters to prevent the commission of terrorist acts; and
Cooperate, particularly through bilateral and multilateral arrangements and
agreements, to prevent and suppress terrorist attacks and take action against
perpetrators of such acts.65
Other international conventions such as the United Nations Convention
against Transnational Organized Crime and the International Convention for
Suppression of Terrorist Bombings and treaties such as the International
Convention for the Suppression of the Financing of Terrorism also require cooperation and information sharing by law enforcement agencies.
As I note above in the discussion on dissemination of information, there are
few MOUs or other written agreements governing the relationship between the
RCMP and foreign agencies. Also as I note above, the RCMP has internal policies and procedures respecting both the acceptance and dissemination of information from foreign agencies. In the Factual Inquiry report, I made
recommendations for improvements to those policies and procedures.
In addition to sharing information, the RCMP has carried out joint investigations with foreign police services. Such investigations are undertaken when
an investigation has cross-border implications. While each police force is restricted to matters within its own jurisdiction, joint investigations may involve
joint planning, execution and information sharing. In the context of joint investigations, RCMP officers have asked foreign police forces to interview witnesses
and have travelled to other countries to participate in interviews conducted by
foreign police agencies.
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Notes
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
Unless separate references are provided, the information in this chapter was obtained by the
Commission in interviews with RCMP personnel and in follow-up correspondence to such
interviews.
R.S.C. 1985, c. R-10, s. 5.
Exhibit P-12, Tab 22, Arar Commission Factual Inquiry.
Ibid., Tab 23.
Ibid., Tab 24, pp. 3–5.
Ibid., pp. 6–8.
Ibid., pp. 9–10.
Royal Canadian Mounted Police Regulations, S.O.R./ 88-361, ss. 37–58.7.
RCMP letter to Commission counsel, June 7, 2004, including attachments [RCMP letter of June 7,
2004].
Ibid., Appendix A, “Adjudications Branch.”
“Submissions of the RCMP External Review Committee” (Written submission, Arar Commission
Policy Review Public Submissions), November 3, 2005.
Ibid.
Ibid.
Ibid.
RCMP letter of June 7, 2004 (see note 9).
Ibid., Appendix B, “Internal Audit Charter for the RCMP.”
Ibid.
Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10, ss. 24.1(1)–24.1(11) (as am. by An
Act to amend the Royal Canadian Mounted Police Act and other Acts in consequence thereof,
R.S.C. 1985, c. 8 (2nd Supp.)).
I describe the Criminal Extremism Analysis Section in Section 3.4 of this chapter.
An additional 163 (including 108 regular RCMP members, 18 on secondment from other police forces and government agencies, and 18 civilian members) are assigned to Integrated
Border Enforcement Teams, which play a support role in national security investigations (described in Section 3.5 of this chapter). Figures current as of January 2006.
CSIS provides approximately 30 percent of the information received by the NSIB.
Other domestic government departments and agencies include the Communications Security
Establishment, the Department of National Defence, Citizenship and Immigration Canada, the
Financial Transactions and Reports Analysis Centre of Canada, Foreign Affairs and International
Trade Canada, the Department of Justice and the Canada Border Services Agency.
The CROPS prioritization process involves setting priorities for the RCMP as a whole. It takes
place primarily at the divisional rather than the headquarters level.
For example, the RCMP has in the past tasked the Communications Security Establishment by
identifying individuals overseas on whom more information is required.
The RCMP defines “criminal extremism” as the commission of criminal acts for ideological
motives or in furtherance of ideological goals. The motivating ideologies may be political or
religious. This is intended to exclude crimes committed for personal gain alone and crimes
committed for other personal reasons.
In Chapter III, I discuss the listing of terrorist entities pursuant to s. 83.05 of the Criminal
Code, R.S.C. 1985 c. C-46 (as am. by the Anti-terrorism Act, S.C. 2001, c. 41).
RCMP internal policies provide that all anti-terrorism investigations are to be conducted by
NSISs or INSETs and, as a rule, all national security investigations are in fact undertaken by
these units. In a limited number of cases, however, such investigations are conducted by other
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28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
units, in close co-operation with an INSET or NSIS. This occurs, for example, when a national
security nexus has not yet been clearly established.
As noted farther on, information sharing in the case of domestic police agencies is often direct, at least between INSETs and the domestic police agency.
As I discuss in connection with INSETs and IBETs, RCMP national security personnel often
share office premises with other national security actors.
As noted in Chapter III, policing with respect to internationally protected persons is included
within the RCMP’s national security mandate by virtue of the Security Offences Act, R.S.C. 1985,
c. S-7.
Sleipnir is an analytical technique developed by the RCMP to rank organized groups of criminals in terms of their relative capabilities, limitations and vulnerabilities. The name is taken
from the eight-legged horse belonging to Odin in Old Norse mythology.
Until 2005, the RCMP also had Integrated Immigration Enforcement Teams (IIETs). As discussed later in this chapter, in April of that year, IIETs were disbanded and their resources redeployed to INSETs.
See further discussion below.
Smart Border Declaration: Building a Smart Border for the 21st Century on the Foundation of
a North American Zone of Confidence, Ottawa, Canada, December 12, 2001, online, Foreign
Affairs and International Trade Canada, www.dfait.gc.ca/can-am/main/border/
smart_border_declaration-en.asp (accessed July 20, 2006).
Canadian and U.S. agencies also work on joint investigations outside the context of IBETs.
Information and intelligence originally collected as part of another type of investigation may
also be stored on other databases.
The RCMP Informatics Manual, Part I.4.D.2, provides that SCIS will be used for all national
security criminal investigations and intelligence sequential records in the Criminal Intelligence
Program that are initiated and concluded within a defined time frame. Any and all relevant material, whether it is unclassified, such as open source, classified or designated, may be uploaded to SCIS, as long as it is in support of national security investigations or intelligence files.
R. v. Stinchcombe, [1991] 3 S.C.R. 326.
Exhibit P-12, Tab 44, Criminal Intelligence Program Guide, Arar Commission Factual Inquiry,
p. 7.
Such individuals are required to sign an agreement stating that they will not query SCIS for
personal use or disseminate any information obtained from SCIS to outside agencies, including their home agencies.
Exhibit P-12, Tab 49, Arar Commission Factual Inquiry.
Responses from the RCMP to Questions Posed by the Arar Commission Policy Review, July 16,
2004, pp. 35–36.
Ibid.
Exhibit P-12, Tab 31, Arar Commission Factual Inquiry, s. M3a.
Ibid., s. M3b.
Loeppky testimony, Arar Commission Factual Inquiry Public Hearing (June 30, 2004),
pp. 826–827.
See my recommendation in the Factual Inquiry report regarding rules and guidelines about
when and how information should be exchanged.
Exhibit P-12, Tab 27, Arar Commission Factual Inquiry, s. L.2.
Exhibit P-12, Tab 27, Arar Commission Factual Inquiry, Appendix I-3-8.
In this section, “integration” means bringing personnel from various agencies together to work
as a cohesive unit or entity under the control and direction of one agency. “Interaction” refers
to less structured co-operative endeavours, ranging from information sharing to joint agency
�RCMP’S CURRENT NATIONAL SECURITY ACTIVITIES
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
operations, where the personnel involved remain under the control and direction of their respective home agencies. Having noted this distinction, in the remainder of this Report, I generally use the term “integration” to refer to the full range of co-operative activities.
Paul Kennedy, Chair of the Commission for Public Complaints Against the RCMP, Transcript
of Arar Commission Policy Review Public Hearing (November 17, 2005), pp. 330–333.
Ibid., p. 333.
Giuliano Zaccardelli, Commissioner of the Royal Canadian Mounted Police, Transcript of Arar
Commission Policy Review Public Hearing (November 18, 2005), pp. 626–635.
Gwen Boniface, Commissioner of the Ontario Provincial Police, Transcript of Arar Commission
Policy Review Public Hearing (November 18, 2005), pp. 635–639 [Boniface, Transcript].
Vince Bevan, Chief of the Ottawa Police Service, Transcript of Arar Commission Policy Review
Public Hearing (November 18, 2005), pp. 661–663 [Bevan, Transcript].
Responses from the RCMP to Questions Posed by the Arar Commission Policy Review,
April 11, 2006.
Since the reorganization of CIC into CIC and the CBSA, the CBSA would be the entity to conduct the CIC portion of the investigations.
See Canada, Commission for Public Complaints Against the RCMP, Chair’s Final Report –
Incident Related to National Security (Ottawa: The Commission for Public Complaints Against
the RCMP, 2006) (Chair: Paul E. Kennedy) [Chair’s Final Report].
The CPC’s investigation of this complaint exonerated the RCMP: ibid.
Chair’s Final Report, p. 2.
Ibid., p. 3.
R.S.C. 1985, c. S.-7, s.6.
Bevan, Transcript, pp. 655–56.
Boniface, Transcript pp. 637–638.
UN SCOR, 56th Sess., 4385th mtg., UN Doc. S/RES/1373 (2001), art. 3, online, UN
Security Council, http://daccessdds.un.org/doc/UNDOC/GEN/N01/557/43/PDF/N0155743.pdf?
OpenElement (accessed February 1, 2006).
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�V
Canada’s National Security Landscape
1.
INTRODUCTION
In this chapter, I describe Canada’s national security landscape, with an emphasis on the interaction of federal departments and agencies with the RCMP.
During the Policy Review, it became apparent to me that the RCMP’s national
security activities involve a significant degree of interaction, integration, co-operation and information-sharing with numerous federal, provincial, territorial
and municipal actors. The federal government draws upon the expertise and
mandates of several federal departments and agencies in pursuing an increasingly integrated and coordinated approach to national security. This is consistent with international trends. Operationally, the RCMP works with provincial
and municipal police forces on national security matters.
During this Inquiry, I asked the federal government to identify those departments and agencies involved in “national security.” The Privy Council Office
informs me that the following federal departments and agencies have what it
calls “key” national security responsibilities:
•
•
•
•
•
•
•
•
•
•
Canada Border Services Agency (CBSA)
Canadian Security Intelligence Service (CSIS)
Communications Security Establishment (CSE)
Department of Finance
Financial Transactions and Reports Analysis Centre of Canada (FINTRAC)
Department of Fisheries and Oceans/Canadian Coast Guard
Department of Foreign Affairs and International Trade (DFAIT)1
Department of Justice
Department of National Defence (DND) and the Canadian Forces (CF)
Health Canada/Public Health Agency of Canada
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•
•
•
•
•
•
Integrated Threat Assessment Centre
Privy Council Office (PCO)
Public Safety and Emergency Preparedness Canada (PSEPC)
Royal Canadian Mounted Police (RCMP)
Transport Canada
Canadian Air Transport Security Authority (CATSA)
PCO identified the following departments and agencies as having national
security responsibilities:
•
•
•
•
•
•
•
•
•
Agriculture and Agri-Food Canada
Canadian Food Inspection Agency
Canada Revenue Agency (CRA)
Canadian Heritage
Citizenship and Immigration Canada (CIC)
Environment Canada
Natural Resources Canada
Canadian Nuclear Safety Commission
Treasury Board Secretariat (TBS)
I describe the significant national security responsibilities of these departments and agencies2 in this chapter.3
Provincial, territorial and municipal police forces also have an important
role in Canada’s national security landscape. While a complete examination of
the national security role of non-federal actors is beyond the scope of my mandate, I briefly review the role of federally-led permanent integrated teams, joint
forces operations and provincially-led anti-terrorism teams, and I provide examples of day-to-day interaction by provincial and municipal police services
with the RCMP and CSIS.
2.
CANADIAN SECURITY INTELLIGENCE SERVICE
2.1
RELEVANT LEGISLATION
•
Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23 (CSIS Act)
�CANADA’S NATIONAL SECURITY LANDSCAPE
2.2
MANDATE
The Canadian Security Intelligence Service (CSIS) is Canada’s civilian security
intelligence agency. The Director of CSIS, under the direction of the Minister of
Public Safety, has control and direction over CSIS and all matters connected
with CSIS.4
CSIS is mandated to collect, analyze and retain information and intelligence
regarding activities that, on reasonable grounds, may be suspected of posing a
threat to the security of Canada. CSIS reports to and advises the federal government on these threats.5
The CSIS Act defines a “threat to the security of Canada” as:
(a) espionage or sabotage that is against Canada or is detrimental to the interests of Canada or activities directed toward or in support of such espionage
or sabotage,
(b) foreign-influenced activities within or relating to Canada that are detrimental to the interests of Canada and are clandestine or deceptive or involve a
threat to any person,
(c) activities within or relating to Canada directed toward or in support of the
threat or use of acts of serious violence against persons or property for the
purpose of achieving a political, religious or ideological objective within
Canada or a foreign state, and
(d) activities directed toward undermining by covert unlawful acts, or directed
toward or intended ultimately to lead to the destruction or overthrow by violence of, the constitutionally established system of government in Canada.6
Lawful advocacy, protest or dissent, unless carried on in conjunction with
any of the above activities, is not included in the definition of threats to the security of Canada.7
CSIS’ primary role is to advise government. CSIS collects and analyzes information and intelligence, and provides the Government of Canada with intelligence reports about activities that may threaten the security of Canada. The
information comes from many sources, including:
•
•
•
•
•
members of the public;
foreign governments and their agencies;
human sources;
technical interception of telecommunications (e.g., wire-taps) and electronic
surveillance of targeted persons or places (e.g., placing “bugs”);8
other government national security actors; and
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•
open sources, including newspapers, periodicals, academic journals, foreign
and domestic broadcast, official documents and other published materials.9
CSIS must obtain a judicial warrant to intercept communications, obtain
documents or information or enter premises covertly. To obtain a warrant, CSIS
must have permission from the Minister of Public Safety to apply to a Federal
Court judge. It must then demonstrate on evidence that there are reasonable
grounds to believe that the warrant is necessary to investigate a threat to the security of Canada, or the capabilities, intentions or activities of foreign states or
foreign nationals.10
CSIS analyzes and assesses information, and converts that information to security intelligence for the Canadian government and CSIS’ partners in the security and intelligence community. CSIS provides both operational and strategic
analyses. Operational analysis combines intelligence gathered by CSIS with information from other sources to provide a finished evaluation on specific threats.
These might be case-specific or country-specific threats. Strategic analysis “aims
to develop comprehensive, policy-relevant intelligence assessments.” For example, CSIS provides the Government of Canada with reports on emerging
trends and issues that could affect Canada’s security, and with context on specific threats and their security implications. Strategic analysis aims to develop
comprehensive, policy-relevant intelligence assessments either as stand-alone
products produced by the Research Analysis and Production Branch, or in conjunction with other agencies within Canada’s intelligence community under the
auspices of the Privy Council Office.
2.3
PRIORITY AREAS
CSIS has six priority areas with respect to investigating and reporting on threats
to Canada’s security. I discuss these below, and in each area, I identify CSIS’ primary role in relation to other members of the Canadian national security landscape. The six priority areas are
•
•
•
•
•
•
terrorism;
proliferation of weapons of mass destruction;
espionage and foreign-influenced activities;
transnational criminal activity;
information security threats; and
security screening and assessments.
�CANADA’S NATIONAL SECURITY LANDSCAPE
2.3.1
Terrorism
In the area of terrorism, CSIS investigates the threat or use of violence against
persons or property for the purpose of achieving political, religious or ideological objectives. CSIS dedicates most of its counter-terrorism resources to religious extremism, which the Government of Canada considers the most serious
threat to the safety of Canadians at the present time. CSIS also continues to monitor individuals and organizations that may be involved in other forms of terrorism, such as state-sponsored terrorism and domestic terrorism. According to
CSIS, domestic terrorism “includes the threat or the use of violence by groups
advocating for issues such as the environment, anti-abortion, animal rights, antiglobalization, and white supremacy, and the dissemination of militia messages
by groups in the United States, and secessionist violence.”11
CSIS has six major areas of activity directed to the counter-terrorism
mandate.
1.
2.
3.
4.
5.
6.
Threat assessments. CSIS prepares and disseminates evaluations about the
scope and immediacy of terrorist threats posed by individuals and groups
in Canada and abroad. Examples include assessing threats to the G8 meeting in Kananaskis, Alberta, in June 2002; and assessing the threat posed by
Sunni Muslim extremism. CSIS traditionally chairs the interdepartmental
Threat Assessment Working Group, which usually meets quarterly.
Participants and invitees include the RCMP, DFAIT, the Integrated Threat
Assessment Centre, PCO, Transport Canada, the CBSA, PSEPC and DND.
Community interviews. CSIS conducts interviews within communities to assess the likelihood of violence taking place in response to international political developments.
Security screening, which I discuss below.
Assistance to enforcement. CSIS’ role in security certificates, discussed
below, is an example.
Liaison and co-operation, pursuant to which CSIS provides information and
briefings to law enforcement, security intelligence and other agencies.
Advice to government. As will be discussed in this chapter, in its counterterrorism mandate, CSIS provides intelligence to, and receives information
and intelligence from, numerous federal departments and agencies as well
as the RCMP.
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2.3.2
Proliferation of Weapons of Mass Destruction
CSIS investigates issues relating to weapons of mass destruction, including chemical, biological, nuclear and radiological weapons development programs undertaken by foreign governments and terrorists organizations. It develops
assessments of potential threats within Canada or against Canadian interests.
These assessments may be distributed throughout the broader domestic and foreign intelligence community, and to other departments and agencies of the
Government of Canada.
To both gain and disseminate information about threats, CSIS works closely
with several federal government departments and agencies, including DFAIT,
DND, the CBSA, the National Research Council and the Canadian Nuclear
Safety Commission.
2.3.3
Espionage and Foreign-Influenced Activities
CSIS’ counter-intelligence activities are aimed at investigating espionage and foreign-influenced activities, and reporting on them to the Canadian government
and, where relevant, to law enforcement agencies. CSIS also has a specific mandate to assist the Minister of Foreign Affairs and the Minister of National Defence
in collecting information or intelligence relating to the activities of any foreign
state or group of states,12 any person who is not a Canadian citizen or permanent resident, or any organization other than a corporation incorporated under
Canadian law.13 During the Cold War years, CSIS focused its intelligence collection on traditional state threats related to political and military matters. Now,
the threat tends to be the illicit acquisition of economic and technological information. Economic espionage — defined as illegal, clandestine or coercive
activity by foreign governments to gain unauthorized access to economic intelligence, including proprietary information or technology — is one aspect of this
part of CSIS’ mandate. CSIS also investigates threats from foreign-influenced activities, including transnational criminal activity; cyber-related attacks; and activities directed against Canada’s expatriate communities or covert attempts by
foreign governments to influence the Canadian government or Canadian opinion in favour of a foreign government’s interests. CSIS provides information to
the RCMP pursuant to the espionage mandate, in addition to DND and DFAIT.
�CANADA’S NATIONAL SECURITY LANDSCAPE
2.3.4
Transnational Criminal Activity
The globalization and sheer scale of criminal activity is a growing problem in
Canada and around the world. CSIS estimates that five to seventeen billion dollars is laundered in Canada each year. CSIS collects and analyzes strategic intelligence, which it provides to Canadian government departments and agencies
to identify the nature and extent of transnational crime in Canada and the threat
to national security. It investigates threats to the integrity of Canadian financial
institutions in key sectors of the Canadian economy; examines public institutions
and programs to detect corruption and fraud; and investigates attempts by major
transnational criminal groups to establish operational bases in Canada.
In the context of its work against transnational criminal activity, CSIS may
exchange information with the RCMP and with foreign intelligence and law enforcement agencies. It gives strategic intelligence to Canadian police agencies to
provide an overview of the threat environment, an assessment of the extent of
the threat, and an identification of risk areas. CSIS may also provide police agencies with timely tactical information that will allow them to arrest and prosecute. It may provide information to the CBSA and CIC for lookout purposes,
and may receive disclosure from and provide information to FINTRAC. However,
it is important to note that CSIS does not share all its information with other
agencies. For example, it would not share caveated information from foreign
partner agencies or information about the identity of sources.
2.3.5
Information Security Threats
CSIS investigates threats posed by foreign countries, terrorists and hackers
against critical information systems and infrastructure. It defines Canada’s critical infrastructure as consisting of:
physical and information technology facilities, networks and assets (e.g., energy
distribution networks, communications grids, house services, essential utilities, transportation and government services), which, if disrupted or destroyed, could have a
serious impact on the health, safety, security and economic well-being of
Canadians.14
Cyber-related attacks are defined broadly as using information systems or
computer technology as either a weapon or a target. CSIS states that politically motivated cyber-related attacks may be undertaken by groups associated with domestic tensions (e.g., “radical opposition movements to economic
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events such as the G8, economic summits or environmental practices”),15 or
geo-political tensions like those related to the presence of Western forces in
Iraq and Afghanistan.
Three conditions must be present for CSIS to initiate an “information operations” investigation. The incident must (1) be a computer-based attack; (2) appear to be orchestrated by a foreign government, terrorist group or politically
motivated extremist; and (3) be done for the purpose of espionage, sabotage,
foreign influence or politically motivated violence (terrorism). In its information
security threat mandate, CSIS works closely with the RCMP, DND, the CSE and
PSEPC. CSIS also exchanges information with foreign security intelligence agencies to remain apprised of the global threat environment, and participates with
the Government of Canada in G8 efforts to address cyberthreats.
2.3.6
Security Screening and Assessments
Security screening is one of CSIS’ main operational responsibilities, and one in
which it receives information from and provides information to a number of
other Canadian government departments and agencies. CSIS conducts five
main screening programs, as follows.
2.3.6.1
Government Screening
The Government Screening Program provides security assessments for all government departments and institutions16 except the RCMP, which runs its own
screening service. Federal employees, members of the armed forces, or persons
under contract to a government department who have access to classified government assets or information in the performance of their duties must hold security clearances. For Foreign Affairs and International Trade Canada, CSIS
provides security assessments on locally engaged staff (foreign nationals) who
handle unclassified material at Canadian missions abroad. The Government
Security Policy defines three levels of security clearance: Confidential (Level I),
Secret (Level II) and Top Secret (Level III).
Most levels I and II security clearance requests are done electronically from
checks in CSIS databanks. If questionable information is revealed, a full field investigation may be required. All top secret security clearances require a full field
investigation, which includes CSIS record checks; interviews of friends, neighbours and employers; local police checks; and sometimes applicant interviews.
While CSIS assists the originating department by providing the assessment of
an individual’s reliability and loyalty to Canada, under the Government Security
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Policy, all departments have exclusive authority to grant or deny security clearances. The Security Intelligence Review Committee (SIRC) reviews security clearance denials.
With the permission of the Minister of Public Safety, CSIS may enter into
arrangements to provide security assessments to any provincial government or
government department.17 With the consent of the minister responsible for policing in the province, CSIS may enter into arrangements to provide security assessments to any provincial police force.18
2.3.6.2
Sensitive-Site Screening
CSIS conducts security screening for individuals with access to secure areas in
airports, the Parliamentary Precinct (for those with access to the Houses of
Parliament), and nuclear power stations (it gives this information to the Canadian
Nuclear Agency). CSIS also provides security assessments to the CBSA on truck
drivers who apply for a border pass under the Canada-U.S. Free and Secure
Trade program.
Transport Canada requires security assessments on personnel who need
access to restricted areas in Canada’s international airports. Transport Canada
collects information from the employee and transmits it to both CSIS and the
RCMP, which conduct security screening and criminal records checks, respectively. When it receives these assessments, Transport Canada makes the final
decision to grant or refuse clearance. Transport Canada is developing a clearance system for rail workers and workers at major ports, as well as a background check program for truckers who transport dangerous goods across the
Canada-U.S. border, and CSIS will likely provide security assessments for these
programs as well.
CSIS also conducts checks of visitors, employees or members of the news
media who require access to “designated security perimeters during events conducted under a federal government sponsorship.”19
2.3.6.3
Foreign Screening
CSIS provides security assessments to the governments of foreign states, to foreign agencies and to international organizations such as the North Atlantic Treaty
Organization (NATO) on Canadian residents who wish to reside in another
country or are being considered for classified access in another country. These
are done only with the consent of the Canadian citizen, and are all approved by
the Minister of Public Safety after consultation with DFAIT.20
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2.3.6.4
Immigration and Citizenship Screening
The primary task of CSIS’ Immigration Screening program is to provide securityrelated advice to CIC and the CBSA to prevent persons who are inadmissible
under the Immigration and Refugee Protection Act (IRPA)21 from entering or
gaining status in Canada. CSIS does security screening on approximately ten
percent of applicants wishing to immigrate to Canada or to acquire refugee status in Canada.22
CSIS provides security screening on Canadian visitor visa applicants and
prospective immigrants where the applicant’s background presents security concerns. CSIS maintains liaison offices in several Canadian missions abroad, which
assist in providing the security screening in the foreign locations. It also provides
CIC or the CBSA with security assessments on applicants for permanent residence and Canadian citizenship.
CSIS also assists CIC and the CBSA in enforcement efforts, primarily in admissibility, deportation and security certificate proceedings. These are discussed
in the “Assistance to Enforcement” section below. I discuss the national security
aspects of the immigration and naturalization process in greater detail in the
CBSA and CIC sections.
2.3.6.5
Refugee Screening
CSIS also provides support to CIC and the CBSA in the front-end screening
process for refugee claimants. The refugee screening process is discussed in
more detail in the CIC section of this chapter.
2.4
ASSISTANCE TO ENFORCEMENT
CSIS plays an important role in the issuance of security certificates to have persons removed from Canada who have been found inadmissible on national security grounds. IRPA provisions allow a certificate to be prepared and signed by
the Minister of Public Safety and the Minister of Citizenship and Immigration
when a permanent resident or foreign national is found to be inadmissible on
grounds of security, espionage, violating human or international rights, serious
criminality or organized criminality.23 The CBSA is responsible for these relevant sections of the IRPA.
A security intelligence report prepared either by CSIS or, rarely, by the
RCMP is the basis for a security certificate request. The request is presented to
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both the Minister of Public Safety and the Minister of Citizenship and
Immigration. The CBSA analyzes the security intelligence report, focusing on
evaluating an individual’s admissibility under the IRPA.24 The CBSA may analyze
a broader range of factors than might concern either CSIS or the RCMP. The
CBSA then prepares a recommendation for the Minister of Citizenship and
Immigration about the certificate. CSIS, or on rare occasions, the RCMP, will
prepare a recommendation for the Minister of Public Safety. PSEPC also provides the Minister of Public Safety with independent advice on the security certificate process.
CSIS states that several conditions must be met before it considers preparing a security intelligence report:
•
•
•
•
•
The individual must be assessed as posing a significant threat to the security of Canada.
CSIS must have sufficient threat-related information and intelligence.
That information must be reliable and from multiple sources.
The removal must be of strategic value in light of CSIS’ investigative
priorities.
CSIS must have sufficiently releasable open-source information to support
the unclassified summary document.25
Foreign nationals are automatically detained after the two ministers sign
the certificate.26 In the case of permanent residents subject to security certificates, the Minister of Public Safety and the Minister of Citizenship and
Immigration may issue a warrant for the arrest and detention of the person if
they believe the person presents a danger to the security of Canada or the safety
of any persons.27
Once signed by the two ministers, the certificate is referred to a Federal
Court judge, who determines whether the certificate is reasonable. The
Government can seek the removal of an individual from Canada based on classified information. The Federal Court judge may hear and rely upon all or part
of the information or evidence received in the absence of the subject and the
subject’s counsel if the judge determines it would be injurious to the national security or safety of any person to hear the evidence in public.28 After reviewing
the classified information, the judge determines how much information will be
included in an unclassified summary to be given to the subject of the certificate
and the subject’s counsel. The IRPA requires that the summary include sufficient information for the individual to be reasonably informed of the circumstances giving rise to the certificate, but does not include anything that in the
judge’s opinion would be injurious to national security or the person’s safety.
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CSIS states that information likely to be withheld from the subject could include,
but is not limited to:
Details concerning human or technical sources, intelligence-gathering techniques
and methods of information communicated in confidence from a foreign agency.29
If the Court finds the certificate to be reasonable, the certificate constitutes
a removal order, and the individual may be deported immediately, subject to a
pre-removal risk assessment discussed in the CIC section of this chapter. There
is no appeal from the determination of reasonableness.30 From 1991 to March
2006, 27 security certificates were issued in relation to 26 individuals.31
Certificates have been directed at a broad range of subjects, including people
found to be inadmissible on the basis that the ministers reasonably believed
they are, were or may become involved with Islamic, Sikh or Tamil terrorism,
Russian espionage, secular Arab terrorism and right-wing extremism.32
CSIS may also provide the CBSA and CIC with information to be used to flag
“lookouts,” to alert immigration and CBSA officers abroad and at ports of entry
to Canada about the threats to national security posed by suspected and known
terrorists seeking admission to Canada. The CSIS information will then form part
of a determination by CIC and CBSA officers to refuse applications from individuals suspected of involvement in terrorist activities. I discuss lookouts in more
detail in relation to the CBSA, below.
2.5
INFORMATION DISCLOSURE PRACTICES
To fulfill its mandate, CSIS may co-operate with any federal or provincial department, or, with the permission of the minister responsible for policing in a
province, any police force in a province.33 Similarly, with the permission of the
Minister of Public Safety, CSIS may co-operate with international organizations,
foreign governments or their constituent institutions.34 Any written agreement between CSIS and a provincial or foreign entity, as described above, must be forwarded to the Security Intelligence Review Committee.35
CSIS may disclose information it obtains in the performance of its duties
under the CSIS Act or as required by law.36 CSIS may also disclose information
to police officers if the information could be used to investigate or prosecute any
alleged contravention of federal or provincial law.37 Information that is relevant
to Canada’s international affairs or national defence may be disclosed to the
Minister of Foreign Affairs, the Minister of National Defence or their designates,
respectively;38 or to any federal minister or other person if the Minister of Public
Safety believes disclosure is essential in the public interest and that interest
�CANADA’S NATIONAL SECURITY LANDSCAPE
clearly outweighs any invasion of privacy that could result from disclosure.39
Where public interest disclosure is made, the Director of CSIS must submit a report to SIRC as soon as practicable.40
2.6
INTERACTION BETWEEN CSIS AND THE RCMP
I have discussed the interaction between CSIS and the RCMP in chapters II and
IV. The primary form of interaction between the two agencies is the exchange
of information. A significant portion of the national security-related information
and intelligence that the RCMP receives comes from CSIS; thus, a significant
amount of the RCMP’s national security work is initiated by information received
from CSIS. The CSIS/RCMP MOU41 requires CSIS to provide the RCMP with information and intelligence that may assist the RCMP in fulfilling its national security-related responsibilities. However, CSIS is not obliged to share information
that would disclose a source’s identity nor to pass on information that a third
party has caveated. When the RCMP conducts an investigation based on CSIS information, it provides CSIS with updates on the status of the investigation. The
RCMP also provides CSIS with national security information and intelligence that
it has collected. The two organizations share information both orally and in writing, although the RCMP informs me that a smaller portion of information is
shared verbally and only after written communication has taken place.
CSIS is intended to be the prime Canadian contact with foreign intelligence
agencies (as opposed to foreign policing agencies), and so CSIS sometimes acts
as a conduit between the RCMP and these agencies. At other times, a foreign intelligence agency may contact the RCMP directly, and in such cases, the RCMP
keeps CSIS informed. Direct exchanges of information take place primarily with
agencies with which the RCMP has a long-standing relationship, such as the FBI.
Beyond information exchange, the RCMP and CSIS also provide each other
with operational support and assistance. For example, when federal security is
required at special events, CSIS provides threat assessments and other intelligence products to the RCMP. The Privy Council Office is also involved in these
arrangements. The RCMP assists CSIS by conducting security assessments in geographical locations not serviced by CSIS, and by providing operational assistance with respect to CSIS’s Protective Security mandate.
To foster co-operation between the two agencies, the RCMP and CSIS have
in place a secondment, or exchange, program with the stated purpose of furthering each organization’s understanding of the other’s mandates. All four
INSETs42 have CSIS employees seconded to the teams. In addition, the RCMP has
a CSIS manager in charge of its Threat Assessment Section at Headquarters at the
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officer level, while an RCMP inspector is seconded to CSIS Headquarters at the
management level. In the case of INSETs, it is the understanding of both organizations that CSIS members are present to provide their expertise, and there
is no reporting back to CSIS. Similarly, I am informed that RCMP members seconded to CSIS do not report back to the RCMP.
In addition, different branches of the RCMP’s Criminal Intelligence
Directorate (CID) work very closely with CSIS Headquarters personnel on issues
such as threat assessments. The RCMP’s Anti-Terrorist Financing Group works
closely with its counterpart at CSIS, and both agencies represent Canada on an
international working group, the purpose of which is to exchange information
and best practices related to terrorist financing and to improve international investigations in this field. CSIS also consults with the RCMP concerning listing terrorist groups under the new Criminal Code provisions.43
CSIS and the RCMP have formed a joint management team that meets regularly to discuss operational and intelligence issues of interest to both agencies.
2.7
OPERATIONS ABROAD
Unlike many countries such as the United States, the United Kingdom and
Australia, Canada does not have a human source-based foreign intelligence service. However, CSIS is empowered to conduct operations abroad related to
threats to the security of Canada. CSIS may conduct foreign covert operational
activities, and often co-operates with intelligence services from another country,
for example in establishing joint operations to obtain information of mutual security concerns.
CSIS states that it now has more people deployed abroad on a full-time
basis than ever before, as well as more people operating from offices in Canada
but assigned overseas on a part-time basis for a particular case or investigation.44
Other federal government departments that collect foreign intelligence
abroad may share information with CSIS, including DFAIT, DND and the CSE.
However, these agencies do not work for CSIS, and only some of the information they collect is shared with CSIS. CSIS also has employees posted abroad as
security liaison officers. Finally, CSIS has more than 250 information-sharing
arrangements with foreign security and intelligence organizations.
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3.
INTEGRATED THREAT ASSESSMENT CENTRE
3.1
RELEVANT LEGISLATION
•
•
Anti-terrorism Act, S.C. 2001, c. 41
Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23 (CSIS Act)
3.2
MANDATE
The Integrated Threat Assessment Centre (ITAC) was created in 2004 following
the release of the National Security Policy,45 and replaced the CSIS Integrated
National Security Assessment Centre.46 The National Security Advisor at the Privy
Council Office and the Director of CSIS have joint responsibility for ITAC’s direction. The National Security Advisor provides overall policy direction, while
the Director of CSIS is responsible for ITAC’s day-to-day functions.47
ITAC produces comprehensive, integrated assessments of threats to
Canada’s national security and distributes them as required. The Centre focuses
on terrorist trends, and on domestic and international events related to terrorism.
ITAC prepares and disseminates both classified and unclassified threat assessments. It produces classified weekly reports called Intelligence Digests that
it sends to different departments within the Canadian security and intelligence
community. ITAC also evaluates specific threat information.48 Its weekly Threat
Assessment Priority List keeps other government agencies up to date on its work.
Within the Canadian federal government, ITAC shares its assessments directly
with the RCMP, DND, DFAIT, PSEPC, Transport Canada, the CBSA, PCO, CSIS,
the CSE, Health Canada and the Department of Justice. Transport Canada will
provide threat assessments to CATSA as required. PSEPC also disseminates classified and unclassified ITAC assessments to various federal and provincial agencies and officials. Federal agencies include the Canadian Food Inspection
Agency, the Canadian Nuclear Safety Commission, Environment Canada and the
Department of Finance. ITAC provides unclassified assessments to private sector entities.
ITAC exchanges threat assessments with other international threat assessment centres, principally the Joint Terrorism Analysis Centre in Britain, the
National Counterterrorism Center in the United States, the National Threat
Assessment Centre in Australia and the Combined Threat Assessment Group in
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New Zealand.49 Relevant threat assessments are shared with international partners, unless the data is marked “for Canadian eyes only.” On a case-by-case
basis, ITAC may share information with other foreign partners. For example, it
shared an assessment on illegal immigration and terrorism with NATO members, and an unclassified version of an assessment on the potential for terrorists
to use the avian flu virus as a biological weapon with the Libyan, Saudi Arabian
and Egyptian intelligence services. Currently, over half of the reports that ITAC
disseminates within Canada are from foreign partner agencies. At the time of
writing, the Centre has distributed a total of 532 assessments, of which it produced 126. ITAC adds a Canadian perspective to foreign reports before disseminating them, as it considers appropriate.
Government departments and agencies may task ITAC directly by directing requests on specific topics to ITAC’s interdepartmental Production
Advisory Committee.
As well as assessing threats within Canada, ITAC helps to shape travel advisories and conducts risk assessments for Canadian missions, interests and persons abroad. It may also undertake assessments that do not deal directly with
terrorism, as determined by the Director of ITAC in consultation with ITAC’s
Management Board.
ITAC is specifically designed to facilitate information sharing among different government departments. The Centre operates within CSIS for administrative
purposes, but many of its personnel are seconded to CSIS from other agencies.
In 2006, ITAC had members from the RCMP, the CBSA, PSEPC, the Correctional
Service of Canada, the CSE, DND, DFAIT, PCO, Transport Canada and the
Ontario Provincial Police. A member from the Sûreté du Québec will soon be
added. ITAC expects to reach its full complement of 46 employees in 2006.
Other agencies, which do not provide secondees to ITAC but do provide information and obtain threat assessments, include Health Canada and the Public
Health Agency of Canada, the Canadian Food Inspection Agency, Elections
Canada and Environment Canada.
The role of ITAC secondees is to bring information from their home agencies into ITAC. ITAC personnel from different government departments have access to the same information and databases they would in their home
organization. However, secondees do not share all information in their home
databases with ITAC — only relevant information is shared, with the permission
of the originating agency. In addition, the originating agency may place caveats
on disclosure beyond ITAC. The RCMP secondee to ITAC has access to a Secure
Criminal Information System terminal at ITAC. Agencies involved with national
security matters also provide information to ITAC voluntarily or in response to
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a request. However, ITAC cannot require a partner agency to conduct a specific
investigation. No formal policies are in place governing the voluntary provision
of information, but ITAC’s senior management and the partner agencies have
discussed the types of information that ITAC would like to receive. ITAC expects
partner agencies to provide terrorist threat-related information on a timely basis.
ITAC does not collect or share raw intelligence data, although it does receive and disseminate personal information about identifiable individuals. To
the extent possible, ITAC assesses the accuracy of information from both
domestic and foreign sources before including it in intelligence assessments.
While information from partner agencies will be used in ITAC reports, the
reports themselves are CSIS property and subject to CSIS rules for disclosure
and dissemination.
4.
COMMUNICATIONS SECURITY ESTABLISHMENT
4.1
RELEVANT LEGISLATION
•
National Defence Act, R.S.C. 1985, c. N-5
4.2
MANDATE
The Communications Security Establishment (CSE) is Canada’s national cryptologic agency. The CSE uses technologically advanced methods and equipment
to obtain information from foreign intelligence targets in support of federal government intelligence priorities. Unlike CSIS, the CSE does not collect intelligence
from human sources. Instead, it collects signals intelligence — technical and intelligence information obtained from electronic emissions, including communications. The CSE shares this intelligence with other federal departments and
agencies according to its mandate and federal government intelligence priorities,
which include Canadian defence and foreign policy matters.50 The CSE also
works to protect electronic information and information infrastructures that are
important to the federal government.
The CSE had its genesis in 1941 as part of the allied World War II effort. It
was then known as the Examination Unit and was located in the National
Research Council. In 1975, the CSE was transferred by order in council to the
Department of National Defence.51 The Government of Canada did not publicly
acknowledge the CSE’s functions until 1983,52 and gave it a statutory basis
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in 2001. The Chief of the CSE, under the direction of the Minister of National
Defence, has the management and control of the agency.53 The Chief reports to
the Deputy Minister of National Defence for financial and administrative matters,
and to the National Security Advisor at the Privy Council Office for policy and
operations matters. The Minister may issue written directions to the Chief of the
CSE concerning the carrying out of the Chief’s duties and functions.54
The CSE has a three-part mandate that is set out in the National Defence Act
as follows:
(a) to acquire and use information from the global information infrastructure for
the purpose of providing foreign intelligence, in accordance with
Government of Canada intelligence priorities (the “(a) mandate”);
(b) to provide advice, guidance and services to help ensure the protection of
electronic information and of information infrastructures of importance to
the Government of Canada (the “(b) mandate”); and
(c) to provide technical and operational assistance to federal law enforcement and security agencies in the performance of their lawful duties (the
“(c) mandate”).55
By law, the CSE’s foreign intelligence activities pursuant to the (a) mandate
may not be directed at Canadians or any person in Canada.56 In relation to the
interception of communications by government authorities, the term “private
communications” is used to refer to communications that begin or end in Canada
and that the person who began the communication would reasonably expect to
remain private.57 The Minister of National Defence may authorize the CSE to intercept private communications in Canada for the sole purpose of obtaining foreign intelligence, provided that the interception is directed at a foreign entity
located outside Canada.58 Before these ministerial authorizations were introduced in 2001,59 the CSE was prohibited from intercepting communications that
an intelligence target abroad sent to or received from Canada. Generally, ministerial authorizations last for one year. Four (a)-mandate ministerial authorizations were in place as of March 2006. Pursuant to its (a) mandate, the CSE may
use or retain the private communications collected under ministerial authorization only if they are essential to international affairs, defence or security. All
other private communications are destroyed.60
Under its (a) mandate, the CSE shares with both CSIS and the RCMP national security-related foreign intelligence with a domestic connection. For example, if the CSE incidentally acquired a communication from a terrorist located
abroad communicating with someone in Canada and that communication had
intelligence value, the CSE would share the information with CSIS.61
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The RCMP and the CSE communicate to ensure that the CSE is aware of the
types of information in which the RCMP may be interested. A select number of
RCMP members receive, electronically or through a CSE Customer Relations officer, certain CSE intelligence reports that meet the RCMP’s intelligence needs.
The CSE may ask for information from its own foreign intelligence partners in
response to an RCMP request. It may also task its partners to gather intelligence
related to such requests. If the intelligence generated from these sources relates
to the RCMP’s mandate, the CSE may share it with the RCMP. Such sharing takes
place at Headquarters level. A ministerial directive governs the CSE’s information sharing with law enforcement agencies. I am told that the CSE provides the
RCMP with foreign intelligence relatively infrequently. In most cases, the intelligence provided is general in nature and gives an overview of a specific situation in another country.
The CSE produces foreign intelligence reports on an ongoing but irregular
basis. These reports are based on the federal government’s intelligence requirements and are shared, electronically or through a CSE Customer Relations
officer, with hundreds of different client groups within various federal departments and agencies, according to the stated intelligence needs of these bodies.62 It is important to note that although the CSE provides foreign intelligence
to many different government clients, each client receives only intelligence that
is necessary to its functions and mandate. If the CSE receives a request for information from a domestic agency that is not in line with Government of Canada
foreign intelligence priorities, the CSE states that it would not be able to provide
that information. The Department of Foreign Affairs and International Trade is
the CSE’s largest intelligence client, partly because DFAIT manages Canada’s
foreign relations on behalf of all Canadian departments and agencies.
Under the (b) mandate, the CSE helps to protect electronic information and
information infrastructures of importance to the Government of Canada. The information infrastructure does not have to be federally owned — it can be a
provincial or private interest such as a hydroelectric system.
With respect to information technology security, the CSE provides guidance
and strategic advice to the Government to ensure its critical information systems
are secure. For example, the CSE may advise on cybersecurity, cryptographic
equipment and secure communications. Under this mandate, the CSE may work
with partners such as the Canadian Forces Information Operations Group
(CFIOG). The information technology security mandate generally does not involve the interception of communications. However, there is provision for obtaining ministerial authorization where the (b) mandate activity requires the
interception of private communications. Solely to protect the Government of
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Canada’s computer systems or networks, the Minister may authorize the CSE to
intercept private communications subject to certain statutory conditions. These
include conditions that the Minister considers advisable to protect Canadians’
privacy, such as restricting the use, retention and disclosure of information derived from the interception.63
Ministerial authorizations given to the CSE under its (a) and (b) mandates
may also include a direction to the Canadian Forces to support the CSE in its activities.64 Where the Canadian Forces collects signals intelligence in support of
the CSE, the Forces’ collection activities are subject to the CSE’s mandate and review mechanisms.65 I discuss the interaction between the CSE and the Canadian
Forces in more detail in the section on DND.
Under its (c) mandate, the CSE may provide technical and operational assistance to federal law enforcement and security agencies. This assistance is
primarily technical. The CSE’s (c) mandate is tied to the legislative authority
of the requesting agency. Under its (c) mandate, the CSE provides the RCMP
with technical assistance such as obtaining information from an encrypted
hard drive. The (c) mandate also allows the CSE to give the RCMP technical and
operational assistance, including for the RCMP’s own intelligence collection programs, at the RCMP’s request, and to assist in criminal investigations. The task
must be within RCMP authority, and the CSE must have proof of this authority
in some form.
Since 2002, the CSE has significantly increased its security intelligence focus
and collection capabilities. It has added many new staff and expanded its office
space to three additional buildings.66 The CSE’s Office of Counterterrorism now
operates seven days a week, and security and counter-terrorism requirements are
top collection priorities. Approximately 80 percent of the CSE’s efforts are currently directed towards supporting military operations or related to national security.67 The agency’s technical collection capabilities have been enhanced,
allowing for closer technical integration with allied signals intelligence agencies.68 The CSE says that it has gathered intelligence on foreign terrorist targets
that has been used to protect Canadians and Canada’s allies.69
The CSE works very closely with the Canadian Forces Information
Operations Group in the collection of foreign intelligence.70 It also has personnel integrated into key Canadian agencies71 — currently CSIS, ITAC and the
Canadian Forces Information Operations Group — and deploys Client Relations
officers to the RCMP, CSIS, DFAIT, DND, PCO and other major federal government departments. The function of these officers is to provide intelligence reports to and receive intelligence requirements from federal government clients.
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In its foreign intelligence reports, the CSE does not include the names of
Canadian citizens or permanent residents, or information that may identify citizens of Canada, the U.S., U.K., Australia or New Zealand. A domestic agency
asking for access to such information must justify access under criteria set by the
CSE.72 Justification must pertain to one or more specific categories of federal
government intelligence priorities, and include an explanation of how such information would be useful to the department’s or agency’s activities.
The CSE has a close and long-standing foreign-intelligence-sharing relationship with the signals intelligence agencies in the United Kingdom, the United
States, Australia and New Zealand,73 and has integrated personnel into these allied agencies.74 Normally the CSE does not share information with these agencies that relates to the interception of private communications, although it may
provide relevant intercepted information relating to national or alliance security. However, the CSE does not disclose identifying information it may have
collected on a Canadian citizen except in response to a formal request, after
consultations with relevant Canadian security and intelligence partners, and provided that the request meets CSE criteria. Improving information sharing is a
current CSE priority.75
5.
DEPARTMENT OF NATIONAL DEFENCE
5.1
RELEVANT LEGISLATION
•
National Defence Act, R.S.C. 1985, c. N-5
5.2
MANDATE
The federal government is the only authority in matters of defence and the protection of Canadian sovereignty. The Department of National Defence (DND)
portfolio includes the department itself (including 20,000 civilian employees), the
Canadian Forces (CF), and 3,600 Canadian Rangers who provide a military presence in remote and sparsely populated areas of the country.76 The Canadian
Forces consist of approximately 62,000 regular forces and 22,000 reservists.77
The Minister of National Defence is responsible for the department and is accountable to Parliament for its activities. The Minister also provides direction to
the CSE on the performance of its functions, and is accountable to Cabinet and
to Parliament for all CSE activities.78
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The Department of National Defence and the Canadian Forces collaborate
with other federal and provincial departments in areas such as counter-terrorism, counter-proliferation, emergency management, illegal immigration and drug
trafficking.79 The Department of National Defence recently announced a major
reorganization that will focus considerable resources on defending Canadian
territory proper, as opposed to foreign military missions to defend Canada’s interests and allies abroad.80
DND/CF maintain a large and sophisticated intelligence capability that is
able to support the Canadian government in general and the Canadian Forces
in particular worldwide. Defence Intelligence, which consists of both military
and civilian employees, plays an important role in Government of Canada and
departmental policy formulation; in decisions on the purchase of weaponry and
most other equipment for DND/CF; in the research and assessment burden of
large intelligence problems or questions with allies;81 and most importantly, in
intelligence collection, analysis and dissemination to directly support ongoing or
anticipated operational deployments or engagements of CF personnel or assets.
Functionally, Defence Intelligence and its clients span the entire realm of DND
and the CF, as well as reaching out into the wider Canadian and allied intelligence community.
The Chief of Defence Intelligence (CDI) coordinates intelligence gathering
and collection for DND/CF. DND/CF gather and analyze intelligence related to
domestic threats, as well as information to support foreign operations. Defence
Intelligence capabilities run the entire spectrum of intelligence-gathering practice and analysis. However, DND/CF Intelligence focuses largely on foreignbased threats, and foreign military capabilities and operations. One of the
military’s unique intelligence capabilities is gathering and producing imaging
and mapping information for Canadian or international territory. Defence intelligence relies on CSIS and the RCMP for domestic human intelligence gathering.
The CSE, the Canadian Forces Information Operations Group (CGIOG)82
and the Canadian Forces SIGINT Operations Centre (CFSOC) are the principal
signals intelligence organizations in Canada. The CSE provides strategic and tactical signals intelligence support to both the CF and DND, and in this capacity
is an important provider of raw or semi-processed signals intelligence. In addition to routine distribution of signals intelligence from the CSE, DND/CF maintain signals intelligence assets specific to the military, the most important of
which are the CFIOG and CFSOC. The CFIOG has a mandate for signals intelligence activities delegated by the CSE, which include support to domestic and
international military operations. Signals intelligence support to military operations gives commanders direct access to essential intelligence products and has
�CANADA’S NATIONAL SECURITY LANDSCAPE
become a priority for CF-controlled signals intelligence assets, either through
remote capabilities or assets located in operational theatres. The CFSOC is tasked
with requests by different CF components and by the CSE. The CFSOC has developed virtual analytical teams that use expertise from civilian agencies like
DFAIT and CSIS, as well as different military intelligence disciplines. These virtual analytical teams provide a continuum of support from the tactical to the
strategic level and have the potential to provide complete intelligence products.
DND/CF may intercept private communications that begin or end in Canada83
only to assist civil authorities and under the direction of these authorities.84
However, under CSE authority, and pursuant to a ministerial authorization, the
CFIOG may gather foreign intelligence by intercepting private communications
that begin or end in Canada.
5.3
DOMESTIC NATIONAL SECURITY ACTIVITIES
Domestically, military intelligence maintains close links and information-sharing relationships with all members of the Canadian national security community.
The Canadian Forces are also becoming increasingly integrated with civilian
government departments and the RCMP in intelligence sharing and mutual operational support in anti-terrorism efforts.85 DND/CF have representation at PCO,
DFAIT, CSIS, the CSE, Transport Canada, ITAC and the Marine Security
Operations Centres, as well as numerous exchange positions worldwide. CSIS
and the CSE are also represented at the Department of National Defence.
Defence Intelligence does not task the RCMP or other government departments
and agencies, although it may request additional information on an existing
issue or analysis on a specific topic. The other government department can either accept or refuse the request.
As a general rule, military intelligence will provide information about general security threats to CSIS, and will provide criminal intelligence information
and products to the RCMP.86 DND/CF uses criminal intelligence for the following reasons:
•
•
•
to reveal the existence of criminal organizations or other significant criminal activities;
to identify the members of such organizations; and
to establish their criminal activities, internal administration, movements,
sources of income and vulnerabilities.87
In return, the military usually receives finished intelligence products from
CSIS, but receives raw information from the RCMP. For example, DND/CF might
149
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receive information from the RCMP about Defence personnel who have been
linked to criminal activity or about criminal activity that seems to be directed towards a military base or other assets.
There are currently no formal guidelines covering information sharing with
the RCMP or CSIS. However, a recent review of Defence Intelligence recommended developing policies on information sharing, collection and storage.
Defence Intelligence now has information-sharing memoranda of understanding
(MOUs) with CSIS, the CSE, the RCMP, DFAIT, Transport Canada, Health Canada
and Natural Resources Canada. Additional MOUs are contemplated or being developed with PSEPC, the CBSA, CSIS and the RCMP; and additional general written policies concerning intelligence analysis and sharing are under development
within CDI.
The Canadian Forces Joint Information and Intelligence Fusion Capability —
which exists only in concept at the time of writing — is intended eventually to
provide a joint, interdepartmental, all-source intelligence fusion capability to the
Government of Canada. This intelligence fusion capability would include both
military and civilian intelligence capabilities.
National security activities may also involve the military police. There are
approximately 1,300 military police in Canada and overseas in places like
Afghanistan. Most military police officers are assigned to active military units,
where they provide policing functions but also serve as members of the
Canadian Forces. Approximately 110 military police members are a part of the
Canadian Forces National Investigation Service (CFNIS). This is a special unit that
is under the operational chain of command (i.e., the chain that applies to the
Army, Navy and Air Force). Members of the CFNIS investigate the more serious
criminal or military offences and conduct “sensitive” investigations — those involving a DND senior officer or equivalent civilian employee, and those involving sensitive material or instances that could discredit DND. There are also
approximately 40 military police in the National Counter-Intelligence Unit
(NCIU) under the command of the Deputy Chief of Defence Staff, within
J2/Director General Intelligence. Some military police members serving in the
NCIU may participate in joint operations with the RCMP or other agencies
through INSETs or IBETs88 where there is a military nexus.
Generally speaking, the RCMP takes the lead on national security investigations, although the military police, likely through the CFNIS, could be involved depending on the facts. The military may obtain national security
information — top secret or otherwise — through formal channels. It generally
passes such intelligence acquired by other means to the RCMP.
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While members of the NCIU who are also military police work as liaisons
with IBETs and INSETs, there are no DND or CF secondments to either of these
integrated teams.89 Contact between INSETs, IBETs and the NCIU varies because
the NCIU conducts liaison activities only where there is a clearly defined threat
to the security of DND or the CF.90 Canada’s military police may also be involved peripherally with other RCMP national security investigations, and military intelligence may be used to assist other RCMP operations. In addition, the
NCIU may enlist the help of police or security agencies to obtain search warrants
or warrants for the interception of communications to assist in a military counterintelligence investigation where the subject of the investigation or operation is
a DND employee or a CF member.91
DND/CF also may provide armed assistance to the RCMP. The CF Armed
Assistance Directions92 establish the procedures for requesting and providing
armed assistance by the Canadian Forces to the RCMP for the purpose of resolving disturbances affecting the national interest. Therefore, the Canadian
Forces may provide armed assistance to the RCMP in national security matters
after a series of administrative steps take place. These steps include a request
from either the RCMP Commissioner or the Minister of Public Safety to the
Minister of National Defence requesting aid to the civil authority. Any and all
DND/CF assets can be brought to bear as the Minister of National Defence directs, including Joint Task Force Two (JTF 2), the military counter-terrorism
unit.93 JTF 2’s counter-terrorism mandate is to provide an immediate response,
as a force of last resort, to terrorist events or major disturbances affecting the national interest. To ensure the appropriate use of JTF 2, this formal request procedure is in place to guide officials when asking for assistance. The Joint
Nuclear, Biological and Chemical Defence Company is also available to provide
assistance in the case of a biological, nuclear or chemical emergency. The
Government Operations Centre coordinates the deployment of this unit.94
6.
CANADA BORDER SERVICES AGENCY
6.1
RELEVANT LEGISLATION
•
•
•
•
Canada Border Services Agency Act, S.C. 2005, c. 38 (CBSA Act)
Canadian Food Inspection Agency Act, S.C. 1997, c. 6
Customs Act, R.S.C. 1985, c. 1 (2nd Supp.)
Export and Import Permits Act, R.S.C. 1985, c. E-19
151
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•
•
•
•
Export Control List, S.O.R./89-202, as amended
Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA)
Immigration and Refugee Protection Regulations, S.O.R./2002-227
Passenger Information (Customs) Regulations, S.O.R./2003-219
6.2
MANDATE
The Canada Border Services Agency (CBSA) was created in December 2003 by
order in council.95 Essentially, the CBSA combines the enforcement, intelligence
and interdiction functions of Citizenship and Immigration Canada,96 the customs
program of the former Canada Customs and Revenue Agency,97 and the primary
food and plant inspection functions of the Canadian Food Inspection Agency.98
The CBSA received a statutory mandate in November 200599 and is responsible
to the Minister of Public Safety.100 It has a mandate to manage the movement of
goods and people into Canada and the movement of goods out of Canada at all
ports of entry. This mandate includes both facilitation and enforcement activities. To help fulfill its mandate, the CBSA may enter into agreements with foreign states and international organizations.101
The CBSA has approximately 12,000 employees located at about 1,200 service points in Canada and 39 locations abroad.102 All border guards at points of
entry into Canada work for the CBSA. However, official border posts (“points of
entry”) exist only in certain places along Canada’s land borders and coastlines.
In all places along the border where there is no official port of entry, but where
people may still cross into or out of Canadian territory, the RCMP is responsible for enforcing Canadian laws with respect to the flow of goods and people
into and out of the country.
The CBSA has seven principal branches: Admissibility; Enforcement; Human
Resources; Innovation, Science and Technology; Comptrollership; Operations;
and Strategy and Coordination. The CBSA Enforcement Branch houses the
CBSA’s intelligence capability, which includes a threat analysis and assessment
directorate, a national security directorate and a borders intelligence directorate.
The Branch also deals with immigration screening, fraudulent travel documents,
investigations, detentions, removals, counter-terrorism, counter-proliferation,
strategic exports and contraband.
The CBSA defines national security threats according to the federal national
security policy.103 In relation to the movement of people, the CBSA looks for individuals linked to terrorism, espionage, subversion, organized crime and war
crimes. In relation to the movement of goods, the CBSA looks for information
�CANADA’S NATIONAL SECURITY LANDSCAPE
on the movement of goods linked to terrorism. Its activities in this regard include
intercepting and seizing illegal arms, working on counter-proliferation initiatives
and ensuring export control to embargoed countries.
CIC and the CBSA share responsibility for administering Canadian immigration laws, which govern the movement of people into Canada, the removal
of non-citizens from Canada, and laws related to obtaining or losing citizenship.104 Both the CBSA and CIC are responsible for preventing people from
entering or remaining in Canada if they are not legally entitled to do so.
The Immigration and Refugee Protection Act sets out a number of reasons
why individuals are not allowed to enter or remain in Canada, even if they
would otherwise be entitled to come to Canada or to live here. These individuals are referred to as being “inadmissible” to Canada. People may be declared inadmissible
1.
2.
3.
4.
5.
because they are reasonably believed to pose a national security threat on
the basis that they: 105
(i) have engaged in espionage or subversion against a democratic government or institution;
(ii) were involved in undermining a government or institution using force;
(iii) have engaged in terrorism;
(iv) are a danger to the security of Canada;
(v) have engaged in acts of violence that could endanger the lives or safety
of people in Canada; or
(vi) are a member of an organization that it is reasonably believed engages,
has engaged or will engage in espionage, subversion or terrorism as
described above.
because they are reasonably believed to be involved in major human rights
violations abroad, including war crimes;106
because they are reasonably believed to have a criminal record for an offence punishable by ten or more years imprisonment, either in Canada or
abroad (“serious criminality”);107
because they are reasonably believed to be linked to a criminal organization, human smuggling/trafficking or money laundering (“organized
criminality”);108 or
for a variety of other reasons that do not relate to national security.109
In some cases, people who are inadmissible for reasons of security or organized criminality may be allowed to enter or remain in Canada if they satisfy
the Minister of Citizenship and Immigration that their presence in Canada would
not harm the national interest.110 CIC has the lead role in relation to persons
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who are inadmissible for serious criminality,111 while the CBSA takes the lead for
national security, organized criminality,112 war crimes and gross human rights violations. CIC and the CBSA collaborate closely, and sometimes officers from
one agency will be designated to perform functions that fall within the responsibility of the other agency.113
Generally, the CBSA focuses on the security of Canada’s borders, including
threats and risks to Canada.114 The CBSA collects intelligence and detects people who are in Canada illegally. It also arrests, detains115 and removes116 inadmissible persons, and develops and implements admissibility policies relating to
security, war crimes and organized crime.
The CBSA also enforces customs laws, which regulate the goods and currency that may enter and leave Canada.117 The Proceeds of Crime (Money
Laundering) and Terrorist Financing Act requires large cross-border financial
transactions and the transport of currency or monetary instruments across the
border to be reported to Canadian authorities.118 CBSA officers have the power
to search individuals, baggage, conveyances and mail for currency that is unreported,119 and may seize currency or monetary instruments that are not reported
or that are reasonably believed to be the proceeds of crime.120 CBSA officers
must record in writing the reasons for all such seizures.121 This responsibility includes reporting certain cross-border financial transactions to Canada’s financial
intelligence agency, FINTRAC, and/or to the RCMP. CBSA Customs also has responsibility for enforcing restrictions on the export of strategic goods (e.g.,
goods that potentially could be used to make sophisticated weaponry).
The CBSA has a large mandate — over 94 million travellers are processed
annually, and over two billion dollars worth of trade goods cross Canadian borders each day. As with the other government departments that I discuss, much
of the CBSA’s activity is beyond the scope of this chapter. The vast majority of
the CBSA’s work is focused on law enforcement. Thus in this section, I have chosen to focus my discussion on the police powers of CBSA officers; CBSA’s intelligence capabilities; CBSA’s national security activities relating to the screening
of people and goods; CBSA participation in integrated teams; and CBSA information-sharing policies, practices and agreements.
6.3
POLICE POWERS OF CBSA OFFICERS
When performing their duties under customs and immigration legislation, CBSA
officers generally have the same powers as police officers,122 including powers
of arrest,123 detention,124 search125 and seizure.126
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Under the Customs Act, CBSA officers at border crossings can also stop travellers for further questioning, and take breath and blood samples.127 Under the
IRPA, CBSA officers can question, search and detain non-citizens.128 A CBSA
immigration officer may issue an arrest warrant for a permanent resident or a
foreign national, if the officer suspects that the person poses a threat to the
public or is in Canada illegally.129 Foreign nationals (other than refugees)
also may be arrested and detained by CBSA officers without a warrant on the
same grounds.130 At the border, an immigration officer may detain a non-citizen
where the officer suspects that the person poses a national security risk, among
other reasons.131
CBSA officers may carry batons and pepper spray, and are trained in the use
of force. At the time of writing, CBSA officers do not carry firearms. However,
the federal government has recently announced plans to begin arming CBSA
officers at border posts.132
CBSA officers may refer violations of the Immigration and Refugee
Protection Act to the RCMP for investigation and prosecution, and all RCMP
members are also appointed as immigration officers.133 By law, all RCMP officers
are designated as Customs134 and Excise135 officers, and the RCMP has primary
responsibility for enforcing customs laws in remote areas and on reserves created under the Indian Act.136 RCMP officers acting as immigration and customs
officers are governed by the RCMP Act and RCMP operational or administrative
policies, not by CIC or CBSA policies and directives.137
6.4
CBSA INTELLIGENCE
The intelligence capabilities of CBSA’s Immigration and Customs branches have
been blended into a single CBSA intelligence reporting structure. The
Intelligence network is composed of the National Headquarters Intelligence
Branch, eight Regional Intelligence units within Canada, and a group of
Migration Integrity officers (MIOs) working abroad. The Intelligence network is
involved in planning, collecting, analyzing and disseminating intelligence concerning threats to people and goods, including immigration, visitor and refugee
programs, and intelligence relating to the smuggling and transport of strategic goods.138
The National Headquarters Intelligence Branch provides direction and support with respect to individuals who may be involved in terrorism, organized
crime, war crimes, illegal immigration, smuggling of contraband or the illegal
movement of strategic goods. The CBSA is one of four partners involved in war
crimes apprehension, and the Headquarters Intelligence Branch holds most
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classified intelligence information related to modern war crimes and suspected
war criminals.139 The branch is the focal point for intelligence-based decision
making on individual cases, as well as policy and programming for the CBSA.140
The Regional Intelligence units provide support to Canadian field offices.141
CBSA Intelligence produces a large volume of strategic threat assessments relating to border security issues in both the customs and immigration fields. These
assessments rarely contain personal information, and are disseminated to the
RCMP and other agencies, both domestic and international, as the CBSA sees fit.
Approximately 45 Migration Integrity Officers work out of Canadian diplomatic posts abroad, together with international partners, to stop illegal immigration, including human smuggling and trafficking. One of the MIOs’ major
functions is to assist airlines in determining whether to allow individuals to
board. MIOs also have an anti-fraud role in detecting and intercepting fraudulent travel documents,142 provide some media reporting, report on interceptions
of individuals suspected of travelling with false documents, and analyze information relating to country conditions.
MIOs feed information directly to CBSA regional offices in Canada. In addition, they provide the RCMP Criminal Intelligence Directorate with information
about terrorist or national security threats and fraudulent documents,143 and
human trafficking operations or organized crime where a Canadian citizen or
permanent resident is suspected of involvement. MIOs also may inform CBSA officials in Canada about suspicious persons en route to Canada. These reports include names and aliases, dates of birth, passport numbers, addresses, routing
information and details about family members and known associates.
Internationally, Migration Integrity officers work with local immigration
and law enforcement authorities, airline staff and overseas migration officers
from the United Kingdom, the United States, Australia, the Netherlands, the
Nordic countries and Germany. Canadian MIOs co-operate with these partners
on fraud investigations and airport assistance, and share information on trends,
emerging passport issues (e.g., fraud in a particular country) or criminal profiles.
In some circumstances, MIOs may also share information of a personal nature
about suspicious persons enroute to Canada with the local authorities of closely
allied states.
The Customs side of the CBSA also maintains an intelligence capability, and
has an active information-sharing relationship with the RCMP144 and with
American Customs counterparts, as discussed below.145
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6.5
IMMIGRATION DETENTION FACILITIES
The CBSA has legal responsibility for immigration detention facilities, including
those used to house security certificate detainees. The facilities are staffed by
personnel from the Correctional Service of Canada.146
6.6
NATIONAL SECURITY ACTIVITIES
6.6.1
Screening of People Entering Canada
At the border, CBSA officers screen travellers entering Canada — both citizens
and non-citizens — for compliance with immigration and customs laws. The
CBSA conducts three major types of screening: (i) for suspected violations of
customs or other laws; (ii) of non-citizens arriving in Canada, to identify those
who may be inadmissible under the Immigration and Refugee Protection Act;
and (iii) of temporary visa applicants, applicants for permanent residence and
citizenship, and refugee claimants jointly with CIC. The CBSA does all immigration screening at border crossings, while CIC screens within Canada and
abroad, with advice and assistance from the CBSA.
The CBSA maintains databases to help its officers enforce both customs and
immigration laws. The initial stages of the screening process use electronic datamatching or risk-assessment algorithms.
6.6.2
Lookouts
CBSA Intelligence is responsible for placing and maintaining “lookouts,” electronic file records that flag or identify particular travellers or vehicles according
to risk indicators or intelligence.147 Customs lookouts identify individuals of interest in relation to any type of ongoing criminal or national security investigation. For example, a lookout may be placed for a person who is known to
smuggle strategic goods out of Canada in violation of the Export and Import
Permits Act. Customs lookouts may be issued for both Canadian citizens and
foreigners, and do not necessarily have to relate to suspected violations of customs laws. The CBSA and CIC use immigration lookouts (or “IRPA lookouts”) to
identify inadmissible persons. Grounds for inadmissibility include national security reasons, suspected involvement in war crimes, serious crime and organized crime, including money laundering and terrorist financing.148 IRPA lookouts
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also may be issued for Canadian citizens suspected of involvement in
human trafficking or smuggling. Front-line CBSA officers may add lookout
flags with a supervisor’s permission. For such flags to remain in the Customs
database, however, CBSA Intelligence subsequently must approve them. Flags
in the Immigration databases need not be subsequently approved to remain in
those databases.
A lookout includes basic biographical information about an individual and
a brief description of the reason that the individual has been flagged. The substance of the lookout and the background information on which it is based are
not provided to front-line officers, although this information may be obtained
upon request. Lookouts do not determine whether a non-citizen may enter
Canada. Where a flagged person is encountered at a border crossing or during
the visa or immigration process, the CBSA officer decides whether to allow the
person to enter Canada based on the background information substantiating the
lookout and information from the individual in question.149 A customs lookout
also may lead a CBSA officer to question or search a citizen or a non-citizen to
obtain information about the possible commission of an offence.
Other agencies generally provide the CBSA with the information on which
an IRPA lookout flag is based — usually CSIS, the RCMP, DND, the CSE or
American law enforcement partners. Key American partners include the U.S.
Terrorist Screening Center, which maintains American terrorist watch lists, and
the U.S. National Targeting Center, which processes customs and Immigration
lookouts.150 The CBSA also creates its own immigration lookouts based on information in its case management and intelligence databases. The RCMP and
CSIS may also ask the CBSA to place either or both of customs and immigration lookouts.
Customs lookouts are generated from CBSA information, including Customs
case files maintained by CBSA Intelligence, and a mix of information from other
agencies that investigate criminal activity that crosses the border. These other
agencies include the RCMP, local or provincial police forces, CSIS, the CSE,
DND, Transport Canada, Environment Canada, the Coast Guard, the CRA, Health
Canada, the Canadian Food Inspection Agency, Natural Resources Canada and
the Canadian Nuclear Safety Commission; and U.S. partner agencies, including
the U.S. Customs and Border Patrol, the U.S. National Targeting Center and the
U.S. Terrorist Screening Center.
Immigration lookout flags may remain in force indefinitely.151 Customs lookouts are reviewed every 90 days. Unlike IRPA lookouts, customs lookouts do not
necessarily relate to admissibility to Canada and are therefore more likely to be
deleted over time.
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6.6.3
Advance Passenger Information/Passenger Name Record Information
Program
Under the Customs Act, the Minister of Public Safety may require any person or
class of persons arriving in Canada to provide personal information before arrival.152 This information falls into two categories. Advance Passenger
Information (API) is basic identifying data about a traveller, including name,
birthdate, gender, passport or other travel document information, and citizenship
or nationality. Passenger Name Record information (PNR) relates to a traveller’s
itinerary and reservation, and includes any information about a person contained in a transportation carrier’s reservation or departure control records.153
Such information could include, for example, details about e-mail addresses,
credit card billing or special health requirements.154
The CBSA may share API/PNR data that it collects with other government
agencies for national security or defence purposes, where there are reasonable
grounds to believe that the information relates to a real or suspected threat to
Canada’s security or defence.155 Information that could identify an individual
is removed 72 hours after arrival, but CBSA keeps the depersonalized PNR data
for various intelligence, research and analytical purposes. PNR data that has
been in the CBSA’s possession for longer than 72 hours may be reconnected
to information that identifies a specific individual if disclosed for national security purposes.156 CBSA policy provides that PNR data may be disclosed only for
the following:
•
•
•
•
reasons consistent with the purposes for which it was collected — that is,
to prevent terrorism or terrorism-related crimes, and organized crime that
is transnational in nature;
where disclosure is necessary for the protection of the important interests
of the data subject or other persons, particularly in relation to significant
health risks;157
to comply with subpoenas, court orders, or requirements for the production of information during the course of judicial proceedings; and/or
in accordance with the Customs Act, the IRPA, the Privacy Act and other relevant, enabling information-sharing legislation.158
Under the Customs Act, the CBSA may provide PNR data to a police agency
that takes custody of an individual arrested by CBSA officers for a customs offence.159 The Customs Act also allows the CBSA to disclose PNR data to regulatory agencies whose acts CBSA Customs administers at the border.160 For
159
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example, PNR data related to the enforcement of Part II of the Proceeds of
Crime (Money Laundering) and Terrorist Financing Act may be disclosed to
FINTRAC.161 The CBSA may also disclose PNR data to Health Canada to identify
travellers arriving in Canada who may have been exposed to highly contagious diseases.162
The CBSA may share PNR information with governments of foreign states
under written agreements or arrangements.163 The other country must agree to
protect the information in a manner similar to that in which PNR data is protected in Canada.164
The CBSA’s collection and analysis of API/PNR data is not connected to the
Canadian no-fly list (Transport Canada) or the American no-fly list. Further, the
transmission of API/PNR data to the CBSA under the Customs Act is not connected to the requirement that airlines provide PNR data upon request to
Transport Canada or the planned provision of such information by Transport
Canada to CSIS and the RCMP for flights in Canada.165
6.6.4
National Risk Assessment Centre
The CBSA’s National Risk Assessment Centre (NRAC) was established in January
2004 as a function of the Smart Border Declaration between Canada and the
United States.166 The Centre is staffed by CBSA personnel and a small number
of personnel from the Canada Revenue Agency.
NRAC has three main functions: (1) to receive API/PNR data and analyze
it for risk; (2) to receive terrorist watch list information from the United States;
and (3) to receive and analyze advance commercial information for risk. I discuss these below.
NRAC receives API/PNR information about inbound airline passengers
from air carriers prior to landing.167 NRAC cross-references API against its
internal Immigration and Customs enforcement databases to match passengers
against lookout flags or identify any previous issues with arriving individuals.
PNR information is fed into a risk-analysis system that risk-scores passengers
using algorithms developed from a large database of information. The algorithms are designed to identify constellations of factors that the CBSA states
indicate increased risk. Passengers considered to be at high-risk for possible
involvement with terrorism, as well as other serious crimes including smuggling and trafficking of drugs or people,168 are subject to closer questioning upon
arrival in Canada. Canada and the United States use the same risk-analysis system. A similar system, the Integrated Primary Inspection Line, is used to process
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the movement of travellers into Canada at selected ferry, bus, cruise ship and
rail locations.169
Pursuant to a 2005 memorandum of understanding,170 NRAC automatically
shares with the U.S. National Targeting Center API information for air passengers arriving in or transiting through Canada for whom terrorism or serious
crime-related lookouts have been issued. It is anticipated that PNR information
will shortly be shared for any traveller who receives a risk-score above a certain
threshold. Under the 2005 MOU, Canada and the United States automatically
share lookouts relating to potentially serious violations of customs or immigration laws.171
Under a 1997 agreement, the U.S. Terrorist Screening Center provides its terrorist watch list and any updates to CBSA’s National Security Division.172 The U.S.
list contains biographical information that is used to create IRPA lookouts for terrorist suspects.173 The CBSA does not receive information about Canadian or
U.S. citizens under this program.174 Temporary visa, immigration and refugee
applicants, as well as travellers to Canada, are screened against this list using the
lookout process. If CBSA or CIC officials encounter an individual whose name
appears on the U.S. terrorist watch list, they notify the U.S. Terrorist Screening
Center via the CBSA’s National Security Division175 and obtain more information on the substance of the lookout.176 As with other lookouts, CBSA personnel (and/or CIC personnel) will decide whether the individual in question is
admissible to Canada based in part on this additional information. CBSA or CIC
officials will report their decision on the person’s admissibility and the results of
the examination of the individual to the U.S. Terrorist Screening Center and to
designated U.S. Customs and Border Patrol officials.177
As its third function, NRAC also conducts similar electronic risk assessments
based on advance commercial information, including marine and air cargo manifests. CBSA officers and their counterparts at U.S. Customs and Border
Protection co-operate closely in the screening of cargo, particularly marine cargo.
For example, NRAC will receive details of shipping cargo manifests from shippers 24 hours before a ship bound for Canada is loaded. NRAC runs these electronic reports through a risk-assessment computer program similar to that used
for the API/PNR program.178 The CBSA has begun implementing a program that
requires air carriers to provide information about the shipper and details of the
contents of all cargo prior to arrival in Canada,179 and will eventually implement
similar systems for commercial goods shipped by rail and by road. Based on the
NRAC risk assessment, CBSA targeters will gather more information about highrisk cargo. This information gathering may involve CBSA Intelligence as well as
other agencies.
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6.6.5
Cargo Security Mandate
Under the Smart Border Declaration, Canadian and American border officers
may jointly inspect marine cargo bound for their respective countries at the first
port of arrival in North America. American Customs officials are stationed at the
ports of Halifax, Montreal and Vancouver, while Canadian officials are stationed
at the ports of Seattle-Tacoma and Newark.180 When in Canada, American
Customs officials have access to American databanks only, and make their own
targeting decisions based on internal information and guidelines. The same is
true of CBSA officers working at American ports. However, home country personnel conduct the actual examinations of cargo containers. There is no formalized information-sharing system associated with this initiative, although there
may be some informal, ad hoc sharing of information.
Currently, American Customs officers are present at key ports outside North
America to screen marine container shipments bound for the United States prior
to loading. This initiative, known as the Container Security Initiative, aims to
disrupt terrorist activity that targets marine shipping.181 Canada is planning to join
this initiative and is currently negotiating with several countries about deploying CBSA officials at important shipping ports.182
In addition, the American Department of Homeland Security has deployed
four gamma-ray scanning systems to capture images of rail cargo on Canadian
soil.183 These machines scan only rail shipments bound for the United States.
CBSA and RCMP agents will provide support to U.S. Customs personnel should
any high-risk security threats be detected.184
The CBSA also enforces the Export and Import Permits Act. The Act requires
exporters of certain strategic goods such as munitions and missile technology,
goods related to atomic energy, nuclear proliferation, or chemical or biological
weapons,185 and goods to certain countries186 to obtain an export permit from
the Minister of Foreign Affairs. Goods being exported without permits may be
seized at the border and forfeited. CBSA officers administering this act have all
the powers provided for in the Customs Act in relation to goods, including police powers of search, detention, seizure and forfeiture.187 To administer this act,
the CBSA collects information on exporters and importers of strategic goods and
conducts intelligence analyses.
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6.6.6
Participation in Integrated Teams
6.6.6.1
The CBSA and the RCMP
The CBSA participates regularly in joint initiatives with other Canadian government agencies, including the RCMP, to deal with issues of joint concern. The
CBSA sends a representative to ITAC, which I discussed earlier in this chapter,
and to INSETs and IBETs, which I discussed in Chapter IV. The CBSA’s participation in these teams has a border control nexus. In any integrated team environment, CBSA information is maintained in separate databases, and the CBSA
informs me that only relevant, focused information is brought forward to the
team as a whole. The CBSA controls the further use or dissemination of its information in integrated environments.
The CBSA may also request ad hoc RCMP assistance for major enforcement
operations.188 In the context of such operations, the RCMP and the CBSA jointly
develop a strategic plan, which the RCMP then approves. During joint operations, the CBSA assists the RCMP as the Force requests, and directs CBSA officers and resources in consultation with the RCMP.189 The RCMP may also assist
the CBSA in arresting, transporting and removing individuals when the two
agencies determine that the situation is potentially dangerous.190
The CBSA also participates in several other permanent integrated teams
with the RCMP, including:
•
•
•
•
the RCMP’s joint ports and waterfront investigation teams, which conduct
investigations and gather intelligence concerning organized crime and national security matters at ports and marinas;191
the RCMP’s Integrated Proceeds of Crime units, which aim to track and
seize proceeds of crime, including smuggling of contraband.
Representatives from the Canada Revenue Agency192 and the Department of
Justice also participate in these integrated units;193
the RCMP’s Combined Forces Special Enforcement Unit as part of the
Border Agency’s mandate to screen travellers and immigrants for links to organized crime;194 and
Integrated Market Enforcement Teams, which deal with capital markets
fraud.195
In addition, RCMP members from the RCMP’s Airport Federal Enforcement
Section may respond to specific requests for assistance from the CBSA.
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The RCMP and the CBSA share information about Canadian citizens and
permanent residents through both formal and informal co-operative information-sharing practices. The two bodies exchange strategic and tactical intelligence as well as intelligence on individual cases in the national security field.196
Tactical intelligence may include information about enforcement activities,
strategies and policies.197 Informal information sharing occurs regularly between
individual RCMP and CBSA officers: for example, a CBSA officer will contact a
local RCMP member whenever contraband is seized at a border crossing. The
CBSA and the RCMP share information with each other by request and on their
own initiative.198
The following list describes some of the ways that the CBSA and the RCMP
share information:
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•
•
•
•
•
The CBSA must provide the RCMP with access to any evidence, statements,
intelligence or internal notes in its possession related to the prosecution of
criminal offences by the RCMP.199 Generally, however, where the CBSA
makes an arrest for a criminal offence, the CBSA controls the evidence until
the point of a criminal prosecution.
Upon request, the RCMP provides the CBSA with evidence to prosecute
offences under the Immigration and Refugee Protection Act or other
legislation.200
The RCMP may request CBSA assistance in prosecuting offences that require the consent of the Attorney General of Canada to initiate proceedings.201 For example, the Attorney General of Canada’s consent is required
to prosecute offences against United Nations personnel, terrorist-financing
offences, or terrorist activities that occurred outside Canada where the accused is not a Canadian citizen.202 Consent is also required to prosecute the
offence of human smuggling under the IRPA.203
The RCMP notifies the CBSA of any permanent resident or foreign national
who has been charged under any act of Parliament so that the CBSA may
take appropriate action.204
The CBSA notifies the RCMP of the deportation of any individual with a serious Canadian or foreign criminal record. The RCMP notifies the CBSA of
the extradition of any non-citizen from Canada.205
The CBSA may, on its own initiative, share information obtained in immigration and customs interviews with the RCMP.206 If the CBSA conducts an
interview or examination based on lookout information from the RCMP,
the CBSA reports back to the RCMP any information that it obtains.
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•
•
•
•
•
•
•
•
•
The RCMP may provide information to the CBSA for use in immigration
and customs interviews, and may request that the CBSA seek clarification
of specific points during an interview.
RCMP and CBSA officers may conduct joint interviews of travellers, immigrants or refugees at points of entry into Canada. Such RCMP assistance
may be requested where national security concerns arise.207
Most CBSA officers can retrieve information from certain RCMP databases.
A small number of CBSA personnel may also add or modify information relating to CBSA prosecutions under the Customs Act in one RCMP database.208 The CBSA may disseminate information obtained from these
databases only in accordance with the information-sharing legislation that
I discuss above, and in some circumstances, with the RCMP’s permission.
The CBSA and the RCMP, along with CIC and CSIS, are designing a system
to transmit electronically information used for screening immigrants from
overseas CIC officers to CSIS and the RCMP in Canada. This system will interface with the shared CIC/CBSA immigration database.
The RCMP and CSIS may conduct joint threat assessments. On request, the
RCMP will give the CBSA a threat and risk assessment on the safety of CBSA
staff and the public with respect to CBSA activities relating to litigation, investigation and the removal of individuals.209
The CBSA uses the RCMP to pass information to local police forces.
The RCMP may request that the CBSA allow otherwise inadmissible individuals to enter or remain in Canada to assist with police operations or
criminal proceedings.210
The CBSA may request that an individual be included in the RCMP’s witness protection program.211
The RCMP and the CBSA may exchange personnel.
The RCMP, the Department of Justice and the CBSA also work together in
the Interdepartmental Operations Group to investigate, prosecute and/or deport
suspected war criminals from Canada.212
6.6.6.2
The CBSA and Other Agencies and Departments
The CSIS Act mandates CSIS to advise the Government of Canada, the Minister
of Citizenship and Immigration, and the Minister of Public Safety on matters
concerning the security of Canada that relate to citizenship or immigration.213
CSIS and the CBSA work very closely at both regional and headquarters levels
to ensure that individuals who are either inadmissible to Canada or of interest
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to CSIS are intercepted and examined by the CBSA. CSIS officers are stationed
at major points of entry to provide advice on national security threats in the
context of immigration legislation. In addition, although the coordination of
lookouts between CSIS and the CBSA is done at the headquarters level, when
the CBSA encounters the subject of an IRPA or Customs lookout, it advises CSIS
at a regional level. The CSIS regional investigator will be the first-line responder. Depending on the nature of the lookout, CSIS may or may not participate
in interviewing the person who is the subject of the lookout.
The CBSA and CSIS also have agreed to exchange information and intelligence upon request for both law enforcement and investigative purposes,214 and
CBSA officers may collect information for CSIS. Except in urgent situations, CSIS
requests for information would be sent to CBSA Headquarters and then relayed
to the appropriate field office. CBSA Intelligence officers may contact CSIS directly when national security concerns arise, and CSIS personnel may also conduct joint interviews with CBSA officers that are not related to lookouts.
The CBSA is also a member of the Interdepartmental Marine Security
Working Group led by Transport Canada, and has officers at the Marine Security
Operations Centres discussed in the Transport Canada section below.
In a crisis situation, the CBSA would also send a representative to the
Government Operations Centre, which I discuss in relation to PSEPC, and to
the RCMP’s National Operations Centre.
The CBSA participates in several national security initiatives involving both
Canadian and American authorities. The RCMP is the CBSA’s main Canadian
partner in joint Canada/U.S. border enforcement, while the Department of
Homeland Security and the U.S. Coast Guard are its key American partners.
6.7
INFORMATION SHARING
The CBSA is permitted by law to disclose information for the “purposes of national security, the defence of Canada or the conduct of international affairs.”215
Under this provision, the CBSA shares information with both domestic and foreign agencies. In addition, Customs and Immigration information is shared according to the provisions of the Customs Act, the Immigration and Refugee
Protection Act and the Privacy Act.
•
Customs information sharing, including the sharing of API/PNR data, is regulated by section 107 of the Customs Act.216 Under the Customs Act,
Customs information related to national security or the defence of Canada
may be disclosed to officials in other government departments that have
�CANADA’S NATIONAL SECURITY LANDSCAPE
•
•
responsibility for national security matters.217 These departments include
CSIS, DND, the RCMP, PCO, the CSE, PSEPC, Transport Canada, the
Canadian Coast Guard, and the Department of Fisheries and Oceans.
The Customs Act also authorizes the disclosure of information for law enforcement purposes in various circumstances,218 including where the CBSA
officer reasonably believes that the information relates to the investigation
or prosecution of indictable criminal offences or import/export offences.219
CBSA Customs may also share information about the cross-border movement of people with CBSA Immigration for the purposes of administering
or enforcing the Immigration and Refugee Protection Act.220
The Immigration and Refugee Protection Act allows the CBSA to share immigration information for the purposes of national security, the defence of
Canada and the conduct of international affairs.221 For these purposes, the CBSA
may share with CSIS, the RCMP, DFAIT, the CSE, PSEPC and DND. CBSA
Immigration also may disclose personal information to the RCMP, CSIS, SIRC or
any other federal investigatory body222 to enforce Canadian law or carry out a
lawful investigation.223 Such information may also be shared with any provincial
or foreign government or international body for law enforcement or investigatory purposes under the terms of an agreement.224
Approximately 150 government arrangements and agreements reference
the sharing of immigration and citizenship information.225 These include federal-provincial agreements, agreements with domestic agencies and non-governmental organizations such as the Red Cross, arrangements with the United
States and other foreign governments, and arrangements with various airlines
concerning the transportation of persons into Canada.226 Currently, the most important international information-sharing agreements in the immigration field
are the Statement of Mutual Understanding between Canada and the United
States, which I discuss in the section on CIC, and the TUSCAN/TIPOFF AideMemoire with the United States, which I discuss below.
By law, the CBSA exchanges certain information with FINTRAC, Canada’s
financial intelligence agency.227 The CBSA reports to FINTRAC importations and
exportations of currency or monetary instruments over $10,000 and information
about currency seizures.228 The CBSA may also disclose additional information
about importations or exportations if it suspects that the information would help
FINTRAC detect, prevent or deter money laundering or terrorist financing.229
CBSA officers also disclose information received under this part of the Act directly to the RCMP where the information would be relevant to the prosecution
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or investigation of money laundering or terrorist financing.230 By law, the CBSA
must record the reasons for any such disclosures.231
FINTRAC discloses information to the CBSA if it has reasonable grounds to
suspect money laundering or terrorist financing, or if it determines that the
information is relevant to an offence of evading payment of taxes or duties,232
or to an individual’s inadmissibility to Canada for reasons of national security,
criminality, involvement in war crimes, organized crime, money laundering or
terrorist financing.233 FINTRAC may also make disclosures to the CBSA if it suspects that an individual has committed a human smuggling or trafficking offence, or has made misrepresentations in the course of the immigration or
refugee process.234
Finally, the CBSA receives information from CIC domestically and abroad,
from front-line CBSA officers in Canada, local Canadian law enforcement agencies, business sources and partnership agreements, and anonymous tips, and
through its informant program. Information from anonymous tips and informants is scrutinized closely.
6.7.1
International Partners
The CBSA’s most extensive foreign information-sharing relationship is with
the Customs and Border Protection Branch of the U.S. Department of
Homeland Security.
CBSA Customs shares information with U.S. Customs counterparts under
the 2004 Memorandum of Understanding for the Automated Exchange of
Lookouts and the Exchange of API for High Risk Travellers, discussed above, and
under a 1984 treaty.235 The treaty is complemented by a 1982 memorandum of
understanding on the sharing of selected Customs intelligence information, including personal information, between what is now CBSA Customs, the RCMP,
and the U.S. Customs and Border Agency.236 The Privacy Commissioner has recommended that the CBSA seek to update and strengthen its personal information-sharing agreements with the United States, including by establishing
processes to protect trans-bordered personal information.237
The CBSA has 15 mutual assistance agreements in force in the customs field
and close to 25 agreements under negotiation with various countries.238 The
most commonly used agreements are with the United States, the United
Kingdom and France. Under these agreements, the CBSA will often share its analytical products, including trend analysis, with international partners.
International partners may request assistance with respect to the movement of
people, and occasionally partners will share lookout information.
�CANADA’S NATIONAL SECURITY LANDSCAPE
In the immigration field, Canada and the United States share information
under a Statement of Mutual Understanding in relation to the sharing of immigration information, and under a 1997 agreement for the exchange of terrorist
watch lists, which I have discussed above in relation to the National Risk
Assessment Centre.
Canada has signed memoranda of understanding to exchange immigrationrelated information with Australia,239 the Netherlands,240 the U.K.,241 New
Zealand242 and Hong Kong.243 Not all these arrangements are currently operational, however.244 In general, these arrangements permit the sharing of information, including personal information, to enforce or administer immigration
and citizenship laws and regulations, as applicable.
7.
CITIZENSHIP AND IMMIGRATION CANADA
7.1
RELEVANT LEGISLATION
•
•
Citizenship Act, R.S.C. 1985, c. C-29
Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA)
7.2
MANDATE
The Department of Citizenship and Immigration (CIC) and the CBSA have joint
responsibility for managing immigration and entry to Canada by non-citizens. In
broad terms, CIC’s mandate is to maximize the benefits associated with migration and the mobility of persons. CIC focuses on the selection, settlement and
integration of immigrants and refugees in Canada. In the context of non-citizens, the CBSA, on the other hand, focuses on enforcement, threats and risks
to Canada.
CIC and the CBSA collaborate closely, and officers from one department
sometimes perform functions that fall within the responsibility of the other.245 In
addition, individual cases may move from one department’s mandate to the
other’s as circumstances change. For example, some individuals may begin the
immigration or refugee admission process without being considered a threat,
and so fall under CIC’s mandate. If these individuals are later ordered removed
from Canada because they are found to be inadmissible, the CBSA takes over
management of their files. On the other hand, individuals subject to deportation
orders could regularize their status and so move from the CBSA’s mandate to fall
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within CIC’s area of responsibility. Even with the creation of the CBSA, however,
numerous CIC officials are still designated as peace officers, meaning that they
have powers similar to those of a police officer. CIC also has several dedicated
marine security officers who work in co-operation with the CBSA, port authorities and police agencies to target and prevent the entry of inadmissible individuals. As with all immigration officers, the IRPA gives marine security officers
the power to detain, refuse entry to and report people who are inadmissible
to Canada.
7.3
NATIONAL SECURITY ACTIVITIES
CIC is involved in two principal types of activities touching on national security.
First, CIC screens temporary visa and immigration applicants, applicants for citizenship and refugee claimants, within and outside Canada. Second, CIC performs pre-removal risk assessments, which I discuss below.
Potential immigrants to Canada, refugee claimants and temporary-visa applicants are screened prior to entry to determine their admissibility under the
Immigration and Refugee Protection Act. CSIS’ role in front-end screening has
been set out above. CIC is the lead agency in relation to criminality screening,246
whereas the CBSA has primary responsibility for security screening, including
screening for national security concerns and war crimes involvement.247 CIC and
the CBSA work closely together during this screening process.248
Where the CBSA has reason to be concerned that an individual may be inadmissible to Canada, a lookout flag may be attached to that person’s name in
the immigration database shared with CIC.249 Based on the information in the
lookout and any information gathered during the immigration or visa process,
a CIC officer dealing with the file determines whether the case should be referred to the RCMP or CSIS for further investigation. The RCMP is notified if
there are concerns about serious criminality, involvement in organized crime or
war crimes.250 CSIS is notified of concerns relating to threats to the security of
Canada. The Counter Terrorism Section of the CBSA Intelligence network also
assists with security screening.251 If, after further investigation, the RCMP or CSIS
finds no information to substantiate the concern, they send their report to CIC.
If the concern is substantiated, the RCMP or CSIS sends a report to the CBSA and
notifies CIC that concerns have been raised. The CBSA then provides advice to
CIC. In both scenarios, the final admissibility decision remains in the hands of
a CIC Immigration official with the appropriate delegated authority. The CBSA,
the RCMP or CSIS is informed of the decision.
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The front-end screening process for refugee claimants was introduced in
2001 to identify and filter potential security cases from the refugee claimant
stream as early as possible in the determination process.252 Individuals claiming
refugee status at points of entry to Canada have an initial screening interview
conducted by CBSA officers, while those applying from overseas are interviewed
by CIC officers. Both CIC and the CBSA conduct screening interviews within
Canada. Refugee claimants are photographed and fingerprinted, and this information is passed on to the RCMP and CSIS, which respectively conduct criminal record checks and security screening.253 The refugee claimant screening
program is conducted by the CSIS Security Screening Branch to provide security-related advice to the CBSA. RCMP or CSIS presence may also be requested
during interviews with refugee claimants or applicants for temporary or permanent visas when national security concerns arise,254 and may make oral recommendations to CIC Immigration personnel. Despite the involvement of CSIS and
the RCMP in the screening process, after the initial interview, CBSA officers determine whether a refugee claimant who is present within Canada or at a point
of entry should be detained or released before a hearing before the Immigration
and Refugee Board.255
Under an annex to the Statement of Mutual Understanding, information
about asylum seekers obtained during the interview and screening process may
be shared with the United States.256
7.3.1
Pre-removal Risk Assessments
CIC personnel are responsible for conducting pre-removal risk assessments for
certain non-citizens ordered deported from Canada.257 Under the pre-removal
risk assessment process, individuals subject to security certificates, immigration
and visa applicants, and refugees declared inadmissible on grounds of national
security, war crimes or organized criminality258 may apply to the Minister of
Citizenship and Immigration for protection from deportation on the basis that
they would be at serious risk of death, torture or inhumane or degrading treatment after being deported from Canada.259 In security certificate cases, the preremoval risk assessment process occurs after the ministers of Public Safety and
Citizenship and Immigration have signed the certificate, but before the Federal
Court judge reviews that certificate.260
The pre-removal risk assessment process will recommend that the deportation order not be enforced only if there is a serious reason to believe that the
risks the individual will face on return to their home country outweigh the risks
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the individual poses to the Canadian public or the security of Canada, or the nature and severity of the acts the individual has committed.261
The Minister of Citizenship and Immigration delegates a CIC official to assess the risks the individual will face upon deportation. The decision concerning these risks to the individual must be made according to the rules of
evidence,262 which, for example, do not allow statements made outside of court
to be used as proof except in very limited circumstances.263 All the information
used to determine the risk of torture or inhuman or degrading treatment is disclosed to the individual in question.264 A different CIC official then determines
whether it is reasonable to believe that the person poses a danger to national
security (referred to as a danger opinion).265 At this second stage, the whole of
the information on which the decision is based may not be disclosed to the individual, and the CIC official may consider any information, even if it would
not be admitted in a court under the rules of evidence.266 Next, the individual
subject to the security certificate has an opportunity to make submissions on
the risk assessment and the danger opinion.267 Finally, another, senior CIC
official balances any risk of torture against the risks that the individual poses
to Canada and decides whether the individual should be granted protection
from deportation.268 A Federal Court judge then reviews the lawfulness of
this decision.269
Individuals who are subject to security certificates, but against whom the deportation orders have been stayed, remain inadmissible to Canada. As a result,
these individuals can be held in an immigration detention facility until they no
longer face a serious risk of torture, inhuman or degrading treatment, or until a
Federal Court judge orders their release at a detention review because the judge
is satisfied that the individuals do not pose a danger to national security or to
the safety of any person. CIC also reviews the stay if conditions in the individual’s home country change.270
7.4
INFORMATION-SHARING ROLE
Intelligence analysis no longer falls within CIC’s mandate, but is now a CBSA
function. Although CIC no longer analyzes intelligence, it does collect and share
intelligence and information within Canada and internationally.271
CIC’s closest information-sharing relationship is with the CBSA. CIC relays
information, data and raw intelligence to the CBSA, and receives intelligence
information and products from the CBSA. Information provided by CIC to the
joint CBSA/CIC database is discussed above in the section dealing with the
CBSA. CIC has information-sharing agreements with both the RCMP and CSIS,272
�CANADA’S NATIONAL SECURITY LANDSCAPE
but in light of the creation of the CBSA, both agreements are being renegotiated.
However, CIC and the RCMP still co-operate and coordinate activities through
regional joint committees.273
One of the key international immigration information-sharing agreements
is the 2003 Statement of Mutual Understanding on Information Sharing (SMU)
between Canada and the United States. The Statement provides a mechanism to
exchange a wide variety of personal information between Immigration authorities in individual cases for the purposes of the SMU.274 One of the purposes of
the SMU is to share information about individuals who may pose a national security risk to either country.275 Information may be shared upon request or on
the initiative of either Canada or the United States.276 The SMU provides that requests for information should normally be made in writing, or confirmed in writing as soon as possible after the request has been made.277 In Canada, both CIC
and the CBSA share information under this agreement. The agreement provides
a mechanism for information sharing, while existing legislation and agreements
in Canada and the United States govern the information that may be shared.
Information on permanent residents may be shared by CIC for purposes consistent with the IRPA, subject to the Privacy Act and the Charter.278 The types of
information that can be shared include the following:
•
•
•
•
•
•
•
•
fingerprints and biometric data;
work history;
marital status and family composition;
education;
telephone numbers;
any documents submitted in support of an immigration application;
relevant criminal or security intelligence; and
any other information relevant to the request and consistent with the purposes of the SMU.279
Although the SMU includes confidentiality guarantees, information can be
passed on, without written permission from the originating agency, to a number of specified entities for citizenship, immigration or “border management”
functions.280 The entities listed include the FBI, CIA and Department of Defense
in the United States and the RCMP, CSIS, DFAIT and DND in Canada.281
Information may also be shared with any relevant oversight or review agency.282
Once information about a person has been shared, it is up to the recipient of
the information to ensure that the information has not been changed or corrected before acting on it.283
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An annex to the Statement of Understanding allows the automated, systematic sharing of information about refugee claimants.284 At the time of writing,
the Annex has been agreed upon but not yet implemented. Under the Annex,
Canada and the United States will systematically compare basic identity data or
biometrics (e.g., fingerprints) to identify refugee claimants who have had previous contact with authorities in either country. Where an applicant has had
previous contact, all information relevant to the refugee claim, including information relating to criminal or security concerns, will be exchanged. Records that
do not result in a match will be destroyed285 When implemented, the Annex
will allow the recipient to pass information on to other branches within each
government for the purpose of determining or reviewing refugee status claims.286
Information on citizens or stateless habitual residents of either country who are
claiming refugee status in the other country will not be exchanged.287 Written
permission from the originating government will be needed before information
can be shared with other foreign governments or international organizations.288
Canada and the United States also have two other information sharing
agreements. The 1997 TUSCAN/TIPOFF Aide-Memoire provides for the
sharing of data to prevent terrorists from entering North America.289 Another
more recent agreement deals with the return of refugee claimants to safe
third countries.290
CIC’s directives for sharing information under the Statement of Mutual
Understanding state “officers designated to share information should ensure
that the information being provided is not likely to result in danger to any
person or to cause serious injustice.”291 Officers are also directed to ensure that
only relevant and necessary information is disclosed, and are reminded that
they may attach terms and conditions to the information shared.292 Similarly,
officers are directed to record all information shared under the agreement and
to notify relevant American entities that received information has been updated
or corrected.293
�CANADA’S NATIONAL SECURITY LANDSCAPE
8.
TRANSPORT CANADA
8.1
RELEVANT LEGISLATION
Transport Canada works under various statutes. Some of the most important are
the following:
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•
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•
•
•
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•
Aeronautics Act, R.S.C. 1985, c. A-2
Canada Marine Act, S.C. 1998, c. 10
Canada Shipping Act, R.S.C. 1985, c. S-9
Canadian Air Transport Security Authority Act, S.C. 2002, c. 9, s. 2
Department of Transport Act, R.S.C. 1985, c. T-18
Marine Transportation Security Act, S.C. 1994, c. 40
Motor Vehicle Safety Act, S.C. 1993, c. 16
Navigable Waters Protection Act, R.S.C. 1985, c. N-22
Public Safety Act, 2002, S.C. 2004, c. 15
Railway Safety Act, R.S.C. 1985, c. 32 (4th Supp.)
Transportation of Dangerous Goods Act, 1992, S.C. 1992, c. 34
8.2
MANDATE
Transport Canada is responsible for safeguarding Canada’s transportation system,
which includes transportation by air, rail, road and water. While the department
does not run municipal mass transit, it takes the lead on national security matters in this area as well. Transport Canada sets policy and conducts inspections
related to the safety and security of air, surface and maritime transportation and
transport infrastructure.294 Under this rubric, the department has responsibility for
setting security standards for airports, surface transport, marine vessels (including cargo ships), ports and marine facilities. Inspectors enforce compliance with
legislation and policies that govern transportation carriers.
Transport Canada has an intelligence branch that receives intelligence and
transportation security information from CSIS, the CSE, DND Intelligence, CIC,
the CBSA, the RCMP, Environment Canada and the Coast Guard. This information is analyzed to identify threats to Canada’s transportation infrastructure.
Transport Canada may then inform federal, provincial, municipal and privatesector transportation providers of credible national security threats relating to
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transport, if the agency that gave the intelligence to Transport Canada agrees to
its onward disclosure.295
8.3
TRANSPORT CANADA INTELLIGENCE
The department’s intelligence analysis work is done in Ottawa by a group of
roughly 15 people. Another 50 people are involved in processing security clearances for workers with access to sensitive areas in airports.296
The RCMP, CSIS, the CSE, DND, PCO, DFAIT, ITAC, the CBSA and other
federal intelligence collectors regularly share intelligence reports with Transport
Canada. Transport Canada receives the RCMP’s Civil Aviation Protective
Intelligence Unit’s information bulletin, for example. The RCMP also provides
Transport Canada with written threat assessments where the Force has specific
intelligence on a potential threat involving a Transport Canada matter. Some
intelligence reports may contain personal information, depending on the issue
in question.
The department also may request intelligence to verify the credibility or reliability of previously obtained threat intelligence. Again depending on the issue,
this intelligence may also include personal information. For example, Transport
Canada could receive intelligence about a passenger on the U.S. no-fly list who
is flying over Canadian airspace and who has been assessed by the United States
as posing a threat to aviation security. Generally, the RCMP provides written
threat assessments where they have specific intelligence on a potential threat.
Transport Canada will then assess the information to determine whether it is
relevant to transportation security. Most of the intelligence that the department
receives from the RCMP relates to security clearances for employees working in
restricted or sensitive areas in airports. Transport Canada also receives information from the Coast Guard relating to commercial vessel traffic, which it then
evaluates from an intelligence perspective.
Transport Canada provides both classified and unclassified reports on transportation security. Within Transport Canada, intelligence is used to support departmental programs and operational responses. These reports give an
assessment of a particular threat or issue related to transportation security — a
report might discuss methods that terrorists use to circumvent security measures, for example. Personal information on suspected terrorists could be included where appropriate, but most reports would not include personal
information. Transport Canada uses intelligence to design policies and make
decisions. The department may also provide information obtained through its
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inspections to the RCMP, but only if this information is of immediate law enforcement value.
8.4
TRANSPORT SECURITY INITIATIVES
Transport Canada has significant responsibility for integrating the national security capabilities of various federal government departments relating to transportation security. Its initiatives include the following:
•
•
•
•
•
•
Leading the Interdepartmental Marine Security Working Group. The Group
is made up of 16 different departments and agencies,297 and includes a subworking group that examines legal issues related to the sharing of marine
security information, and particularly the sharing of information by Marine
Security Operations centres.
Leading the creation of a secure information system intended to facilitate the
sharing of marine security information (Maritime Information Management
Data Exchange) and Marine Security Operations centres.298
Leading the Interdepartmental Working Group on Aviation Security, which
includes representatives from the RCMP, CSIS and the CBSA.
Creating programs designed to increase scrutiny of air passengers.
Leading the Interdepartmental Threat Assessment group for Railway
Security, along with representatives from the RCMP, the Canadian Forces,
CSIS, the CBSA, the CSE and DFAIT.
Leading various cargo security initiatives.
I discuss some of Transport Canada’s most important security initiatives
below.
8.4.1
Maritime Security
8.4.1.1
Marine Security Operations Centres
Marine Security Operations Centres (MSOCs) are intended to detect, assess and
respond to marine security threats. Transport Canada, DND/CF, the CBSA, the
RCMP, and the Department of Fisheries and Oceans/Canadian Coast Guard send
representatives to MSOCs.299 MSOCs collect and analyze raw information and intelligence, largely related to marine domain awareness.300 It is expected that
MSOCs will share only finished intelligence products with other Canadian government agencies, although this sharing has not yet begun. This intelligence will
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likely be shared on both a push and a pull basis, meaning that some intelligence products will be regularly made available for agencies that need the information, while tailored products will be developed for specific cases or in
response to queries. Intelligence will be shared with the participating agencies,
other government agencies that need the information, IBETs and INSETs.301
MSOCs may be involved in sharing personal information, in accordance with relevant legislation. However, DND advises that MSOC agencies generally would
not need personal information held by other organizations.
Although the overall planning and implementation of MSOCs is a Transport
Canada initiative, the Canadian Navy leads operations at the MSOCs in Halifax,
Nova Scotia, and Esquimalt, British Columbia.302 The RCMP leads operations at
a third, interim MSOC, on the Great Lakes–St. Lawrence Seaway that currently
has representatives from only the RCMP and DND.303 MSOCs have access to the
Government Operations Centre in Ottawa, as well as to the Coast Guard marine
communications and traffic services systems.304 However, as in ITAC, each participating department has access to its own databases only.
Within a MSOC facility, a Coast Guard officer’s role is to improve maritime
situational awareness by collecting maritime data to be analyzed and used by
MSOC partners. This information includes current weather and geographic conditions and real-time reports from personnel on Coast Guard vessels conducting surveillance, reconnaissance or other routine activities in relation to
commercial vessel and pleasure craft traffic. In addition, Coast Guard officers
within the MSOC maintain linkages to other Coast Guard maritime field resources to report or help confirm occurrences that may have national security
implications, and support analytical intelligence activities at the MSOC.
8.4.1.2
MIMDEX
In 2003, the Interdepartmental Marine Security Working Group sponsored a
study on the Maritime Information Management Data Exchange (MIMDEX). The
study concluded that the various departments and agencies involved in maritime security did not have the necessary information infrastructure to bring together relevant security information. MIMDEX, which is not operational at the
time of writing, will integrate various government departments (other than
CSIS305) into a wide-area network. It will use information from existing government systems to provide a more complete marine status “picture,” facilitate coordinated action and alert departments to targets of potential interest.306
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8.4.2
Aviation Security
8.4.2.1
Security Screening
Transport Canada also conducts security clearances for airport employees who
require access to restricted or sensitive areas.307 The RCMP or CSIS collects the
information, but any decision to refuse clearance lies with the Department of
Transport.308 Transport Canada is developing a system of clearances for port
and rail workers, as well as a background-check program for truckers who transport dangerous goods across the Canada-U.S. border, which both countries will
recognize.309 Most of the interaction between the RCMP and Transport Canada
concerns these security clearances.
8.4.2.2
Air Passenger Scrutiny
In relation to the air transport portion of its mandate, Transport Canada is creating a no-fly list of specified persons (called Passenger Protect) in conjunction
with PSEPC portfolio agencies, including CSIS, the RCMP and the CBSA.310 The
list will include the names of individuals who the Minister of Transport believes
pose “an immediate threat to aviation security.”311 Individuals whose names are
listed will not necessarily be prevented from boarding an aircraft, but they may
be subject to additional scrutiny and questioning before boarding the plane.
Canadian security intelligence or law enforcement agencies, or foreign agencies
such as the American Transportation Security Administration, could ask that a
certain person be placed on the list. Transport Canada will review the proposal
and make a recommendation to the Minister of Transport. In the case of requests from foreign agencies, the department will also seek advice from the
RCMP and CSIS. Airlines will check passenger names against the list and any
person whose name appears will not be allowed to board the plane. The list is
expected to be put into place in early 2007, and will include some form of reconsideration mechanism.312
For the purposes of transportation security, Transport Canada may also ask
airlines for API/PNR information313 on specific passengers or on all passengers
on specific flights. Such information includes name, nationality, passport number, dates of travel, amount of checked baggage, seat assignment, travel itinerary, method of payment and other booking information.314 The Aeronautics Act
allows Transport Canada to share this information — for the purposes of
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transportation security only — with the Minister of Citizenship and Immigration,
the Minister of Public Safety, the CEO of the Canadian Air Transport Security
Authority, or designated CSIS and RCMP personnel. The law also allows the
ministers of Public Safety and CIC, and the CEO of CATSA, to share the information with CBSA, CIC and CATSA employees. Information provided to designated CSIS or RCMP officials may be disseminated further in the same way as
the information described below.315
Under the Aeronautics Act, and in conjunction with the Minister of Public
Safety, Transport Canada is creating a system that will allow designated RCMP
and CSIS officials to receive and analyze passenger information and match it
against RCMP and CSIS databases,316 or other information in their control, without a warrant.317 Once the relevant legislation comes into force,318 designated
CSIS personnel will be able to disclose API/PNR information within CSIS or to
other agencies for national security and transportation security purposes.
Information disclosed within the Service could later be shared with domestic
agencies with which CSIS has intelligence-sharing arrangements, or with foreign
agencies as part of an ongoing investigation.319 Designated CSIS personnel who
share this information, either within or outside the Service, will be required by
the CSIS Act to keep a record of the disclosure and the reasons for it for the purposes of review by SIRC or the CSIS Inspector General.320
Designated RCMP personnel will be able to share passenger information for
transportation security purposes.321 The RCMP, for example, could use this information to assign aircraft protection officers (commonly referred to as ”sky
marshals”) on flights, or to arrest individuals prior to boarding.322 Designated
RCMP personnel also may share this information to enforce arrest warrants for
indictable offences punishable by five years or more imprisonment, which are
listed in proposed regulations;323 and to enforce arrest warrants under the
Immigration and Refugee Protection Act and the Extradition Act.324
The legislation is intended to provide CSIS and the RCMP with a continuous feed of all passenger information for all international inbound, outbound
and domestic flights within Canada.325 In addition, Transport Canada is considering implementing an automated passenger assessment system in the future.
The Public Safety Act, 2002 included Aeronautics Act provisions that allow
for the creation of the no-fly list, as well as case-by-case and systematic sharing
of passenger information between Transport Canada, the RCMP and CSIS.326 I
have discussed the Act in more detail in Chapter III.
�CANADA’S NATIONAL SECURITY LANDSCAPE
9.
CANADIAN AIR TRANSPORT SECURITY AUTHORITY
9.1
RELEVANT LEGISLATION
•
•
Aeronautics Act, R.S.C. 1985, c. A-2
Canadian Air Transport Security Authority Act, S.C. 2002, c. 9 (CATSA Act)
9.2
MANDATE
The Canadian Air Transport Security Authority (CATSA) is a Crown corporation
established by the Canadian government as part of its response to the 2001 terrorist attacks on the United States. CATSA is responsible to Parliament through
the Minister of Transport.327 CATSA came into existence on April 1, 2002, and
has a very specific mandate.328 It is responsible for:
•
•
•
•
•
•
screening air passengers and their belongings before passengers board the
aircraft;
operating, maintaining, acquiring, installing and positioning systems to detect explosives at designated airports;329
transferring specified funds to the RCMP for the Canadian Air Carrier
Protective Program, which places armed RCMP officers on certain flights
designated by the Minister of Transport and all flights to Reagan National
Airport in Washington, D.C.;
implementing an enhanced identification card for non-passengers to control access to restricted areas at major Canadian airports. The new card includes biometric identifiers such as fingerprints and iris scans;
random screening of non-passengers (flight crews, concessions employees,
baggage handlers, etc.) accessing restricted areas at major airports; and
contributing towards the financial cost of increased policing at airports.330
CATSA designs procedures for airport screening and trains screeners,331 but
contracts with private companies (screening providers) who employ the individual screeners themselves.332 CATSA’s mandate focuses on items rather than
individual travellers: it is concerned with the items that passengers try to bring
on board an aircraft.333 However, CATSA’s CEO may receive information from
Transport Canada about specific individuals or individuals on board a specific
flight to which there is an immediate threat.334 CATSA is also responsible for
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screening and verifying the identity of non-passengers who have access to restricted areas at designated airports.
Although all air passengers must submit to a search before boarding an
aircraft, CATSA’s screening officers have no police powers to arrest or detain
individuals.335 Therefore, like any private person, CATSA screening officers may
arrest an individual whom they find committing a criminal offence or whom
they reasonably believe has committed a criminal offence and is fleeing from
the police or another authority.336 In the case of such an arrest, the CATSA
screening officer must deliver the suspect to a police officer or other authorized
person as quickly as possible.337 In practice, police officers would collect
any personal information from an individual stopped by CATSA screeners.
Further, CATSA screeners are instructed not to search specific individuals on behalf of police.
CATSA does not have responsibility for screening air cargo or airmail.
Since its mandate relates to screening for prohibited items, rather than for
prohibited persons, CATSA generally does not collect any personal information
on air passengers. However, CATSA would keep a traveller’s personal information if trace amounts of explosives were detected on the individual’s luggage or
effects. CATSA’s responsibility for screening and issuing biometric identification
cards to non-passengers accessing restricted areas in airports does involve collecting personal information.
CATSA receives intelligence from Transport Canada. The underlying information may come from agencies such as CSIS, PCO, ITAC or the CBSA. If necessary, CATSA then drafts a bulletin using select, relevant information to
disseminate to service providers and screening officers. CATSA would normally
receive information about non-specific threats, not information about a particular individual. The RCMP or the local police force would have responsibility for
dealing with a specific individual identified as a threat. While the Minister of
Transport, or the Minister’s delegate, may disclose personal information about
airline passengers to CATSA’s CEO for transportation security purposes,338 this
power had not been used as of March 2006.
�CANADA’S NATIONAL SECURITY LANDSCAPE
10.
CANADIAN COAST GUARD
10.1
RELEVANT LEGISLATION
•
•
•
Canada Shipping Act, R.S.C. 1985, c. S-9
Oceans Act, S.C. 1996, c. 31
Vessel Traffic Services Zones Regulations, S.O.R./1989-98
10.2
MANDATE
The Canadian Coast Guard is Canada’s civilian maritime safety organization and
the owner and operator of the federal government’s fleet of civilian maritime
vessels. The Coast Guard is a decentralized organization that has been designated as a Special Operating Agency within the Department of Fisheries and
Oceans Canada. It is responsible to Parliament through that Minister. The Coast
Guard administers its own programs and supports programs run by Fisheries and
Oceans Canada and other government departments. It is responsible for marine
search and rescue, marine communications and traffic management services,
icebreaking, marine pollution response, aids to navigation in Canadian waters,
and waterway channel maintenance.339 In addition, the Coast Guard is often
called upon to provide expertise and assistance in response to national emergencies. Unlike the members of the U.S. Coast Guard, Canadian Coast Guard officials are not armed and do not have police enforcement powers.340
Transport Canada and the Department of National Defence are the lead
federal departments for maritime national security. The Coast Guard plays a supporting role.341 However, the RCMP and the Coast Guard are increasingly integrating their on-water coordination and response operations, and the Coast
Guard is involved in integrated national security intelligence initiatives. The
Coast Guard’s national security support generally relates to maritime domain
awareness support activities or to on-water operations support activities. Most
information the Coast Guard shares with other Canadian departments or agencies is in the public domain. However, the Coast Guard will put appropriate
caveats on disclosure where advised to do so by legal counsel.
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10.3
ON-WATER OPERATIONS IN SUPPORT OF NATIONAL SECURITY
The National Security Policy adopts the notion of a secure perimeter extending
out and around North America. As a result, the role of the Canadian Coast
Guard Fleet as a source of on-water platform and personnel support to the
Canadian security community is being emphasized. The Coast Guard’s role includes the following:
•
•
•
•
•
•
Providing search and rescue and disaster response capacity for maritime
national security emergencies. Coast Guard vessels are also used to transport RCMP emergency response teams and Canadian Forces JTF 2 teams responding to marine emergencies.342
Serving on the Transport Canada-led Interdepartmental Marine Security
Working Group.
Being a partner in the RCMP/Coast Guard St. Lawrence Seaway–Great Lakes
Marine Enforcement program.343 The program uses Coast Guard vessels as
platforms for RCMP officers to perform national security and law enforcement patrols on the St. Lawrence Seaway and the Great Lakes.344
Participating in the DND Secure Fleet Communications initiative that will
see the installation of secure communications as well as command and control equipment on the Coast Guard’s large vessel fleet, allowing the integration of equipped Coast Guard vessels in the DND command and
control realm.
Supporting Canadian Forces, the RCMP, the CBSA, Transport Canada,
Environment Canada, DFO Fisheries Management and Health Canada onwater operations through direct and indirect participation in on-water national security incidents.
Collecting and collating vessel traffic data with respect to vessels in
Canadian waters, by operating radar and marine communications systems,
and by controlling marine traffic using the Coast Guard Marine
Communications and Traffic Services (MCTS) program. The MCTS program
tracks certain types of vessels in Canadian waters,345 directs marine traffic
in congested waterways, monitors and responds to distress calls, screens
vessels intending to enter Canadian waters, and relays commercial and private correspondence from ships.346 Transport Canada and DND are currently negotiating with the Coast Guard for access to its MCTS system. MCTS
supports Transport Canada national security activities through an arrangement by which Coast Guard MCTS officers receive the notice of arrival information that Transport Canada requires for commercial vessels intending
�CANADA’S NATIONAL SECURITY LANDSCAPE
•
•
to enter Canadian waters. This information is provided to the Coast Guard
96 hours before the vessel enters Canadian waters, verified by the Coast
Guard and then forwarded to Transport Canada Marine Security for evaluation from an intelligence perspective.
Providing maritime traffic data to other Canadian intelligence agencies
through Marine Security Operations Centres, which are discussed in the
Transport Canada section of this chapter, and upon request to the RCMP,
DND/CF, Transport Canada and the CBSA. Through MSOCs, the Coast
Guard provides maritime domain awareness input and analysis to IBET operations. Upon request, the Coast Guard will provide information about a
specific vessel to other federal agencies. Most vessel traffic data is in the
public domain and is accessible on the Internet.
Upon request by the RCMP, providing vessels and crews to support
IBETs, in intercepting illegal traffic in individuals and goods. More rarely,
the Coast Guard supports INSETs conducting marine national security operations. The Coast Guard advises that it very rarely provides support to either IBETs or INSETs, and does not have a significant role in either of these
integrated teams.
Although not a Coast Guard program, the data collected by aerial surveillance flights operated by the DFO Fisheries Management sector’s Conservation
and Protection Branch provides DND with surveillance data on maritime vessel
activity off the Atlantic and Pacific coasts. Information from these flights includes
sightings, vessel types, locations, identification and photography. The data is
useful for the effective deployment of other resources such as military and Coast
Guard vessels.
11.
FINANCIAL TRANSACTIONS AND REPORTS ANALYSIS
CENTRE OF CANADA
11.1
RELEVANT LEGISLATION
•
•
•
Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C.
2000, c. 17 (PCMLTFA)
Proceeds of Crime (Money Laundering) and Terrorist Financing
Regulations, S.O.R./2002-184
Proceeds of Crime (Money Laundering) and Terrorist Financing Suspicious
Transaction Reporting Regulations, S.O.R./2001-317
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11.2
MANDATE
The Financial Transactions and Reports Analysis Centre of Canada (FINTRAC)
collects, analyzes and discloses information on suspicious and other prescribed
financial transactions in Canada. The agency’s main function is to support law
enforcement and security intelligence investigations into terrorist financing and
money laundering. The terrorist financing aspect of FINTRAC’s mandate was
created by the Anti-terrorism Act,347 which I have discussed in more detail in
Chapter III. FINTRAC is responsible to the Minister of Finance348 and was created to act at arm’s length from law enforcement, CSIS and other bodies to which
it is authorized to disclose information.349 Protecting personal information is explicitly included in FINTRAC’s mandate.350
Although it may receive information from any source, FINTRAC tends to
collect information through five main channels: other federal government departments and agencies, foreign intelligence units, private sector reporting, CBSA
reporting and inspections of reporting entities.351
The RCMP (including the National Security Operations Branch) and other
municipal or provincial police forces, CSIS, the CSE, ITAC, the CBSA, the CRA,
DFAIT and SIRC may voluntarily provide information to FINTRAC concerning
suspected money laundering and terrorist financing operations.352 However, FINTRAC cannot request specific information from these agencies. Foreign financial
intelligence units also provide information about suspicious transactions.353
Foreign agencies can provide information voluntarily or in response to a request
from FINTRAC.
Most of FINTRAC’s information comes from private sector reports. Any business providing financial services, including banks, brokerage houses, real estate
brokers, and remittance businesses that send money to foreign countries, must
provide reports of the following types of transactions to FINTRAC:
•
•
•
•
cash transactions over $10,000, other than withdrawals;
international electronic currency transfers over $10,000, where the sender
or the recipient is outside Canada;
suspicious transactions; and
reports from an organization that is holding the property of a terrorist group
listed in the Criminal Code.354
FINTRAC also receives reports from the CBSA about the cross-border movement of $10,000 or more in cash or monetary instruments.355 The Centre issues
guidance to help businesses determine which transactions are suspicious,356 but
�CANADA’S NATIONAL SECURITY LANDSCAPE
leaves the final decision in the hands of the reporting entity on the basis that
these businesses are best positioned to know which transactions are unusual in
their area.357 This reporting is mandatory.358 FINTRAC also conducts inspections,
during which it has the power to examine records and inquire into the business
and affairs of a reporting entity to ensure compliance.359 In addition, FINTRAC
has access to commercial databases, limited access to one RCMP database360 and
limited access to the Canadian Police Information Centre.361 FINTRAC has the authority to enter into agreements to access national security databases,362 but has
not yet done so. It also runs education campaigns to promote compliance.363
FINTRAC analyzes data to identify patterns that suggest terrorist financing
or money laundering activity. To do this, FINTRAC uses its own databases, public and commercially available databases, and other government databases.
Where it has reasonable grounds to suspect that information that it is authorized
to disclose would be relevant to an investigation or prosecution of terroristfinancing or money-laundering offences, FINTRAC must share that information
with the RCMP or other appropriate police forces.364 Where it has reasonable
grounds to suspect that such information would be relevant to threats to the security of Canada, FINTRAC must disclose information to CSIS.365 FINTRAC must
disclose information that it suspects is relevant to the investigation or prosecution of terrorist-financing or money-laundering offences to the Canada Revenue
Agency if it also determines that the information relates to an offence of evading or attempting to evade paying taxes or duties imposed by a statute administered by the Minister of National Revenue (e.g., the Income Tax Act).366 The
CRA reviews these disclosures to determine whether to undertake tax enforcement action.
FINTRAC has information-sharing agreements with financial intelligence units (FIUs) in thirty foreign countries and may disclose information to
those FIUs.367
A typical case disclosure would likely identify six or seven individuals or
five businesses, and would involve a considerable number of transactions of
various kinds, often reported by two or more reporting entities.368 Approximately
25 percent of FINTRAC’s 2004 workload dealt with suspected terrorist financing
activity.369 FINTRAC is required to record the reasons for making disclosures to
CSIS, police forces, the CBSA, the CRA and foreign agencies.370
In the absence of a judicial order for disclosure, FINTRAC is permitted to
disclose only certain designated information, including:
•
•
information about the transactions;
where the transactions took place;
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•
•
the individuals conducting the transactions; and
any accounts, businesses or other entities involved.371
Information about an individual may include name, address, telephone
number, citizenship, date of birth, and passport or similar document number.372
Information voluntarily provided by law enforcement or CSIS is not included in
FINTRAC’s onward disclosures.
FINTRAC’s complete analysis of suspect transactions, including the reasons
for suspecting terrorist financing or money laundering, is available only to police officers or CSIS agents, and only if a judge orders disclosure.373 The Proceeds
of Crime (Money Laundering) and Terrorist Financing Act also provides stiff
penalties for wrongful disclosure: FINTRAC staff members who make unauthorized disclosures can face penalties of up to five years in jail or a $500,000 fine,
or both.374 From the time FINTRAC became operational in 2001 until the end of
the first quarter of 2006, it received nine court orders to produce its full case
analysis. The Auditor General has criticized the restrictions on the information
that FINTRAC is permitted to disclose to law enforcement,375 and the Department
of Finance is studying the possibility of expanding the amount of information
that FINTRAC may provide.376 The federal government has recently announced
that it plans to make some changes to the regime.377 FINTRAC does not put restrictions on domestic agencies’ use of information from its disclosures.
The Proceeds of Crime (Money Laundering) and Terrorist Financing Act
puts constraints on information that may be disclosed to foreign financial intelligence units:
1.
2.
3.
4.
Only the designated information described above may be disclosed.378
Information may be disclosed only for intelligence purposes related to investigating money-laundering or terrorist-financing offences, or substantially similar offences.379
Any onward disclosure by the foreign unit requires FINTRAC’s consent.380
Information may only be shared based on an agreement between FINTRAC
and the foreign entity.381
To consent to onward disclosure by a foreign unit, FINTRAC requires information about the nature of the foreign investigation. Where the foreign investigation is consistent with the purpose for which FINTRAC collected the
information in question (i.e., combating money laundering or terrorist financing),
FINTRAC will consent to further disclosure. Consent might be refused if disclosure were requested for an unrelated purpose or if FINTRAC had received the
information from another agency, and that agency refused further disclosure.382
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FINTRAC treats all information received from other Canadian agencies as
caveated, and does not further disclose this information without the express
written consent of the originating agency. When FINTRAC decides whether to
enter into an information-sharing agreement with a foreign financial intelligence
agency, it considers the country’s willingness and ability to protect the information that FINTRAC provides and to honour the restrictions that FINTRAC
places on the information.383 The Minister of Finance must approve all
such agreements.384
12.
CANADA REVENUE AGENCY
12.1
RELEVANT LEGISLATION
•
•
Charities Registration (Security Information) Act, S.C. 2001, c. 41, s. 113
(CRSIA)
Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.)
12.2
NATIONAL SECURITY MANDATE
The Canada Revenue Agency’s (CRA) national security mandate relates to the
registration of charities. The Charities Registration (Security Information) Act385
(CRSIA) was part of the 2001 Anti-terrorism Act. Under the CRSIA, an organization can lose or be denied charitable status if both the Minister of National
Revenue and the Minister of Public Safety sign a certificate asserting that there
are reasonable grounds to believe that the organization has made, is making or
will make any resources directly or indirectly available to a terrorist group.386
The CRSIA process is similar to that used in security certificate cases under
the Immigration and Refugee Protection Act, although to date no certificates
have been issued under the CRSIA.387 After a certificate has been signed and issued by the two ministers, a Federal Court judge reviews its reasonableness.388
In making this determination, the judge may review and rely upon information
that the judge determines must be kept secret from the charity because its disclosure would harm national security or endanger the safety of any person.389
The judge must give the charity a summary of the information that reasonably
informs the charity of the circumstances giving rise to the certificate, but that
does not include any information that in the judge’s opinion, would harm national security if disclosed.390 If the certificate is found to be reasonable, the
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organization is denied registration as a charity or stripped of charitable status for
seven years.391 The judge’s decision may not be appealed.392
The Review and Analysis Section within the Charities Directorate analyzes
data, including intelligence assessments, briefs and classified information provided by the RCMP and CSIS, and publicly available information, to identify
charities that may be involved with or lend support to terrorist organizations.393
At present, the CRA does not receive information from foreign counterpart agencies responsible for charities and tax regulatory officials, although it hopes to be
able to conclude such arrangements in the future. After completing its analysis,
the CRA will make a recommendation to the Minister of National Revenue regarding the issuance of a certificate. In a parallel process, staff at CSIS or the
RCMP will do the same for the Minister of Public Safety.
If a registered charity or an organization applying for registration is included
on either of the UN terrorist entity lists (the UNSTR and UNAR lists) or on the
Criminal Code terrorist entity list, the CRA evaluates the organization and begins
action under either the CRSIA or the Income Tax Act.
12.3
INFORMATION SHARING
The CRA is a collector of intelligence to the extent that it collects taxpayer information, some of which may be useful in anti-terrorism investigations.394 Under
the new CRSIA, information sharing between the CRA and other government
agencies — including the RCMP, CSIS and PSEPC — has also increased.395 To administer or enforce CRSIA, the CRA may disclose information on registered charities to any official employed by the federal government, including RCMP
members.396 Information relevant to issuing a CRSIA certificate is also shared
with PSEPC. To date, the CRA has provided information to the RCMP’s AntiTerrorist Financing Group in relation to the certificate process on a very few
occasions. However, other government agencies, including the RCMP and CSIS,
would not be able to use most of this information for their own national security investigations because of the confidentiality provisions in the Income
Tax Act.397
Under current legislation, information about registered charities and other
taxpayers can be disclosed outside of the CRA only in limited circumstances. In
addition to disclosure for the purposes of CRSIA, information may be disclosed
after criminal charges have been laid under a federal law398 or under the authority of a judge’s order.399 On an ex parte application by the Attorney General,
such an order can be made to further an investigation into a terrorism offence
in the Criminal Code,400 and CSIS may also access taxpayer information with a
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warrant issued under the CSIS Act.401 Certain information relating to registered
charities is also publicly available, and therefore may be disclosed by CRA to personnel from the RCMP, CSIS and other agencies with national security responsibilities.402 Where legal proceedings have been started under federal or
provincial laws relating to the imposition of taxes or duties, the CRA may disclose taxpayer information.403 Therefore, the CBSA can also access some CRA information while enforcing customs and excise legislation. The CRA may also
disclose taxpayer information to appropriate persons where it relates to imminent danger of death or physical injury to any individual.404 The CRA states that
the threshold for exchanging information under this provision is very high and
that such disclosures are rare and limited.
A recent government consultation paper suggested amending the Income
Tax Act and the Proceeds of Crime (Money Laundering) and Terrorist Financing
Act, to allow the CRA to disclose files on charities and other taxpayers suspected
of involvement with terrorist financing, to among other agencies, FINTRAC, CSIS
and the RCMP. Disclosures would be allowed for specific financial tracking,
intelligence and national security purposes. FINTRAC would also be allowed
to share information with CRA when it had reasonable grounds to suspect
that a registered charity was being used to fund terrorism. I am advised that
the Department of Finance is currently considering making these legislative amendments.
13.
FOREIGN AFFAIRS AND INTERNATIONAL TRADE CANADA
13.1
RELEVANT LEGISLATION
•
•
•
•
Department of Foreign Affairs and International Trade Act, R.S.C. 1985,
c. E-22
Order in Council, P.C. 2006-0040, February 6, 2006
United Nations Act, R.S.C. 1985, c. U-2
United Nations Suppression of Terrorism Regulations, S.O.R./2001-360
(UNSTR)
13.2
MANDATE
Foreign Affairs and International Trade Canada (DFAIT) is responsible for the
conduct of Canada’s international relations.405 The department manages
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Canadian embassies, high commissions and consulates abroad, which provide
diplomatic and consular assistance to Canadians in foreign countries. DFAIT is
the lead Canadian agency in international treaty negotiations, including the various international treaties on terrorism.406 The department has many areas of responsibility, including a dedicated International Crime and Terrorism Division.407
This division has primary responsibility for Canada’s participation in and coordination with the anti-terrorism efforts of international organizations such as the
United Nations and the North Atlantic Treaty Organization,408 and plays a role
in listing terrorist entities under its purview.
The Department of Foreign Affairs and International Trade has over 9,600
employees, including 1,900 members of the Foreign Service, over 3,000 other
staff within Canada and 4,600 locally engaged employees working for Canadian
missions abroad.
13.3
NATIONAL SECURITY ACTIVITIES
The Department of Foreign Affairs and International Trade has broad responsibility for Canadian diplomatic initiatives related to combating terrorism in the international arena. As I discussed in my report on the Factual Inquiry, Canadian
missions and diplomats play an important role when Canadian citizens are imprisoned or accused of terrorist activity abroad. Another facet of DFAIT’s diplomatic role is to obtain assurances from foreign governments that an individual
will be treated in accordance with international standards (e.g., not be tortured)
if deported to his or her home country. Such assurances are arranged on a caseby-case basis and, generally, through an exchange of diplomatic notes.409
Through its Legal Bureau and its International Crime and Terrorism
Division, DFAIT plays the lead role in the listing of terrorist entities under the
United Nations Suppression of Terrorism Regulations410 (UNSTR) and the United
Nations Afghanistan Regulations (UNAR).411 Like the Criminal Code list, the
UNSTR and the UNAR lists include the names of individuals as well as groups
or organizations.412 The UNAR and the UNSTR are distinct listing processes. The
UNAR applies by reference to all individuals and entities designated by the
Security Council Committee established under Security Council Resolution 1267
(the 1267 Committee), that is, to members of the Taliban, and to Osama Bin
Laden and his associates. The UNSTR applies to two groups: first, the individuals and entities on the 1267 Committee list; and second, individuals and entities
listed by the Governor in Council in Schedule 1 to the regulations.
The 1267 Committee lists entities and individuals upon the request of a
member state. Therefore, an individual or entity listed as a terrorist by the United
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Nations may have their assets seized or frozen in any or all UN member states
that incorporate the listings into their domestic laws.413 The 1267 Committee’s
listings have force and effect in Canada by virtue of their incorporation by reference into the UNAR and into Schedule 1 of the UNSTR.414
The United Nations has not established standards governing when the
1267 Committee may list a person or entity, and different countries use different standards when requesting listings.415 For example, in November 2001, at the
request of the United States the United Nations listed a Canadian citizen based
on that person’s connections to an international money transfer network suspected of dealings with al-Qaeda, and despite the fact that there was no evidence linking him, as an individual, to terrorist financing.416 DFAIT is currently
creating a process to review the listing of new individuals and entities by the
1267 Committee.
A country may make diplomatic representations to the UN Security Council,
in accordance with the 1267 Committee’s guidelines, asking that an individual
be removed from the UN lists. The Canadian government made such representations to have the above-mentioned Canadian citizen removed from the UN
list because there was no reasonable basis for believing that the individual was
connected personally to terrorist activities. That individual was delisted after
nearly nine months, during which time his personal and business assets remained frozen.417
The second group listed under the UNSTR are individuals and entities that
DFAIT recommends for listing. The regulations allow DFAIT to list additional individuals where there are reasonable grounds to believe that a listed person is
involved in terrorist activity.418 The DFAIT process usually begins when DFAIT
is notified that another country intends to list an entity. DFAIT then calls a meeting with other departments and agencies to discuss the proposed listing, and
provides its recommendations to the Governor in Council.419
A person listed by DFAIT under the UNSTR may apply to the Minister of
Public Safety to be removed from the list.420 The individual is delisted if the
Governor in Council accepts the Minister’s recommendation that there are reasonable grounds for the individual’s removal.421
13.3.1
DFAIT Intelligence
DFAIT’s Foreign Intelligence Division (ISI) provides intelligence to protect
Canadian citizens and government facilities abroad, and to support operational
and policy decision making. It also manages the expulsion of Canadian
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diplomats from foreign countries for security reasons and handles terrorist incidents abroad that involve Canadian citizens.422
ISI is responsible for liaison with DFAIT’s principal intelligence partners,
CSIS, the CSE, DND, the RCMP and PCO, and occasionally with other members
of the Canadian intelligence community, including the CBSA, CIC and Transport
Canada. ISI also liaises with foreign intelligence agencies. In addition, ISI oversees the collection, analysis and dissemination of foreign intelligence within
DFAIT. DFAIT maintains full-time, dedicated intelligence officials at the Canadian
missions in London, England; Washington, D.C., USA; and Canberra, Australia,
as well as other locations.423
ISI prepares current intelligence assessments and interview reports based on
interviews with individuals who have travelled to countries of intelligence interest to DFAIT and who have information about those countries that is not in
the public domain. Current intelligence assessments focus on events of high foreign policy interest and tend to relate to a single issue — Iran’s efforts to develop
nuclear weapons is an example. In contrast, intelligence assessments by the
International Assessment Staff at the Privy Council Office look at broader and
longer-term issues — prospects for the remainder of Russian President Vladimir
Putin’s term, for example; while ITAC reporting focuses on threats to Canada’s
security, such as assessments of the development of Sunni Muslim extremism.
DFAIT also considers itself a major consumer of foreign intelligence. The department advises me that over 400 clients at its Ottawa headquarters, along with
staff at 60 missions abroad, receive substantial amounts of foreign intelligence
on a daily basis.
DFAIT is also responsible for the security of the department’s personnel,
physical assets and information systems in Canada and around the world.
13.3.2
RCMP Foreign Liaison Officers and Secondees to DFAIT
The RCMP and DFAIT are parties to a memorandum of understanding reached
in 1988.424 The MOU deals primarily with the relationship between the RCMP
and DFAIT. One of the main objects of this MOU is to set out the role of RCMP
Foreign Liaison officers posted abroad. These liaison officers maintain relationships with foreign criminal police agencies and related institutions to provide
support and assistance to Canadian law enforcement agencies in the prevention and detection of offences under Canadian federal laws. In the national security context, information and intelligence exchanged with a foreign police
agency flows through the liaison officer responsible for the area in which the
foreign agency is located. This exchange is generally accomplished without
�CANADA’S NATIONAL SECURITY LANDSCAPE
coordination with CSIS. I am informed that if the information is relevant to
CSIS’ mandate, the RCMP seeks the foreign police agency’s permission before
sharing it with CSIS. The liaison officer is responsible for ensuring that foreign
partners understand the difference in the roles of CSIS and the RCMP, and
must report information and intelligence about national security matters to
Headquarters.
The MOU provides that the RCMP and DFAIT are to mutually agree upon
the creation of liaison officer positions. It also gives DFAIT the right to comment
on the liaison officer’s performance appraisal. There are a total of 40 liaison officers in 25 locations: Berlin, London, Madrid, Moscow, Paris, Rome, The Hague,
Vienna, Bogotá, Caracas, Kingston, Mexico City, Miami, Washington, D.C., Hong
Kong, Islamabad, Kuala Lumpur, New Delhi, Beijing, Bangkok, Amman, Brasilia,
Rabat, Pretoria and Dubai.
The RCMP/DFAIT MOU also provides for meetings between senior members of each institution. Further, it requires the RCMP to inform DFAIT of proposed RCMP visits abroad for operational purposes, except visits to the United
States, unless the meeting might have a bearing on Canada’s relations with the
United States.
The RCMP also seconds a member to DFAIT. One role of the RCMP secondee is to facilitate the exchange of information between the two organizations.
Such information exchanges come within four categories:
1.
2.
3.
4.
Investigative, including updates by the RCMP on ongoing criminal investigations that may have foreign policy implications and provision of information relevant to the RCMP by DFAIT.
Protective, including exchange of information regarding the environment
abroad to ensure the security of official visitors to Canada and to develop
security profiles for foreign missions.
Consular, including advice during crisis incidents such as hostage takings
involving Canadians abroad.
General, including information on the smuggling of weapons and nuclear
materials.
On occasion, each organization also provides technical security advice and
assistance to the other.
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14.
PRIVY COUNCIL OFFICE
14.1
MANDATE
The Privy Council Office (PCO) provides non-partisan advice and support for the
Prime Minister, departments within the Prime Minister’s portfolio, the federal
Cabinet and Cabinet committees.425 As the head of government in Canada, the
Prime Minister has ultimate responsibility for national security. The Prime
Minister is supported by the National Security Advisor to the Prime Minister, and
by the Security and Intelligence Secretariat and the International Assessment
Staff, which are all part of the Privy Council Office. In addition to participating
in the Interdepartmental Threat Assessment Working Group, PCO Security
Operations chairs the Departmental Security Officers’ Readiness Committee. As
well, PCO and Treasury Board Secretariat co-chair the recently formed Strategic
Steering Committee on Security.
PCO’s stated role in the determination of intelligence priorities is to promote
effective coordination among involved departments and agencies and enable
them to jointly present their proposed strategic priorities to ministers.
14.2
NATIONAL SECURITY ADVISOR
The National Security Advisor is the Prime Minister’s principal advisor on matters of national security, and provides advice and support for Cabinet discussions
on national security matters. The National Security Advisor coordinates activity
among members of the Canadian security and intelligence community, and promotes a coordinated and integrated approach to intelligence and threat assessment. The National Security Advisor also maintains relationships with allied
governments by acting as a senior Canadian representative on national security
issues, visiting allied countries, hosting international visitors in Canada and participating in other exchanges. The National Security Advisor helps to develop national security policy and identify measures to address national security
vulnerabilities. At its discretion, the RCMP may brief the National Security
Advisor on particular RCMP investigations of terrorism offences. Such a briefing
would aim to keep the National Security Advisor generally aware of any significant national security development in the country and enable him or her to
brief the Prime Minister, where appropriate. The National Security Advisor does
not provide guidance or instructions to the RCMP.
�CANADA’S NATIONAL SECURITY LANDSCAPE
The National Security Advisor is also the Deputy Minister for the
Communications Security Establishment, and accountable for the CSE’s policy
and operations. In addition, the Advisor is accountable for the Integrated Threat
Assessment Centre, although the Director of CSIS has administrative responsibility for ITAC. PCO has one person seconded to ITAC.
The National Security Advisor is supported by two PCO secretariats — the
Security and Intelligence Secretariat and the International Assessment Staff —
which are discussed below.
14.3
SECURITY AND INTELLIGENCE SECRETARIAT
The Security and Intelligence Secretariat (S&I Secretariat) advises Cabinet and the
Prime Minister on the management of national security and intelligence issues
and activities, and on the coordination of government responses to emergencies.
The S&I Secretariat works with federal departments and agencies to coordinate
important security measures. In addition, the Secretariat advises and supports
ministers on specific national security and intelligence issues. In a national security emergency situation, the S&I Secretariat would be alerted by the
Government Operations Centre,426 the RCMP or CSIS, and would provide direction and guidance to departments and agencies on behalf of the National
Security Advisor.
In conjunction with other federal departments and PCO secretariats, the
S&I Secretariat works on issues related to managing the Canada-U.S. border. The
Secretariat coordinates and monitors the implementation of the security component of the Security and Prosperity Partnership of North America, which includes the exchange of terrorist watch list data and information on high-risk
travellers or cargo; the development of compatible mechanisms for screening
travellers; compatible export control, visa and lookout policies; joint inspections
of certain maritime vessels; the development of interoperable communications
systems; and joint planning for critical cross-border infrastructure protection.427
Other departments and agencies involved in managing the Canada-U.S. border
include the CBSA, CIC, the Canadian Coast Guard/DFO, DFAIT, the Public Health
Agency of Canada, NRCAN, CSIS, the RCMP, PSEPC and Transport Canada.
In addition, the S&I Secretariat:
•
works closely with the RCMP, CSIS and other agencies to coordinate security arrangements for the Prime Minister, the Governor General and Cabinet,
and to conduct preappointment background checks for persons appointed
to public office;
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•
•
•
administers the security program for PCO and the Prime Minister’s Office;
advises departments and agencies on internal security issues; and
works with the RCMP, Public Works and Government Services Canada, the
National Capital Commission, the Senate and the House of Commons on issues concerning security of the Parliamentary Precinct.
The S&I Secretariat works with the RCMP at three levels: first, on policy issues, largely through discussions in interdepartmental committees and bilateral
meetings; second, on individual files involving criminal activity related to
Canada’s security and on emergencies; and third, on the protection of the Prime
Minister, Cabinet or Parliament, and RCMP background checks. For the purposes of advising ministers and coordinating government-wide measures, PCO
may receive information about ongoing RCMP investigations where these investigations involve criminal activity that relates directly to Canada’s security.
PCO’s access to RCMP information is on a limited and need-to-know basis, although discussions of national security matters and emergencies could involve
the sharing of personal information.
14.4
INTERNATIONAL ASSESSMENT STAFF
The International Assessment Staff (IAS) produces current and strategic assessments of developments and trends in foreign countries that could affect
Canadian foreign policy, security or economic interests. Analysts draw from all
sources of information — open-source to classified. Through ITAC, the IAS receives terrorism analysis reports from ITAC’s partners in the U.K., the U.S.,
Australia and New Zealand. In addition, the IAS receives intelligence assessments directly from key partners (the U.S., the U.K., Australia, New Zealand,
Spain, Germany, Belgium and Singapore). Intelligence other than assessments
comes via CSIS and the CSE. Much of this material is available to ITAC via partner agencies, but what the IAS receives from foreign partners is also posted on
a secure network to which ITAC has direct access. IAS provides its assessments
for the Prime Minister, other senior ministers and senior decision makers in government agencies, including Agriculture and Agri-Food Canada, the Bank of
Canada, the CBSA, CFIA, CIC, CIDA, the CSE, CSIS, Environment Canada, EDC,
Health Canada, Industry Canada, the Canadian Commercial Corporation, Justice
Canada, Natural Resources Canada, PCO, PSEPC, the RCMP, SIRC, Transport
Canada, Infrastructure and Communities, DND, DFAIT, Human Resources and
Social Development, the National Energy Board, Finance Canada (occasionally)
and Treasury Board Secretariat (infrequently).
�CANADA’S NATIONAL SECURITY LANDSCAPE
Other agencies can receive IAS products if their employees have the required clearance, and if the agencies have the facilities and equipment to hold,
file or destroy IAS material; the means to receive the material; and a reason to
need access to the reports. Assessments focus on strategic and geo-political
questions, and contain very little personal information on Canadians. However,
the IAS does study foreign leaders and prominent terrorists in their capacity as
political actors. Unlike ITAC, the IAS does not track terrorists, but an IAS assessment could include a discussion of the impact of a prominent foreign terrorist. PCO’s secondee to ITAC is a member of the IAS.
The IAS also plays a key role in maintaining relationships with allied
intelligence assessment organizations and has a mandate to liaise with
Canadian academia.
The intelligence assessments that the IAS receives from foreign partners are
usually strategic in focus and rarely contain personal information. Although the
IAS receives information directly from the intelligence assessment services of
some closely allied governments, it obtains most intelligence information
through CSIS and the CSE. ITAC receives terrorist threat warnings and related assessments from allied partner agencies and forwards these to others in the
Canadian community, including the IAS.
The IAS does have access to some RCMP information, particularly on criminal issues of national and global significance, but there is little interaction on
matters related to terrorism. Although the IAS receives RCMP security information that is circulated to those with the appropriate security classification and a
need for the information within the government, there is no regular flow of information between the two organizations. Information vital to an ongoing RCMP
operation would not be shared with the IAS.
15.
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
CANADA
15.1
RELEVANT LEGISLATION
•
•
•
•
Canada Border Services Agency Act, S.C. 2005, c. 38 (CBSA Act)
Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23 (CSIS Act)
Department of Public Safety and Emergency Preparedness Act, S.C. 2005,
c. 10 (PSEP Act)
Emergency Preparedness Act, R.S.C. 1985, c. 6
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•
•
•
•
Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA)
Proceeds of Crime (Money Laundering) and Terrorist Financing Act,
S.C. 2000, c. 17 (PCMLTFA)
RCMP Act, R.S.C. 1985, c. R-10
Security Offences Act, R.S.C. 1985, c. S-7
15.2
MANDATE
Public Safety and Emergency Preparedness Canada (PSEPC) was created in
2005.428 However, in December 2003 responsibility for certain agencies and portions of the public service were transferred to the Minister of Public Safety and
Emergency Preparedness, who legally continued to be known as the Solicitor
General of Canada.429 As of February 6, 2006, the Minister of Public Safety and
Emergency Preparedness adopted the new title of Minister of Public Safety.430
The Minister of Public Safety replaces the Solicitor General and, subject to other
statutes, has authority over all matters relating to public safety and emergency
preparedness not specifically assigned to another federal department or agency.
As the lead department on public safety, PSEPC has a lead role in national
security policy development.431 To fulfill this mandate, the Minister may co-operate with foreign states.432 The Minister may also facilitate the sharing of information, where authorized, to promote public safety objectives.433 The Minister
of Public Safety is responsible for the PSEPC portfolio agencies, which include
the RCMP, CSIS, the CBSA and the Correctional Service of Canada,434 as well as
the Commission for Public Complaints Against the RCMP, the Office of the
Correctional Investigator and the RCMP External Review Committee.435 The
PSEPC portfolio has over 52,000 employees.436
PSEPC is divided into five branches, of which the following three are relevant to national security:
•
•
the Emergency Management and National Security Branch, which is responsible for national security policy; emergency analysis, warning and response, including the Government Operations Centre (GOC) and the
Canadian Cyber Incident Response Centre; emergency management policy; and emergency preparedness and recovery, including the Canadian
Emergency Management College;
the Policing, Law Enforcement and Interoperability Branch, which is responsible for policing policy and “law enforcement and border strategies,”
and for facilitating information sharing and the interoperability of databases
and computer systems for security and public safety purposes; and
�CANADA’S NATIONAL SECURITY LANDSCAPE
•
the Community Safety and Partnerships Branch, which is responsible for
crime prevention and corrections.
15.3
NATIONAL SECURITY ACTIVITIES
PSEPC has a lead role in national security policy development,437 while PCO
provides leadership and acts as the Government’s central coordinating body.
For example, from a national security perspective, PCO is the lead department
on the Security and Prosperity Partnership, which involves several departments
and agencies.
PSEPC provides independent advice and support to the Minister of Public
Safety on matters specifically related to the Minister’s mandate of public safety,
national security and emergency management. To do this, PSEPC analysts consult with PSEPC portfolio agencies, other federal departments and agencies,
provincial and territorial governments, and the international community. The
PSEPC portfolio includes two of Canada’s primary collectors of national security
information — the RCMP and CSIS — as well as the CBSA.
From a policy perspective, PSEPC provides advice and support to the
Minister relating to the direction, control and accountability of CSIS and the national security activities of the RCMP and the CBSA. The department is also involved in developing and reviewing ministerial directives on national security,
and is responsible for developing legislation that affects PSEPC portfolio agencies. In addition, PSEPC has created the Cross-Cultural Roundtable on National
Security, which is intended to facilitate dialogue between the Canadian government and different cultural communities within Canada.438
The Minister of Public Safety and PSEPC portfolio agencies are involved
in the issuance of certificates under the Charities Registration (Security
Information) Act,439 and the security certificate procedure under the Immigration
and Refugee Protection Act.440 Security certificates allow the government to detain (with a view to deporting) non-citizens who are inadmissible to Canada on
grounds of security, violating human or international rights, serious criminality
or organized criminality.441
PSEPC also takes the lead role in the terrorist entity listing process under
the Criminal Code.442 Under this listing process, the Minister of Public Safety
may recommend to the Governor in Council that certain entities be listed as terrorist entities.443 The Criminal Code sets out a procedure for a listed entity to
apply to the Minister to be delisted,444 and provides for judicial review of the
Minister’s decision.445 The Minister must also review the list every two years.446
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As I discussed in Chapter III, being a listed entity is not a crime in itself.
However, listing entails several legal consequences. For example, a listed entity
falls within the definition of “terrorist group” in the Criminal Code; may have its
Canadian assets seized or forfeited;447 and may not access or dispose of property held by a Canadian institution, such as a bank or brokerage house.448 A listing supports the application of other provisions in the Anti-terrorism Act,
including terrorism offences; crimes relating to the financing of terrorism; and
requirements to freeze terrorist property, and procedures for the courts to order
seizure and forfeiture of that property.449
The listing process under the Criminal Code is one of three terrorist entity
listing processes in Canada. The Department of Foreign Affairs and International
Trade is responsible for listing entities under the United Nations Suppression of
Terrorism Regulations450 and the United Nations Afghanistan Regulations.451 The
Criminal Code, UNSTR and UNAR lists are not identical, nor are the consequences of listing.452 The Criminal Code list serves to support criminal prosecutions for terrorism offences in Canada and to freeze or forfeit terrorist assets.
The UNSTR and UNAR lists, on the other hand, aim only to halt the flow of terrorist financing. An individual or entity listed as a terrorist by the United Nations
may have assets seized or frozen in Canada, and worldwide, in accordance with
the legislative scheme for freezing terrorist assets in other countries. I have discussed the UNSTR and UNAR processes in the section of this chapter on DFAIT.
15.4
INTELLIGENCE AND INFORMATION SHARING
PSEPC receives information relating to public safety or emergency preparedness, including national security information, and determines the appropriate
response. The department receives classified national security intelligence information from its own portfolio agencies, from other government agencies and
through the Integrated Threat Assessment Centre. PSEPC receives information on
“national security matters” (within the meaning of the National Security Policy)
from the following federal organizations, excluding its portfolio agencies: PCO,
DND, the CSE, DFAIT, Transport Canada, Environment Canada, CIC, the CRA,
the Canadian Food Inspection Agency, the Public Health Agency of Canada and
Health Canada, and the Canadian Nuclear Safety Commission. Information from
ITAC comes to PSEPC principally as intelligence threat assessments. PSEPC also
has two analysts seconded to ITAC. Occasionally, CSIS, ITAC or RCMP intelligence products may refer to individuals. PSEPC does not normally have access
to the operational details of RCMP national security investigations, nor to RCMP
databanks. Similarly, it does not have direct access to CSIS databases.
�CANADA’S NATIONAL SECURITY LANDSCAPE
PSEPC shares threat information with provincial and territorial governments
and agencies in the context of the Government’s National Security Policy. The
information transmitted usually does not include personal information. In rare
circumstances, at the request of the originating agency, personal information
may be shared with specified organizations on a need-to-know basis and in relation to an emerging or occurring event that directly affects the safety of
Canadians. General threat information may be shared with the private sector as
part of PSEPC’s critical infrastructure protection role. The Canadian Cyber
Incident Response Centre, which monitors cyberthreats, may also disseminate information to the private sector. When appropriate, sensitive cyber information
is shared with the private sector under a non-disclosure agreement.
PSEPC shares classified information with provincial entities that have a need
to know and the appropriate security clearance. The department has developed
a pilot project to share secret-level classified information within the federal government via an e-mail system, and has a secure communications link with the
United States Department of Homeland Security (DHS).453 The Government
Operations Centre shares its own information with the DHS directly, but does
not share information from PSEPC portfolio agencies or ITAC with the DHS.
PSEPC states that the GOC has not shared personal information about Canadians
with the DHS.
The GOC provides strategic-level coordination and direction on behalf of
the federal government, in response to actual or potential emergency situations
affecting the national interest. Its mandate encompasses a broad range of threats
to Canada, from terrorism to natural disasters to serious diseases. The Centre receives classified and unclassified information from federal, provincial, territorial
and international partners, including assessed intelligence products and information useful for coordinating and supporting responses to an emergency. It reviews, analyzes and disseminates this information to appropriate response
organizations, including provincial and territorial entities and the private sector
on a need-to-know basis. The GOC does not have databases to keep or store
personal information.
16.
OTHER FEDERAL DEPARTMENTS AND AGENCIES
INVOLVED IN NATIONAL SECURITY OPERATIONS
In addition to those that I have described above, a number of other federal departments and agencies play a role in Canada’s national security and intelligence
community. For example, many of the departments listed below are “virtual
partners” in ITAC — they receive ITAC reports and exchange information with
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ITAC, but do not have a physical representative at the Centre. The following
gives a brief description of the national security activities of these departments.
16.1
HEALTH CANADA AND THE PUBLIC HEALTH AGENCY OF CANADA
Health Canada and the Public Health Agency of Canada (PHAC) analyze health
threats to Canada. The Public Health Agency of Canada was created in
September 2004 and is part of the federal government’s National Security
Policy.454 Health Canada studies subjects like infectious diseases and chemical,
biological and radio-nuclear attacks, in relation to their health consequences for
Canadians and the repercussions for Canadian social and economic stability.455
Health Canada and the Public Health Agency of Canada contribute technical expertise on public health issues and input on the health impact for national security threat and risk assessments.
The Centre for Emergency Preparedness and Response (CEPR) is Canada’s
central coordinating point for public health security issues. Among its many responsibilities, CEPR:
•
•
•
•
•
•
•
develops and maintains national emergency response plans for the Public
Health Agency of Canada and Health Canada;
is the health authority in the Government of Canada on bioterrorism, emergency health services and emergency response;
assesses public health risks during emergencies;
monitors outbreaks and global disease events;
manages the Global Public Health Information Network, a secure, Internetbased early warning system that monitors health emergencies, including
bio-terrorism and exposure to radio-nuclear threats, around the world.456
contributes to developing Canada’s health and emergency policies to ensure
they are in line with threats to public health security and general security,
in collaboration with other federal and international health and security
agencies; and
administers federal public health rules governing laboratory safety and security, quarantine and similar issues.457
Following 9/11, the CEPR created the position of Special Advisor/Medical
Threat Intelligence. Since then, Health Canada and the Public Health Agency
have established contacts with intelligence colleagues in PCO, CSIS, the CSE
and the RCMP. Health Canada and the Public Health Agency provide a medical
and public health context to intelligence information when appropriate to PCO
and other security and intelligence agencies, and receive relevant intelligence
�CANADA’S NATIONAL SECURITY LANDSCAPE
information, including classified information. Health Canada/PHAC may also receive Passenger Name Record information from the CBSA for travellers arriving
in Canada who pose serious public health risks. Finally, Health Canada and the
Public Health Agency of Canada are virtual partners in ITAC, and are represented at the RCMP National Operations Centre (NOC) at RCMP Headquarters
when the NOC is activated.
16.2
CANADIAN FOOD INSPECTION AGENCY
The Canadian Food Inspection Agency administers all federal laws relating to
food inspection, plant protection and animal health programs.
The Agency establishes import policies and standards for plants, animals
and food, which the CBSA enforces at points of entry to Canada. It provides advice and support, including veterinary support, to the CBSA in relation to the
import of high-risk animals, plants or food. The Agency maintains an emergency
response plan and provides support to the provinces in preparing for and responding to emergencies involving food safety, animal or plant protection, or
any of its other programs. It is also a partner in The Chemical, Biological,
Radiological and Nuclear Strategy of the Government of Canada,458 and participates in research initiatives aimed at detecting and treating biological threats to
food, plants and animals. The Agency is currently working to improve laboratory ability to handle potential biohazard emergencies.
The Agency has established the Information Gathering and Analysis Team,
an intelligence-gathering unit that collects and analyzes information related to
the Agency’s mandate. Along with the RCMP, this team is a member of the
Canadian delegation to the Science and Technology Intelligence Group. It has
access to classified and public information from various sources, including interdepartmental working groups, and information sharing arrangements. The
RCMP and the Food Inspection Agency co-operate and share information related to protecting the food industry. The Agency also has the capacity to use
the geographic information system (GIS) to locate all Canadian farms, feedlots,
food and animal industry and infrastructure in an emergency response scenario.
The Agency is a virtual partner in the Integrated Threat Assessment Centre.
16.3
ENVIRONMENT CANADA
The Enforcement Branch of Environment Canada consists of both an
Environmental and a Wildlife Enforcement directorate. The Branch is a federal
law enforcement body that enforces Canadian environmental legislation. It
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provides information, intelligence and expertise to support various national security initiatives, including transportation and border security. These initiatives
principally relate to emergency response to incidents, control of the transboundary movements of hazardous waste, toxic and new substances that may
pose a threat to the health of Canadians or the environment. The RCMP helps
Environment Canada to enforce the Canadian Environmental Protection Act,
1999, and shares information regarding the management of toxic substances
and the enforcement of pollution prevention laws with the National Office of
Pollution Prevention.459
Environment Canada also runs intelligence programs, which are linked to
the department’s law enforcement mandate. These programs gather and analyze information in relation to chemical manufacturing and associated industries, trade in endangered animals, plants and animal parts, and the
transboundary movement of hazardous waste. The intelligence programs provide information to managers and enforcement personnel within Environment
Canada, and share information with external law enforcement agencies, including the RCMP, the CBSA, the Canadian Food Inspection Agency and provincial
ministries of environment, for the purposes of enforcing environmental legislation. The programs also produce tactical, operational and strategic intelligence
products on:
•
•
•
•
the location, quantities and transboundary movements of toxic and hazardous substances that must be reported to the department;
the introduction and manufacture of new substances into Canada, including biotechnology, genetically modified organisms and chemicals;
criminal activity, including activity of organized crime and criminal organizations that violate environmental laws; and
the importation of invasive, exotic or harmful species, and potential associated diseases such as avian influenza.
The department has just over 20 intelligence officers, who perform both information collection and analysis functions. The intelligence programs collect information from several sources, including the Internet, departmental databases,
media, universities, informants, surveillance and covert operations. Enforcement
officers, or Intelligence officers designated as Enforcement officers, collect information and have powers similar to those of police officers to enforce various
environmental laws. Most intelligence products and information are internal documents used for law enforcement purposes. Within the context of national security, the intelligence programs may obtain information during their activities
that is relevant to another agency’s mandate, and Environment Canada may
�CANADA’S NATIONAL SECURITY LANDSCAPE
share this information. Information that might be shared would include information regarding the toxicity of certain chemicals or substances, the potential for
harm of certain hazardous wastes, and the locations of these substances or
wastes. Environment Canada advises me that information about companies or
individuals engaged in these activities would be shared only where there are
clear indicators of a potential risk to national security. To date, the only information relating to national security that Environment Canada has shared with
other government departments and agencies is technical information about
chemical and toxic substances. The department is hoping to substantially increase its intelligence programs.
In addition to its enforcement mandate, Environment Canada supports public safety planning, situational awareness and enforcement response within the
federal government, by supporting emergency preparedness, planning and response activities through the Environmental Emergencies Directorate and the
Meteorological Service. The department is also involved in the Interdepartmental
Marine Security Working Group, and is a virtual member of the Integrated Threat
Assessment Centre.
16.4
NATURAL RESOURCES CANADA
Natural Resources Canada has a mandate to protect critical energy infrastructure
under federal jurisdiction in Canada, including energy facilities in Canada and
facilities that cross the Canada-U.S. border. Natural Resources Canada protects
infrastructure such as energy transmission lines and oil and gas pipelines. The
department is also responsible for explosives licensing and compliance under
the Explosives Act460 and the Explosives Regulations,461 and for a substantial part
of the government’s explosives security research and various government mapping and charting projects.462
Agencies within the Natural Resources portfolio, reporting to the Minister
of Natural Resources, include the National Energy Board, the Canadian Nuclear
Safety Commission and Atomic Energy Canada Limited. These organizations operate with a high degree of autonomy, including in their interactions with elements of the Canadian security and intelligence community.
The department interacts with the RCMP in relation to the protection of
Canada’s critical energy infrastructure. This includes protection of oil and natural gas pipelines, hydro generation and electrical transmission infrastructure systems, offshore oil and gas exploration, and the development and production of
infrastructure systems. To this end, the RCMP and Natural Resources Canada
share information and intelligence. Under the Explosives Act and the Explosives
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Regulations, RCMP members are deputy inspectors of explosives. Natural
Resources Canada may request RCMP assistance in conducting compliance inspections and investigations in cases of non-compliance with the legal scheme,
or where there has been a theft or loss of explosives. The department provides
the RCMP with information on explosives licence holders and is working closely
with the Force to develop a security check capacity for individuals wishing to
acquire and possess explosives. Natural Resources Canada manages the
Canadian Section of the International Boundary Commission. In this capacity, the
department interacts with the CBSA and jointly monitors unauthorized constructions or activities within 3.05 metres (10 feet) of the border with the
United States.
The RCMP and Natural Resources Canada also interact in the context of the
Chemical, Biological, Radiological and Nuclear Research and Technology
Initiative.463 Natural Resources Radiation Geophysics Section conducts high-sensitivity aerial mapping of naturally occurring and man-made radioactivity.
Although information sharing between the RCMP and Natural Resources would
be low under normal, non-threat conditions, Natural Resources could be expected to communicate unusually high levels of radioactivity to the RCMP units
that are first-responders to environmental threats.
Natural Resources Canada also interacts from time to time with law enforcement and security intelligence agencies to access or share information relevant to the department’s mandate. The department shares information with the
RCMP and CSIS, and ITAC may consult it with respect to subject matter within
its expertise, or during the preparation of an ITAC threat assessment.
In the context of its critical infrastructure protection role, Natural Resources
Canada advises PSEPC and the CBSA. It also works closely with government
departments and agencies in the United States and Mexico, sharing information
on policy and operational issues.
16.5
CANADIAN NUCLEAR SAFETY COMMISSION
The Canadian Nuclear Safety Commission is both an administrative tribunal and
a regulatory agency. It regulates and controls the use of nuclear energy and materials in Canada. The Commission also licenses and inspects the Canadian nuclear industry, which includes large nuclear power plants, uranium mines,
nuclear exporters, and industrial and academic users of radioisotopes. The
Commission sets physical protection standards at major nuclear facilities. For
example, it issued an Emergency Order in October 2001 requiring all such facilities to establish an onsite, armed response force.464 The Commission shares
�CANADA’S NATIONAL SECURITY LANDSCAPE
information with the RCMP or CSIS about irregularities in any of the activities
that it oversees. ITAC may also consult the Commission when preparing a
threat assessment.
The Commission also provides technical assistance to develop and implement emergency response plans for a possible radiological attack on Canada.465
The RCMP’s Public Security and Anti-Terrorism/Chemical, Biological,
Radiological, Nuclear Training unit and the Commission have participated in
joint training exercises.
16.6
DEPARTMENT OF JUSTICE
The Department of Justice (DOJ) provides legal advice on matters relating to national security. The National Security Group of the Federal Prosecution Service
in Ottawa is the focal point for the practice of national security law and advice
relating to section 38 of the Canada Evidence Act, which I have described in detail in Chapter III. Federal prosecutors in Department of Justice regional offices
generally conduct criminal prosecutions of designated terrorist offences in the
Criminal Code.466 The Criminal Law Policy Section and the Human Rights Law
Section are also involved in national security and anti-terrorism work.467 In addition, the Attorney General of Canada has jurisdiction to prosecute crimes under
the Security of Information Act,468 the Access to Information Act469 and the
Privacy Act.470 The Attorney General’s consent is needed to begin any prosecution under the Security of Information Act.471
Most government department and agencies, including the RCMP, CSIS and
the CSE, have their own legal department (called a legal services unit), made up
of DOJ lawyers. The Department of Justice also maintains a Citizenship,
Immigration and Public Safety portfolio, which groups together the Legal
Services units (LSUs) of the PSEPC, the RCMP, CSIS, the CBSA, CIC, the
Correctional Service of Canada, the Canada Firearms Centre, the National Parole
Board and the War Crimes and Crimes Against Humanity Program. The DOJ
lawyers in Legal Services units for Transport Canada, the CSE, DFAIT, CATSA,
DND/CF, FINTRAC, the Canadian Nuclear Safety Commission and others also
work on national security matters, as do the LSUs of the other departments and
agencies mentioned in this chapter, to the extent that their activities may touch
on national security matters. The Legal Services units, as well as specialized
groups within DOJ, provide advice on constitutional law, administrative law,
the Charter of Rights and Freedoms, international law and criminal law in relation to national security and intelligence.
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16.7
TREASURY BOARD SECRETARIAT
The Treasury Board Secretariat (TBS) is involved in coordinating, analyzing and
evaluating public security and anti-terrorism initiatives from a value-for-money
perspective. The Secretariat helps to evaluate departmental spending proposals,
identify funding priorities and monitor the performance of public security initiatives. It also evaluates annual departmental reports and recommends changes
to reporting requirements for national security programs.
The President of the Treasury Board is responsible for the governmentwide administration of the Privacy Act and the Access to Information Act. As a
result, the Treasury Board is responsible for creating government-wide policies
on the disclosure and sharing of information by federal government entities.472
In this capacity, the TBS also oversees the cross-border flow of personal information.473 Treasury Board policy requires that any data-matching initiative
by government departments be reported to the Privacy Commissioner. In addition, a privacy impact assessment that engages the Privacy Commissioner must
be conducted for any program that involves the collection, use and disclosure
of personal information of employees or individuals. This policy requirement,
however, may be overridden by legislation authorizing data sharing.474 The
Treasury Board suspects that not all data matching within the federal government is being reported.475
Finally, the Treasury Board creates policies regarding the security of government information, with tactical assistance from the RCMP and the CSE.476 It
also creates policy regarding the disclosure and flow of information under the
Security of Information Act.477
16.8
DEPARTMENT OF FINANCE
The Department of Finance assesses the policy implications of proposed ongoing security initiatives with a view to evaluating the financial costs, efficiency and
potential impact on the national economy of specific programs or initiatives.
The Minister of Finance is also the minister responsible for the Financial
Transactions and Reports Analysis Centre of Canada, or FINTRAC.
16.9
PROVINCIAL AND MUNICIPAL POLICE FORCES
The Security Offences Act gives the RCMP primary responsibility for the investigation and prosecution of crimes that represent a threat to the security of
�CANADA’S NATIONAL SECURITY LANDSCAPE
Canada, or crimes that involve internationally protected persons.478 To fulfill this
mandate across Canada, the RCMP enters into formal arrangements to work with
provincial and municipal police forces on criminal activity relating to national
security,479 and also co-operates and shares information on a more informal
level. The RCMP and the other law enforcement representatives who made submissions to the Commission emphasized the importance of co-operation and
integration between the RCMP and local police forces in national security policing. Permanent integrated teams and joint forces operations represent “a strategic response to the complications arising out of jurisdictional issues, the
compartmentalization of information, disparate expertise, and the financial burden to be shared in complex investigations.”480 Without such joint operations,
“police services would [remain] . . . disorganized in the face of a very organized
adversary.”481 While an exhaustive description of the role of provincial, territorial and municipal police forces and governments is beyond the scope of my
mandate in this section, I discuss key aspects of the national security activities
of provincial, territorial and municipal police forces, particularly in relation to the
RCMP’s national security activities.482
16.9.1
Federally-Led Permanent Integrated Teams and
Ad Hoc Joint-Force Operations
Provincial and municipal police officers are seconded to the four RCMP-led
INSETs in Vancouver, Toronto, Ottawa and Montreal, which are the primary police units responsible for national security investigations in Canada. However,
many municipal police organizations are not represented in INSETs or IBETs. 483
There are no integrated units in the Atlantic provinces that focus on national security, for example. However, representatives from some Atlantic police forces,
including the Halifax Regional Police, have representation at the RCMP National
Security Intelligence Section for that RCMP Division.
Within the INSET environment, officers are subject to the review and disciplinary procedures of their home jurisdiction.484 In addition to INSETs and
IBETs, national security policing may occur in the context of ad hoc joint-force
investigations. The RCMP has informed the Commission that most national security policing activity in Canada is conducted in an integrated environment and
includes multiple federal actors and actors under provincial jurisdiction.485
Integration also occurs when officers from one police force are seconded
to another. For example, although this is not a national security position, the
RCMP’s Chief Information Officer at the time of writing is seconded from the
Ontario Provincial Police (OPP).486 Similarly, there are a number of RCMP
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officers seconded to the Ottawa Police Service. These officers may drive Ottawa
Police vehicles but wear RCMP uniforms.487 While seconded RCMP officers are
not assigned specifically to national security investigations,488 like any police
officer, they could be involved in investigations or operations that take on a
national security dimension (for example, a car stopped for speeding contains
a bomb).
Co-operation between the Ottawa Police Service and the RCMP provides a
good example of the ways that local law enforcement agencies contribute to national security policing, and the difficulties inherent in defining where local jurisdiction ends and RCMP jurisdiction begins in the national security context.
Criminal activity threatening ministers of the Crown or diplomatic personnel fall
within RCMP jurisdiction, while the OPS has general responsibility for maintaining the peace in the city. However, government and diplomatic offices and
personnel intermingle with private businesses and citizens. The previous chapter describes the hypothetical example provided by Chief Vince Bevan, in which
the OPS receives a 911 call regarding an individual with a gun in a building that
has offices for private businesses and for a federal minister. The OPS would respond to such a call and would not initially even inform the RCMP. Only if the
investigation brought to light national security concerns, such as a threat to the
minister, would the RCMP be notified, and this might not happen until the OPS
investigation was well underway.489
Even in criminal situations where the RCMP has assumed primary jurisdiction, local police forces still have responsibilities and legal obligations to fulfill.490 While the national security aspect of an investigation, which falls within
RCMP jurisdiction, may have priority, local police forces still have responsibility for non-national security aspects of an investigation that fall within their statutory responsibilities.491 For example, if an individual engages in commercial
break-and-enter activities to finance terrorist activities, the local police force can
investigate the break-ins, including executing any warrants, laying charges, assisting victims of crime, and participating in the prosecutions, while the RCMP
focuses on the national security aspects of the case and anything coming out of
that investigation. This type of co-operation could happen concurrently and
seamlessly within the context of an INSET team.
In addition to working on joint-forces operations with the RCMP, provincial and municipal police services may work jointly on an ad hoc basis with
other federal actors. The OPP, for example, works on joint operations, including intelligence operations, with CBSA customs officers. A number of provincial
and municipal police forces also worked on joint-forces operations in relation
to security at the 2002 G8 Summit in Kananaskis, Alberta. This security related
�CANADA’S NATIONAL SECURITY LANDSCAPE
not only to the orderly conduct of the Summit and the protection of public and
private property, but also to the protection of dignitaries and delegates, which
falls under RCMP jurisdiction in the Security Offences Act.492 Security planning
for the Summit involved over 6,000 Canadian police officers and 5,000 Canadian
Forces members.493
16.9.2
Provincially-Led Integrated Anti-terrorism Teams
There are also a wide variety of provincially-based integrated teams with a national security component. Examples include the Ontario Provincial Police’s AntiTerrorism Section; the Surêté du Québec’s Anti-Terrorism Section; and the
Manitoba Threat Advisory Group.494
The Manitoba Threat Advisory Group is intended to coordinate responses
to emergencies and national security threats in Manitoba. The Group comprises
first-responder and emergency management agencies including PSEPC, CSIS,
the RCMP “D” Division, the Manitoba Emergency Measures Organization, the
Winnipeg Police Service, and other Manitoba law enforcement, critical infrastructure and emergency management agencies.495 Alberta does not have a
provincial anti-terrorism police squad, but does have the Provincial Security
and Information Management Unit. This unit gathers and disseminates information about possible threats to the province’s security, but has no enforcement mandate.
In British Columbia, the Vancouver Police Department has established a
Counter-Terrorism Unit, located organizationally within its Criminal Intelligence
Section. The Unit collects, analyzes and operationalizes information about terrorist activities in Vancouver. Intelligence and operational plans are generally
shared with the Vancouver INSET, and there is also a close working relationship
with the local CSIS office. The Unit aims to complement the work of the RCMP
and CSIS, and would advise both of these organizations of investigative or enforcement activities. The South Fraser Integrated Probe Team in British Columbia
may also do some national security-related activity. This team is an RCMP-based
intelligence team that works out of the Abbotsford Police Department. The team
collects intelligence on all levels in the Fraser Valley area, including cross-border drug smuggling, and includes representatives from both the federal RCMP
and municipal officers in Abbotsford, Langley, Mission and Chilliwack.
In the province of Quebec, the RCMP have the primary role in national security activities. However, the Sûreté du Québec (SQ) and the Montreal Police
Department also have an anti-terrorism mandate.496 The RCMP, the SQ and
the Montreal Police have formed a partnership and work together under the
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Anti-Terrorism Police Management Structure. The SQ also has representation at
the Montreal and Ottawa INSETs, as part of the Marine Security Enforcement
Team and the Great Lakes–St. Lawrence Seaway MSOC.
In 2002, the Government of Ontario established a multi-jurisdictional joint
forces operation known as the Provincial Anti-Terrorism Section (PATS). PATS
collects criminal intelligence in Ontario relating to public security threats, including terrorism offences under the Criminal Code. However, PATS does not
enter into or lead national security criminal investigations, unless requested to
do so under RCMP leadership.
PATS is led by the Ontario Provincial Police and includes members from ten
different police services, including the RCMP. PATS headquarters are co-located
with the RCMP INSET in the Greater Toronto Area, but PATS teams are deployed
throughout Ontario. PATS co-operates closely with the RCMP. For example,
PATS and the Ontario INSET jointly establish intelligence requirements and operational directions, and discuss initiatives to avoid duplication. Furthermore,
the RCMP is the primary client of PATS intelligence.
PATS focuses on collecting and analyzing information related to terrorist
criminal activity, and disseminates finished criminal intelligence products to inform law enforcement decision making. PATS collects information for the purpose of criminal prosecution. Information collection is subject to the same
standards that apply to evidence collection. National security intelligence information received during a PATS operation is provided to the INSET or to CSIS,
as appropriate. Files that do not disclose a public security threat will be turned
back to the police service with jurisdiction for ordinary criminal investigation.
16.9.3
Day-to-Day Interaction
Although most provincial or municipal national security policing is conducted
within the context of permanent or ad hoc integrated teams, considerable interaction can take place between municipal or provincial forces, CSIS and the
RCMP on a day-to-day basis, depending on the police force in question, the location of events, and the type of event or investigation. Providing information
is one of the principal ways that municipal and provincial police forces contribute to the national security. This type of information sharing also takes place
outside the context of formal anti-terrorism teams. Municipal and provincial police services regularly pass national security information to, and receive relevant
information from, the RCMP and CSIS.
�CANADA’S NATIONAL SECURITY LANDSCAPE
16.9.3.1
Examples of Interaction with the RCMP
In British Columbia, where the RCMP provide provincial policing services and
contract policing services to many municipalities, the province has created an
integrated information system that allows the RCMP and municipal police forces
to share information. Under the B.C. Police Act,497 all police agencies, including
the RCMP, are required to employ the system. The system, known as the Police
Records Information Management Environment (PRIME), is an integrated police
records management system that allows real-time sharing of information across
municipal boundaries. For example, information from a traffic stop in rural
British Columbia can be accessed by Vancouver Police officers investigating the
movements of individuals suspected of involvement in organized crime.498
Intelligence gleaned from such routine police activities may assist with anti-terrorism investigations by revealing important information such as the movement
of suspects or their associations with other persons of interest.
Similarly, police agencies across Canada have recently agreed on a framework, called the Police Information Portal (PIP), an initiative that grew out of
PRIME. PIP will be used to share information collected in the course of law enforcement activities.499 It allows member law enforcement and public safety
agencies to electronically share operational information that is needed to respond to interjurisdictional crime, and to track individuals who may be committing criminal offences in multiple jurisdictions. Police agencies operating on
different databases are able to populate the PIP with their information, which allows all connected agencies to access that information. Currently, one third of
all Canadian police officers, including all officers in British Columbia, have access to the PIP, and more law enforcement and public safety agencies are expected to become members.500 The RCMP has signed the PIP Memorandum of
Understanding, but has not yet implemented it.
In Ontario, OPP Intelligence proactively gathers information related to terrorism. Regular OPP officers are also encouraged to look out for and record information that may relate to terrorism or other national security threats. The OPP
provides all information that it believes may relate to terrorist criminal activity
to the RCMP INSET. Similarly, the Toronto Police Service maintains an intelligence group, which may collect information relating to national security. In addition, if the Toronto police receive information on certain behaviours that they
recognize as possible precursors for terrorist activity, they share this information
with the RCMP, the Ontario INSET and PATS.
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The OPP and the Toronto Police Service advise that they receive threat assessments and imminent threat information from the RCMP and CSIS. A very
small number of OPP members also have access to RCMP databases, including
the Secure Criminal Information System and the Automated Criminal Intelligence
Information System (ACIIS), which is the national criminal intelligence database.
The Toronto Police Service states that most of the national security information
that it receives is unclassified and can be shared broadly. However, the Service
does not share the classified information that it receives.
16.9.3.2
Examples of Interaction with CSIS
Police services are increasingly aware of the importance of security intelligence
information (as opposed to criminal intelligence information). The OPP and the
Toronto Police Service, for example, feed security intelligence information to
CSIS as it comes into their possession.501 This information sharing might be done
through the O-INSET or PATS, or the OPP might provide information directly
to a CSIS regional office. The SQ also shares information with CSIS. The OPP
advises me that it considers criminal intelligence to relate to any Criminal Code
offence; beyond that, the distinction between criminal and security intelligence
is a matter of professional judgment. The Toronto Police Service advises that it
is in direct, regular contact with CSIS. Further, the Toronto Police may work
closely with CSIS either within the context of the Ontario INSET or on an ad hoc
basis. However, police services receive limited amounts of specific information
from CSIS, partly because of the requirement that the police disclose all relevant
information to an accused during a criminal prosecution.502 On occasion, the
Toronto Police may receive uncaveated information from CSIS to help with a
criminal investigation, and this information can be used as evidence.
Nonetheless, the Attorney General of Canada may still object to its disclosure
during a criminal prosecution by issuing a certificate under section 38 of the
Canada Evidence Act.
The Toronto Police Service advises that it is more likely to use CSIS linguistic and cultural resources to assist with certain types of policing as, for example, policing a demonstration by a particular cultural community. CSIS may
also provide background information on criminal extremist groups, or new
groups attempting to establish themselves in the Toronto area. The TPS also receives information from CSIS regarding individuals held under security certificates who have been linked to terrorism. If the Toronto Police come across
information about an occurrence involving one of these people, they will report
back to CSIS.
�CANADA’S NATIONAL SECURITY LANDSCAPE
Notes
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
On February 6, 2006, Prime Minister Harper announced the reintegration of the Department
of Foreign Affairs and the Department of International Trade into the Department of Foreign
Affairs and International Trade. However, there are still two ministers — the Minister of Foreign
Affairs and the Minister of International Trade.
With the exception of Canadian Heritage.
Except where otherwise noted, the information in this chapter is based upon meetings and
communications between Policy Review legal counsel and the federal government departments and agencies described in this chapter.
Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23, s. 6(1) [CSIS Act].
Ibid., s. 12.
Ibid., s. 2.
Ibid., s. 2.
Ibid., s. 21ff.
CSIS website on Intelligence Collection and Analysis.
CSIS Act, s. 21.
CSIS website.
CSIS Act, s. 16 (1)(a).
Ibid., s. 16(1)(b).
CSIS website.
Ibid.
CSIS Act, s. 13(1).
Ibid., s. 13(2)(a).
Ibid., s. 13(2)(b).
CSIS website.
CSIS Act, s. 13(3).
S.C. 2001, c. 27 (IRPA].
Testimony of Jim Judd, Director of CSIS, June 19, 2006, Standing Senate Committee on National
Security and Defence [Testimony of Jim Judd, Director of CSIS].
IRPA, ss. 76ff.
See IRPA, ss. 34, 35, 37.
CSIS Backgrounder No. 14, Certificates Under the Immigration and Refugee Protection Act
(IRPA), revised February 2005, accessed online at htpp://www.csis-scrs.gc.ca/en/
newsroom/backgrounders/backgrounder14.asp. [CSIS Backgrounder No. 14.]
IRPA, s. 82(2).
Ibid., s. 82(1).
Ibid., s. 78(g).
CSIS Backgrounder No. 14.
IRPA, s. 80(3).
Canada, Senate, Proceedings of the Senate Standing Committee on the Anti-terrorism Act, 38th
Leg., (March 21, 2005), p. 6:13, testimony of Paul Kennedy, Senior Assistant Deputy Minister,
PSEPC, online, Parliament of Canada, http://www.parl.gc.ca/38/1/parlbus/commbus/
senate/Com-e/anti-e/pdf/06issue.pdf (accessed January 27, 2006).
CSIS Backgrounder No. 14.
CSIS Act, s. 17(1)(a)(ii).
Ibid., s. 17(1)(b).
Ibid., s. 17(2).
Ibid., s. 19(2).
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37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
Ibid., s. 19(2)(a).
Ibid., s. 19(2)(b), (c).
Ibid., s. 19(2)(d).
Ibid., s. 19(3).
As discussed in Chapter II, the RCMP/CSIS MOU dated September 2006 (2006 MOU) sets out
a number of principles to guide the relationship between the RCMP and CSIS. It specifically
addresses information and intelligence exchange and operational support and assistance.
Integrated National Security Enforcement Teams (see Chapter IV, s. 3.5).
Criminal Code, R.S.C. 1985, c. C-46, s. 83.05.
Testimony of Jim Judd, Director of CSIS.
Privy Council Office, Securing an Open Society: Canada’s National Security Policy
(Ottawa: Privy Council Office, 2004), online, http://www.pco-bcp.gc.ca/docs/Publications/
NatSecurnat/natsecurnat_e.pdf (accessed January 4, 2006) [Securing an Open Society: Canada’s
National Security Policy].
Canada, Security Intelligence Review Committee, SIRC Annual Report 2004–2005: An
Operational Review of the Canadian Security Intelligence Service (Ottawa: Public Works and
Government Services Canada, 2005), p. 51 [SIRC Annual Report 2004–2005]. SIRC’s annual reports are available online at http://www.sirc-csars.gc.ca/reports_e.html (accessed February 21,
2006).
SIRC Annual Report 2004–2005, p. 48.
For example, the Centre has studied the potential for terrorists to use the avian flu virus as a
biological weapon.
Assessment sharing may be expanded to include Germany, the Netherlands and Spain.
“Welcome to the Communications Security Establishment,” March 20, 2003, online, CSE,
http://www.cse-cst.gc.ca/index-e.html (accessed March 22, 2006).
P.C. 1975-95, C. Gaz. 1975 II. 233.
Proceedings of the Special Committee of the Senate on the Canadian Security Intelligence
Service, Hansard, September 22, 1983, pp. 18–19, 27, 31–33.
National Defence Act, R.S.C. 1985, c. N-5, s. 273.62(2).
Ibid., s. 273.62(3).
Ibid., s. 273.64.
Ibid., s. 273.64(2)(a).
The term “private communication” is legally defined in s. 183 of the Criminal Code to mean
“any oral communication, or any telecommunication, that is made by an originator who is
in Canada or is intended by the originator to be received by a person who is in Canada
and that is made under circumstances in which it is reasonable for the originator to expect
that it will not be intercepted by any person other than the person intended by the originator
to receive it, and includes any radio-based telephone communication that is treated electronically or otherwise for the purpose of preventing intelligible reception by any person other
than the person intended by the originator to receive it.” There is a considerable body of
jurisprudence interpreting this section of the Criminal Code. For example, pager
communications do not fall within the definition of private communications (R. v. Lubovac
(1989), 52 C.C.C. (3d) 551 (Alta. C.A.)), and a digital number recorder installed by a telephone
company that discloses the outgoing telephone numbers dialled does not intercept private
communications (R. v. Fegan (1993), 21 C.R. (4th) 65 (Ont. C.A.)). Other leading cases include
R. v. Monachan, [1985] 1 S.C.R. 176; Goldman v. R. (1979), 13 C.R. (3d) 228 (S.C.C.); and
R. v. Davie (1980), 17 C.R. (3d) 72 (B.C.C.A.).
National Defence Act, ss. 273.65(1), 273.69. The CSE’s intelligence activities under the (a) mandate are subject to several legislative restrictions: they may not be directed at Canadians or any
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person in Canada, and shall be subject to measures to protect the privacy of Canadians:
s. 273.64(2). In addition, the Minister can authorize the interception of private communications
only where the interception is directed at foreign entities located outside Canada; where the
information could not reasonably be obtained by other means; where the expected foreign intelligence value of the information justifies the interception; and where measures are in place
to protect the privacy of Canadians, and to ensure that private communications will be used
or retained only if they are essential to international affairs, defence or security:
s. 273.65(2)(a)–(d).
Anti-terrorism Act, S.C. 2001, c. 41.
National Defence Act, s. 273.65(2)(d).
Testimony of Keith Coulter, CSE Chief, before the Senate Special Committee on the Antiterrorism Act, April 11, 2005, at 7:44 [Testimony of Keith Coulter, CSE Chief].
Testimony of Keith Coulter, CSE Chief at 7:54.
National Defence Act, ss. 273.65(3)–(5).
Ibid., s. 273.65(6).
Canada, Auditor General, Auditor General’s Report, November 2003 (Ottawa: Public Works
and Government Services Canada, 2003), para. 10.134.
Testimony of Keith Coulter, CSE Chief at 7:39.
Testimony of Keith Coulter, CSE Chief at 7:51.
Canada, Privy Council Office, Securing an Open Society: One Year Later (Ottawa: Public Works
and Government Services Canada, 2005), p. 14, online, www.pco-bcp.gc.ca/docs/ministers/
deputypm/secure_e.pdf (accessed July 24, 2006) [Securing an Open Society: One Year Later]
Testimony of Keith Coulter, CSE Chief at 7:37.
Testimony of Keith Coulter, CSE Chief at 7:39. I describe the Canadian Forces Information
Operations Group later in this chapter.
Securing an Open Society: One Year Later, p. 14.
Testimony of John Ossowski, Director General, Policy and Communications, CSE, before the
Senate Special Committee on the Anti-terrorism Act, April 11, 2005, at 7:48.
Testimony of Keith Coulter, CSE Chief at 7:50.
Securing an Open Society: One Year Later, p. 14. References to “alliance” and “allied agencies”
refer to the alliance of Canada, the United Kingdom, the United States, Australia and
New Zealand.
Securing an Open Society: One Year Later, p. 14.
Department of National Defence, “The National Defence Family,” Sept. 12, 2005, online,
Department of National Defence, http://www.forces.gc.ca/site/about/family_e.asp For more information on the Canadian Rangers, see Department of National Defence, Backgrounder, “The
Canadian Rangers,” February 18, 2000, online Department of National Defence,
http://www.forces.gc.ca/site/newsroom/view_news_e.asp?id=49 (accessed February 20, 2006).
Ibid.
Communication Security Establishment, “Place in Government,” http://www.cse-cst.gc.ca/
about-cse/place-in-gov-e.html (accessed March 14, 2006).
Department of National Defence, “About DND/CF,” March 9, 2006, online.
http://www.forces.gc.ca/site/about/partner_e.asp; Communication to Policy Review legal
counsel, May 3, 2006. In relation to counter-proliferation, DND would provide assistance to
both the CBSA and the RCMP.
Department of National Defence, Canada’s International Policy Statement: A Role of Pride
and Influence in the World — Defence (Ottawa: Her Majesty the Queen in Right of Canada,
2005).
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This burden may include personnel, equipment or assets, and/or time. Examples include coalition operations in Afghanistan and during the 1990–1991 Persian Gulf War.
Established by Ministerial Order 98023 (11 May 1998), Unclas DGPS 9985 021550Z Sep 99.
Criminal Code, s. 183. See the discussion of private communications in the previous section
of this chapter.
National Defence Act, ss. 274–285.
Gen. R.J. Hillier, Chief of Defence Staff, “CISS Seminar: Implementing Canada’s Defence Policy
Statement” (Seminar, Royal Canadian Military Institute, July 2005), online, Department of
National Defence, http://www.forces.gc.ca (accessed February 10, 2005); Canada, Department
of National Defence, CDS Action Team Reports, “Executive Summary of CAT 2 Report,” online, Department of National Defence, http://www.cds.forces.gc.ca/cft-tfc/pubs/cat_e.asp
(accessed February 15, 2006).
The exchange of intelligence products between these various agencies is based on individual
stated requirements and the “need to know” policy.
Department of National Defence, Directive DAOD 8002-1, National Counter-Intelligence
Program, March 28, 2003, online, DND Finance and Corporate Services,
http://www.admfincs.forces.gc.ca/admfincs/subjects/DAOD/8002/1_e.asp (accessed March 21,
2006). [National Counter Intelligence Program, DAOD 8002-1]
“INSETs” is the acronym for “Integrated National Security Enforcement Teams”; “IBETs” is the
acronym for “Integrated Border Enforcement Teams.” See Chapter IV, s.3.5.
See Department of National Defence, Directive DAOD 8002-3, Security Intelligence Liaison
Program, March 28, 2003, online, DND Finance & Corporate Services,
http://www.admfincs.forces.gc.ca/admfincs/subjects/daod/8002/3_e.asp (accessed March 21,
2006). [Security Intelligence Liaison Program, DAOD 8002-3]
Security Intelligence Liaison Program, DAOD 8002-3. Threats to the security of DND/CF are
outlined and discussed in Department of National Defence, Directive DAOD 8002-0, CounterIntelligence, March 28, 2003, online, DND Finance & Corporate Services,
http://www.admfincs.forces.gc.ca/admfincs/subjects/daod/8002/0_e.asp (accessed March 21,
2006).
National Counter Intelligence Program, DAOD 8002-1.
These directions are sometimes referred to by the acronym “CFAAD.”
For more information on JTF 2, see Department of National Defence, “Joint Task Force Two,”
online, http://www.ops.forces.gc.ca/units/jtf2/pages/about_e.asp (accessed February 9, 2006).
I describe the Government Operations Centre in the section of this chapter on Public Safety
and Emergency Preparedness Canada. See also Canada, Department of National Defence,
Backgrounder, “Special Operations Group,” Sept. 13, 2005, online, Department of National
Defence, http://www.forces.gc.ca (accessed February 12, 2006).
Order Designating the Canada Border Services Agency as a Department and the President as
Deputy Head, S.I./2003-218, C. Gaz. II, 31/12/03, made pursuant to the Public Service
Employment Act, R.S.C. 1985, c. P-33. The Minister of Public Safety and Emergency
Preparedness became the minister responsible for the CBSA by virtue of a second order in
council, Order Transferring from the Minister of Citizenship and Immigration to the Deputy
Prime Minister and Minister of Public Safety and Emergency Preparedness the Control and
Supervision of the Canada Border Services Agency, S.I./2003-214, C. Gaz. II, 31/12/03.
Order Transferring Certain Portions from the Department of Citizenship and Immigration to
the Canada Border Services Agency, S.I./2003-215, C. Gaz. II, 31/12/03; Order Transferring to
the Canada Border Services Agency the Control and Supervision of Certain Portions in the
Department of Citizenship and Immigration, S.I./2004-136, C. Gaz. II, 20/10/04; Order
Transferring to the Department of Citizenship and Immigration the Control and Supervision of
Certain Portions within the Canada Border Services Agency and Transferring from the Deputy
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Minister and Minister of Public Safety and Emergency Preparedness to the Minister of
Citizenship and Immigration Certain Powers, Duties and Functions, S.I./2004-135, C. Gaz. II,
20/10/04.
Order Transferring Certain Portions of the Canada Customs and Revenue Agency to the
Canada Border Services Agency, S.I./2003-216, C. Gaz. II, 31/12/03.
Order Transferring Certain Portions of the Operations Branch of the Canadian Food Inspection
Agency to the Canada Border Services Agency, S.I./2003-217, C. Gaz. II, 31/12/03. The key
statute in relation to food inspection is the Canadian Food Inspection Agency Act, S.C. 1997,
c. 6, transferred from the Canadian Food Inspection Agency.
An Act to establish the Canada Border Services Agency, S.C. 2005, c. 38, s. 5(1) [CBSA Act]. The
Border Agency’s mandate also requires it to “facilitate the free flow of persons and goods” that
meet all legal requirements.
CBSA Act, s. 2.
Ibid., s. 13. There are some restrictions on this power. The CBSA requires the approval of the
Governor in Council, given on the recommendation of the Minister of Public Safety and the
Minister of Foreign Affairs. Any agreement may only be made subject to s. 38 of the Proceeds
of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17, which allows an
individual or organization to avoid reporting the import or export of currency by choosing not
to transfer the currency.
“Canada Border Services Agency National Statistics,” online, CBSA, http://www.cbsa-asfc.gc.ca/
newsroom/release-communique/2005/0615ottawa-e.html (accessed January 4, 2006).
Securing an Open Society: Canada’s National Security Policy.
More precisely, immigration laws refer to “the laws and regulations that relate to the admission, temporary entry, removal, naturalization, denaturalization or loss of nationality by persons”: API/PNR MOU, sbs. 1(d).
IRPA, s. 34.
Ibid., s. 35.
Ibid., s. 36.
Ibid., s. 37.
Ibid., ss. 38–42.
Ibid., ss. 34(2), 37(2). The Minister of Citizenship and Immigration may not make an exception for individuals who are reasonably believed to have committed war crimes or crimes
against humanity: IRPA, ss. 35(1)(a), 35(2). The Minister also has some discretion with respect
to people convicted of serious crimes who, after a certain period of time, satisfy the Minister
that they have been rehabilitated: IRPA, s. 36(3)(c).
“Serious criminality” is defined in s. 36(1) of the Immigration and Refugee Protection Act.
Specifically, serious criminality includes:
(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence
under an Act of Parliament for which a term of imprisonment of more than six months
has been imposed;
(b) having been convicted of an offence outside Canada that, if committed in Canada,
would constitute an offence under an Act of Parliament punishable by a maximum
term of imprisonment of at least 10 years; or
(c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of
Parliament punishable by a maximum term of imprisonment of at least 10 years.
“Organized criminality” is defined in s. 37(1) of the Immigration and Refugee Protection Act.
Specifically, organized criminality includes:
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(a) being a member of an organization that is believed on reasonable grounds to be
or to have been engaged in activity that is part of a pattern of criminal activity planned
and organized by a number of persons acting in concert in furtherance of the
commission of an offence punishable under an Act of Parliament by way of indictment, or in furtherance of the commission of an offence outside Canada that, if committed in Canada, would constitute such an offence, or engaging in activity that is part
of such a pattern; or
(b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or money laundering.
For example, at points of entry into Canada, CBSA officers will perform the functions of both
agencies. Inside Canada, on the other hand, CIC officers perform the functions of both organizations in relation to refugee claimants.
The CBSA’s mandate with respect to migration is regulated by the Immigration and Refugee
Protection Act.
For more information on CBSA’s detention powers and policies, see Canada, Citizenship and
Immigration, “ENF 20, Detention” (Ottawa: CIC, 2005), online, CIC, http://www.cic.gc.ca/
manuals-guides/english/enf/enf20e.pdf (accessed March 8, 2006). See also Sahin v. Canada
(Minister of Citizenship and Immigration) (1994), 85 F.T.R. 99 (F.C.) and Canada (Minister of
Citizenship and Immigration) v. Thanabalasingham, [2004] 3 F.C.R. 572 (F.C.A.).
For more information on CBSA removals powers and policies, see Canada, Citizenship and
Immigration, “ENF 10, Removals,” online, CIC, http://www.cic.gc.ca/manuals-guides/
english/enf/enf10e.pdf (accessed March 8, 2006).
Customs laws can be more precisely defined as “the laws and regulations relating to the importation, exportation and transportation of goods across national boundaries and all other
laws and regulations enforced and administered” by CBSA Customs: API/PNR MOU, infra,
para. 1(c). The principal customs statute is the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.), transferred from the Canada Customs and Revenue Agency. See also the Proceeds of Crime (Money
Laundering) and Terrorist Financing Act, S.C. 2000, c. 17, s. 12(1) [PCMLTFA].
PCMLTFA, s. 12; Proceeds of Crime (Money Laundering) and Terrorist Financing Regulations,
S.O.R./2002-184, s. 12(1). The regulations currently require all transactions over $10,000 to be
reported.
PCMLTFA, ss. 15–17.
Ibid., s. 18.
Ibid., s. 19.1.
Under the IRPA, officers may be authorized by the Minister of Public Safety to exercise police
powers: IRPA, ss. 4(2), 6(1), 138(1).
Customs Act, s. 163.5(1); Excise Act, R.S.C. 1985, c. E-14, s. 75; Export and Import Permits Act,
R.S.C. 1985, c. E-19, s. 25; IRPA, s. 55.
Customs Act, ss. 163.5(3), 153.1, 160.1; Excise Act, ss. 97, 157(1); Export and Import Permits Act,
s. 25; R. v. Simmons, [1988] 2 S.C.R. 495; IRPA, s. 55; Dehghani v. Canada (Minister of
Employment and Immigration), [1993] 1 S.C.R. 1053; Sahin v. Canada (Minister of Citizenship
and Immigration), [1995] 1 F.C. 214 (F.C.T.D.).
Customs Act, ss. 98, 99, 99.2, 153.1, 160.1; Excise Act; ss. 72–74, 157; Excise Act 2001, S.C. 2002,
c. 22, ss. 258(1), 260; Export and Import Permits Act, s. 25.
Customs Act, ss. 110–116; Excise Act, s. 70; Excise Act 2001, ss. 258(1), 260(2)(f), 293; Export
and Import Permits Act, s. 25.
Customs Act, s. 163.5(2); Export and Import Permits Act, s. 25.
IRPA, ss. 6(1), 15, 16, 55, 138(1).
Ibid., s. 55(1). Officers may also issue warrants if they believe a permanent resident or foreigner
will not appear at an immigration proceeding.
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IRPA, s. 55(2)(a). Para. (b) also allows a foreign national to be arrested and detained without
a warrant if an immigration officer is not satisfied of the person’s identity during a procedure
under the IRPA.
IRPA, s. 55(3). Detention is also possible if the officer suspects the person is inadmissible on
the basis of human or international rights violations. Under s. 34 of the IRPA, a person is inadmissible on grounds of “security” for engaging in terrorism or acts of violence likely to endanger the lives or safety of persons in Canada; being a member of an organization that it is
believed engages, has engaged or will engage in such activity; being a danger to the security
of Canada; or engaging in espionage or subversion.
Canada, Department of Finance, Budget Plan 2006 (Ottawa: Her Majesty the Queen in Right
of Canada, 2006), p. 131.
Memorandum of Understanding between the Department of Citizenship and Immigration
Canada and the Royal Canadian Mounted Police, Investigations and Referrals for Prosecution,
being Annex IV to the Memorandum of Understanding Concerning Partnership,
Communication, Cooperation and Information Sharing between Citizenship and Immigration
Canada and the Royal Canadian Mounted Police, Ottawa, December 23, 2002. [Investigations
and Referrals for Prosecution MOU] Memorandum of Understanding Concerning Partnership,
Communication, Cooperation and Information Sharing between Citizenship and Immigration
Canada and the Royal Canadian Mounted Police, Ottawa, December 23, 2002, s. 16 [CICRCMP Cooperation MOU]. Note that CIC, the RCMP and the CBSA are renegotiating bilateral
arrangements to replace this MOU.
Customs Act, s. 2(1).
Excise Act, s. 66(1); Excise Act 2001, s. 2.
Canada, Department of National Revenue, Customs Prosecution Policy for Offences Under
the Customs Act, in force September 6, 1983, s. 1; Customs/RCMP Division of Investigative and
Enforcement Responsibilities (revision of 1983 policy), February 1991, s. 1(a); R.S.C. 1985, c.
I-5, s. 18(1). Note that some bands have established their own police forces to provide policing services on reserves.
I have discussed the RCMP Act, R.S.C. 1985, c. R-10, and RCMP policies in more detail in chapters II and IV.
“Fact Sheet, Immigration Intelligence — Overview,” online, CBSA, http://www.cbsaasfc.gc.ca/newsroom/factsheets/2004/0128overview-e.html (accessed January 5, 2006)
[Immigration Intelligence Fact Sheet].
Memorandum of Understanding between the Department of Justice and the Department of
Citizenship and Immigration and the Royal Canadian Mounted Police. [CBSA-DOJ-RCMP War
Crimes MOU].
Immigration Intelligence Fact Sheet.
Ibid.
Ibid.
This reporting is governed by the Intelligence and Fraudulent Documents MOU.
Memorandum of Understanding for the Exchange of Customs Related Intelligence Information
between the Royal Canadian Mounted Police and the Department of National Revenue,
Customs and Excise, of Canada and the Department of the Treasury of the United States of
America, United States Customs Service, Ottawa, December 8, 1982 [Customs-RCMP-USA MOU];
Memorandum of Understanding between the Royal Canadian Mounted Police and Revenue
Canada Customs, Ottawa, January 11, 1995; Ministerial Policy: Division of Investigative and
Enforcement Responsibilities, s. 10.
Customs-RCMP-USA MOU.
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The CBSA is in the process of building a separate, long-term detention facility connected to
Millhaven maximum security prison in Kingston, Ontario, to house security certificate detainees. The facility will belong to the CBSA, but the Correctional Service of Canada will be
the service provider.
Office of the Privacy Commissioner of Canada, Audit of the Personal Information Management
Practices of the Canada Border Services Agency, Final Report, June 2006, para. 3.58, online,
http://www.privcom.gc.ca/information/pub/ar-vr/cbsa_060620_e.asp (accessed July 10, 2006)
[CBSA Audit].
I also discuss the lookout screening process and the various grounds for inadmissibility in the
section on Citizenship and Immigration Canada.
For more information on lookout flags, see Canada, Citizenship and Immigration, “ENF 4, Port
of Entry Examinations” (Ottawa: CIC, 2006), s. 26, online, CIC, http://www.cic.gc.ca/
manuals-guides/english/enf/enf04e.pdf (accessed March 8, 2006) [Memorandum ENF 4].
The Terrorist Screening Center is administered by the FBI and includes staff from the
Department of Homeland Security and the State Department. U.S. Customs and Border
Protection administers the National Targeting Center. The two agencies work closely together
to identify and apprehend persons on the U.S. National Terrorist Watch List, and both work
closely with the U.S. National Counterterrorism Center to identify potential terrorist suspects:
U.S., Department of Homeland Security, Fact Sheet: “U.S. Customs and Border Protection’s
National Targeting Center,” Sept. 2004, online, http://www.dhs.gov/dhspublic/
display?content=3989 (accessed March 6, 2006); U.S., Department of Homeland Security, Fact
Sheet: “The Terrorist Screening Center,” Sept. 16, 2003, online: http://www.dhs.gov/
dhspublic/display?content=1598; U.S., Department of Justice, Fact Sheet: Terrorist Screening
Center, September 2003, online, http://www.fbi.gov/ressrel/pressrel03/tscfactsheet091603.htm
(accessed March 7, 2006). For more information on these initiatives, see the
Federation of American Scientists Intelligence website at http://www.fas.org/main/
content.jsp?formAction=325&projectId=6.
For more information on the review and removal of lookout flags, see Memorandum ENF 4.
Customs Act, s. 107.1(1); Passenger Information (Customs) Regulations, S.O.R./2003-219.
See for example Memorandum of Understanding for the Automated Exchange of Lookouts and
the Exchange of Advance Passenger Information (API) between The Canada Border Services
Agency and United States Customs and Border Protection, Alexandria, Virginia, USA, March 9,
2005, s. 1(g). [API/PNR MOU].
Even details such as the type of airline meal requested and Passenger Type Codes could indirectly reveal information about an individual’s religious beliefs. See the discussion in
European Union Article 29 Data Protection Working Party, Opinion 2/2004 on the Adequate
Protection of Personal Data Contained in the PNR of Air Passengers to Be Transferred to the
United States’ Bureau of Customs and Border Protection (US CBP), adopted January 29, 2004,
pp. 7–8, online, Europa, Article 29 Data Protection Working Party, http://europa.eu.int/comm/
justice_home/fsj/privacy/workinggroup/index_en.htm (accessed March 30, 2006).
Customs Act, s. 107(4)(h); Privacy Act, s. 8(2); Memorandum D1-16-3, s. 64. See also Canada,
CBSA, Privacy Impact Assessment: Advanced Passenger Information/Passenger Name Record
Program, online, CBSA, http://www.cbsa-asfc.gc.ca/general/pia-efvp/api_ipv_20051003-e.html
(accessed March 7, 2006) [API/PNR Privacy Impact Assessment].
Memorandum D1-16-3, s. 65.
Ibid., ss. 23, 35.
Ibid, s. 23.
Ibid, s. 54.
Customs Act, ss. 107(5)(b), 107(5)(c), 107(5)(k).
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Memorandum D1-16-3, s. 56.
Ibid, s. 60.
These agreements or arrangements must comply with s. 8(2) of the Privacy Act or s. 107(8) of
the Customs Act.
Memorandum D1-16-3, s. 34.
Aeronautics Act, R.S.C. 1985, c. A-2, s. 4.82. I discuss this program in more detail later in this
chapter in relation to Transport Canada.
Note that s. 4.82 is not yet in force. The text of this section is available on the Library of
Parliament website, Legisinfo, at http://www.parl.gc.ca/PDF/37/3/parlbus/chambus/house/
bills/government/C-7_4.pdf (accessed March 22, 2006).
“Fact Sheet, National Risk Assessment Centre,” online, CBSA, http://www.cbsa-asfc.gc.ca/
newsroom/factsheets/2005/0125risk-e.html (accessed January 5, 2006) [NRAC Fact Sheet].
Passenger Information (Customs) Regulations, SOR/2003-219, s. 3(g). The regulation is deemed
to have come into force on October 4, 2002: s. 5. S. 269 of the Immigration and Refugee
Protection Regulations, S.O.R./2002-227, contains a similar requirement. An agreement between Canada and the European Union identifies a list of 25 pieces of PNR information that
will be provided by European air carriers to the CBSA. There is no limitation on the types of
PNR information that may be provided by carriers from other countries: Agreement between
the European Community and the Government of Canada on the Processing of Advance
Passenger Information (API)/Passenger Name Record (PNR) Data online, European Union,
http://europa.eu.int/eur-lex/lex/LexUriServ/site/en/com/2005/com2005_0200en01.pdf
(accessed January 4, 2006) [Canada-EU Agreement]. The PNR information that European airlines are to provide to the CBSA includes date of reservation; payment information; billing address; names of other travellers on the same record; contact telephone numbers; travel
itinerary; some frequent flyer information; travel agency and agent; seat number; no-show history; baggage tag numbers; whether the ticket is one-way or return; whether the ticket was
purchased on stand-by; and the order in which a person checked in for the flight. However,
the 2005 Canada-U.S. API/PNR MOU mentioned above expressly refers to commitments and
undertaking given to the European Union by Canada and the United States, respectively, during negotiations relating to the transfer of API/PNR data from European air carriers: API/PNR
MOU, s. 4, note 1. The Canadian commitments are discussed in European Union Article 29
Data Protection Working Party, Opinion 1/2005 on the level of protection ensured in Canada
for the transmission of Passenger Name Record and Advance Passenger Information from
airlines, Adopted January 19, 2005, online European Union, Article 29 Working Party,
http://europa.eu.int/comm/justice_home/fsj/privacy/workinggroup/index_en.htm (accessed
March 30, 2006). The American undertakings are discussed in European Union Article 29 Data
Protection Working Party, Opinion 2.2004 on the Adequate protection of Personal Data
Contained in the PNR of Air Passengers to be Transferred to the United States’ Bureau of
Customs and Border protection (US CBP), Adopted January 29, 2004, online, European
Union, Article 29 Working Party, http://europa.eu.int/comm/justice_home/fsj/privacy/
workinggroup/index_en.htm (accessed March 30, 2006).
“Privacy Impact Assessments,” online, CBSA, http://www.cbsa-asfc.gc.ca/general/
pia-efvp/hrti_ivre_20051003-e.html.
Canada, CBSA, “Departmental Performance Report 2004–2005, Section II – Analysis of
Performance by Strategic Outcome, Program Activity: Enforcement (Security),” online,
Treasury Board Secretariat of Canada, http://www.tbs-sct.gc.ca/rma/dpr1/04-05/BSA-ASF/
BSA-ASFd4502_e.asp (accessed January 4, 2006) [CBSA DPR 2004-2005].
API/PNR MOU. [This information-sharing program has been reviewed by the Privacy
Commissioner: http://www.cbsa-asfc.gc.ca/general/pia-efvp/api_ipv_20051003-e.html.]
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192
API/PNR MOU, ss. 1(g), 7–10.
Concept of Operations US-Canada Terrorist Watch List Program (CONOPS), signed May 23,
1997 [TUSCAN/TIPOFF Aide-Memoire].
Ibid.
Ibid., s. A(2).
Ibid., s. C(1)(a).
Ibid., s. C(1)(c).
Ibid., s. C(1)(c)(5) and Appendix C.
Canada–United States Container Security Initiative Partnership Arrangement, Washington,
D.C., Oct. 20, 2005; “Marine Trade Security,” online, Canadian Border Services Agency,
http://www.cbsa-asfc.gc.ca/general/enforcement/mts_smc-e.html (accessed January 4, 2006);
“Advance Commercial Information,” online, CBSA, http://www.cbsa-asfc.gc.ca/import/
advance/menu-e.html (accessed January 4, 2006); Canada, CBSA “Departmental Performance
Report 2004–2005, Section II – Analysis of Performance by Strategic Outcome, Program
Activity: Enforcement (Security),” online, Treasury Board Secretariat of Canada,
http://www.tbs-sct.gc.ca/rma/dpr1/04-05/BSA-ASF/BSA-ASFd4502_e.asp (accessed January 4,
2006) [CBSA DPR 2004-2005]. See also a description of joint EU-US initiatives, “Customs and
Security,” online, European Union, http://europa.eu.int/comm/taxation_customs/customs/
policy_issues/customs_security/index_en.htm (accessed January 4, 2006).
Detailed information about the type of information the CBSA requires is available on the
CBSA website, “Advance Commercial Information,” http://www.cbsa-asfc.gc.ca/import/
advance/cap_pac-e.html (accessed January 31, 2006).
“Marine Trade Security,” online, CBSA, http://www.cbsa-asfc.gc.ca/general/enforcement/
mts_smc-e.html (accessed January 4, 2006).
For more information on the Container Security Initiative program, see the U.S. Customs
and
Border
Patrol
website
at
http://www.cbp.gov/xp/cgov/border_security/
international_activities/csi/ (accessed March 9, 2006).
Canada-United States Container Security Initiative Partnership Arrangement, Washington,
D.C., Oct. 20, 2005. For more information on Canada’s participation in the Container Security
Initiative and related container security programs, see generally CBSA, “Marine Trade Security,”
online, CBSA, http://www.cbsa-asfc.gc.ca/general/enforcement/mts_smc-e.html (accessed
January 4, 2006).
CBSA DPR 2004-2005.
Ibid.
These goods are listed in the Export Control List, S.O.R./89-202.
Any goods exported to countries listed on the Area Control List, S.O.R./81-543, require an export permit. Currently, Myanmar (Burma) is the only country on this list.
Export and Import Permits Act, s. 25.
Investigation and Referrals for Prosecution MOU, ss. 1–14.
Ibid., s. 14.
Ibid, s. 15.
Canada, RCMP, “Waterfront Joint Forces Operation,” online, RCMP, http://www.
rcmp-grc.gc.ca/bc/crops/caw/coastal/wjfo/home_e.htm (accessed March 6, 2007);
Canada, RCMP, “National and Border Security,” online, RCMP, http://www.
rcmp-grc.gc.ca/qc/pro_ser/sec_nat_front_e.htm#ENEP (accessed March 8, 2006).
Section 241 of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), prevents CRA representatives
from disclosing taxpayer information unless a judicial order for disclosure has been made or
criminal charges have been laid: Income Tax Act, ss. 241(3), 241(3.2), 241(4)(e)(v). I have discussed these restrictions in more detail in the section of this chapter dealing with the CRA.
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Canada, RCMP, “Integrated Proceeds of Crime (IPOC),” online, RCMP, http://www.rcmpgrc.gc.ca/on/prog_serv/fed_serv/ipoc_e.htm (accessed March 6, 2006).
Canada, RCMP, “Combined Forces Special Enforcement Unit,” online, RCMP,
http://www.cfseu.org/site.htm (accessed March 6, 2006). The CBSA has a mandate to screen
immigrants and travellers to Canada for links with organized crime under s. 37 of the IRPA.
Canada, RCMP, “Integrated Market Enforcement Teams,” online, RCMP, http://www.rcmpgrc.gc.ca/fio/imets_e.htm (accessed March 6, 2006).
Intelligence and Fraudulent Documents MOU, ss. 2(a)–(b). Topics on which information may
be shared include public security concerns, terrorism, espionage and subversion, war crimes
and other criminal activity.
Intelligence and Fraudulent Documents MOU, s. 2(d).
CIC-CSIS MOU.
Investigation and Referrals for Prosecution MOU, s. 10.
Ibid, s. 11.
Ibid, s. 9.
Criminal Code, ss. 7(7), 477.2. Offences under the Security of Information Act, R.S.C. 1985,
c. O-5, also require such consent.
IRPA, s. 117.
Investigation and Referrals for Prosecution MOU, s. 8.
Ibid, s. 16.
Memorandum of Understanding between The Department of National Revenue Responsible for
the Enforcement of the Customs Act, Excise Act, Excise Tax Act, and Income Tax Act and the
Canadian Police Information Centre, a National Police Service of the Royal Canadian Mounted
Police, Ottawa, July 17, 1995; Memorandum of Understanding between Citizenship and
Immigration Canada Enforcement Branch, National Service Sector and the Canadian Police
Information Centre, a National Police Service of the Royal Canadian Mounted Police, Ottawa,
October 1995; Memorandum of Understanding between the Royal Canadian Mounted Police
and Revenue Canada Customs, Ottawa, January 11, 1995 (this MOU relates to access to the
Police Information Retrieval System).
RCMP assistance would be requested in relation to specific, legislatively defined grounds for
inadmissibility to Canada, set out at ss. 34, 35 and 37 of the IRPA.
Memorandum of Understanding between the Royal Canadian Mounted Police and Revenue
Canada Customs, Ottawa, January 11, 1995.
Investigation and Referrals for Prosecution MOU, s. 17. This list is not exhaustive.
Ibid, s. 20.
Ibid, s. 21.
CBSA-DOJ-RCMP War Crimes MOU.
CSIS Act, s. 14.
CIC-CSIS MOU. This agreement allows the parties to share information under s. 8(2)(e) of the
Privacy Act, R.S.C. 1985, c. P-21.
CBSA Act, s. 119(1), amending ss. 150.1(1)(a) and (b) of the IRPA. The conditions under which
information may be shared or used can be set by government regulation: CBSA Act, s. 119(2).
Three principle policy documents help CBSA employees interpret s. 107: Memorandum
D1-16-1, Explanation of Section 107 of the Customs Act (Ottawa: Canada Customs and Revenue
Agency, 2003) [Memorandum D1-16-1]; Interim Memorandum D1-16-2, Interim Administrative
Guidelines for the Provision to others, Allowing access to others, and Use of Customs Information
(Ottawa: Canada Customs and Revenue Agency, 2003) [Memorandum D1-16-2]; and Interim
Memorandum D1-16-3, Interim Administration Guidelines for the Provision to others, Allowing
access to others and Use of Passenger Name Record (PNR) Information. Memorandums D1-16-1
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and D1-16-2 are available on the CBSA website at http://www.cbsa.gc.ca/formspubs/
menu-e.html (accessed March 8, 2006).
Customs Act, s. 107(4)(h).
Ibid., s. 107. See especially ss. 107(4)(d) and 107(5)(a) and (c). The individuals authorized to
make disclosures for law enforcement purposes are listed in Appendix B to Memo D1-16-2,
at 13-21.
Customs Act, ss. 107(5)(a), 107(5)(c)(ii); Memorandum D-16-2, para. 30.
Customs Act, s. 107(5)(j).
IRPA, s. 150.1(b); Memorandum IN 1 at 7.
The investigatory bodies with whom information may be shared under s. 8(2)(e) of the Privacy
Act are listed in Schedule II of the Privacy Regulations, S.O.R./ 83-508.
Privacy Act, s. 8(2)(e).
Ibid., s. 8(2)(f).
Memorandum IN 1 at 7. A partial list of Immigration information sharing agreements and
arrangements is provided in Appendix A to memorandum IN 1.
Memorandum IN 1, Appendix 1.
I discuss FINTRAC’s national security role later in this chapter.
PCMLTFA, s. 12; Cross-border Currency and Monetary Instruments Reporting Regulations,
S.O.R./2002-412.
PCMLTFA, s. 36(3).
Ibid., s. 36(2).
Ibid., s. 36(3.1).
Canada, CBSA, Memorandum D19-14-1, Cross-Border Currency and Monetary Instruments
Reporting (Ottawa: CBSA, 2004), para. 50, online, CBSA, http://www.cbsa.gc.ca/
formspubs/menu-e.html (accessed March 8, 2006).
PCMLTFA, s. 55(3)(d).
Ibid.
Agreement Between the Government of Canada and the Government of the United States of
America Regarding Mutual Assistance and Co-operation Between their Customs
Administrations, Quebec, June 20, 1984, C.T.S. 1985/23, Arts. 11 (i) and (ii). This treaty is
available online at DFAIT, Canada Treaty Information Section, http://www.treaty-accord.gc.ca/
ViewTreaty.asp?Treaty_ID=100821 (accessed February 21, 2006) [1984 Canada-US Customs
Mutual Assistance Treaty].
Customs-RCMP-USA MOU.
CBSA Audit, Recommendation #1.
The Customs branch of the CBSA has Customs Mutual Assistance agreements, which are formal treaty instruments, in place with France; Germany; the Republic of Korea; Mexico; the
United States; and the European Community, including Austria, Belgium, Denmark, Finland,
Germany, Greece, Ireland, Italy, Luxemburg, the Netherlands, Portugal, Spain, Sweden and the
United Kingdom.
Signed 7 July 1999, implemented October 2004.
Signed 29 March 2001, implemented on the same day.
Signed 22 November 2000, not implemented.
Signed 4 June 1999, not implemented.
Signed 1996, not implemented.
The agreements with the U.K., New Zealand and Hong Kong are not operational because individuals have not been designated by their respective governments to receive requests and
provide information under the agreement, and identified to the other party. The designations
for the MOUs with Australia and the Netherlands are very limited, so only a small number of
people are authorized to share information.
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For example, at points of entry into Canada, CBSA officers will perform the functions of both
organizations. Inside Canada, on the other hand, CIC officers perform the functions of both
organizations in relation to refugee claimants.
Under the IRPA, s. 36.
Security concerns are defined in the IRPA, ss. 34, 35, 37.
See for example Canada, Citizenship and Immigration, IP 10, Refusal of National Security
Cases/Processing of National Interest Requests (Ottawa: Citizenship and Immigration Canada,
2005). This policy document describes CIC-CBSA co-operation on national security screening
for applications for permanent residence.
CIC does not create or add information to lookouts; this responsibility lies with the CBSA.
Lookout flags are discussed in more detail in the next section of this chapter, which deals
with the CBSA’s national security role.
CIC-RCMP co-operation in this regard is governed by a Memorandum of Understanding between the Department of Citizenship and Immigration Canada and the Royal Canadian
Mounted Police, Fingerprinting and Screening, being Annex II of Memorandum of
Understanding Concerning Partnership, Communication, Cooperation and Information
Sharing between Citizenship and Immigration Canada and the Royal Canadian Mounted
Police, Ottawa, December 23, 2002 [Fingerprinting and Screening MOU].
The CBSA also has specialized units dedicated to preventing the entry of organized criminals
and war criminals.
Memorandum of Understanding between CIC and CSIS, February 4, 2002 [CIC-CSIS MOU].
Co-operation between CIC and the RCMP in this regard is governed by the Fingerprinting and
Screening MOU.
RCMP assistance would be requested in relation to specific, legislatively defined grounds for
inadmissibility to Canada, set out at ss. 34, 35 and 37 of the IRPA. In relation to CSIS presence,
see Canada, Security Intelligence Review Committee, SIRC Annual Report 2003–2004: An
Operational Review of the Canadian Security Intelligence Service (Ottawa: Public Works and
Government Services Canada, 2004), p. 6.
The IRPA, s. 55(1), allows a refugee claimant to be detained if an officer suspects that the individual will not appear at future immigration proceedings. S. 55(3) allows a CBSA officer to
detain a refugee claimant at the border for further questioning or where the officer suspects
that the individual poses a risk to national security.
SMU Annex.
IRPA, ss. 112–114 in relation to immigration and visa applicants, and s. 115(1) in relation to
refugee claimants. A separate process under s. 115(2) of the IRPA, called the danger opinion
process, is used for refugee claimants; however, it not used for refugee claimants found to be
inadmissible for reasons broadly relating to national security. Therefore, I have not discussed
it further in this section.
IRPA, ss. 112(1), 115(1), 115(2).
The factors that must be considered are set out in detail at s. 97 of the IRPA. The standard of
“serious risk of torture” is the internationally accepted interpretation of Art. 3 of the United
Nations Convention Against Torture and Other Inhuman, Cruel or Degrading Treatment or
Punishment, New York, December 10, 1984, C.T.S. 1987/36, 1465 U.N.T.S. 85.
IRPA, ss. 79, 81(c).
Ibid., s. 113(d). If the assessment recommends that the person be allowed to remain in Canada,
the deportation order will be stayed: IRPA, s. 114(1)(b). The Supreme Court of Canada has held
that balancing process does not violate Canada’s Constitution: Suresh v. Canada (Minister of
Citizenship and Immigration), [2002] 1 S.C.R. 3. However, in the recent case of Dadar v.
Canada, December 5, 2005, U.N. Doc. CAT/C/35/D/258/2004 (decision of the Committee
Against Torture), the United Nations Committee Against Torture held that the balancing test
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violates Canada’s absolute obligation not to deport individuals where they face a real risk of
torture under the Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, 10 December 1984, 1465 U.N.T.S. 85, Can T.S. 1987/36 (in force
June 26, 1987), Art. 3, online, Office of the High Commissioner for Human Rights,
http://www.ohchr.org/english/law/cat.htm (accessed January 20, 2006).
Statement of Mr. Daniel Therrien, Senior General Counsel, Department of Justice, to the Senate
Special Committee on the Anti-terrorism Act, March 21, 2005 at 6:42 [Statement of Mr. Daniel
Therrien].
The rules on the admissibility of hearsay evidence are complex and beyond the scope of
this chapter. At the time of writing, the leading case on hearsay from the Supreme Court is
R. v. Starr, [2000] 2 S.C.R. 144, 2000 SCC 40.
Statement of Mr. Daniel Therrien at 6:42.
This official will be a member of the Case Management Branch: Canada, CIC, “Policy PP 3 –
Pre-removal Risk Assessment (PPRA),” December 14, 2005, para. 14.2.
Statement of Mr. Daniel Therrien at 6:42.
Canada, CIC, “Policy PP 3 – Pre-removal Risk Assessment (PRRA),” December 14, 2005,
para. 14.2.
Statement of Mr. Daniel Therrien at 6:42. This official is the Director, Case Management
Branch: CIC Policy PP 3 – Pre-removal Risk Assessment, December 14, 2005, para. 14.2.
IRPA, s. 80.
Canada, CIC, “PP 3 – Pre-removal Risk Assessment (PPRA),” December 14, 2005, s. 15.
Canada, Citizenship and Information, “IN 1, Overview of Information Sharing,” (Ottawa: CIC,
2005) at 7 [Memorandum IN 1].
CIC-RCMP Cooperation MOU; Memorandum of Understanding between CIC and CSIS,
February 4, 2002 [CIC-CSIS MOU]. CSIS is legally mandated to provide advice to the Minister
of Citizenship and Immigration regarding criminal or security matters relating to immigration:
CSIS Act, s. 14. Since the CIC-RCMP MOU was negotiated before the government reorganization that created the CBSA, CIC, the CBSA and the RCMP are negotiating bilateral MOUs.
CIC-RCMP Cooperation MOU, s. 12.
Statement of Mutual Understanding on Information Sharing, Department of Citizenship and
Immigration Canada, the U.S. Immigration and Naturalization Service and the U.S. Department
of State, 2003, arts. 4c. and d., online, http://www.cic.gc.ca/english/policy/smu/
smu-ins-dos.html (accessed January 18, 2006) [SMU]; Memorandum IN 1, p. 13. Guidance on
the interpretation of the agreement can be found in Canada, Directives for Sharing Information
pursuant to the 2003 Canada-U.S. SMU on Information Sharing, Policy Statement updated
May 12, 2005, online, Citizenship and Immigration, http://www.cic.gc.ca/manuals-guides/
english/in/in02e.pdf (accessed January 18, 2006) [Information Sharing Directive]. The CanadaUS Information Sharing Understanding provides that its terms shall be reviewed after five
years: art. 13.
SMU, arts. 2, 3.
Ibid., art. 4.
Ibid., art. 4f.
I have discussed the restrictions on information sharing in the Privacy Act earlier in this chapter. Readers should note that s. 8 of the Privacy Act generally allows information to be shared
for national security purposes.
SMU, art. 5.
Ibid., art. 6(c)(ii).
Ibid., art. 6(c)(ii).
Ibid., art. 6(c)(ii).
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Ibid., art. 10. Canadian officials are required to notify any U.S. entities that have been given
information of any corrections, changes or deletions: Information Sharing Directive, p. 7.
Annex Regarding the Sharing of Information on Asylum and Refugee Status Claims to the
Statement of Mutual Understanding on Information Sharing, 2003, online, Citizenship and
Immigration, http://www.cic.gc.ca/english/policy/smu/smu-ins-annex1.html (accessed
August 10, 2006) [SMU Annex].
SMU Annex, arts. 5, 6.
Ibid., art. 7(c).
Ibid., art. 3.
Ibid., art. 7(d).
Concept of Operations US-Canada Terrorist Watch List Program (CONOPS), signed May 23,
1997 [TUSCAN/TIPOFF Aide-Memoire]. This agreement is summarized in Memorandum IN 1,
p. 13.
Agreement Between the Government of Canada and the Government of the United States of
America for Cooperation in the Examination of Refugee Status Claims From Nationals of Third
Countries, December 5, 2002 (entered into force December 29, 2004).
Information Sharing Directive, p. 4.
Ibid., pp. 3–4.
Ibid., pp. 6–7.
For general information on Transport Canada and its mandate, see “What We Do,” online,
Transport Canada, http://www.tc.gc.ca/aboutus/whatwedo.htm (accessed December 13, 2005)
[Transport Canada website].
Transport Canada website.
These security clearances are governed by the Aeronautics Act, s. 4.8.
The other members of the Working Group are CSIS, the RCMP, the CBSA, DND, the Coast
Guard/DFO, DFAIT, PCO, PSEPC, the Department of Justice, Environment Canada, Defence
Research and Development Canada, the Department of Finance, the Treasury Board, the
Canadian Space Agency and the Canadian Food Inspection Agency. Other departments and
agencies (e.g., CIC) participate in the Working Group when their mandates involve them in
marine security matters.
See also Transport Canada, Backgrounder, “Highlights of New Marine Security Initiatives”
(Nov. 16, 2004), online, Transport Canada, http://www.tc.gc.ca/mediaroom/backgrounders/
b03-M001.htm (accessed January 25, 2006).
More information on the Interdepartmental Marine Security Working Group and the Marine
Security Operation Centres can be found in the section of this chapter on the Canadian
Coast Guard.
See Transport Canada, News Release, GC No. 001/05, “Government of Canada Announces
New Marine Security Initiatives” (April 22, 2005), online, Transport Canada,
http://search2.tc.gc.ca/mediaroom/releases/releases.asp?region=-1&selModes=
0&Year=&Show=1000 (accessed January 26, 2006) [Marine Security Initiatives News Release].
Maritime domain awareness refers to Canada’s ability to understand what is happening over,
under, in and near its waters.
The list of other departments and agencies that will receive intelligence and/or information
from MSOCs, and the precise relationship between MSOCs on the one hand and IBETs or
INSETs on the other is still being developed at the time of writing.
See also Canadian Coast Guard, Marine Communications and Traffic Services; Canada,
Department of Fisheries and Oceans, Marine Programs’ National Performance Report for
2003–2004, Marine Communications and Traffic Services (Ottawa: Public Works and
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Government Services Canada Canada, 2003), online, Canadian Coast Guard, http://www.ccggcc.gc.ca/mp-pm/docs/03-04/pr/pdf_e.htm (accessed January 26, 2006).
Securing an Open Society: One Year Later, p. 34.
The interim Great Lakes–St. Lawrence Seaway MSOC is expected to operate until mid-2008.
In the meantime, planning will take place to create a fully functional MSOC that also includes
representatives from the CBSA, Transport Canada and the Coast Guard.
Securing an Open Society: One Year Later, p. 34.
The RCMP is currently studying the project to determine what RCMP information, if any, can
be stored in MIMDEX.
Interdepartmental Marine Security Working Group, “Canada’s Marine Transportation System,”
online,
Canadian
Navy,
Jan.
12,
2004
http://www.marine.gc.ca/cms_strat/
strat-issues_e.asp?id=301 (accessed November 2, 2006).
Aeronautics Act, s. 4.8.
Transport Canada is also developing a mechanism to hear complaints from employees who
are denied security clearance to work in restricted or sensitive areas in airports on the basis
of adverse security information.
Canada, Senate, Proceedings of the Special Senate Committee on the Anti-terrorism Act, 38th
Parl. (14 November 2005) (testimony of the Honourable Jean Lapierre, Minister of Transport)
at 19:33, online, Parliament of Canada, http://www.parl.gc.ca/38/1/parlbus/commbus/
senate/Com-e/anti-e/pdf/19issue.pdf (accessed December 13, 2005) [Testimony of Minister of
Transport]. In relation to security clearances for port workers, see also Transport Canada,
“Information Package on the Proposed Marine Transportation Security Clearance Program
(MTSCP),” online, Transport Canada, http://www.tc.gc.ca/MarineSecurity/Regulatory/
Initiatives/Info_package.pdf (accessed April 12, 2006).
See Transport Canada and the Ministry of Public Safety and Emergency Preparedness, “Press
Release: Government of Canada Moving Forward on Air Passenger Assessment,” Aug. 5, 2005,
online, Transport Canada, http://www.tc.gc.ca/mediaroom/releases/nat/2005/05-gc009e.htm
(accessed December 13, 2005).
Aeronautics Act, s. 4.76.
Testimony of Minister of Transport at 19:30 and 19:44. See also http://www.tc.gc.ca/
mediaroom/releases/nat/2006/06-gc014e.htm (accessed Oct. 30, 2006).
I have described API/PNR information in detail in the section of this chapter on the CBSA.
Aeronautics Act, s. 4.81. The CBSA automatically receives Advance Passenger Information (including name, passport and citizenship information) for all flights into Canada; Transport
Canada, however, must request information.
Aeronautics Act, s. 4.81.
See testimony of Ward Elcock, Director of CSIS, before the House of Commons Committee on
Bill C-17, the Public Safety Act, December 5, 2002 and February 13, 2003, and testimony of
Commissioner Giuliano Zaccardelli, Royal Canadian Mounted Police, before the House of
Commons Committee on Bill C-17, the Public Safety Act, December 5, 2002, and February 13,
2003, online, www.parl.gc.ca (accessed May 6, 2006). On February 13, 2003, Mr. Elcock indicated that CSIS would be creating a separate, computerized watch list against which to match
this data.
Aeronautics Act, ss. 4.82(2)–(3).
Ibid., s. 4.82.
Testimony of Ward Elcock, Director of CSIS, before the House of Commons Committee on
Bill C-17, the Public Safety Act, February 13, 2003.
Ibid.
Aeronautics Act, s. 4.82(4)–(5).
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Testimony of Wayne Easter, Solicitor General of Canada, before the House of Commons
Committee on Bill C-17, the Public Safety Act, December 5, 2002; Testimony of Commissioner
Giuliano Zaccardelli, Royal Canadian Mounted Police, before the House of Commons
Committee on Bill C-17, the Public Safety Act, December 5, 2002 and February 13, 2003.
Aeronautics Act, s. 4.82(1)(a).
Ibid., ss. 4.82(1)(b) and (c), respectively.
Testimony of Wayne Easter, Solicitor General of Canada, Mr. Ward Elcock, Director of CSIS,
Commissioner Giuliano Zaccardelli, Royal Canadian Mounted Police, before the House of
Commons Committee on Bill C-17, the Public Safety Act, February 13, 2002, online,
www.parl.gc.ca (accessed May 6, 2006); Library of Parliament – Parliamentary Information
and Research Services, Bill C-7: The Public Safety Act, 2002, February 12, 2004 (LS-463E),
para. K, online, Library of Parliament, http://www.parl.gc.ca/common/bills_ls.asp?
Parl=37&Ses=3&ls=c7#bministerialtxt (accessed December 13, 2005).
S.C. 2004, c. 15.
Canadian Air Transport Security Authority Act, S.C. 2002, c. 9, s. 4 [CATSA Act]. The Act requires the Minister to complete a five-year review of CATSA by 2007 and present the report
to Parliament.
CATSA’s general mandate is found at s. 6 of the CATSA Act.
CATSA does not screen for explosives at every airport in Canada; however, the 89 designated
airports cover 99 percent of air travellers in Canada: Canada, Canadian Air Transport Security
Authority, The Canadian Air Transport Security Authority: An Overview, online, “Mandate,”
Canadian Air Transport Security Authority, http://www.catsa-acsta.gc.ca/english/
about_propos/mandat.pdf (accessed December 14, 2005); Canada, Senate, Proceedings of the
Special Senate Committee on the Anti-terrorism Act, 38th Parl. (14 November 2005) (testimony
of Jacques Duchesneau, CEO, Canadian Air Transport Security Authority) at 19:47, online,
Parliament of Canada, http://www.parl.gc.ca/38/1/parlbus/commbus/senate/Com-e/anti-e/
pdf/19issue.pdf (accessed December 13, 2005) [Testimony of Jacques Duchesneau, CEO of
CATSA]
Ibid.
CATSA Act, s. 8.
The authority to hire contractors to provide screening services is found in the CATSA Act, s. 7.
For example, CATSA does not screen for forged passports or other fraudulent identity documents: Testimony of Jacques Duchesneau, CEO of CATSA at 19:47.
Aeronautics Act, s. 4.81. If s. 4.82 of the Aeronautics Act is brought into force, it will allow designated RCMP and CSIS officers to share information about individual passengers with CATSA
if they reasonably believe that the information is relevant to transportation security.
CATSA Act, s. 9.
Criminal Code, as amended at s. 494.
Ibid., s. 494(3).
Aeronautics Act, s. 4.81.
See Transport Canada, Backgrounder, “Transfer of Canadian Coast Guard
Responsibilities from the Department of Fisheries and Oceans to Transport Canada”
(February 2005), online, Transport Canada, http://www.tc.gc.ca/mediaroom/includes/
printable_backgrounder.asp?lang=eng (accessed January 25, 2006) [Transfer of Coast Guard
Responsibilities Backgrounder].
Canada, Government Response to the First Report of the Standing Committee on Fisheries and
Oceans on the Canadian Coast Guard, entitled “Safe, Secure, Sovereign: Reinventing the
Canadian Coast Guard,” recommendations 17 and 18, online, Parliament of Canada,
http://www.parl.gc.ca/committee/CommitteeList.aspx?Lang=1&PARLSES=381&JNT=0&SELID=
233
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e8_&COM=0 (accessed January 26, 2006). Both the House of Commons Standing
Committee on Fisheries and Oceans and the Standing Senate Committee on National Security
and Defence have studied the activities and responsibilities of the Coast Guard in
recent years. See: House Committee Report on MCTS; Canada, House of Commons, Safe,
Secure, Sovereign: Reinventing the Canadian Coast Guard, Report of the Standing
Committee on Fisheries and Oceans (March 2004), online, Parliament of Canada,
http://www.parl.gc.ca/committee/CommitteeList.aspx?Lang=1&PARLSES=381&JNT=0&SELID=
e8_&COM=0#TOC (accessed January 26, 2006); Canada, Senate, Standing Committee on
National Security and Defence, Canada’s Coastlines: The Longest Under-Defended Borders in
the World (October 2003), online, Parliament of Canada, http://www.parl.gc.ca/
common/Committee_SenRep.asp?Language=E&Parl=38&Ses=1&comm_id=76
(accessed
January 26, 2006).
Securing an Open Society: Canada’s National Security Policy, p. 38.
Fisheries and Oceans Canada, Backgrounder, “RCMP and Canadian Coast Guard Launch Joint
Partnership on the Great Lakes and St. Lawrence River” (July 2005), online, Department of
Fisheries and Oceans, http://www.dfo-mpo.gc.ca/media/backgrou/2005/hq-ac66a_e.htm?
template=print (accessed January 25, 2006) [DFO Backgrounder].
See RCMP, News Release, “RCMP-Canadian Coast Guard Begin Joint Marine Security patrols
on Great Lakes and St. Lawrence Seaway” (July 11, 2005), online, Royal Canadian Mounted
Police, http://www.rcmp-grc.gc.ca/news/adv_0509_e.htm (accessed January 26, 2006) [RCMPCG Joint Patrols News Release]; Fisheries and Oceans Canada, News Release, “RCMP and
Canadian Coast Guard Begin Joint Marine Security Patrols Along Great Lakes and St. Lawrence
Seaway” (July 13, 2005), online, Department of Fisheries and Oceans, http://www.
dfo-mp.gc.ca/media/newsrel/2005/hq-ac66_e.htm?template=print (accessed January 25, 2006).
RCMP, “National and Border Security,” online, Royal Canadian Mounted Police,
http://www.rcmp-grc.gc.ca/qc/pro_ser/sec_nat_front_e.htm (accessed January 25, 2006); DFO
Backgrounder.
These vessels are identified in the Vessel Traffic Services Zones Regulations, S.O.R./89-98,
passed under the Canada Shipping Act, R.S.C. 1985, c. S-9.
See Canada, House of Commons, Canadian Coast Guard Marine Communications and Traffic
Services, Report of the Standing Committee on Fisheries and Oceans (February 2003), online,
Parliament
of
Canada,
http://www.parl.gc.ca/committee/CommitteeList.aspx?Lang=
1&PARLSES=381&JNT=0&SELID=e8_&COM=0#TOC (accessed January 26, 2006) [Commons
Committee Report on MCTS]; Canadian Coast Guard, “Marine Communications and Traffic
Services, General Information,” online, http://www.ccg-gcc.gc.ca/mcts-sctm/docs/misc/
general_e.htm (accessed January 25, 2006) [Canadian Coast Guard, Marine Communications
and Traffic Services]; Transfer of Coast Guard Responsibilities Backgrounder; Marine Security
Initiatives News Release; Capt. Peter Avis, “Surveillance and Canadian Maritime
Domestic Security, online, Canadian Navy, http://www.navy.forces.gc.ca/mspa_news/
news_issues_e.asp?category=4&title=14 (accessed January 26, 2006); Larry Murray, Deputy
Minister, Department of Fisheries and Oceans, “Canada’s Oceans: Maximizing Opportunities
for Canadians from a Sovereignty and Security Perspective” (Presentation to the Centre for
Foreign Policy Studies Conference, “What Canadian Military and Security Forces in the Future
World? A Maritime Perspective,” June 10–12, 2005), online, Canadian Naval Review,
http://naval.review.cfps.dal.ca/pdf/canadasoceansmurray.pdf (accessed January 26, 2006).
S.C. 2001, c. 41.
Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17, s. 2
[PCMLTFA].
Ibid., s. 40(a).
Ibid., s. 40(c).
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Ibid., s. 54.
Ibid., s. 54(a).
Canada, Senate, Proceedings of the Senate Special Committee on the Anti-terrorism Act, 38th
Leg., (Apr. 18, 2005), Testimony of Horst Intscher, Director, FINTRAC at 8:8-8:9, online,
Parliament of Canada, http://www.parl.gc.ca/38/1/parlbus/commbus/senate/Com-e/
anti-e/pdf/08issue.pdf (accessed January 23, 2006) [Testimony of Horst Intscher].
For a description of the terrorist entity listing process under s. 83.1 of the Criminal Code, see
the section of this chapter on the Department of Public Safety and Emergency Preparedness.
PCMLTFA, s. 12; Cross-border Currency and Monetary Instruments Reporting Regulations. I
have discussed the CBSA’s role under the PCMLTFA in more detail in the section of this chapter on the CBSA.
“Guideline 2: Suspicious Transactions,” online, FINTRAC, http://www.fintrac.gc.ca/
publications/guide/guide_e.asp (accessed January 23, 2006).
Testimony of Horst Intscher at 8:13.
PCMLTFA, s. 9.
Ibid., s. 62.
The Police Information Retrieval System, or PIRS.
See testimony of Horst Intscher at 8:9; PCMLTFA, s. 54(b).
PCMLTFA, s. 54(b).
Ibid., s. 58.
Ibid., s. 36(2).
Ibid., s. 55.1.
PCMLTFA, s. 55(3)(b); Income Tax Act.
PCMLTFA, ss. 56, 56.1. These countries include the U.S.A., the U.K., Belgium, Australia, Mexico,
Italy, Barbados, the Netherlands, Portugal, the Republic of Korea, El Salvador, Panama, France,
Finland, Bulgaria, Denmark, Monaco, Latvia, Cyprus and Guernsey: Canada, Senate,
Proceedings of the Senate Special Committee on the Anti-terrorism Act, 38th Leg., (Apr. 18,
2005), Testimony of Josée Desjardins, Senior Counsel, FINTRAC at 8:27, online, Parliament of
Canada, http://www.parl.gc.ca/38/1/parlbus/commbus/senate/Com-e/anti-e/pdf/08issue.pdf
(accessed January 23, 2006). See also Canada, FINTRAC, FINTRAC Annual Report 2005
(Ottawa: Financial Transactions and Reports Analysis Centre of Canada, 2005), p. 20, online,
FINTRAC, http://www.fintrac.gc.ca/publications/annualreport/2005/AR_E.pdf (accessed
January 23, 2006) [FINTRAC 2005 Annual Report].
Testimony of Horst Intscher at 8:10.
November 2004 Report of the Auditor General of Canada to the House of Commons (Ottawa:
Public Works and Government Services Canada Canada, 2004), para. 2.21 [Auditor General’s
Report]; Testimony of Horst Intscher at 8:19.
PCMLTFA, ss. 55.1(2), 55(5.1) and 56.1(4), respectively.
See PCMLTFA, ss. 55(7), 55.1(3), 56.1(5); and the Proceeds of Crime
(Money Laundering) and Terrorist Financing Suspicious Transactions
Reporting Regulations, S.O.R./2001-317, s. 13.
Proceeds of Crime (Money Laundering) and Terrorist Financing Suspicious Transactions
Reporting Regulations, s. 13.
PCMLTFA, s. 60. In keeping with the Centre’s arm’s-length role, disclosure of FINTRAC’s case
analysis requires the police to establish that there are reasonable grounds to believe that the
person about whom disclosure is sought is involved in, or has benefited from, a terrorist-financing or money-laundering offence: PCMLTFA, s. 60(3)(d). In a parallel process, CSIS can
also get judicial authority to access FINTRAC’s case analysis: PCMLTFA, s. 60.1.
PCMLTFA, s. 74.
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398
Auditor General’s Report, paras. 2.2, 2.39.
Canada, Department of Finance, Enhancing Canada’s Anti-Money Laundering and AntiTerrorist Financing Regime, Consultation Paper, June 2005 (Ottawa: Department of Finance,
2005), Proposal 4.1 and Proposal 2.2, online, Department of Finance Canada,
http://www.fin.gc.ca/toce/2005/enhancing_e.html (accessed January 24, 2006).
Canada, Department of Finance, “Budget Plan 2006,” Chapter 3, online, Department of
Finance, http://www.fin.gc.ca/budget06/bp/bpc3de.htm (accessed May 3, 2006).
See PCMLTFA, s. 56.1(1) and Proceeds of Crime (Money Laundering) and
Terrorist Financing Suspicious Transactions Reporting Regulations,
S.O.R./2001-317, s. 13.
PCMLTFA, ss. 56.1(1)(a), 56.1(2)(a).
Ibid., ss. 56(3)(a)–(b).
Ibid., ss. 56, 56.1(1)(b), 56.1(2)(b).
Testimony of Horst Intscher at 8:21; Communication to Policy Review legal counsel, Arar
Commission, March 14, 2006.
Testimony of Horst Intscher at 8:21.
PCMLTFA, s. 56.2.
S.C. 2001, c. 41, s. 113 [CRSIA].
CRSIA, s. 4.
Subcommittee on Public Safety and National Security of the Standing Committee on Justice,
Human Rights, Public Safety and Emergency Preparedness, 38th Parl. (May 19, 2005), p. 3
(Statement by Mr. Michel Dorais, Commissioner, Canada Customs and Revenue Agency).
CRSIA, ss. 6–7.
Ibid., ss. 6(b), (e), (g).
Ibid., s. 6(h).
Ibid., ss. 8, 13.
Ibid., s. 8(2). If an organization believes that the circumstances that led to a certificate being
issued have changed, it may request that the ministers review the certificate and reinstate charitable status (s. 10). The Federal Court can review the reasonableness of the ministers’ decision (s. 11).
The CRA has bilateral memoranda of understanding with the RCMP and CSIS concerning the
transmission of such information.
Registered charities and organizations seeking registration are technically taxpayers under the
Income Tax Act.
Subcommittee on Public Safety and National Security of the Standing Committee on Justice,
Human Rights, Public Safety and Emergency Preparedness, 38th Parl. (May 19, 2005), p. 3
(Statement by Ms. Elizabeth Tromp, Director General, Charities Directorate, Policy and
Planning Branch, Canada Customs and Revenue Agency) [Statement of Ms. Elizabeth Tromp].
Income Tax Act, s. 241(4)(f.1).
Ibid., s. 241. See also R. v. Ling, [2002] 3 S.C.R. 814 [Ling]; R. v. Jarvis, [2002] 3 S.C.R. 757
[Jarvis]; Canada, Department of Finance, Enhancing Canada’s Anti-Money Laundering and
Anti-Terrorist Financing Regime, Consultation Paper, June 2005, p. 24, online, Department of
Finance Canada, http://www.fin.gc.ca/toce/2005/enhancing_e.html (accessed January 19,
2006) [Consultation Paper].
The confidentiality provisions of the Income Tax Act also apply to the CRA’s participation in
RCMP-led Integrated Proceeds of Crime units, which I have discussed earlier in this chapter
in relation to the CBSA.
Income Tax Act, s. 241(3)(a). The RCMP cannot execute a search warrant on the CRA prior to
the laying of charges: See Ministry of Natural Resources v. Fawcett (Justice of the Peace), [1988]
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401
402
403
404
405
406
2 C.T.C. 62 (B.C.S.C.); Communication from the CRA to Policy Review legal counsel, May 3,
2006.
Income Tax Act, s. 241(4)(e)(v). The judge’s order must be made under s. 462.48(3) of the
Criminal Code.
Criminal Code, s. 462.48 (1.1)(d).
Income Tax Act, s. 241(e)(iv); CSIS Act, s. 21(3).
Income Tax Act, s. 241(3.2). This section sets out the publicly available information about registered charities.
Ibid., s. 241(3)(b).
Ibid., s. 241(3.1).
Department of Foreign Affairs and International Trade Act, R.S.C. 1985, c. E-22, as amended,
s. 10.
There are many international treaties relating to acts of terrorism. Some of the principal treaties
to which Canada is a party are the following:
• International Convention for the Suppression of Acts of Nuclear Terrorism, 14 September
2005, A/RES/59/290, online, http://untreaty.un.org/English/Terrorism/English_18_15.pdf
(accessed July 11, 2006);
• Inter-American Convention Against Terrorism, June 3, 2002, Bridgetown;
• International Convention for the Suppression of the Financing of Terrorism, 9 December
1999, C.T.S. 2002/9, online, http://untreaty.un.org/English/Terrorism/Conv12.pdf (accessed
July 11, 2006);
• International Convention for the Suppression of Terrorist Bombings, 15 December 1997,
A/RES/52/164, online, http://untreaty.un.org/English/Terrorism/Conv11.pdf (accessed July
11, 2006);
• Convention on the Marking of Plastic Explosives for the Purpose of Detection, 1 March 1991,
1678 U.N.T.S. 304, online, http://www.unodc.org/unodc/en/terrorism_convention_plastic_
explosives.html (accessed July 11, 2006);
• Protocol to the Convention for the Suppression of Unlawful Acts Against the Safety of Fixed
Platforms Located on the Continental Shelf, 10 March 1988, 1678 U.N.T.S. 201, online,
http://untreaty.un.org/English/Terrorism/Conv8.pdf (accessed July 11, 2006);
• Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation,
10 March 1988, 1678 U.N.T.S. 201, online, http://untreaty.un.org/English/
Terrorism/Conv8.pdf (accessed July 11, 2006);
• Protocol tor the Suppression of Unlawful Acts of Violence at Airports Serving International
Civil Aviation (supplementary to the Convention for the Suppression of Unlawful Acts Against
the Safety of Civil Aviation, 24 February 1988, 1589 U.N.T.S. 474, online,
http://untreaty.un.org/English/Terrorism/Conv7.pdf (accessed July 11, 2006);
• Convention on the Physical Protection of Nuclear Material (with annexes), 3 March 1980,
1456 U.N.T.S. 101, online, http://untreaty.un.org/English/Terrorism/Conv6.pdf (accessed
July 11, 2006);
• International Convention Against the Taking of Hostages, 17 December 1979, 1316 U.N.T.S.
205, online, http://untreaty.un.org/English/Terrorism/Conv5.pdf (accessed July 11, 2006);
• Convention on the Prevention and Punishment of Crimes Against Internationally Protected
Persons, Including Diplomatic Agents, 14 December 1973, 1035 U.N.T.S. 167, online,
http://untreaty.un.org/English/Terrorism/Conv4.pdf (accessed July 11, 2006);
• Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation,
23 September 1971, 974 U.N.T.S. 177, online, http://untreaty.un.org/English/Terrorism/
Conv3.pdf (accessed July 11, 2006);
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415
• Convention for the Suppression of Unlawful Seizure of Aircraft, 16 December 1970, 860
U.N.T.S. 105,online, http://untreaty.un.org/English/Terrorism/Conv2.pdf (accessed July 11,
2006); and
• Convention on Offences and Certain Other Acts Committed on Board Aircraft, 14 September
1963, 704 U.N.T.S. 219, online, http://untreaty.un.org/English/Terrorism/Conv1.pdf
(accessed July 11, 2006).
For more information about the Division and its work, see “International Crime and Terrorism,”
online, Foreign Affairs Canada, http://www.dfait-maeci.gc.ca/internationalcrime/menu-en.asp
(accessed January 13, 2006).
See “Terrorism,” online, Foreign Affairs Canada, http://www.dfait-maeci.gc.ca/
internationalcrime/terrorism-en.asp (accessed January 13, 2006).
Testimony of Keith Morrill, Director, Criminal, Security and Treaty Law Division, FAC, in
Canada, Senate, Proceedings of the Senate Special Committee on the Anti-terrorism Act, 38th
Parl. (Mar. 21, 2005) at 6:61.
SOR/2001-360 [UNSTR], passed pursuant to the United Nations Act, R.S.C. 1985, c. U-2. An
entity is listed on the UN list by the UN Security Council 1267 Committee. The UN list is maintained pursuant to several resolutions of the UN Security Council:
• Security Council Resolution 1267: Resolution 1267 (1999), 15 October 1999,
S/Res/1267 (1999), online, United Nations Security Council Resolutions 1999,
http://daccessdds.un.org/doc/UNDOC/GEN/N99/300/44/PDF/
N9930044.pdf?OpenElement (accessed January 13, 2006);
• Security Council Resolution 1333: Resolution 1333 (2000), 19 December 2000,
S/Res/1333 (2000), S/Res/1333 (2000), online, UN Security Council Resolutions 2000,
http://daccessdds.un.org/doc/UNDOC/GEN/N00/806/62/PDF/N0080662.pdf?OpenElement
(accessed January 13, 2006);
• Security Council Resolution 1373: Resolution 1373 (2001), 28 September 2001, S/Res/1373
(2001), online, United Nations Office on Drugs and Crime, http://www.unodc.org/
pdf/crime/terrorism/res_1373_english.pdf (accessed January 12, 2006). Note that this resolution does not create a different list — it requires UN member states to freeze terrorist assets without delay; and
• Security Council Resolution 1390: Resolution 1390 (2002), 28 January 2002, S/Res/1390
(2002), online, Security Council Resolutions 2002, http://daccessdds.un.org/doc/
UNDOC/GEN/N02/216/02/PDF/N0221602.pdf?OpenElement (accessed January 13, 2006).
There are two other terrorist entity listing processes in Canada, one under the Criminal Code,
which I review in the section of this chapter on the Department of Public Safety and
Emergency Preparedness, and a separate process under the Charities Registration (Security
Information) Act, which I discuss in relation to the Canada Revenue Agency.
United Nations Afghanistan Regulations, S.O.R./99-444 [UNAR].
Resolution 1373 (2001), S/Res/1373 (2001), online, United Nations Office on Drugs and Crime,
http://www.unodc.org/pdf/crime/terrorism/res_1373_english.pdf (accessed July 31, 2006).
For more information on the UN listing process, see E. Alexandra Dosman, “For the Record:
Designating ‘Listed Entities’ for the Purposes of Terrorist Financing Offences at Canadian Law”
(2004) 62(1) U.T. Fac. L. Rev. 1 (QL), paras. 18–32 [Dosman, “For the Record”].
UNSTR, s. 1(a).
See for example the discussion of the standards used in 2001 by American authorities in the
UN listing process in John Roth, Douglas Greenburg & Sarah Wille, Monograph on Terrorist
Financing, Staff Report to the Commission, National Commission on Terrorist Attacks upon
the United States, 2003–2004, pp. 84-85, online, National Commission on Terrorist
�CANADA’S NATIONAL SECURITY LANDSCAPE
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437
Attacks upon the United States, Staff Statements, http://govinfo.library.unt.edu/911/
staff_statements/index.htm (accessed January 13, 2006) [9/11 Commission Staff Monograph].
For a narrative of the events, see 9/11 Commission Staff Monograph, pp. 84–85. In relation to
evidence of the individual’s personal involvement in terrorist activities, see United States of
America v. Hussein, [2001] O.J. No. 5812 at para. 1. The case relates to an American extradition request. Canada subsequently decided not to proceed with the extradition. For the U.S.
request to the UN, see U.S. Executive Order 13,224, List 4, “Al Barakaat Entities,” November 7,
2001, online, United States Department of the Treasury, http://www.ustreas.gov/rewards/
terrorismlist.shtml (accessed March 23, 2006); U.S., The White House, “Terrorist Financial
Network Fact Sheet,” November 7, 2001, online, White House, http://www.whitehouse.gov/
news/releases/2001/11/20011107-6.html (accessed March 23, 2006).
S.O.R./2002-210; United Nations, UN News Service, “Canadian Citizen no longer subject to
sanctions against Al-Qaida, Security Council Panel Says,” July 11, 2002, online, UN News
Centre, http://www.un.org/apps/news/printnewsAr.asp?nid=4159 (accessed January 10, 2006).
UNSTR, s. 2.
SIRC Annual Report 2004–2005, p. 5.
UNSTR, s. 2(2).
Ibid., s. 2(3).
Canada, Privy Council Office, The Canadian Security and Intelligence Community (Ottawa:
Her Majesty the Queen in Right of Canada, 2001), online, Privy Council Office,
http://www.pco-bcp.gc.ca/default.asp?Language=E&Page=publications&doc=
si/si_text_e.htm#Roles%20and%20Responsibilities (accessed January 13, 2006).
Ibid.
Exhibit P-12, Tab 50, Arar Commission Factual Inquiry.
The Prime Minister’s Office, on the other hand, provides partisan, political support to the
Prime Minister.
I discuss the national security role and functions of the Government Operations Centre in the
part of this chapter dealing with the Department of Public Safety and Emergency Preparedness.
For more information on the Security and Prosperity Partnership of North America, see
http://www.fac-aec.gc.ca/spp/spp-menu-en.asp (accessed March 23, 2006).
Department of Public Safety and Emergency Preparedness Act, S.C. 2005, c. 10 [PSEP Act].
Order Transferring from the Department of National Defence to the Department of the Solicitor
General the Control and Supervision of the Office of Critical Infrastructure Protection and
Emergency Preparedness, S.I./2003-229, C. Gaz. II, 31/12/03. See also Order Designating the
Deputy Prime Minister and Minister of Public Safety and Emergency Preparedness as Minister
for Purposes of the Act, S.I./2004-106, C. Gaz. II, 11/8/04.
The PSEP Act does not yet reflect the new name. However, for the sake of clarity, I will refer
to the Minister of Public Safety and Emergency Preparedness by the new title, Minister of
Public Safety.
PSEP Act, ss. 4–5. See also “Who we are,” on the PSEPC website, online, http://www.psepcsppcc.gc.ca/wwa/index-en.asp (accessed January 9, 2006) [PSEPC website, “Who we are”].
PSEP Act, s. 6(b).
Ibid., s. 6(d).
Ibid., s. 5. The Minister is also responsible for the Canadian Firearms Centre and the National
Parole Board.
PSEPC website, “Who we are.”
Ibid.
“About the National Security Directorate,” online, PSEPC, http://ww2.psepc-sppcc.gc.ca/
national_security/counter-terrorism/antiterrorism_e.asp (accessed January 9, 2006) [PSEPC
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website, “About the National Security Directorate”]; Securing an Open Society: Canada’s
National Security Policy; Securing an Open Society: One Year Later.
Representatives of the Round Table and PSEPC appeared before the Senate Special Committee
on the Anti-terrorism Act on October 24, 2005. Readers who would like more detail on the role
of the Round Table and some of the criticisms levelled against it can refer to the transcripts of
the Senate hearings, available online at http://www.parl.gc.ca/38/1/parlbus/commbus/
senate/Com-e/anti-e/pdf/17issue.pdf, at pp. 17:34ff.
I discuss the charities certificate procedure in relation to the Canada Revenue Agency in the
section of this chapter dealing with the CRA.
IRPA, ss. 77ff. I describe the security certificate process in the section of this chapter dealing
with the CBSA.
The security certificate process exists under ss. 76–85 of the Immigration and Refugee
Protection Act. A detailed description of the process can be found on the CBSA website,
“Security Certificates under the Immigration and Refugee Protection Act,” online, http://www.
cbsa-asfc.gc.ca/newsroom/factsheets/2005/certificat-e.html (accessed January 4, 2006).
The list of terrorist entities and a description of the various groups is available at
http://www.psepc-sppcc.gc.ca/prg/ns/le/cle-en.asp (accessed January 9, 2006). For a description of the Criminal Code listing process, focusing on CSIS’ involvement in the process,
see SIRC’s 2004–2005 annual report, pp. 4–10.
Criminal Code, ss. 83.05(1) and (1.1). The names of these entities are listed in the Regulations
Establishing a List of Entities, S.O.R./2002-284, as amended.
Criminal Code, s. 83.05(2).
Ibid., ss. 83.05(5) and (6).
Ibid., ss. 83.05(9) and (10).
Ibid., s. 83.14.
Ibid., s. 83.08.
Ibid., Part II.1, “Terrorism,” ss. 83.01–83.27.
S.O.R./2001-360, passed under the United Nations Act. An entity is listed on the UN list by the
UN Security Council Committee created by UNSCR 1267.
S.O.R./99-444, passed under the United Nations Act.
For a critical comparison of the listing processes under the Criminal Code and the UNSTR, see
Dosman, “For the Record.”
Department of Foreign Affairs and International Trade, “Smart Border Action Plan Status
Report, December 17, 2004,” #25, online, Department of Foreign Affairs and International
Trade, http://www.dfait-maeci.gc.ca/can-am/main/border/smart_border_12_17_04-en.asp
(accessed January 27, 2006).
Securing an Open Society: One Year Later, p. 28. The regulations creating the Public Health
Agency are Order Designating the Public Health Agency of Canada as a Department and the
Chief Public Health Officer of Canada as Deputy Head, S.I./2004-124 and Order Transferring
from the Department of Health to the Public Health Agency of Canada the Control and
Supervision of the Population and Public Health Branch and Ordering the Minister of Health
to Preside Over the Agency, S.I./2004-123.
For more information on the national security role of the Public Health Agency of Canada, see
the Agency’s website at http://www.phac-aspc.gc.ca/ep-mu/bioem_e.html (accessed
February 3, 2006).
For more information on this system, see Public Health Agency of Canada, News Release,
“Global Public Health Intelligence Network” (November 2004), online, Public Health Agency
of Canada, http://www.phac-aspc.gc.ca/media/nr-rp/2004/2004_gphin-rmispbk_e.html
(accessed February 3, 2006).
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462
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474
475
For more information on the Centre for Emergency Preparedness and Response, see the
Centre’s website at http://www.phac-aspc.gc.ca/cepr-cmiu/index.html (accessed February 3,
2006). For more information on the public health component of Canada’s National Security
Policy, see Securing an Open Society: Canada’s National Security Policy, pp. 29–34, and
Securing an Open Society: One Year Later, pp. 27–32.
Public Safety and Emergency Preparedness Canada, The Chemical, Biological, Radiological
and Nuclear Strategy of the Government of Canada (Ottawa: Public Works and Government
Services Canada, 2005) [CBRN Strategy].
S.C. 1999, c. 33.
R.S.C. 1985, c. E-17.
C.R.C., c. 599.
Privy Council Office Background Document. For more information about Natural Resources
Canada, see the department’s website at http://www.nrcan.gc.ca (accessed February 5, 2006).
More information on the department’s mapping and charting role is available at
http://www.geoconnections.org/CGDI.cfm/fuseaction/
cgdiServices.welcome/gcs.cfm
(accessed February 5, 2006).
More information about this initiative is available online at Canadian Research and Technology
Initiative, http://www.crti.drdc-rddc.gc.ca/en/default.asp (accessed April 6, 2006).
More information about the Nuclear Safety Commission’s security activities is available online
at http://www.nuclearsafety.gc.ca (accessed February 5, 2006).
CBRN Strategy, p. 8.
However, jurisdiction over these offences is shared with the provincial attorneys general.
Communication to Policy Review legal counsel from the Department of Justice, March 22,
2006.
R.S.C. 1985, c. O-5.
Ibid., c. A-1.
Ibid., c. P-21.
Security of Information Act, s. 24.
Treasury Board of Canada Secretariat, “Government Security Policy — Operational Standard
for the Security of Information Act” (March 2003), online, http://www.tbs-sct.gc.ca/pubs_pol/
gospubs/TBM_12A/sia-lpi1_e.asp#effe (accessed July 31, 2006) [Government Security Policy].
Canada, Senate, Proceedings of the Senate Special Committee on the Anti-terrorism Act, 38th
Leg., (May 30, 2005); Testimony of the Hon. Reg Alcock, President of the Treasury Board of
Canada at 12:70. At the Senate hearings, The Hon. Reg Alcock discussed the risk that
Canadians’ personal information would be disclosed or disclosable to American authorities as
a result of the provisions of the U.S.A. Patriot Act: Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT)
Act of 2001, Pub. L. No. 107-56, 115 Stat. 272. For more information on the potential effects
of the USA Patriot Act on the disclosure of Canadians’ personal information, see British
Columbia, Office of the Information and Privacy Commissioner, Privacy and the USA Patriot
Act, Implications for British Columbia Public Sector Outsourcing (Victoria: Office of the
Information and Privacy Commissioner, 2004), online, Office of the Information and Privacy
Commissioner for British Columbia, http://www.oipcbc.org/sector_public/usa_patriot_act/
pdfs/report/privacy-final.pdf (accessed February 6, 2006).
Canada, Senate, Proceedings of the Senate Special Committee on the Anti-terrorism Act, 38th
Leg., (May 30, 2005), Testimony of Donald Lemieux, Senior Director, Treasury Board of Canada
at 12:88.
Ibid., Testimony of Helen McDonald, Chief Information Office, Treasury Board of Canada at
12:91-92.
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476
477
478
479
480
481
482
483
484
485
486
487
488
489
490
491
492
493
494
495
496
497
498
499
500
501
502
Government Security Policy.
Ibid.
Security Offences Act, R.S.C. 1985, c. S-7, s. 6.
For example, the RCMP and the Ontario Provincial Police (OPP) have concluded a memorandum of understanding stipulating the roles and responsibilities of the OPP and municipal
police forces in relation to offences that fall under RCMP jurisdiction: Oral submissions of
Commissioner Gwen Boniface, Ontario Provincial Police, Transcript of Arar Commission Policy
Review Public Hearing (November 18, 2005), p. 640 [Boniface, Transcript].
Boniface, Transcript, pp. 637–38.
Ibid., p. 638.
Except where otherwise noted, information in this section is based upon on meetings and
communications between Policy Review Legal Counsel and the OPP, the Toronto Police
Service, the CACP and the Ottawa Police service regarding the national security activities of
provincial and municipal police forces.
INSETs (Integrated National Security Enforcement Teams) and IBETs (Integrated Border
Enforcement Teams).
Boniface, Transcript, p. 678.
Oral submissions of Commissioner Giuliano Zaccardelli, RCMP, Transcript of Arar Commission
Policy Review Public Hearing (November 18, 2005), p. 706 [Zaccardelli, Transcript].
Zaccardelli, Transcript, p. 709.
Oral submissions of Chief Vince Bevan, Ottawa Police Service, Transcript of Arar Commission
Policy Review Public Hearing (November 18, 2005), p. 707 [Bevan,Transcript].
Bevan, Transcript, p. 708.
See Chapter IV, Section 6.2.2.
Bevan, Transcript, p. 656.
See, for example, Ontario Police Services Act, R.S.O. 1990, c. P.15, ss. 1 and 42. Local police
forces will also be subject to provincial ministerial directives, policies and agreements. They
may also be party to provincial response, support and mutual aid agreements carrying a host
of obligations.
Security Offences Act, s. 2(b).
Police participants included members from the RCMP, the Edmonton Police Service, Camrose
Police Service, Lacombe Police Service, Medicine Hat Police Service, Lethbridge Regional Police
Service, Moose Jaw Police Service, Estevan Police Service, OPP, Toronto Police Service, Peel
Regional Police and Waterloo Regional Police Service.
“Submission of the Canadian Association of Chiefs of Police” (Written submission, Arar
Commission Policy Review Public Submissions), March 11, 2005, pp. 6, 7 [CACP written submission]. Integrated organized crime teams also exist in several provinces. Given the fine line
between ordinary criminal activity and criminal activity relating to national security, it is possible that a national security investigation could grow out of the organized crime mandates of
these teams.
CACP written submission, p. 7.
Police Act, R.S.Q. c. P-13.1, Schedule G; Communication from CACP.
R.S.B.C. 1996, c. 367.
CACP written submission, pp. 8, 9.
Bevan, Transcript, p. 650.
For example, the Province of Quebec is currently preparing to enter into an arrangement to
allow Quebec police services to access the Portal.
The TPS advises that it logs all the information it provides to CSIS.
In relation to disclosure requirements, see R. v. Stinchcombe, [1991] 3 S.C.R. 326.
�VI
Review of National Security Activities:
The Canadian Experience
1.
INTRODUCTION
In this chapter, I outline the Canadian experience with review of national security activities. I begin by describing review mechanisms for a number of law
enforcement agencies in Canada. This is of obvious relevance to the review of
RCMP law enforcement activities related to national security. Next, I examine the
Canadian experience with review of the activities of security intelligence agencies. This is pertinent for two reasons. To begin with, it is instructive to examine review bodies focused on national security. In addition, given the increased
integration of RCMP national security policing with agencies such as CSIS and
the Communications Security Establishment (CSE), such an examination is helpful for understanding how a review mechanism for the RCMP’s national security activities should interact with other review mechanisms. In the last part of
the chapter, I examine other existing federal accountability mechanisms: the
Auditor General of Canada, Privacy Commissioner of Canada, Information
Commissioner of Canada and Canadian Human Rights Commission. These
mechanisms do not focus on any particular institution or activity, but review activities across the federal government, and their mandates include or touch on
the national security activities of the RCMP and other Canadian national security actors.
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2.
LAW ENFORCEMENT REVIEW BODIES
2.1
POLICE COMPLAINTS BODIES
In the 1980s, bodies independent of the police were established across Canada
to review how the police handled complaints from the public. A background
paper produced by the Commission1 provides an overview of experience with
review of police complaints in all provinces and territories. Here, I focus on the
existing complaints body for the RCMP, the Military Police Complaints
Commission of Canada and certain provincial bodies (in Ontario, Quebec and
British Columbia) that provide some of the more significant policy alternatives
to the present federal models.
2.1.1
Commission for Public Complaints Against the RCMP (CPC)
Before 1988, there was no civilian oversight of investigations into public complaints against the RCMP, or of any discipline applied by the Force. The first
RCMP directive on public complaints, issued in 1964, stated that “[a] complaint
against the Force or a member shall be investigated immediately.”2 This led to
the promulgation of RCMP standing orders relating to public complaints. At the
time, there were also provisions for external investigations, such as that conducted by the Commission of Inquiry Concerning Certain Activities of the Royal
Canadian Mounted Police, known as the McDonald Commission, as well as for
criminal charges or civil actions against RCMP officers.
The Commission for Public Complaints Against the RCMP (CPC) was established in 1988 primarily to review the Force’s handling of complaints,
although it was given the power to initiate complaints in exceptional cases.3 As
will be seen, this model departed from recommendations made by the
McDonald Commission for a more robust review body for the RCMP — one
that would not be limited to reviewing the Force’s handling of public complaints.
2.1.1.1
Marin and McDonald Commission Reports
Two important federal studies led to the creation of the CPC in 1988. The first
was by the Commission of Inquiry Relating to Public Complaints, Internal
Discipline and Grievance Procedure within the Royal Canadian Mounted Police,
chaired by Judge René J. Marin (Marin Commission), which reported in 1976.4
�REVIEW MECHANISMS: THE CANADIAN EXPERIENCE
The second was by the McDonald Commission, mentioned above, which reported in 1981.5
The Marin Commission report focused on public complaints against the
RCMP. Judge Marin recommended that the RCMP generally investigate and adjudicate complaints against the Force. This emphasis on internal investigation
and adjudication departed from certain other reform proposals of the day, but
was motivated by the idea that “management must retain initial responsibility for
action in this and all other aspects of public complaint procedures.”6 Judge Marin
did propose a new outside review authority, the Federal Police Ombudsman,
who would become involved only after the RCMP had completed its internal investigation and discipline process. Appeals by dissatisfied complainants or members of the Force who had a grievance or were disciplined by the Force would
be heard by the Ombudsman, who would be appointed for a fixed term by
Parliament and be responsible to it.7
Judge Marin envisioned that the Ombudsman would have general powers
of oversight of the public complaints process. The Ombudsman would not only
provide a “review of any particular complaint” and “appoint tribunals to hold
hearings convened for the purpose of determining the merits of a complaint,”8
but would also have responsibility for “ascertaining that all complaints [were] investigated in an appropriate matter.”9 Further, the Ombudsman would have responsibility for “recommending such remedial action as he believe[d] necessary
at both the individual and organizational level.”10 He or she would be given all
of the authority vested in a commissioner appointed pursuant to the Inquiries
Act. According to Judge Marin, “[w]ithout full powers of inquiry, the ombudsman
would be unable to fulfill his role as a watchman on behalf of Parliament.”11
The Ombudsman proposed by Judge Marin would not have the power to
impose discipline. That would remain with the RCMP. However, in Judge Marin’s
view, the Ombudsman’s annual and other reports and the publicity generated
by the publication of findings would help ensure that the process was fair to
complainants and individual officers.
In 1978, the federal government introduced legislation to establish a federal
ombudsman to handle complaints arising in all federal departments and agencies, including the RCMP,12 something Judge Marin had recommended against:
[T]he Federal Police Ombudsman should not be subsumed by an Ombudsman with
a more general mandate. The size and geographic distribution of the Force, the
multiplicity of its duties as federal, provincial and municipal police, as well as the
nature and visibility of its contact with the public, indicate the need for the services
of a specialized ombudsman.13
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In any event, the bill respecting the federal ombudsman died on the order
paper14 and legislation in this respect was never enacted. One result of the Marin
Report was that, at the end of 1978, the RCMP established a unit called the
Complaints Section within its Internal Affairs Branch at Headquarters to receive
complaints and forward them to the appropriate regions.15
The McDonald Commission agreed that there should be a specialized external review body, but went further than the Marin recommendations. It wrote:
[W]e believe the institution of the Ombudsman would not go far enough in meeting the needs we have identified. Our view is that the work of an external review
body should go beyond the traditional role of the Ombudsman of responding to individual complaints and should involve a continuing review of the adequacy of the
R.C.M.P.’s practices. Such matters, we feel, should be within the mandate of an external body charged not only with reviewing the R.C.M.P.’s disposition of complaints, but also with identifying problems within the R.C.M.P. which may have
contributed to the incidents in question.16
In other words, the McDonald Commission concluded that effective review
of the RCMP’s national security activities would require more than monitoring
of the Force’s handling of individual complaints.
The Commission recommended the establishment of the Office of Inspector
of Police Practices, modeled on the Office of Professional Responsibility that
had recently been created in the Attorney General’s Department in the United
States to oversee the FBI’s activities.17 The Office would be within the
Department of the Solicitor General and the Inspector would be appointed by
Cabinet for a renewable five-year term.18 The RCMP would retain initial responsibility for handling complaints,19 but the Inspector would have the power
to investigate complaints for the purpose of carrying out his or her mandate.20
As will be seen, this is similar to the power of the Chair of the CPC to conduct
“public interest” investigations.
The McDonald Commission envisioned a further role for the Office:
In addition to its investigatory role, the Office of the Inspector of Police Practices
should have a second function — that of monitoring the R.C.M.P.’s investigations
of complaints and evaluating the R.C.M.P.’s complaints handling procedures. To
perform this role effectively, the Inspector should receive copies of all written complaints of R.C.M.P. misconduct and reports from the R.C.M.P. of the results of its investigations of these complaints.21
The Commission’s report quoted Albert Reiss, a noted expert on the police,
who had written that “[a]cquisition of the input and output information (relating
�REVIEW MECHANISMS: THE CANADIAN EXPERIENCE
to a complaint) is one of the most powerful monitoring devices available over
an organization. Whoever has that information has the potentiality to assess
where the problems of the organization lie.”22
The McDonald Commission did not limit the Inspector’s jurisdiction to complaints, however, noting that often no complaint is made, for a variety of reasons, including fear of reprisals from the police, lack of awareness of possible
police misconduct and lack of confidence in police impartiality.23 It envisioned
a general audit function for the Inspector:
[A]s part of his reviewing and evaluating role, the Inspector of Police Practices
[should] inquire into and review at his own discretion or at the request of the
Solicitor General any aspect of R.C.M.P. operations and administration insofar as
such matters may have contributed to questionable behaviour on the part of
R.C.M.P. members.24
These recommendations were consistent with the McDonald Commission’s
recommendations for an independent monitoring body (the Security Intelligence
Review Committee, or SIRC) for the new national security organization (the
Canadian Security Intelligence Agency, or CSIS), empowered to conduct self-initiated reviews.
2.1.1.2
Creation of CPC
Pressure on the government to set up a system for complaints against the RCMP
increased after the release of the McDonald Commission report exposing wrongdoing by the RCMP. Further pressure arose following a 1981 decision by the
Supreme Court of Canada that only a federally established body could deal with
complaints against the Force, which resulted in provincial attempts to discipline
RCMP officers being struck down.25 The 1986 amendments to the Royal
Canadian Mounted Police Act (RCMP Act) that established the CPC borrowed
more heavily from the Marin Commission than the McDonald Commission
report.26 The CPC is primarily the overseer of the RCMP complaints process.
Initial investigation of most complaints is done by the RCMP. As a rule, the CPC
becomes involved only if a complainant is not satisfied with the RCMP’s disposition of the complaint, whereupon the CPC may prepare a report to the Minister
commenting upon the complaint, request that the RCMP investigate further, conduct further investigation on its own or institute a hearing to inquire into the
complaint.27 It also has the power to initiate its own complaint. Its power to institute a hearing is not dependent on an initial investigation or report by the
RCMP. The CPC does not have the power to impose penalties or sanctions,
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however. Its power is a power of persuasion, in that it may issue reports to the
Minister and make those reports public.
The CPC’s jurisdiction is limited to complaints “concerning the conduct, in
the performance of any duty or function under this Act . . . of any member or
other person appointed or employed under the authority of this Act.”28 As the
Federal Court of Appeal stated in 1994, “Parliament did not retain the suggestion contained in the Marin Report that the complaint process should apply to
complaints alleging the failure of the Force itself to meet public expectations.”29
This means that complaints are heard with respect to alleged individual, not systemic, misconduct.
2.1.1.3
Statutory Framework for CPC
The legislation establishing the CPC was enacted in 198630 and came into force
in 1988.31 Originally called the RCMP Public Complaints Commission, the body
was renamed in 2001 under the Federal Identity Program Policy to reflect the fact
that it is an independent entity and not part of the RCMP organization.32 The Act
provides that the CPC may have up to 29 members, appointed by the federal
Cabinet for renewable five-year terms.33 Despite the CPC’s potential for broad
representation from across Canada,34 at present it has only two members, the
Chair and the Vice-Chair, both of whom hold full-time appointments. It has a
staff of 44 and a budget of $5.1 million.35
Part VI of the RCMP Act sets out procedures for the CPC to deal with public complaints against members of the RCMP.
There is a broad right for members of the public to bring complaints against
members of the RCMP or other persons employed under the Act in relation to
the performance of their duties. The Act provides that any member of the public, “whether or not that member of the public is affected by the subject-matter
of the complaint” may make a complaint.36 The complaint may be made to the
CPC, the RCMP or a relevant provincial authority. In 2004-2005, the Commission
received 825 complaints that were referred to the RCMP for investigation, and
in 2005–2006 it received 738 complaints.37
The Chair of the CPC may also initiate a complaint where he or she is satisfied that there are reasonable grounds to investigate the conduct of any member. Such a complaint is investigated by the RCMP.38 This power was recently
used with respect to an RCMP shooting of an Aboriginal man in Norway House,
Manitoba.39
Although every complaint must be acknowledged in writing and the
Commissioner of the RCMP must be notified of every complaint,40 there is no
�REVIEW MECHANISMS: THE CANADIAN EXPERIENCE
statutory obligation to inform the CPC of all complaints received by the RCMP.41
The RCMP Commissioner is required to “establish and maintain a record of all
complaints received by the Force under this Part; and . . . on request, make
available to the Commission any information contained in the record.”42
However, the CPC does not generally request information under this section.
Consequently, citizens’ complaints made directly to the police come to its attention only if the matter is referred to it by a complainant who is not satisfied
with the RCMP’s handling of the complaint.
The RCMP Act provides for a procedure for attempting to informally dispose
of a complaint, where the complainant and the RCMP member who is the subject of the complaint consent.43 In 2004–2005, alternative dispute resolution was
used for 502 cases, 471 of which were resolved without a formal complaint proceeding, and in 2005-2006 the Commission facilitated the informal resolution of
339 complaints.44
Where complaints are not disposed of informally, the RCMP generally conducts an investigation of the complaint and provides a report to the complainant.
However, the Commissioner of the RCMP may direct that no investigation be
conducted or that an investigation be terminated if, in the Commissioner’s opinion, the complaint could more appropriately be dealt with, initially or completely, according to a procedure provided under any other act of Parliament;
the complaint is trivial, frivolous or vexatious, or was made in bad faith; or, having regard to all the circumstances, investigation or further investigation is not
necessary or reasonably practicable. The complainant must be informed of any
decision not to investigate and of his or her right to refer the complaint to the
CPC if not satisfied with that decision.45
Indeed, if a complainant is not satisfied with the RCMP’s disposition of the
complaint or a decision not to investigate, he or she may ask the CPC to conduct a review.46 If, upon reviewing the complaint, the Chair of the CPC is satisfied with the RCMP’s disposition of the complaint, he or she sends a written
report to that effect to the Minister, the Commissioner, the subject of the complaint and the complainant. If dissatisfied, the Chair may prepare and send to
the Minister and the Commissioner a written report setting out findings and recommendations with respect to the complaint; ask the Commissioner to conduct
a further investigation; or investigate the complaint further or institute a hearing
to inquire into the complaint.47
In 2005-2006, the CPC received 159 requests for review, and completed 260
review reports. In 82 percent of the reviews, the Commission was satisfied with
the conduct of RCMP members. In the remaining 18 percent of cases, the
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Commission made adverse findings resulting in 67 recommendations for remedial action, most of which the RCMP Commissioner agreed to implement.48
Although the Chair of the CPC does not technically sit in appeal of the
RCMP’s investigation, he or she does have several options when a complainant
is dissatisfied with the Force’s disposition of the complaint. Regardless of
whether or not the complaint has been investigated, reported on, or otherwise
dealt with by the RCMP, the Chair may investigate or institute a public hearing
into a complaint concerning the conduct of a member where he or she deems
it in the public interest.49 In such a case, the RCMP is not required to investigate
or deal with the complaint until the CPC provides it with a report.50 The CPC
makes use of this “public interest” procedure once or twice each year.51 For example, it did so in the well-known case relating to RCMP conduct at the 1997
APEC conference in Vancouver, where pepper spray was used against protesters.52 That case, which started in early 1998,53 involved an aborted hearing, a
number of court proceedings, and a further hearing by former Justice Ted
Hughes. In the Arar case, a complaint was instituted by the Chair of the CPC54
and an investigation was started, but was subsequently suspended pending the
outcome of this Inquiry.
Other public investigations have related to police conduct at a 1997 demonstration concerning the closing of French-language schools in New Brunswick55
and, more recently, police handling of an arrested person who was suffering
from mental illness.56 In late May 2004, a public interest investigation was
launched into RCMP investigations into alleged sexual abuse at the Kingsclear
Youth Training Centre in New Brunswick.57 In July of the same year, another
public interest investigation was begun into an allegation of sexual assault by an
RCMP officer.58
Where the Chair of the CPC is dissatisfied with the disposition of a complaint by the RCMP either after a review or a hearing, including a public interest hearing, the Chair sends an interim report to the RCMP Commissioner and
the Minister, setting out his or her findings and recommendations. The
Commissioner of the RCMP is required to inform the Chair and the Minister, in
writing, of any action to be taken in response to the Chair’s interim findings and
recommendations59 and provide reasons for rejecting any findings or recommendations. The Chair then prepares a final report that includes the
Commissioner’s response and the Chair’s final findings and recommendations
and sends it to the complainant, the RCMP member(s) involved, the
Commissioner and the Minister. The Chair does not have the power to impose
a recommendation on the Commissioner.
�REVIEW MECHANISMS: THE CANADIAN EXPERIENCE
The CPC’s powers to access information are not specified in the Act. Unlike
SIRC, which has broad authority to review the activities of the Canadian Security
Intelligence Service (CSIS)60 and receives reports on what CSIS does,61 as well
as ministerial directions to CSIS,62 the CPC generally only becomes involved
when persons complain directly to it or when complainants dissatisfied with
how the RCMP handled their complaints refer the complaints to the CPC. Under
the RCMP Act, where a complainant is not satisfied with the disposition of a
complaint and refers the complaint to the CPC for review, the Commissioner of
the RCMP “shall furnish” the Chair of the CPC with the RCMP’s report of the results of its investigation and any action taken and “such other materials under
the control of the Force as are relevant to the complaint.”63
In its 2004–2005 Annual Report, the CPC commented:
The CPC has 16 years’ experience in working with the public complaint process established by Part VII of the RCMP Act . In those 16 years, the biggest challenge the
CPC has faced, and continues to face, is access to information in the control of the
RCMP. The RCMP Act states in clear and unequivocal words that, when a complainant requests a review of a complaint by the CPC, the RCMP must provide the
CPC with all the materials relating to that complaint. These materials may include,
for example, RCMP investigative and operational files, witness statements, RCMP
policies and protocols, police notes, search warrants and reports to Crown. The
CPC’s access to these materials is vital to its ability to piece together the evidence
with a view to making impartial findings of fact and determining whether or not a
complaint is substantiated.64
In the same report, the CPC raised its concerns about obtaining access to
relevant material from the RCMP. The Commission cited delays in obtaining materials, or refusals to produce relevant materials on grounds including “national
security,” as causing concerns regarding accountability. The CPC stressed the
distinction between disclosing information to it and disclosing information to
the complainant or the public.65
Another means for the CPC to gain access to information is to hold a public hearing. When holding such a hearing, the CPC has the powers conferred on
a board of inquiry by the RCMP Act (such as the power to summon a person
and receive evidence on oath) in relation to the matter before it.66 The Act moreover allows the CPC to order that a hearing or part of a hearing be held in private if information is likely to be disclosed that could reasonably be expected
to be injurious to the defence of Canada or any state allied or associated with
Canada or to the detection, prevention or suppression of subversive or hostile
activities; could reasonably be expected to be injurious to law enforcement; or
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is information respecting a person’s financial or personal affairs where that person’s interest or security outweighs the public’s interest in the information.67
This procedure is used in the case of a public interest investigation and a
public hearing, but not in routine cases. Indeed, no public hearing has been
held since the APEC case mentioned above.
In a speech to the Canadian Institute for the Administration of Justice six
months after the events of September 11, 2001, then CPC chair Shirley Heafey
complained publicly about the CPC’s lack of powers.68 “The RCMP,” she said,
“may have greater powers, but the agency with oversight responsibility does
not.” She went on to state:
When Parliament framed the CSIS Act and established the Security Intelligence
Review Committee (SIRC), it recognized that, where matters of national security are
concerned, there is always a great deal of secrecy surrounding operations.
Accordingly, to ensure adequate oversight, SIRC was equipped with a large arsenal
of oversight tools. For example: it has audit powers so it can look at any situation
that it decides warrants review. As well, by law, certain activities of CSIS must be
reported to the Security Intelligence Review Committee. And, most notably, SIRC has
access to judicial warrants and the affidavits upon which they were obtained. The
CPC does not have similar powers.
Ms. Heafey pointed out that, under the RCMP Act, the “process is complaint
driven”:
[P]roblems are generally drawn to my attention by a complainant. But what happens
when a potential complainant doesn’t know of the CPC’s existence or, worse, is
afraid to complain about the actions of the police? . . . Without a complaint and without the power to randomly review files, it is difficult to investigate and to assess
RCMP use of the new powers. . . . A search is authorized by warrant issued by a judicial official who has read an affidavit in support of the request for the warrant. If
I don’t have access to those documents, how can I, in good conscience, assure the
Minister of Justice and the Solicitor General that I am overseeing the RCMP’s use of
these new powers?
“The CPC,” she concluded, “requires additional powers and additional resources to restore balance — to balance the new powers and resources given
to the RCMP for the purpose of combating terrorism.”69
The CPC submits annual reports of its activities to Parliament.70 It has also
produced some studies not directly linked to a specific complaint, such as one
in 1999 on police pursuits.71
�REVIEW MECHANISMS: THE CANADIAN EXPERIENCE
2.1.2
Military Police Complaints Commission
A somewhat different approach to review of police activity is taken for the military police.72 There are some 1,300 military police members in Canada and overseas in places such as Afghanistan and the Golan Heights. Military police
members have jurisdiction over all persons subject to the Code of Service
Discipline throughout Canada and abroad and have peace officer status for the
purpose of enforcing the Code.73 In addition, they have peace officer status in
respect of all persons when engaged in certain prescribed policing and security
duties on or in Department of National Defence (DND) property.74 Thus, they
have jurisdiction over members of the general public who commit offences on
or in relation to DND property.
Most military police officers are assigned to active military units, where they
carry out policing functions, but also serve as members of the Canadian Forces
(CF). Approximately 110 members of the military police are assigned to the CF
National Investigation Service (NIS), a special unit that reports to the Provost
Marshal and is independent of the operational chain of command (applicable to
the army, navy and air forces). Members of the NIS investigate the more serious
criminal or military offences and conduct “sensitive” investigations involving
senior officers or equivalent civilian employees of DND, sensitive material or instances that could bring discredit to DND.
About 40 members of the military police are assigned to the National
Counter-Intelligence Unit (NCIU), under the command of the Deputy Chief of
Defence Staff, within J2 (Intelligence). Some of the members serving in the NCIU
may participate in joint operations with the RCMP or other agencies through
Integrated National Security Enforcement Teams (INSETs) or Integrated Border
Enforcement Teams (IBETs) where there is a military nexus.
Generally speaking, the RCMP takes the lead on national security investigations, although the military police could be involved, likely through the NIS,
depending on the facts. The military may acquire top secret and other national
security information through formal channels. If it acquires this type of intelligence by other means, the practice is to pass it on to the RCMP.
The Military Police Complaints Commission (MPCC) is a civilian review
body that operates independently of DND and the Canadian Forces (CF). It is
staffed entirely by civilians and reports to Parliament through the Minister.75
The MPCC was created to make the handling of complaints involving the military police more transparent and accessible, discourage interference with military police investigations, and ensure that both complainants and members of
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the military police are dealt with impartially and fairly.76 It was established in
1999 as part of an overhaul of the National Defence Act,77 in response to recommendations by various working groups that had looked at the military justice system.78
The MPCC reviews the investigation of certain complaints undertaken by
the CF Provost Marshal.79 It has jurisdiction over both conduct and interference
complaints, although such jurisdiction is limited to conduct complaints that relate to the performance of policing duties and functions and interference complaints that pertain to an investigation.80
The National Defence Act makes the following provision with respect to
conduct complaints:
Any person, including any officer or non-commissioned member, may make a complaint under this Division about the conduct of a member of the military police in
the performance of any of the policing duties or functions that are prescribed for
the purposes of this section in regulations . . . .81
The relevant regulations provide:
2(1) For purposes of subsection 250.18(1) of the Act, any of the following, if performed by a member of the military police, are policing duties or functions:
(a)
the conduct of an investigation;
(b)
the rendering of assistance to the public;
(c)
the execution of a warrant or another judicial process;
(d)
the handling of evidence;
(e)
the laying of a charge;
(f)
the enforcement of laws;
(h)
responding to a complaint; and
(i)
(2)
attendance at a judicial proceeding;
(g)
the arrest or custody of a person.
For greater certainty, a duty or function performed by a member of the military police that relates to administration, training, or military operations that result from established military custom or practice, is not a policing duty or
function.82
The Provost Marshal83 has initial responsibility for dealing with conduct
complaints, although such complaints may be made to the Chairperson of the
MPCC, Judge Advocate General, Provost Marshal or any member of the military
police.84 The Provost Marshal classifies complaints as relating to policing duties
or functions, or as internal matters. The distinction is an important one, as the
MPCC has jurisdiction only with respect to the former, and the Provost Marshal
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has no obligation to notify the MPCC of complaints involving matters classified
as internal.85 There have been some differences of interpretation between the
MPCC and the Provost Marshal’s office as to whether a matter falls within the
definition of “policing duty or function” and thus engages the jurisdiction of the
MPCC. Following an independent review of the legislation, the Right Honourable
Antonio Lamer, former Supreme Court of Canada Chief Justice, recommended
that this particular definition be clarified.86 I note that Bill C-7, which, if passed,
would have a significant impact on the operation of the MPCC, proceeded to
First Reading in the House of Commons on April 27, 2006.87
2.1.2.1
Procedural Powers
A conduct complaint made orally or in writing must be acknowledged and the
subject of the complaint must be advised of the allegation unless this could adversely affect or hinder an investigation.88 Both the complainant and the subject
of the complaint must be advised of the progress of the matter periodically until
it is resolved.89
Subject to any attempts at informal resolution, the Provost Marshal is
responsible for investigating conduct complaints. However, he or she may direct that no investigation be started or that an investigation be ended if the
complaint is frivolous or vexatious, or was made in bad faith; could more appropriately be dealt with according to a procedure under another part of
the National Defence Act or under any other act of Parliament; or, having regard
to all the circumstances, investigation is not necessary or reasonably practicable.90 Thus, the Provost Marshal exercises a filtering function with respect to
conduct complaints.
Upon completion of an investigation into a conduct complaint, the Provost
Marshal is required to send the complainant, the subject of the complaint and
the Chairperson of the MPCC a report setting out a summary of the complaint,
the findings of the investigation, a summary of action that has or will be taken,
and the right of the complainant to refer the complaint to the MPCC for review
if not satisfied with the disposition.91
A complainant dissatisfied with the direction by the Provost Marshal refusing or ending informal resolution or an investigation or with the disposition of
the conduct complaint may request that the MPCC review the matter.92 In such
a case, the Provost Marshal must provide the Chairperson with all information
and materials relevant to the complaint.93 The MPCC does not possess other significant powers to compel witnesses and evidence when reviewing conduct
complaints. However, if the Chairperson considers it advisable “in the public
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interest,” he or she may at any time cause the MPCC to conduct an investigation and, if circumstances warrant, hold a public hearing into a complaint. This
applies to both conduct and interference complaints.94
When reviewing the file, the Chairperson may investigate any matter relating to the complaint. Upon completion of the review, the Chairperson sends
the Minister, Chief of the Defence Staff and Provost Marshal a report setting out
his or her findings and recommendations regarding the complaint.95 After reviewing the Chairperson’s report, the Provost Marshal prepares and sends the
Chairperson a notice of action indicating the intended response to the complaint
and reasons for any decision not to act on any findings or recommendations.96
After considering the Provost Marshal’s notice of action, the Chairperson prepares a final report on the complaint, which is sent to the same officials as the
initial report, as well as the complainant and the subject of the complaint.97
As for interference complaints, the Chairperson of the MPCC is responsible
for dealing with such complaints in the first instance. However, if appropriate,
the Chairperson may ask the Provost Marshal to conduct the investigation.98
Procedures are similar to those for conduct complaints. The MPCC has the
power to compel the attendance of witnesses or production of documents only
if a public interest hearing is convened.99
Hearings are held in public, although the MPCC may order a private hearing (in whole or in part) if it is of the opinion that information is likely to be disclosed that could be injurious to the defence of Canada or any state allied or
associated with Canada or to the detection, prevention or suppression of subversive or hostile activities, or that could be injurious to the administration of justice, including law enforcement. A private hearing may also be ordered to avoid
disclosure of information affecting a person’s privacy or security interest, if that
interest outweighs the public’s interest in the information.100
The National Defence Act guarantees more or less full procedural rights to
interested persons in a public hearing, including the right to be represented by
counsel, present evidence, cross-examine witnesses, and make representations.101 Witnesses must answer questions, although what they say cannot be
used against them in other proceedings in respect of an allegation that the witness made a false statement.102
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2.1.3
Provincial Police Review Bodies
2.1.3.1
Ontario
Two review bodies in Ontario provide interesting variations on the federal models: the Ontario Civilian Commission on Police Services (OCCPS) and the Special
Investigations Unit (SIU).
The province’s mechanisms for civilian review can be traced back to a series of reports starting in 1975 that recommended increased civilian review of
complaints against the police. In 1975, Arthur Maloney completed a review of
citizen-police complaint procedures for the Metropolitan Toronto Police
Board.103 At the time, complaints were handled by the police force’s internal
complaints bureau. Mr. Maloney recommended that complaints continue to be
investigated by the police, but that a commissioner (a lawyer or retired judge)
review the complaints process and have the right to call an adjudicative hearing.104 Where the Commissioner found the complaint to be valid, the case would
be returned to the chief of police to impose punishment.105
The Royal Commission into Metropolitan Toronto Police Practices, chaired
by Justice Donald Morand, arrived at similar conclusions in 1976,106 as did the
Task Force on Human Relations, chaired by Walter Pitman, in 1977107 and
Roman Catholic Cardinal Emmett Carter in 1979.108 Both of the latter looked into
race relations. In 1979, then Attorney General of Ontario Roy McMurtry asked
Sidney Linden to study this same issue.109 Professor Linden’s report recommended that the police have the authority to conduct the initial investigation of
a complaint, but that it allow an independent civilian review agency to do so in
exceptional circumstances. The Linden report also recommended that the review agency have the power to impose penalties.
In 1981, the Ontario government enacted legislation permitting a three-year
pilot project for Metropolitan Toronto.110 Under that legislation, the Toronto
Chief of Police was required to establish a Public Complaints Investigation
Bureau to receive, record and investigate public complaints. The Public
Complaints Commissioner was to monitor and review the Bureau’s investigations and could investigate a complaint after receiving an interim report from police investigators or prior to receipt of such report in the event of undue delay
by the police or other exceptional circumstances.111 Independent hearings could
be ordered by the Commissioner if the complainant was not satisfied with disciplinary action taken by the police in response to a finding of wrongdoing.112
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The Toronto Chief of Police could also refer a matter to a hearing, to be conducted de novo.113 The tribunal at such a hearing was empowered to impose
penalties, including dismissal from the force.114 After the pilot project was concluded, permanent legislation was enacted in 1984.115
In 1990, the Ontario government made the Toronto complaints mechanism
applicable to all police forces in Ontario, including the Ontario Provincial Police
(OPP).116 The process remained much the same as the Metropolitan Toronto
complaints process. However, the 1990 Act gave the Attorney General the power
to direct the Commissioner of the complaints body to initiate a complaint and
gave the Commissioner the right to review a decision by a chief of police concerning a complaint.117 In order to emphasize the complaint body’s independence from the police, the Commissioner was made responsible to the Attorney
General rather than the Solicitor General, who had responsibility for the police.118 Tribunals were to be chaired by independent lawyers,119 who could make
findings on “clear and convincing evidence”120 rather than on “proof beyond a
reasonable doubt,” as set out in the earlier legislation respecting Metropolitan
Toronto.121 Penalties could be imposed directly by the tribunal.122
There continued to be opposition to this process by some police associations and, in 1995, the Ontario government commissioned a study on the
issue.123 Following release of the study report, the Ontario Police Act was
amended in 1997 to create the current public complaints regime, under which
only a person “directly affected” can make a complaint.124 However, a complaint
can relate to “the policies of or services provided by a police force,” in addition
to the conduct of a police officer.125 A complaint may be made to either the
Ontario Civilian Commission on Police Services (OCCPS) or the relevant police service.
Complaints are to be initially investigated, findings made and discipline imposed by the relevant police agency (usually by the chief of police). Thus, while
the OCCPS has the power to conduct, on its own motion, investigations, inquiries and reviews into various matters,126 its role is largely limited to appeals
from decisions of chiefs of police.127 The Chair of the OCCPS has written that
“the primary responsibility for dealing with public complaints rests with the chief
of police under the general direction and guidelines of the local board.”128 Chiefs
of police have the power to refuse to deal with a complaint because it is frivolous or vexatious, was made in bad faith or was made more than six months
after the event complained of.129 In such an event, a complainant has the right
to ask the OCCPS to review the decision.130
If the complaint relates to policies or services, as opposed to the conduct
of an officer, the chief of the service investigates and submits a report, along with
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his or her disposition of the complaint to the relevant police services board.131
The complainant receives a copy of the report and is entitled to ask the police
services board to review it.132
A conduct complaint is processed differently. The chief of police is responsible for ordering the investigation of such complaints, but the actual investigation may be undertaken by the professional standards branch or, where
the service has no such branch, by an officer in the service. Less serious complaints may be investigated by unit commanders.133 A chief may ask another police service to carry out the investigation.134
If it is determined that a complaint cannot be substantiated, the complainant
and the subject of the complaint are notified of the decision and the complainant’s right to have the OCCPS review the decision.135 The OCCPS has the
power to require a hearing of the complaint. If the investigation reveals misconduct or unsatisfactory work performance, but the matter is not of a serious
nature, the Police Services Act provides for informal resolution. If this fails, the
chief of police may impose certain penalties without a hearing.136
A hearing is held for more serious matters or where the affected officer requests one. Such hearings are presided over by the chief, who appoints a prosecutor, who may be a police officer, lawyer or agent. A broad range of penalties
up to and including dismissal are available if misconduct or unsatisfactory performance is found “on clear and convincing evidence.”137
Both police officers and complainants may appeal decisions in discipline
hearings to the OCCPS, and OCCPS decisions in such matters may in turn be appealed in Divisional Court.138 The right to appeal to Divisional Court does not
apply to other OCCPS decisions, such as refusals to proceed because a complaint
is frivolous or vexatious, or determinations after investigation that a complaint
cannot be made out.
The OCCPS is made up of two full-time and 11 part-time members139 and
has a budget of about $1.6 million.140 In 2004, there were 3110 complaints reported in the province of Ontario; 562 were reviewed by the Commission at the
request of the complainant and 38 hearings were ordered.141 The OCCPS is
under the jurisdiction of the Ministry of Community Safety and Correctional
Services142 rather than the Ministry of the Attorney General, as was the case with
the former Metropolitan Toronto Commission.
In his recent review of the Ontario complaints structure, the Honourable
Patrick LeSage commented that, when Ontario introduced its 1997 reforms, there
was a 70 percent decrease in the total budget assigned to the handling of police complaints and oversight. Justice LeSage proposed the creation of a new independent body that could not only review, but also investigate police
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complaints. Moreover, he proposed that third-party complaints be allowed and
that steps be taken to make the complaint system in Ontario more accessible to
and connected with the community. He also recommended that regular audits
be done of the way police forces handle complaints and indicated that “[t]he new
body should have a power of inquiry available to it to identify systemic problems that may underlie complaints and make recommendations to prevent
their recurrence.”143
The Special Investigations Unit (SIU) is a body that is unique in Canada in
terms of its powers and jurisdiction.144 The Director of the SIU has the discretion to “cause investigations to be conducted into the circumstances of serious
injuries and deaths that may have resulted from criminal offences committed by
police officers.”145 The civilian investigators, who must not be active police officers,146 automatically initiate an investigation without the necessity of the existence of a complaint.
The SIU was established in 1990147 following the release of a report by the
Task Force on Race Relations and Policing, chaired by Clare Lewis,148 which
was set up after several controversial shootings of black men by police in
Ontario.149 The unit reports to the Attorney General150 and has a budget of over
$5 million. It was not affected by the changes to the complaints process in 1997.
In the year ending March 31, 2005, it conducted investigations into 137 incidents, resulting in three charges being laid.151
As described in chapters IV and V, Ontario police are involved in national
security investigations. There are no special mechanisms for handling complaints
or reviewing activities of these units other than those discussed above.
2.1.3.2
Quebec
Legislation dealing with the independent review of public complaints against
Quebec’s provincial police force, the Sûreté du Québec, as well as all municipal
and Aboriginal police forces in Quebec was first enacted in 1988.152 Before then,
discipline was handled by the police forces themselves. The legislation has been
amended several times since, but the thrust of the latest version of the Quebec
Police Act153 does not differ significantly from that of the 1988 legislation.
In contrast to the current Ontario and RCMP mechanisms, where a complaint is generally initially investigated by members of the police force to which
the subject of the complaint belongs, complaints in Quebec are handled by an
independent authority, the Police Ethics Commissioner. Under the original 1988
legislation, the Commissioner could allow the police force whose member was
the subject of the complaint to investigate the matter, but amendments made in
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1997 provide that “[a]n investigator may not be assigned to a file involving the
police force to which he belongs or has belonged.”154
In almost all cases, the Ethics Commissioner has his or her own staff conduct investigations or uses private investigators, many of whom are retired police officers. The Commissioner’s budget is about double that of the Ontario
Commission.155 The Commissioner has powers of entry to police premises and
power to require the production of documents.156
After the initial investigation, the Commissioner may dismiss the complaint,
send it forward for a criminal investigation, or try to reconcile the parties involved in the complaint. Conciliation by the Commissioner’s independent conciliator is required for all non-serious cases, but is not used for complaints
involving death or serious bodily harm, criminal offences or other serious misconduct.157 A complainant may not object to conciliation without giving a valid
reason.158 There is a strong incentive for an officer in Quebec to attempt to obtain an agreement because, if conciliation succeeds, no record of the complaint
or settlement is placed in the member’s personnel file.159 However, the office of
the Commissioner does keep such a record.
The Commissioner may also summon the police officer to appear before a
separate independent body, the Police Ethics Committee,160 which holds hearings to determine if a police officer has committed a breach of the Code of ethics
of Québec police officers.161
The Commission receives about 1,300 complaints a year and the Committee
conducts about 60 hearings.162 It also hears appeals by complainants from dismissals of complaints by the Commissioner after investigation.163 It may impose
a number of penalties, ranging from a warning or rebuke, to suspension without pay for up to 60 days and dismissal.164 Appeals from decisions of the
Committee may be brought before the Court of Quebec.
The Police Ethics Commissioner and full-time members of the Police Ethics
Committee must have been members of the bar for at least ten years.165
Appointments are for five years and may be renewed.166 The original 1988 legislation in Quebec required police representation on the hearing panels167 and
tripartite tribunals were therefore necessary. Amendments made in 1997 eliminated the requirement for police representation, making it possible to have single-member panels.168
The Ethics Commissioner is notified within five days of all complaints received by the police.169 Complaints in Quebec may be lodged by “any person.”170
Although the Commissioner has not specifically been given the power to initiate a complaint, as the CPC has, the Minister may request an investigation.171
Moreover, there is an obligation on the part of police officers under the Police
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Act “to inform the director of police of the conduct of another police officer
likely to constitute a breach of discipline or professional ethics.”172 In turn, the
chief must inform the Ethics Commissioner of any “presumed commission of an
act derogatory” to the Code of ethics of Québec police officers.173 Where appropriate, the Commissioner then contacts the citizen to see if he or she wishes to
make a formal complaint.174 Thus, in theory, the Commissioner receives notification of all complaints received by the police, as well as of potential complaints
reported to the chief through other police officers.
Complaints are based on the Code.175 The following are some of the duties
and standards of conduct set out therein: a police officer must “produce official
identification when any person asks him to do so;” must not “use greater force
than is necessary to accomplish what is required or permitted;” must not “illegally dispose of property belonging to any person;” and must not “show, handle or point a weapon without justification.”176
2.1.3.3
British Columbia’s Variation
For the purposes of this examination, Ontario’s system of monitoring police handling of complaints and hearing some appeals and Quebec’s system of having
a complaints body investigate complaints convey a sense of the major policy
choices in this area. In addition, Ontario’s SIU demonstrates how, in a monitoring system, certain issues can be subject to separate independent investigation.
Other provincial and territorial systems with variations on the Ontario and
Quebec models have been outlined in a background paper produced by this
Commission.177 Although I do not describe them all again here, I do touch on
certain features of British Columbia’s police complaints system below, as it includes some interesting variations.
British Columbia established the Office of the Police Complaint
Commissioner in July 1998,178 following publication of a report by Justice
Wallace Oppal.179 Many of the recommendations of the Oppal report were incorporated into the 1998 amendments, including that of having the Office of
the Police Complaint Commissioner replace the B.C. Police Commission, established in 1974.180 In 2005–2006, the Complaint Commissioner had an annual
budget of just over a million dollars and a full time staff of eight persons.181 In
2005, it received 426 complaints, and held one public hearing.182
The process for appointing B.C.’s Police Complaint Commissioner, designed
to increase the Commissioner’s independence, is unique in Canada. The
Commissioner is an officer of the legislature, appointed by the Lieutenant
Governor in Council on the recommendation of a special committee of the
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legislature.183 The term of office is six years and is non-renewable. The Office
of the Commissioner does not itself conduct investigations.184 As in almost all
other jurisdictions, these are conducted by the police, but there are requirements for ongoing reporting to the Commissioner during an investigation,185 and
the Commissioner may appoint an employee to oversee the conduct of an investigation if “necessary in the public interest.”186 The Commissioner receives a
full transcript of all proceedings, reviews all complaint dispositions, and may
ask for further reasons for the disposition of the complaint.187 After the case is
concluded by the police authority, the complainant or the officer may request
that the Commissioner arrange a public hearing, to be chaired by a Provincial
Court judge.188 The Commissioner may arrange a hearing without such a request
if he or she determines that it is “necessary in the public interest.”189 No provision is made for appeal from a decision of the Commissioner.190 However, there
is provision for appeal of a decision by the hearing adjudicator to the court of
appeal, with leave, on questions of law.191
2.2
JUDICIAL REVIEW OF POLICE ACTIONS
Any examination of the review of the national security activities of the police
would be incomplete without an examination of the role of the courts in reviewing police conduct, a corollary of Canada’s commitment to the rule of law.
The rule of law requires that police actions be authorized by a valid law and
that police conduct be subject to judicial review and, if illegal, the award of an
appropriate remedy. When police officers act without legal authority, they can
be the subject of an action for damages in private or civil law. Cases such as
Roncarelli v. Duplessis192 establish that no state official, whether the Premier or
the police, is immune from the law; that the action of each official must be authorized by the law and that the police may be held accountable for illegal activities. In recent years, new potential civil causes of actions have been
recognized with respect to matters such as malicious prosecution193 and misuse
of public office.194 Although civil lawsuits against the police are expensive and
lengthy and therefore relatively rare, they do serve an important accountability function.
In 1981, the McDonald Commission recommended that courts be given discretion to exclude evidence obtained through police improprieties, in part because of a concern that some within the RCMP interpreted “the absence of
critical comment by the judiciary as tacit approval of forms of conduct that might
be unlawful.”195 Subsequently, the 1982 enactment of the Canadian Charter of
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Rights and Freedoms fundamentally changed the criminal trial and provided
much greater scope for the review of police conduct.
Police misconduct may become a relevant matter in a criminal trial, frequently through Criminal Code or Charter challenges concerning the admissibility of evidence. For example, police use of electronic surveillance may be
carefully examined in criminal trials when the accused raise objections to the admissibility of evidence under either the Code or Charter. The accused have broad
rights of disclosure of all material relevant to the case, including the material
used to justify the warrant.
Evidence obtained in a manner that involves other methods of search and
seizure may also be challenged on the basis that the police did not respect
Charter standards and so the evidence should be excluded. In addition, police
practices with respect to interrogation and investigative steps are subject to
Charter review in a criminal trial, to ensure that they comply with a variety of
legal rights protected under the Charter.
Section 24(2) of the Charter mandates that unconstitutionally obtained evidence be excluded when its admission would bring the administration of justice into disrepute, and judges have not hesitated to exclude evidence obtained
through serious violations of the Charter. This represents a fundamental change
from the pre-Charter environment examined by the McDonald Commission.
The McDonald Commission also recommended that a defence of entrapment be added to the Criminal Code as an external judicial control on undercover operations and the use of agent provocateurs. In 1988, the Supreme Court
recognized a defence of entrapment resulting in a stay of proceedings if the police or police agents provide a person with an opportunity to commit a crime,
unless the police are acting on a reasonable suspicion that the person is involved in crime, or pursuant to a “bona fide inquiry” into a crime in an area
where it is reasonably suspected that criminal activity is occurring.196 Even if
such prerequisites for proactive investigations exist, the police must never go beyond providing persons with an opportunity and actually induce the commission of the crime.197 The entrapment defence is available regardless of the
accused’s subjective intent. As in the case of section 24(2) of the Charter, this is
to protect the administration of justice from disrepute.
The advent of the Charter and the entrapment defence represents a fundamental change from the pre-Charter environment, in which the courts, subject
to some limited exceptions such as the requirement that confessions be voluntary, rarely examined the propriety or legality of police conduct as part of the
criminal trial process. The use of the criminal trial to adjudicate the propriety of
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police conduct is an important development that has undoubtedly increased the
accountability of the police and resulted in new rules governing police conduct.
At the same time, it should be recognized that trials are relatively rare in the
national security context and thus the probability that any particular police action will be subject to Charter challenge is quite low. Even when charges are
laid, Charter violations may escape judicial scrutiny if the case is resolved
through plea discussions. Even the establishment of a Charter violation at trial
does not necessarily mean that unconstitutionally obtained evidence will be excluded. In any event, the exclusion of evidence or the entry of a stay of proceeding in a criminal trial because of police improprieties may not necessarily
result in tangible consequences for the police officer involved. Nevertheless, the
possibility of judicial review either in civil or criminal courts is an important part
of the current review landscape that affects the RCMP in the conduct of its national security activities.
3.
SECURITY INTELLIGENCE REVIEW BODIES
There are a number of Canadian agencies that review the activities of security
intelligence agencies. In this section, I describe the Security Intelligence Review
Committee and the Office of the Inspector General, both of which review CSIS,
and the Office of the Communications Security Establishment Commissioner,
which reviews the CSE.
3.1
SECURITY INTELLIGENCE REVIEW COMMITTEE (SIRC)
The Security Intelligence Review Committee (SIRC) was established in 1984 as
an independent, external review body that reports on the operations of CSIS directly to the Parliament of Canada.198 SIRC’s role has long been understood to
be that of assuring Parliament and the Canadian public that Canada’s security intelligence service is fulfilling its mandate to ensure the security of the state while
respecting individual rights and liberties as guaranteed under Canadian law. To
this end, SIRC examines past operations of CSIS and investigates complaints.
SIRC is a committee consisting of a Chair and not less than two and not
more than four members.199 All are privy councillors not serving in Parliament.200
The CSIS Act provides that they are to be selected after “consultation” by the
Prime Minister with the Leader of the Opposition and the leaders of each party
in the House of Commons with twelve or more members in the House. The implication of this consultation, though never actually spelled out, is that the membership of SIRC should broadly reflect the makeup of the House, thus paralleling
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the representative role of the parliamentary committee that was not created.
However, mirror representation of Parliament has not always been the case in
practice.201 Each member of SIRC is appointed for a five-year term and is eligible to be reappointed for a second five-year term.202 SIRC members must comply with the security requirements applicable to employees under the CSIS Act
and are required to take an oath of secrecy.203
Considering the significance of SIRC as a Canadian model for review of
security intelligence, I discuss its mandate and operations in detail in the
next section.
3.1.1
SIRC Mandate and Operations
SIRC is mandated to “review generally the performance by the Service [CSIS] of
its duties and functions,”204 which are set out at sections 12 through 17 of the
CSIS Act. The Act sets out certain aspects of the general review power, including the following:
•
•
•
•
•
•
•
review the reports of the Director and certificates of the Inspector General
with respect to the operational activities of the Service;
review directions issued by the Minister to the Service;
review arrangements entered into by the Service with provincial governments and their departments and with police forces in provinces to provide
security assessments, and monitor the provision of information and intelligence pursuant to those arrangements;
review arrangements entered into by the Service with foreign governments
and their institutions or with international organizations of states and their
institutions to provide security assessments, and monitor the provision of
information and intelligence pursuant to those arrangements;
review arrangements entered into and co-operation by the Service with departments of the federal government or with provincial governments and
their departments, police forces in provinces, governments of foreign states
and their institutions, or an international organization of states and its institutions, and monitor the provision of information and intelligence pursuant to those arrangements;
review reports submitted at the direction of the Director of the Service involving potentially unlawful conduct by an employee of the Service;
monitor requests made to the Service by the Minister of National Defence
or the Minister of Foreign Affairs to assist, within Canada, in the collection
of information or intelligence relating to foreign states and persons;
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•
•
review the regulations; and
compile and analyze statistics on the operational activities of the Service.205
Another important element of SIRC’s mandate is to ensure that CSIS activities are carried out in accordance with the Act, regulations and ministerial directions, and that the activities “do not involve any unreasonable or unnecessary
exercise by the Service of any of its powers,”206 by tasking CSIS or the IG to review particular matters and report back to it or, “where it considers that a review
by the Service or the Inspector General would be inappropriate, conduct[ing]
such a review itself.”207
In addition to matters that form part of SIRC’s regular reviews, SIRC may,
on request by the Minister or at any other time, furnish the Minister with a special report concerning any matter that relates to the performance of its duties and
functions.208 Since 1984, SIRC has produced approximately 37 reports under section 54 on matters ranging from inquiries into particular allegations, such as a
report to the Minister on the role of CSIS in relation to Maher Arar, to more systemic matters, such as the two 1998 reports on CSIS co-operation with the RCMP.
SIRC has the mandate to investigate two categories of complaints:
complaints made with respect to “any act or thing done by the Service”209
and complaints relating to the denial of security clearance for federal
government employees or prospective employees, as well as for federal government contractors.210
SIRC also has a mandate to conduct investigations in relation to:
(a) reports made to SIRC by the Minister of Citizenship and Immigration pursuant to section 19 of the Citizenship Act regarding a proposal to refuse to
grant citizenship or to issue a certificate of renunciation on the basis that
there are reasonable grounds to believe the person will engage in activities
constituting a threat to Canada or are a part of a pattern of criminal activity to further the commission of an indictable offence; and
(b) matters referred to SIRC by the Canadian Human Rights Commission pursuant to section 45 of the Canadian Human Rights Act, where a Minister
advises the Commission that the practice to which a complaint under the
Act relates is based on considerations relating to Canada’s security.211
3.1.2
Review
CSIS has designated specific CSIS liaison officers to respond to SIRC’s requirements. Since most of the material provided by CSIS is classified as secret or top
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secret, SIRC reviews the material at CSIS Headquarters in order to avoid the risk
involved in transporting it between CSIS and SIRC premises. CSIS has made
available a separate office and computers at CSIS Headquarters for the exclusive
use of SIRC staff. SIRC staff are designated as persons permanently bound to secrecy pursuant to the Security of Information Act.212
The standards that SIRC applies in evaluating CSIS activities are contained
in four main instruments, which form the legislative and policy framework governing CSIS:
•
•
•
•
The Canadian Security Intelligence Service Act is the founding legislation
for both CSIS and SIRC.
Ministerial directions, the principal means by which the Minister of Public
Safety (the Minister) exercises his or her authority over CSIS as set out in
section 6 of the Act, provide overall policy guidance to the Director of CSIS
and govern a wide spectrum of CSIS activities; all ministerial directions and
changes thereto are reviewed by SIRC.
National requirements for security intelligence, issued by the Minister each
year, provide CSIS with direction on where it should focus its investigative
efforts and how it should fulfil its intelligence collection, analysis and advisory responsibilities.
CSIS operational policies provide rules governing the entire range of operational activities. SIRC reviews all operational policy revisions on an ongoing basis.213
Each year, SIRC develops a research plan. Because of its small size in relation to CSIS, it operates on the basis of risk management.214 Each year, it selects
topics for in-depth inquiries, based on the following factors, among others:
•
•
•
•
•
•
•
CSIS investigative priorities;
particular activities with a significant potential to intrude on individual rights
and freedoms;
emerging priorities and concerns for Parliament and the Canadian people;
the CSIS Director’s classified report to the Minister on operational activities;
the importance of producing regular assessments of each of the Service’s
operational branches, regional offices and selected Security Liaison Officer
(SLO) posts abroad;
the need to examine all of the services, duties and functions on a regular
basis;
developments with the potential to represent threats to the security of
Canada;
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•
•
•
•
issues or concerns identified in previous Committee reports;
commitments by the Committee to re-examine specific matters;
issues identified in the course of the Committee’s complaints functions; and
new policy directions or initiatives announced by CSIS or the Government
of Canada.215
In 2004–2005, for example, SIRC carried out 11 reviews and a section 54 inquiry. The 11 reviews included an examination of CSIS’ investigation of transnational criminal activity, focussing on the targeting processes outlined in
operational policy; information collection; and co-operation and exchanges of
information with domestic and foreign partners. It also reviewed a counter-terrorism investigation, the activities of a CSIS regional office, a counter-proliferation investigation, CSIS’ information operations centre, CSIS’ exchanges of
information with close allies, a counter-intelligence investigation regarding the
activities of a foreign intelligence service,216 CSIS’ investigation of terrorist financing activities in Canada, and the terrorist entity listing process.217 In
2002–2003, SIRC undertook a review of regional investigations that it described
as relating to “Sunni Islamic Extremism” and a review of the matter of Ahmed
Ressam. In 2001–2002, the topics for in-depth inquiry included source recruitment and domestic extremism.
In conducting these in-depth inquiries, SIRC typically reviews all relevant
documents and files, both electronic and hard-copy, in the possession or control of CSIS. These include targeting authorizations, warrants and their supporting documents, operational reports, human source logs, internal CSIS
correspondence, and records of exchanges of information with other agencies
and departments, including international agencies, where relevant. SIRC also
conducts interviews of CSIS personnel, seeks clarification on information reviewed, requests answers to follow-up questions and receives briefings from
CSIS staff. Classified information is supplemented, where appropriate, with an
in-depth review of open-source or public information.
In addition to conducting its selected reviews, SIRC reports on other operational activities, the investigation of complaints, CSIS accountability mechanisms, and inquiries under the Access to Information Act and Privacy Act.
Examples of how SIRC discharges its mandate are provided below.
Targeting
Within CSIS, the Target Approval Review Committee (TARC) is the senior operational committee charged with considering and approving applications by CSIS
officers to launch investigations.218 TARC is chaired by the Director of CSIS and
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includes senior CSIS officers and representatives from the departments of Justice
Canada and Public Safety and Emergency Preparedness Canada.219 In the course
of its in-depth reviews, SIRC examines selected targeting authorizations made by
TARC to ensure compliance with the CSIS Act, ministerial directions and relevant
operational policies. Each year, SIRC reviews targeting authorizations in a selected region as part of the regional review.
In conducting its reviews, SIRC examines such issues as whether:
•
•
•
•
•
CSIS had reasonable grounds to suspect a threat to the security of Canada
in seeking its targeting approval;
the level and intrusiveness of the investigation was proportionate to the seriousness and imminence of the threat;
CSIS collected only that information strictly necessary to advise the government of a threat;
in conducting its investigations, CSIS respected the rights and civil liberties
of individuals and groups; and
information exchanges with other agencies conformed with the law, ministerial direction and relevant MOUs.220
An example of the type of targeting reviewed by SIRC is “issue-based”
targeting. This type of targeting authorizes an investigation to take place in circumstances where CSIS suspects a threat to the security of Canada, but the particular persons or groups associated with the threat have not been identified. The
targeting authority allows CSIS to “investigate the general threat and to try to
identify the persons or groups who are taking part in threat-related activities.”221
After reviewing this activity in its 1998–1999 report, SIRC determined that
there was a place for issue-based targeting in the array of options legally available to CSIS, adding the caveat that investigations under issue-based targeting
authorities should be carefully monitored by senior management and urging the
Service to “make every effort to make the transition from issue-based to individual (identity-based) targeting as expeditiously as . . . reasonable.”222
In 2002–2003, SIRC identified some concerns regarding the termination of
investigations in a timely manner where the activities of the target no longer
constituted a threat. In its report for that year, it recommended that “CSIS
maintain a strict awareness of operational policy and executive directive requiring the timely termination of targeting authorities in the absence of targets’
threat-related activity.”223
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Foreign Intelligence
Foreign intelligence refers to information about the “capabilities, intentions or activities” of a foreign state or person. Under section 16 of the CSIS Act, CSIS may
collect foreign intelligence at the written request of the Minister of Foreign Affairs
or Minister of National Defence and with the approval of the Minister of Public
Safety. The collection must take place in Canada and may not be directed against
Canadian citizens, permanent residents or Canadian companies. SIRC regularly
examines Ministers’ requests for section 16 operations. It scrutinizes the requests
to ensure compliance with the Act and with a government MOU stipulating that
any request must contain an explicit prohibition against targeting Canadians,
permanent residents and Canadian companies, and that the request should indicate whether the proposed activity is likely to involve Canadians.224
Part of SIRC’s scrutiny of section 16 requests involves the review of working files, which may reveal errors. For example, in its annual report for
1997–1998, SIRC reported an instance where CSIS had mistakenly intercepted the
communications of a person for three days, though no information had been collected or retained. SIRC also scrutinizes the appropriate retention of foreign intelligence. In the event that CSIS chooses not to retain section 16 information for
a domestic (section 12) investigation, SIRC’s jurisdiction ends once the material
has been provided to the requesting Minister.225
When reviewing section 16 activities, SIRC scrutinizes CSIS requests for information made to the CSE to ensure that they are appropriate and comply with
existing law and policy. The reports that CSE provides to CSIS are “minimized”
in order to comply with the prohibition on the collection of information on
Canadian nationals and Canadian companies. For example, the actual identity
of Canadians contained in CSE reports provided to CSIS is shielded by employing phrases such as “a Canadian business person.” In specific circumstances,
however, CSIS may request identities from the CSE if it can show that the information relates to activities that could constitute a threat to the security of
Canada.226 In its 2000–2001 report, SIRC reported one request that had involved
a prominent Canadian who had been approached by a foreign national, and a
second request concerning a sensitive institution (trade union, media organization, religious body or university campus) involved in political campaigns in a
foreign country. CSIS informed SIRC that the information obtained had been removed from its files following the SIRC review in which the problem had been
identified.227
Access to the foreign intelligence (section 16) database is restricted to those
CSIS employees who have received special clearance and indoctrination. The
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database is not accessible to intelligence officers involved only in domestic investigations pursuant to section 12 of the CSIS Act. SIRC examines the procedures in place to ensure the section 16 database is not accessible to those who
do not have a need to know.
Foreign Arrangements
SIRC reviews a number of elements pertaining to foreign arrangements. It looks
at the written arrangements entered into by CSIS with individual foreign intelligence services, which establish the scope of co-operation with those services.
It scrutinizes new arrangements or the expansion of existing ones to determine
compliance with the CSIS Act and ministerial directions and the Minister’s conditions for approval. SIRC also examines information relevant to the human
rights record of the foreign intelligence service’s host country, including opensource reporting from reputable human rights agencies. SIRC flags relationships
where CSIS must be vigilant in ensuring that no information received from an
agency is the product of human rights violations and that no intelligence transferred to a foreign agency results in such abuses.
SIRC also examines the information exchanged under specific foreign
arrangements in the course of its regular reviews of individual Security Liaison
Officer (SLO) posts abroad.228 In the context of such reviews, it looks at CSIS
relations with foreign security and intelligence agencies, the management of
controls over the dissemination of CSIS information, post profiles and foreign
agency assessments prepared by SLOs, the nature of information collected and
disclosed, and developments specific to the foreign agencies within a given
post’s ambit.229
SIRC also scrutinizes information sharing. In its annual report for 1997–1998,
for example, it noted that CSIS had handled a request from a Canadian law enforcement agency to ask several allied intelligence services to conduct records
checks on more than 100 people suspected of being involved in transnational
crime. SIRC found the grounds for some of the requests to be of doubtful validity. For instance, it noted that information had been requested about a person said to have been “caught shoplifting.”230
In the course of its work, SIRC may identify situations where policies are
silent or inadequate. In such cases, SIRC will make recommendations. For example, in 2004–2005, SIRC recommended that, instead of relying on guidelines,
CSIS create formal policies for the preparation, updating and annual submission
of CSIS documents used to assess exchanges with foreign agencies, particularly
given the Service’s growing exchanges with foreign organizations.231
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Warrants
SIRC annually reviews a number of aspects of CSIS use of Federal Court warrants, such as warrant acquisition and implementation, court decisions and regulations. It also collects warrant statistics. As SIRC stated in its report for
2001–2002:
Warrants are one of the most powerful and intrusive tools in the hands of any department or agency of the Government of Canada. For this reason alone, their use
bears continued scrutiny, which task the Committee takes very seriously. In addition, our review of the Service’s handling of warrants provides insights into the entire breadth of its investigative activities and is an important indicator of the Service’s
view of its priorities.232
In the context of a review, SIRC may select some warrant applications
for review. In such cases, SIRC examines all documents relating to how the
warrant applications were prepared, including affidavits and supporting documentation, working files relating to affidavits, requests for targeting authority,
and TARC minutes. In reviewing this documentation, SIRC seeks to ascertain whether:
•
•
•
the allegations in the affidavits are factually correct and are adequately supported in the documentation;
all pertinent information is included in the affidavits; and
the affidavits are complete and balanced, and the facts and circumstances
of the cases are fully, fairly and objectively expressed.233
In its 1998–1999 report, for example, SIRC indicated that it had reviewed
three applications in a given region relating to two target groups in the counterterrorism area and had “identified a number of statements made by the Service
which accurately reflected neither the operational nor the open source information available to the Service.”234
In regard to warrant implementation, SIRC reviews a selection of active
warrants in a given region in order to ensure that warrant powers have been
properly implemented, assess the use of powers granted in the warrant and determine whether CSIS has complied with all clauses and conditions contained
in the warrants. SIRC also determines whether or not, in its implementation,
CSIS has met the “strictly necessary” test for collecting information set out in
section 12 of the CSIS Act.
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3.1.3
Complaints
One of SIRC’s functions under the CSIS Act is to conduct investigations in relation to:
•
•
•
•
complaints “with respect to any act or thing done by the Service” as described in the CSIS Act;
complaints relating to denials of security clearances to federal government
employees and contractors;
matters referred by the Canadian Human Rights Commission, where the
complaint raises considerations relating to Canada’s security; and
Minister’s reports in respect of the Citizenship Act.235
Examples of the kinds of complaints that SIRC investigates with respect to
“any act or thing” include:
•
•
•
allegations of unreasonable delay in conducting a security screening
investigation;
allegations that CSIS failed to investigate threats to the security of Canada;
and
allegations of improper investigation of lawful advocacy, protest and
dissent.
From the time of its inception to March 31, 2005, SIRC received 883 cases
(not including complaints dealing with the application of the Official Languages
Act in the workplace). These cases consisted of:
•
•
•
•
•
711 complaints filed pursuant to section 41 of the CSIS Act (any act or
thing);
131 complaints filed pursuant to section 42 (denial of security clearance);
17 complaints regarding citizenship issues;
11 complaints regarding immigration issues; and
13 files referred from the Canadian Human Rights Commission.
The total number of cases is not indicative of the number of complaints
SIRC accepted jurisdiction to investigate. When SIRC receives a complaint, it
performs a preliminary review to determine whether it has jurisdiction. Some
matters may not be within its mandate. Others may be resolved without an investigation. Moreover, under section 41 of the CSIS Act, SIRC may not accept jurisdiction if it determines that the complaint is trivial, frivolous or vexatious or
was made in bad faith, or that the complaint is subject to a grievance procedure
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established under the CSIS Act or the Public Service Labour Relations Act.236
SIRC has produced 118 written reports following investigations of complaints
involving either a written or oral hearing from the time of its creation to
March 31, 2005.
Approximately 20 percent of SIRC’s resources are currently devoted to
investigation and hearing of complaints: about 15 percent to investigations and
5 percent to hearings.
Where a complaint leads to a hearing, there are special procedures set
out in the CSIS Act and in SIRC’s Rules of Procedure237 designed to balance
the individual’s procedural fairness interests with the government’s national security concerns.
When SIRC determines that it has jurisdiction to investigate a complaint
under section 42 (security clearance denial), it must send a statement to the
complainant summarizing such information available to SIRC “as will enable the
complainant to be as fully informed as possible of the circumstances giving rise
to the denial of the security clearance.”238 Where the Canadian Human Rights
Commission refers a complaint to SIRC, SIRC must also provide a statement to
the complainant summarizing the information available to it on the circumstances giving rise to the referral.239
Hearings of complaints are conducted in camera. SIRC has the power to
summon witnesses, compel the production of documents, and administer
oaths.240 The complainant, CSIS and relevant departments are all given the right
to make representations to SIRC, present evidence, and be represented by counsel. However, the CSIS Act provides that “no one is entitled as of right to be
present . . ., to have access to or to comment on representations made . . . by
any other person.”241
SIRC’s Rules of Procedure applicable to all its investigations provide for discretionary disclosure of evidence and representations to parties, subject to section 37 of the Act. They provide that it is within the discretion of the member
conducting the investigation, in “balancing the requirements of preventing
threats to the security of Canada and providing fairness to the person affected,”242
to disclose the representations of one party to one or more of the other parties.
The Rules of Procedure provide for similar discretion to determine whether
a party may cross-examine witnesses called by other parties and to exclude parties during the giving of evidence.243 In the case of an ex parte hearing (where
parties are excluded), SIRC counsel will cross-examine witnesses. As one commentator has noted:
[S]ince committee counsel has the requisite security clearance and has had the opportunity to review files not available to the complainant’s counsel, he or she is
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also able to explore issues and particulars that would be unknown to the complainant’s counsel.244
When a party is excluded from a hearing for reasons of national security,
it is within the discretion of the presiding member, subject to section 37 of the
Act and after consultation with the Director of CSIS, to provide the excluded
party with a summary of the evidence given or representations made.245
The Supreme Court of Canada has considered SIRC’s Rules of Procedure
and has held that the rules recognize and strike a fair balance between the competing interests of the individual in fair procedures and the state interest in effectively conducting national security and criminal intelligence investigations
and protecting police sources.246 The court held that the individual should be
given sufficient information to know the substance of the allegations and be
able to respond, but details such as criminal intelligence investigation techniques
and police sources were not required to be disclosed.
3.1.4
CSIS and RCMP
Since its creation, SIRC has regularly examined CSIS-RCMP co-operation by conducting specific reviews and obtaining annual updates from CSIS on information
exchanges and the nature of the relationship. Among the Service’s domestic liaison partners, the RCMP is the body to which SIRC has always paid particular
attention. The CSIS-RCMP relationship and roles are the cornerstone of the threat
assessment and national security matrix. Four studies warrant specific mention:
CSIS Cooperation with the RCMP – Part I (1997–98), CSIS Cooperation with the
RCMP – Part II (1998–99), Review of Transnational Criminal Activity (1998–99),
and SIRC’s review of Project Sidewinder (1999–2000).
The goal of CSIS Cooperation with the RCMP – Part I (hereinafter referred
to as Part I) was to identify systemic problems in the relationship between CSIS
and the RCMP that would impact on the ability of either agency to fulfil its responsibilities, and in the Memorandum of Understanding (MOU), the principal
instrument in which the nature of the co-operative arrangement is articulated.
Part I looked at the use of liaison officials, located at headquarters and in regional offices of both agencies, as the primary channel for the exchange of operational information and intelligence. Liaison staff were given conditional access
to material, in that the generating agency decided whether or not to accede to
requests for further disclosure to, or use of the information by, the other agency.
Part I noted the tension created by the differences regarding disclosure of information. CSIS placed restrictions on the material and intelligence it passed on
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to the RCMP in order to avoid exposing sources and investigative methods in the
course of a legal proceeding. RCMP investigators expressed frustration at the
impediment to the exercise of their responsibility to take enforcement action.
Part I also reported on what was, at the time, a relatively new area of overlapping operational activity, transnational crime, stating that the lack of clarity
regarding the respective roles of CSIS and the RCMP resulted in confusion as to
expectations and areas of responsibility.
CSIS Cooperation with the RCMP – Part II (Part II) examined the CSIS-RCMP
operational relationship and, more specifically, contacts and co-operation between the Service’s regional offices and the corresponding RCMP geographic
divisions. The report noted the RCMP’s dissatisfaction with restrictions placed by
CSIS on disclosure of its information in light of the legal requirements for discovery and disclosure inherent in criminal proceedings.
Part II also followed up on the Service’s collection of strategic intelligence
on transnational criminal activity and the confusion about the role of CSIS. The
report concluded that there was no evidence to support the RCMP’s view at that
time that CSIS was withholding intelligence on transnational criminal activity.
The Review of Transnational Criminal Activity (TCA Review) examined
whether CSIS activities — limited in this investigation to the collection of strategic intelligence — were consistent with its mandate, whether they distinguished
between and respected the investigative thresholds for strategic and tactical intelligence, and whether CSIS shared information on transnational criminal activity
with the RCMP. The TCA Review report concluded that the distinction between
strategic and tactical intelligence was not adequately defined, CSIS found it difficult to avoid the collection of tactical intelligence, and CSIS should leave the
matter of transnational crime to the appropriate law enforcement agencies unless it could bring a unique perspective to the area.
SIRC’s review of Project Sidewinder focused on the activities and findings
of a joint CSIS-RCMP project that the media alleged had been aimed at examining efforts by the Government of the People’s Republic of China and Asian criminal gangs to influence Canadian business and politics. The review revealed
significant differences of opinion and institutional perspective between CSIS and
RCMP, but concluded that they were was not symptomatic of a more widespread problem. There were differences of opinion about what constituted good
strategic analysis, but they had not had a lasting negative impact on the broader
CSIS-RCMP relationship.
With regard to the participation of CSIS in INSETs across Canada, SIRC is
limited to receiving information about and assessing CSIS’ involvement in and
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contribution to the teams. It does not have authority to assess the workings of
INSETs, the use of the information they receive or the role of the RCMP.
3.1.5
SIRC and Other Review Bodies
SIRC meets periodically with the Inspector General of CSIS to discuss issues
of mutual interest, and staff from the Inspector General’s office and SIRC meet
to exchange and discuss their respective review plans. This allows SIRC to share
observations regarding specific CSIS investigations and avoid duplication in
the review of CSIS activities in a given fiscal year. Identification of operations
being examined by the Inspector General helps SIRC to set priorities. While
SIRC has the authority under the CSIS Act to direct the Inspector General to conduct a review of specific activities and report to it with its findings, it does so
very infrequently.
There is no legislated requirement for SIRC to meet or consult with the
Communications Security Establishment (CSE) Commissioner. As a practical matter, SIRC participates on a regular basis in international conferences and symposia and has regular contact and discussion with foreign review agencies and
oversight bodies.
3.1.6
Obtaining Information
In carrying out its review function, SIRC is entitled to full access to all information it requires from CSIS and the Inspector General, save Cabinet confidences.247
It thus regularly sees information provided by foreign governments and agencies, some of which may be covered by caveats. Although the CSIS Act gives it
the authority to do so, SIRC generally does not access documents subject to solicitor-client privilege. However, it has been provided with summaries and excerpts of legal opinions, as well as oral briefings by CSIS counsel providing
explanations of legal advice. The legal advice has become material in the conduct of reviews where SIRC is seeking to determine whether CSIS has acted in
accordance with legal advice from the Department of Justice Canada and, as
such, has acted lawfully in carrying out its operations.
SIRC’s powers are limited to the activities of CSIS. Where an intelligence
function or product moves from CSIS to another body, SIRC lacks the legal authority to follow it to determine how information was used by the recipients. It
cannot confirm that information to which caveats were attached was properly
handled and secured by a receiving body. If a department or agency shares CSIS
information with a third party without seeking CSIS’ consent, SIRC will only
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learn of the matter if CSIS has a record of the third-party disclosure. Obviously,
an agency that chooses to act in this manner is unlikely to inform CSIS.
While SIRC has recommendation powers only, complaint reports may
recommend amendments to existing administrative measures either by CSIS
or by government ministries or departments in cases involving security clearance. SIRC once recommended that a complainant be compensated by CSIS for
the legal costs of the proceeding before SIRC. In another instance, it recommended financial compensation. At times, it has recommended that the Deputy
Head grant the complainant the security clearance that had been previously denied or revoked.248
In cases of investigations regarding the revocation of security clearance or
referrals from the Canadian Human Rights Commission pursuant to section 45(2)
of the Canadian Human Rights Act, SIRC may access documents held by whatever federal department or agency is named in the complaint.
3.1.7
Reporting by SIRC
SIRC reports to Parliament annually, through the Minister.249 It may also furnish
the Minister with a special report concerning any matter that relates to the performance of its duties and functions, on request by the Minister or at any other
time.250 SIRC has produced about thirty-seven such special reports since 1984,
some of which have involved relatively high profile issues that have come before the public, such as the bombing of Air India Flight 182, the Heritage Front
affair, and the role of CSIS in relation to Maher Arar.
SIRC reports on both its review and complaint investigation functions. It
has powers to make findings and recommendations only, and the Supreme
Court of Canada has held that such recommendations are not binding on the
government.251 Following an investigation of a complaint about “any act or thing
done by the Service,” SIRC reports to both the Minister and the Director of CSIS
with its findings and recommendations; it also reports its findings and may, if it
thinks fit, report any recommendations to the complainant. In the case of an investigation of a complaint about a denial of a security clearance, it reports to the
Minister, the Director of the Service, the deputy head of the department or
agency concerned and the complainant. The report includes any recommendations it considers appropriate, along with “those findings of the investigation
that the Committee considers it fit to report to the complainant.”252
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3.1.8
Inspector General of CSIS
The Office of the Inspector General reviews CSIS activities and is mandated to
provide independent advice in their regard to the Minister.253
The Inspector General (IG) is responsible to the Deputy Minister of Public
Safety254 and is independent of CSIS.255 The IG is meant to serve as the eyes and
ears of the Minister of Public Safety with regard to the activities of CSIS,256 providing independent assurance that CSIS complies with the law, ministerial direction and operational policy. However, the Inspector General is not an
independent review body in the same way as SIRC or the CSE Commissioner.
The Inspector General’s functions include:257
•
•
•
•
monitoring CSIS compliance with operational policies;
reviewing CSIS operational activities, including specific CSIS activities as directed by SIRC;
reporting on CSIS compliance with the CSIS Act and directions from the
Minister under section 6(2) of that Act; and
submitting annual certificates to the Minister stating the extent to which the
Inspector General is satisfied with the annual report of the Director of
CSIS.258
In addition to formal certificates and reports, the IG provides ongoing advice or commentary in various forms to the Minister, Deputy Minister and CSIS
in relation to compliance matters and the effectiveness of the control/accountability framework. The Minister may also, on occasion, ask that certain reviews
be conducted.259
The IG provides SIRC with copies of its reports, and the annual certificates
from the IG (verification of the CSIS Director’s annual reports) are transmitted
to SIRC by the Minister.260 SIRC meets periodically with the IG to discuss issues
of mutual interest and respective review plans.
No provisions exist for publication of IG reports, although parts have from
time to time been declassified in redacted form in response to Access to
Information requests, and redacted copies of the annual certificates are posted
on the website of the Office of the Inspector General.261 Other IG reports are
submitted to the Minister, but not made public.262
The Inspector General informed the Commission that, in selecting matters
to review, she attempts to ensure that they are as representative as possible of
CSIS activities, the different branches and the different regions of Canada.
Decisions about what to review are based on what the IG has learned in
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previous years or through core studies, what is topical or high-risk, and what
matters may be of interest to the government and Minister.263 Consultations with
SIRC help to avoid duplication and thus make the most effective use of the limited resources of both the IG and SIRC.
The types of review of CSIS activities conducted by the IG and discussed
in past annual certificates include:264
•
•
•
•
•
•
•
•
•
•
review of warrant applications, target choices265 and human source case
management;
detailed examinations of investigations of threats posed, including domestic extremist investigations and counter-intelligence investigations;
review of section 16 intelligence collection (information concerning foreign
states and persons);
special studies of the Service’s domestic liaison arrangements;
comprehensive briefings on the front-end screening programs of refugee
claimants;
discussions with senior management at Headquarters and in the field
(Vancouver, Edmonton, Toronto, Montreal and Halifax);
inspection of CSIS internal documents (branch accountability reports);
inspection of physical surveillance operations;
a special study of government security screening; and
review of cases reported to the IG by the Director where CSIS employees
contravened internal policies.
The IG has unrestricted access to any information under the control of CSIS
that he or she deems necessary for the discharge of his or her responsibilities.
The CSIS Act is quite clear that, with the exception of Cabinet confidences, “[n]o
information . . . may be withheld from the Inspector General on any grounds.”266
The IG also has access to all CSIS personnel.
3.2
OFFICE OF THE COMMUNICATIONS SECURITY ESTABLISHMENT
COMMISSIONER
The Office of the Communications Security Establishment Commissioner (CSE
Commissioner) was created in 1996, although it had no legislative basis until
2001. Initially, the CSE Commissioner was directed by Order in Council “to review the activities of the [CSE] for the purpose of determining whether those activities are in compliance with the law.”267 The many legislative amendments
contained in the Anti-terrorism Act passed in December 2001 included an
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amendment to the National Defence Act268 enshrining the role of the CSE and
the CSE Commissioner.
The Act provides that the Governor in Council may appoint a supernumerary judge or a retired judge of a superior court as CSE Commissioner for a
term of not more than five years.269 In carrying out his or her duties, the
Commissioner has all the powers of a commissioner under Part II of the
Inquiries Act, including the power to summon witnesses and hear evidence
under oath. The Commissioner is empowered to engage the services of legal
counsel, technical advisers and assistants.270
The National Defence Act sets out the duties of the CSE Commissioner
as follows:
(a) to review the activities of the Establishment to ensure that they are in compliance with the law;
(b) in response to a complaint, to undertake any investigation that the
Commissioner considers necessary; and
(c) to inform the Minister and the Attorney General of Canada of any activity
of the Establishment that the Commissioner believes may not be in compliance with the law.271
The CSE Commissioner is required to submit an annual report to the
Minister on the Commissioner’s activities and findings, to be tabled before
Parliament.272 The Commissioner also provides the Minister with classified reports. In the Annual Report for 2005–2006, the CSE Commissioner stated that his
main role was to give assurances to the Minister of National Defence that the intrusive powers granted to the CSE by Parliament were used in accordance with
the legislation.The CSE Commissioner also maintains relationships with other
review bodies both in and outside Canada. In 2005–2006, the Commissioner initiated what has come to be known as the Review Agencies Forum, involving
staff from the Office of the CSE Commissioner, SIRC, the Office of the Inspector
General of CSIS, and the CPC. The Forum provides an opportunity for staff of
the review agencies to discuss issues of mutual interest and concern and identify best practices in review.273
3.2.1
Review Function
As part of the review function, the Commissioner monitors control and accountability mechanisms, the scope and application of policies and procedures,
employee training programs, internal investigations and complaints, use and retention of collected information, and use of technology by the CSE.274
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The Anti-terrorism Act expanded the CSE’s foreign intelligence collection
role to permit the Minister of National Defence to authorize interception of private communications of Canadians in certain circumstances, provided certain
conditions are met.275 In doing so, the Minister must be satisfied that measures
taken by the CSE will protect the privacy of Canadians. The Commissioner is
specifically directed to review activities carried out under each ministerial authorization to ensure that they comply with the authorization and to include his
or her findings in the annual review.276
In the Annual Report for 2003–2004, the Commissioner reported on a general issue “about the structure of and process for using ministerial authorizations,” noting that “[c]ertain weaknesses in policies and procedures related
to these activities were brought to CSE’s attention” and that some issues had
been resolved, while others remained.277 In the 2005–2006 Annual Report, the
CSE Commissioner stated that his office had completed seven reviews, six of
which had involved CSE activities carried out under ministerial authorizations,
including one dealing with foreign intelligence collection and five dealing
with information technology security. None of the reviews had reported unlawful conduct.278
In addition to reviews of ministerial authorizations, the Commissioner may
conduct reviews of activities of the CSE to ensure they comply with the law. In
2005–2006, for example, the Commissioner examined the CSE’s foreign intelligence collection activities directed at countering the threat posed by the proliferation of weapons of mass destruction and their delivery systems, and provided
the Minister with a classified report setting out the findings of that review.279
The CSE Commissioner is also completing a major, two-phased review of CSE
activities in support of the RCMP (in the context of the CSE’s mandate to inform
the Minister and the Attorney General of Canada of any activity that may not be
in compliance with the law).280
In carrying out the review function, the Commissioner has full access to all
information in the CSE’s possession and access to all CSE personnel.281
Upon completion of a review, the Commissioner provides a classified
report to the Minister, with his or her opinion on the lawfulness of the activities reviewed and any recommendations he or she considers appropriate in
the circumstances.282
3.2.2
Complaints Function
Any Canadian citizen or permanent resident of Canada may file a complaint
regarding the lawfulness of CSE activities. The Commissioner has authority to
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refuse to deal with a complaint if he or she deems it to be frivolous, vexatious
or made in bad faith. Moreover, the Commissioner will not deal with a matter
for which there are other avenues of redress or with a matter that arose with the
complainant’s knowledge more than a year before the complaint was filed.
When the Commissioner’s office receives a complaint, the Commissioner decides on the action to be taken based on the recommendations of the
Complaints Review Committee. At this stage, conflict resolution methods may be
used to resolve the complaint. If a formal investigation ensues, the Commissioner
informs the complainant, the Chief of the CSE and the Minister of National
Defence, and assigns an investigator. Following an investigation, the
Commissioner prepares an interim report, with findings and recommendations.
The Chief may be asked to respond, with details. The final report is then prepared and submitted to the CSE Chief and the Minister, and the complainant is
advised in writing of the results of the investigation.283
I note that the vast majority of the Office’s work involves conducting reviews rather than dealing with complaints.
3.2.3
Implementation of Recommendations
In the Annual Report for 2005–2006, the CSE Commissioner stated that 75 percent of the nearly 100 recommendations made by the CSE Commissioner since
the office was established in 1996 had been accepted by the CSE and had been
or were in the process of being implemented. Half of the remaining recommendations were under consideration or being implemented with some modifications. The remainder had been bypassed by events or had not been accepted
by the CSE. Where the CSE either accepts recommendations with modifications
or rejects them, CSE officials discuss the matters with the CSE Commissioner.284
4.
GENERAL REVIEW BODIES
The final review bodies that I discuss in this chapter are bodies with jurisdiction
across the federal government. Such bodies are not restricted to any particular
agency, such as the RCMP or CSIS, nor are they limited to an activity such as law
enforcement or security intelligence. Their jurisdiction extends to both police
and security intelligence agencies and all federal national security actors. The accountability bodies in question are the Information Commissioner of Canada, the
Privacy Commissioner of Canada, the Canadian Human Rights Commission and
the Auditor General of Canada.
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4.1
OFFICE OF PRIVACY COMMISSIONER OF CANADA
The Office of the Privacy Commissioner of Canada was established under the
Privacy Act, the purpose of which is to “extend the present laws of Canada that
protect the privacy of individuals with respect to personal information about
themselves held by a government institution and that provide individuals with
a right of access to that information.”285 The Act also provides individuals with
a right to request correction of personal information when there is an error or
omission in that information.286 The Office of the Privacy Commissioner is also
responsible for overseeing compliance with the Personal Information Protection
and Electronic Documents Act, which applies to personal information collection, retention, access, use and disclosure in the private sector.
In order to discharge his or her mandate, the Privacy Commissioner undertakes the following types of activities:
•
•
•
investigation of privacy complaints (collection, retention, use and disclosure
of personal information, and corrections to personal information);
audits and reviews of government agencies and departments to examine
compliance with the Privacy Act and assist in developing privacy management regimes; and
research, public education and legal and policy analyses of bills, legislation
and privacy issues and practices. A key part of this work is appearing before Committees of the Senate and House of Commons to provide expert
advice on the privacy implications of bills and other policy matters under
consideration by Parliament.287
National security affects the work of the Privacy Commissioner in several
ways. For example, there are a number of statutory exemptions that allow
government institutions to refuse individuals access to personal information
about themselves, including access for the purpose of correcting erroneous personal information in the hands of government. In the national security context,
the most relevant exemptions pertain to personal information obtained in
confidence from governments of foreign states or foreign institutions, information the disclosure of which could be injurious to international affairs or defence, and information pertaining to law enforcement or investigations, or
security clearances.288
In the course of investigations of complaints, the Privacy Commissioner
has significant powers to compel the production of information, including
the power to compel testimony under oath and to enter premises occupied by
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a government institution and obtain copies of documents found on such premises.289 By statute, the Privacy Commissioner has access to all information in
control of a government institution “other than a confidence of the Queen’s
Privy Council for Canada” as defined in section 70(1) of the Privacy Act.290
Of relevance in the national security field is the fact that there are a number of “exempt banks,” that is, whole collections of information exempt from the
Privacy Act. By executive order, the following personal information banks are
designated exempt: Criminal Operations Intelligence Records, under the control
of the RCMP;291 Canadian Security Intelligence Service Investigational Records,
under the control of CSIS;292 and National Security Investigations Records, under
the control of the RCMP.293 The Privacy Commissioner may conduct investigations of the files contained in such personal information banks, in the course of
which he or she has the power to compel testimony under oath, enter premises
and compel access to information.294 Where, upon investigation, the Privacy
Commissioner considers that files contained in an exempt personal information
bank should not be contained therein, he or she must make a report containing findings and recommendations to the government institution that has control of the bank and may include that report in annual or special reports
to Parliament.295
The Office of the Privacy Commissioner has been very engaged in privacy
issues relating to national security, particularly since September 11, 2001. In discussing the review of privacy impact assessments, the Privacy Commissioner
has specifically noted the trend of increased sharing of information among police and national security agencies for law enforcement and anti-terrorism purposes and has recommended the development of overall privacy management
frameworks.296 The Office has audited the Canada Border Services Agency
(CBSA) and reviewed information regarding transborder data flows.297 It has
conducted compliance reviews of a number of federal national security actors,
including the RCMP, CSIS and the CSE, to determine the extent to which the
events of 9/11 have impacted privacy management practices. One of the Office’s
audit plan priorities is a review of exempt banks, which have not been audited
in over fifteen years.298 However, the Privacy Commissioner does not have the
resources to thoroughly audit, review or investigate all national security actors.
The Privacy Commissioner, as an officer of Parliament, reports directly to
Parliament through the Speaker of the House of Commons and Speaker of
the Senate.299
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4.2
OFFICE OF THE INFORMATION COMMISSIONER OF CANADA
The Supreme Court of Canada has recognized that the overarching purpose
of access to information legislation is to facilitate democracy.300 Such legislation
helps ensure that citizens have the information required to participate meaningfully in the democratic process. It also plays an important role in transparency
and helps ensure that politicians and bureaucrats remain accountable to
the citizenry.
The Information Commissioner of Canada is an independent officer of
Parliament who investigates complaints regarding access to information under
the Access to Information Act. The right of access to information is subject to a
number of exemptions. Of particular interest in the national security field are the
exemptions contained in:
•
•
•
section 13: information received in confidence from a foreign government,
international organization of states, provincial, municipal or Aboriginal
government;
section 15: information the disclosure of which could reasonably be expected to be injurious to the conduct of international affairs, the defence of
Canada or allied states, or the detection, prevention or suppression of subversive or hostile activity (including activities directed toward intelligence
gathering, activities threatening the safety of Canadians, and activities directed toward the commission of terrorist acts); and
section 16: information obtained in the course of investigations pertaining
to such matters as crime prevention, law enforcement or activities suspected
of constituting threats to the security of Canada within the meaning of the
Canadian Security Intelligence Service Act.
The Commissioner has strong investigative powers. He or she may summon
persons to appear before him or her and compel testimony under oath, enter
premises occupied by a government institution, and examine or obtain copies
of all records to which the Access to Information Act applies under the control
of a government institution.301
The Act does not apply to confidences of the Queen’s Privy Council
(Cabinet confidences) as defined therein. In addition, where the Attorney
General issues a certificate prohibiting disclosure of information under section
38.13 of the Canada Evidence Act, all proceedings in respect of a complaint are
discontinued.302 The Commissioner and persons acting on behalf of or under the
direction of the Commissioner have access to information subject to caveats,
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but are subject to a statutory confidentiality provision and a non-disclosure provision regarding information reviewed by them, but not ordered disclosed.303
Where a government institution denies access to information on the basis
of national security, international affairs or defence, a complaint may only be investigated by one of four specially designated investigators within the Office of
the Information Commissioner.304 Those investigators must have top secret security clearance and the materials must be brought to secure premises at the
Office for review. The purpose of the review is to determine whether the exemption properly applies to the records.
The Information Commissioner may also initiate complaints. In 2005–2006,
the Commissioner initiated 760 complaints: 481 against the RCMP, 126 against
the Privy Council Office, and 153 against DFAIT.305 All pertained to delays in
responding to existing access requests. The Information Commissioner has an
annual caseload of approximately 2,000 cases. National security actors, including CSIS, the RCMP, the CSE, the CBSA, DFAIT and DND account for some
10 to 15 percent.
The Information Commissioner makes recommendations, but does not have
binding order powers.306 The Commissioner reports to Parliament through the
Speaker of the Senate and Speaker of the House of Commons.307
In the hands of investigative journalists, academics and private citizens, the
Access to Information Act has provided a tool for disclosure of information regarding various aspects of national security policy and performance. Indeed,
much information in reports of review bodies such as SIRC and the IG has been
disclosed only as a result of requests made under the Access to Information Act.
However, some government departments and agencies have been critical of the
perceived negative effect of the law on the operations of government.308 The
2001 Anti-terrorism Act introduced several new limitations on access to national
security information.309 Some have argued that reasonable access to information
consistent with national security is a constituent of any accountability system,
and that the Information Commissioner in his or her capacity as an ombudsman
or advocate on behalf of citizens seeking access plays an important role in an
effective accountability mechanism.310
4.3
CANADIAN HUMAN RIGHTS COMMISSION
The Canadian Human Rights Commission deals with statutory human rights
protection, including protection against discrimination in employment and
services, in all areas of federal jurisdiction, under the Canadian Human Rights
Act.311 The Canadian Human Rights Tribunal, established pursuant to the
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Act, holds public hearings into complaints of discrimination referred to it by
the Commission.
A statutory gateway exists between the Commission and SIRC with respect
to review of human rights issues with national security aspects. The Canadian
Human Rights Act provides that, where a minister of the Crown provides written notice to the Commission that the practice to which a complaint relates is
“based on considerations relating to the security of Canada,” the Commission
may dismiss the complaint or refer the matter to SIRC.312 Under the CSIS Act,
SIRC has the mandate to conduct an investigation into a matter referred to it by
the Commission.313
Once a matter is referred to SIRC, the Commission must stay proceedings
and refrain from dealing with the complaint until SIRC has provided a report on
the matter.314 SIRC has 45 days to provide its report to the Commission, the referring minister and the complainant.315 Upon receipt of the report, the
Commission must either dismiss the complaint or deal with it under the
Canadian Human Rights Act.316
I note that a jurisdictional dispute has developed between SIRC and the
Commission. The Chief Commissioner of the Commission, Mary Gusella, testified before the Subcommittee on Public Safety and National Security of the
Standing Committee on Justice, Human Rights, Public Safety and Emergency
Preparedness that the interpretation of legislative provisions has led to legal and
practical issues between SIRC and the Commission. Historically, the Commission
referred human rights complaints involving national security issues to SIRC and
SIRC advised it on how to deal with the complaints in a manner that respected
those security issues, leaving the merits of the human rights aspects to the
Commission.317 However, according to the Commission, SIRC has begun to deal
with the merits of the human rights complaints as well. The Commission’s stated
primary concern is to ensure that coordinated systems are acting to respect national security while protecting and promoting human rights.
Members of the Canadian Forces and the RCMP are deemed to be employed by the federal Crown.318 However, the Commission will seek to have
complaints against RCMP members dealt with initially by the CPC, in order to
exhaust that avenue of redress first. It will only take such a complaint if it concludes that there is an outstanding discrimination issue after the matter has been
dealt with by the CPC.319
The Commission may search premises pursuant to a judicially issued warrant, subject to “such limitations as the Governor in Council may prescribe in the
interests of national defence or security.”320 A complaint investigator reports to
the Commission, following which the Commission may dismiss the complaint,
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refer the complainant elsewhere if appropriate, or request that the Chairperson
of the Canadian Human Rights Tribunal institute an inquiry under section 49 of
the Act.321
Members and employees of the Commission are specifically required under
the Canadian Human Rights Act to comply with security requirements applicable to information they obtain and must take any applicable oath of secrecy.
Furthermore, every Commission member and employee must take “every reasonable precaution” to avoid disclosing information the disclosure of which:
•
•
•
•
•
•
might be injurious to international relations, national defence or security or
federal-provincial relations;
would disclose a confidence of the Queen’s Privy Council for Canada;
would be likely to disclose information obtained or prepared by any investigative body of the Government of Canada in relation to national security, in the course of investigations pertaining to the detection or
suppression of crime generally, or in the course of investigations pertaining to particular offences against any Act of Parliament;
might cause harm to sentenced individuals;
might impede the functioning of a court of law, quasi-judicial board, commission, other tribunal or inquiry;
might disclose legal opinions or advice provided to government or privileged communications between lawyer and client in a matter of government business.322
Provisions exist to deal with national security concerns where the
Commission refers a matter to the Tribunal. While Tribunal hearings are public,
the Canadian Human Rights Act stipulates that the member or panel conducting the inquiry may, on application, take any measures and make any order
considered necessary to ensure the confidentiality of the inquiry if satisfied that:
(a) there is a real and substantial risk that matters involving public security will
be disclosed
...
(d) there is a serious possibility that the life, liberty or security of a person will
be endangered.323
Finally, the Act provides that, if an investigator or Tribunal member or panel
requires the disclosure of any information and a minister of the Crown or
any other interested person objects, the Commission may apply to the Federal
Court for a determination of the matter and the Court may take any action it
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considers appropriate. The objection to disclosure is determined in accordance
with the Canada Evidence Act.324
Both the Commission and the Tribunal are required to report yearly to
Parliament on their respective activities.
4.4
OFFICE OF THE AUDITOR GENERAL OF CANADA
The Office of the Auditor General of Canada audits a wide range of activities of
the federal government and the three territories. Audits include financial, management effectiveness and performance audits. Historically, audits have covered
a broad range of activities, including health, culture, the environment, finance,
agriculture, transportation, and scientific research.325 In recent years, they have
included activities of the federal government in the area of national security.
The Auditor General initiated the first ever audit of Ottawa’s security and intelligence functions as a whole in the 1990s. Clearly identified as the first of a regular cycle, it was unprecedented in scope. In the ensuing report, the Auditor
General was highly specific in recommendations for tightening controls and
maintaining accountability in the Canadian intelligence community.326
The Auditor General’s 1996 Report indicated that the audit had specifically
examined the “arrangements in place for the control and accountability of
Canada’s intelligence community.”327 The audit dealt with topics such as the
roles that should be played by the Prime Minister, responsible ministers, internal accountability mechanisms and external review bodies in holding national
security actors to account.
In November 2003, the Auditor General issued another report, in which
she assessed the level of external independent review over each agency either
involved directly in or providing assistance with the collection of intelligence
within Canada, including CSIS, the RCMP, DND, the CSE, the Canada Customs
and Revenue Agency328 and the Financial Transactions and Reports Analysis
Centre of Canada (FINTRAC).329
In March 2004, the Auditor General audited the overall management of the
initiative taken to enhance national security and intelligence coordination in response to 9/11.330 The audit looked at specific issues, such as the interoperability of security and intelligence information systems and the sharing of
information, fingerprint identification, the use of watch lists for border control,
and the security clearance of airport workers requiring passes to restricted
areas.331 As with previous audits, the focus was on efficiency, proper management and accountability, not on specific operational details. An April 2005 report set out the results of audits of four government activities having national
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security implications: the 2001 anti-terrorism initiative (a continuation of the earlier March 2004 audit in this domain), DND’s C4ISR initiative332 and activities at
the Passport Office and Natural Resources Canada. Again, the focus was on
whether public funds had been spent properly and managed well, rather than
on operational details.333
The most recent report touching on national security was a November 2005
report, in which the Auditor General reiterated earlier calls for an increased role
for Parliament in scrutinizing spending and performance in security and intelligence matters, in a context where detailed information is often required to be
kept secret.334
4.4.1
Mandate
The Auditor General of Canada is an officer of Parliament who reports to the
Standing Committee on Public Accounts of the House of Commons. He or she
is required to do so annually, and may make no more than three additional reports in any year to the House, related to the work of his or her office and
whether he or she is receiving all the information and explanations required.
These reports are intended to call attention to anything that the Auditor General
considers of significance and of a nature that should be brought to the attention
of the House of Commons, including sufficiency of financial and other controls,
the cost-effectiveness of government operations and the overall effectiveness
of programs.335
The Auditor General may also produce special reports to the House of
Commons on any matter of pressing importance or urgency that, in his or her
opinion, should not be deferred until the presentation of the next regular report.336 Moreover, when requested by the Governor in Council, he or she may
inquire into and report on any matter relating to the financial affairs of Canada,
public property, and any person or organization that has received financial aid
from the government or for which government financial aid is being sought.337
The Auditor General conducts three different types of legislative audits as
his or her central means of holding the government to account. The first type is
the financial audit, which looks at whether the government is keeping proper
accounts and records and presenting its financial information fairly. The next is
a special examination of Crown corporations, a form of audit wherein the
Auditor General provides an opinion on the management of the corporation as
a whole. The third is the performance audit, the purpose of which is to determine whether programs are being run with due regard for economy, efficiency,
effectiveness and environmental impact. Performance audits do not question
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the merits of government policies. Rather, they examine the government’s management practices, controls, and reporting systems based on its own public policies and on best practices.338
The Office of the Auditor General conducts approximately 30 performance
audits a year in federal departments and agencies. The Auditor General Act gives
the Office considerable discretion to determine what areas of government to
examine when doing such audits. The Office begins planning its program of
audits several years in advance, conducting a thorough risk analysis, identifying
the areas most significant and relevant to Parliament, and taking into account
such practical issues as the availability of its financial and human resources.
According to the Office of the Auditor General, its focuses on areas in which federal government organizations face the highest risk — in other words, areas that
cost taxpayers significant amounts of money or could threaten the health and
safety of Canadians were something to go wrong. The Office may also deem a
topic area significant if it is of great interest to parliamentarians and Canadians.
The Auditor General has specifically cited national security as one such area.339
The Auditor General will pay particular attention to audit requests from parliamentary committees, but the ultimate decision about what to audit rests with the
Auditor General.340
Audit topics that fall outside the Office’s mandate include, but are not limited to, policy decisions (the prerogative of Parliament and government) and
areas under the exclusive jurisdiction of provincial or municipal governments.341
The Auditor General has extensive powers to obtain information. Under
the Auditor General Act, he or she is entitled to access at all convenient times
all information that relates to the fulfilment of his or her responsibilities and is
entitled to receive from members of the federal public administration any information considered necessary for that purpose. The only exception is where
another Act of Parliament specifically refers to this broad access to information
provision and somehow contradicts it.
The Auditor General may examine any person on oath on any matter pertaining to any account subject to audit by him or her and, for the purposes of
any such examination, may exercise all the powers of a commissioner under Part
I of the Inquiries Act.342
Performance audits are quite extensive and may take up to 18 months to
complete. They consist of a planning phase, an examination phase, and a reporting phase. The reporting phase incorporates an opportunity for the audited
department or agency to correct facts and provide comments before the report
is submitted to the House of Commons.343
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The Auditor General notifies the Speaker of the House of his or her intention to table a report at least 30 days before the tabling date and provides a
short summary of each audit topic. He or she notifies all members of Parliament
and senators at this same time. About a week before the report is tabled, the
Auditor General offers to brief ministers whose organizations are included in
the report. Until then, the Office deals only with officials in the public service,
giving them an opportunity to check facts, provide additional information, and
respond to recommendations.344
All of the Auditor General’s reports are automatically referred to the
Standing Committee on Public Accounts for further review.345 This and other
parliamentary committees hold hearings to discuss issues raised in the report,
after which the Public Accounts Committee may table a report in the House of
Commons that includes recommendations to the government. The government
is expected to table a response to the report within 150 days. These responses
are approved by Cabinet.346
Notes
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
Canada, Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher
Arar, Domestic Models of Review of Police Forces (Background Paper), Dec. 10, 2004, available on the Commission’s website, www.aracommission.ca.
Officers Confidential Memorandum Number 10 as quoted in Canada, Report of the Commission
of Inquiry Relating to Public Complaints, Internal Discipline and Grievance Procedure within
the Royal Canadian Mounted Police (Ottawa: Information Canada, 1976), p. 40 (Chair: Judge
René J. Marin) [Marin Commission report].
An Act to amend the Royal Canadian Mounted Police Act and other Acts in consequence
thereof, S.C. 1986, c. 11.
Marin Commission report.
Canada, Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted
Police, Freedom and Security Under the Law, Second Report (Ottawa: Minister of Supply and
Services Canada, 1981) (Chair: Justice David McDonald) [McDonald Commission report].
Marin Commission report, p. 69.
Ibid., pp. 102, 104–6.
Ibid., pp. 103,104.
Ibid., p. 102.
Ibid.,
Ibid., p. 103.
Bill C-43, An Act respecting the office of the Ombudsman and matters related or incidental
thereto, S.C. 1977–78.
Marin Commission report, p. 102.
McDonald Commission report, vol. 2, p. 986.
Ibid., p. 970.
Ibid., p. 987 [emphasis in original].
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17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
Ibid., pp. 985–6.
Ibid., p. 988.
Ibid., p. 981.
Ibid., p. 967.
Ibid., p. 978.
Albert J. Reiss, Jr., The Police and the Public (New Haven, CT: Yale University Press, 1971),
pp. 194–195, as quoted in the McDonald Commission report, vol. 2, p. 978.
McDonald Commission report, vol. 2, p. 971.
Ibid., p. 981.
Alberta (A.G.) v. Putnam, [1981] 2 S.C.R. 267. See also Donald J. Sorochan, “The APEC Protest,
the Rule of Law, and Civilian Oversight of Canada’s National Police Force,” in W. Wesley Pue,
ed., Pepper in Our Eyes: The APEC Affair (Vancouver: UBC Press, 2000), p. 67 [Sorochan].
Sorochan, p. 70.
Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10, ss. 45.42 (2)–45.42 (3) [RCMP Act].
Ibid., s. 45.35(1).
Canada (Commissioner of the Royal Canadian Mounted Police)(Re)(C.A.), [1994] 3 F.C. 562 ,
pp. 586–87.
An Act to amend the Royal Canadian Mounted Police Act and other Acts in consequence
thereof, S.C. 1986, c. 11.
SI/88-103 (proclaimed all of S.C. 1986, c. 11, except Part VII, in force June 30, 1988); SI/88-214
(proclaimed Part VII in force September 30, 1988). See Royal Canadian Mounted Police Act
(Can.) (Re) (C.A.), [1991] 1 F.C. 529.
Commission for Public Complaints Against the RCMP, Press Release, “New English Name for
the RCMP Public Complaints Commission” (January 5, 2001), online, CPC, http://www.cpccpp.gc.ca/DefaultSite/NewsRoom/index_e.aspx?articleid=258 (accessed Aug. 23, 2006).
RCMP Act, s. 45.29(4). In addition to the Chair and Vice-Chair, there may be one representative for each of the provinces that contract for the services of the RCMP (after consultation with
the province concerned) and up to three other appointees, plus alternates: Ibid.,
ss. 45.29(1)–45.29(2)
Paul Ceyssens, Legal Aspects of Policing, vol. 2 (Saltspring Island, B.C.: Earlscourt Legal Press,
2002), p. 7-13. [Ceyssens].
Canada, Commission for Public Complaints Against the RCMP, 2005-2006 Annual Report
(Ottawa: Minister of Public Works and Government Services, 2006), p. 3, online,
http://www.cpc-cpp.gc.ca/app/DocRepository/1/AR0506_e.pdf (accessed Oct. 24, 2006). [CPC
2005/2006 Annual Report]; Canada, Commission for Public Complaints Against the RCMP,
2004-2005 Departmental Performance Report, online, http://www.cpc-cpp.gc.ca/app/
DocRepository/1/PDF/dpr0405_e.pdf (accessed Oct. 24, 2006) [CPC 2004-2005 Annual Report].
RCMP Act, s. 45.35.
Canada, Commission for Public Complaints Against the RCMP, 2004-2005 Annual Report
(Ottawa: Minister of Public Works and Government Services, 2005), p. 12, online,
http://www.cpc-cpp.gc.ca/app/DocRepository/1/AR0405_e.pdf (accessed Aug.23, 2006).
[CPC 2004/2005 Annual Report]; CPC 2005/2006 Annual Report, p. 9.
RCMP Act, s. 45.37.
CPC 2004/2005 Annual Report, p.15.
RCMP Act, ss. 45.35(2), 43.35(3).
In his testimony before the Commission, then RCMP Deputy Commissioner Garry Loeppky
stated: “The investigation is done by the RCMP and the results are provided to the complainant
and copied to the Commission”: Loeppky testimony, Arar Commission Factual Inquiry Public
Hearing (July 6, 2004), p. 1458. However, this occurs only if the complaint was originally
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made to the CPC. See also Ceyssens, p. 7-46: “The Act does not require the Commission to
monitor or even be notified of a complaint.”
RCMP Act, s. 45.47.
Ibid., s. 45.36.
CPC 2004/2005 Annual Report, p. 30; CPC 2005/2006 Annual Report, p. 9.
RCMP Act, ss. 45.36(5), 45.36(6).
Ibid., s. 45.41
Ibid., s.45.42(3).
CPC 2005/2006 Annual Report, p.12.
RCMP Act, s. 45.43(1).
Ibid., s. 45.43(2).
“Press Releases,” online, Commission for Public Complaints Against the RCMP,
(accessed
http://www.cpc-cpp.gc.ca/DefaultSite/NewsRoom/index_e.aspx?articleid=48
Aug. 23, 2006).
RCMP Act – Part VII Subsection 45.45(14): Commission Interim Report (2003), online,
Commission for Public Complaints Against the RCMP, online, http://www.cpccpp.gc.ca/DefaultSite/Reppub/index_e.aspx?articleid=58 (accessed Aug. 23, 2006); W. Wesley
Pue, Pepper in Our Eyes: The APEC Affair (Vancouver: UBC Press, 2000).
Commission for Public Complaints Against the RCMP, Press Release, “RCMP Public Complaints
Commission to Hold Public Hearing into Incidents during the APEC Forum” (February 20,
1998), online, http://www.cpc-cpp.gc.ca/DefaultSite/Archive/index_e.aspx?articleid=266
(accessed Aug. 24, 2006).
Commission for Public Complaints Against the RCMP, News Release, “Commission for Public
Complaints Against the RCMP Initiates Complaint into RCMP Conduct in Relation to the
Deportation and Detention of Mr. Maher Arar” (October 23, 2003), online, http://www.cpccpp.gc.ca/DefaultSite/Archive/index_e.aspx?Articleid=463 (accessed July 28, 2006).
Canada, Commission for Public Complaints Against the RCMP, Chair’s Final Report Pursuant
to Subsection 45.46(3) of the RCMP Act Following a Public Interest Investigation Pursuant to
Subsection 45.43(1) of the RCMP Act with Respect to the Events of May 2 to 4, 1997 in the
Communities of Saint-Sauveur and Saint-Simon, New Brunswick (March 22, 2001),
online, http://www.cpc-cpp.gc.ca/DefaultSite/Reppub/index_e.aspx?ArticleID=343 (accessed
July 28, 2006).
Commission for Public Complaints Against the RCMP, News Release, “Mental Health Week:
RCMP Officers Need Better Training” (May 4, 2004), online, http://www.cpccpp.gc.ca/DeafultSite/ Archive/index_e.aspx?Articleid=500 (accessed July 28, 2006).
Commission for Public Complaints Against the RCMP, News Release, “Commission for Public
Complaints Against the RCMP Initiates a Public Interest Investigation into Allegations Involving
Kingsclear Youth Training Center in New Brunswick” (May 27, 2004), online, http://www.cpccpp.gc.ca/DefaultSite/Whatsnew/index_e.aspx?ArticleID=504 (accessed Aug. 23, 2006).
CPC 2004/2005 Annual Report.
RCMP Act, s. 45.46(2).
Only cabinet documents may be withheld: Canadian Security Intelligence Service Act,
S.C. 1984, c. 21, s. 39(3) [CSIS Act].
CSIS Act, s. 38.
Ibid., s. 6(2).
RCMP Act, s. 45.41(2)(b).
CPC 2004/2005 Annual Report, p. 35.
Ibid., pp. 35-37.
RCMP Act., s. 45.45(4).
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Ibid., s. 45.45(11).
Shirley Heafey, “Civilian Oversight in a Changed World” (Speech delivered to the Canadian
Institute for the Administration of Justice, March 26, 2002), p. 4, online, http://www.cpccpp.gc.ca/DefaultSite/NewsRoom/index_e.aspx?articleid=274 (accessed July 26, 2006).
Ibid., pp. 4–5. See also Canada (Royal Canadian Mounted Police Public Complaints
Commission) v. Canada (Attorney General), 2005 FCA 213.
RCMP Act, s. 45.34.
Police Pursuits and Public Safety (1999), online, Commission for Public Complaints Against the
RCMP, http://www.cpc-cpp.gc.ca/DefaultSite/Reppub/index_e.aspx?articleid=94 (accessed
July 27, 2006).
Unless otherwise attributed, information in this section is based on meetings and communications by the Arar Commission with the offices of the Military Police Complaints Commission
and Canadian Forces Provost Marshal. I do not review the role of the Military Ombudsman in
this chapter. The Ombudsman’s mandate is specifically limited, in that it may not deal with
matters that can be dealt with through existing mechanisms, such as SIRC, the MPCC and the
CSE Commissioner. Thus, the Ombudsman is unlikely to review the national security activities of Canadian officials. The only exception is where compelling circumstances justify an investigation by the Ombudsman of a matter that would otherwise fall within the jurisdiction of
SIRC or the MPCC.
The Code of Service Discipline is set out in the National Defence Act, Part III. See also Criminal
Code, s. 2 (definition of “peace officer,” (g)(i)); National Defence Act, s. 156.
Criminal Code, s. 2 (definition of “peace officer,” (g)(ii)); R. v. Nolan, [1987] 1 S.C.R. 1212;
R. v. Haynes (N.S.C.A.), [1994] N.S.J. No. 152.
Under s. 250.17 of the National Defence Act, the Chairperson of the MPCC must submit a
yearly report to the Minister on the Commission’s activities during that year, along with recommendations, if any. The Minister must, in turn, have a copy of the report laid before each
House of Parliament on any of the first fifteen days on which that House is sitting after the
Minister receives it.
The First Independent Review by the Right Honourable Antonio Lamer P.C., C.C., C.D., of the
provisions and operation of Bill C-25, An Act to amend the National Defence Act and to make
consequential amendments to other Acts, as required under section 96 of Statutes of Canada
1998, c. 35, submitted to the Minister of National Defence, September 3, 2003, p. 77, online,
Canadian Forces Grievance Board, http://www.cfgb-cgfc.gc.ca/pdf/LamerReport_e.pdf
(accessed Aug. 23 2006) [Lamer review]. See also Updating Civilian Oversight of Canada’s
Military Police: Achieving Results for Canadians, Special Report, pp. 3–4, online, Military
Police Complaints Commission, http://www.mpcc-cppm.gc.ca/300/301_e.aspx (updated
December 2005; accessed Aug. 22, 2006) (Interim Chairperson: Henry Kostuck) [Kostuck].
National Defence Act, R.S.C. 1985, c. N-5, as amended.
For an overview, see Military Police Complaints Commission of Canada, “Crisis in Building
Confidence: A Brief to the Standing Committee on National Defence on Bill C-7, an Act to
Amend the National Defence Act,” May 31, 2006, pp. 3–6.
The Provost Marshal is the head of the Canadian Military Police and Commanding Officer of
the Canadian Forces National Investigation Service (CFNIS).
From the time of its creation in December 1999 to approximately October 2004, the MPCC
received 266 conduct complaints and six interference complaints. During this same period, it
conducted 27 reviews in response to review requests and eight investigations in the public
interest.
National Defence Act, s. 250.18.
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Complaints About the Conduct of Members of the Military Police Regulations, App. 7.2, Vol. IV,
Queen’s Regulations and Orders for the Canadian Forces, approved by P.C. 1999–2065,
November 18, 1999, s. 2.
Or the delegated Deputy Provost Marshal.
National Defence Act, ss 250.21, 250.26. If the complaint is about the conduct of the Provost
Marshal, the Chief of the Defence Staff is responsible for dealing with the complaint and has
all the powers and duties of the Provost Marshal. In practice, these duties of the Provost
Marshal are delegated to the Provost Marshal’s deputies: Military Police Complaints
Commission, “Submissions with respect to the Independent Review of Bill C-25 (An Act to
Amend the National Defence Act) to the Right Honourable Antonio Lamer,” April 9, 2003, p. 9.
Meeting with Military Police Complaints Commission, September 8, 2004.
See Lamer review pp. 75–77 and Recommendation 60. See also Kostuck. (See note 76 for
both.)
Canada, Bill C-7, An Act to amend the National Defence Act, 1st Sess., 39th Parl., 2006 (First
Reading, April 27, 2006).
National Defence Act, ss. 250.21 (b) and 250.22.
Ibid., s. 250.3.
Ibid., s. 250.28.
Ibid., s. 250.29.
Ibid., s. 250.31(1).
Ibid., s. 250.31(2).
Ibid., ss. 250.38, 250.4.
Ibid., s. 250.32.
Ibid., s. 250.51.
Ibid., s. 250.53.
Ibid., s. 250.34.
Ibid., ss. 250.38, 250.41. During a public hearing, the MPCC may not receive any evidence or
information that would be inadmissible in a court of law by reason of any privilege under the
law of evidence; any answer given or statement made before a board of inquiry or summary
investigation; any answer or statement that tends to criminate the witness or subject the witness to any proceeding or penalty and that was in response to a question at a hearing under
Div. 3, Part IV of the Act into another complaint; any answer given or statement made before
a court of law or tribunal; or any answer given or statement made while attempting to resolve
a conduct complaint informally under s. 250.27(1).
National Defence Act, s. 250.42.
Ibid., s. 250.44.
Ibid., s. 250.45.
Arthur Maloney, The Metropolitan Toronto Review of Citizen-Police Complaint Procedure:
Report to the Metropolitan Toronto Board of Commissioners of Police (1975) [unpublished,
archived at Library of Public Safety and Emergency Preparedness Canada] [Maloney report].
Ibid., pp. 211–213.
Ibid., pp. 217, 223.
Ontario, The Royal Commission into Metropolitan Toronto Police Practices (Toronto: Royal
Commission into Metropolitan Toronto Police Practices, 1976) (Commissioner: Hon. Justice
Donald R. Morand).
Metropolitan Toronto, Task Force on Human Relations, Now Is Not Too Late (Toronto:
Municipality of Metropolitan Toronto, 1977) (Chair: Walter Pitman).
Cardinal Gerald Emmett Carter, Report to the Civic Authorities of Metropolitan Toronto and Its
Citizens (Toronto: Municipality of Metropolitan Toronto, 1979).
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Clare E. Lewis, Sidney B. Linden, and Judith Keene, “Public Complaints Against Police in
Metropolitan Toronto – The History and Operation of the Office of the Public Complaints
Commissioner” (1986), 29 Criminal Law Quarterly 115, p. 119.
An Act for the establishment and conduct of a Project in The Municipality of Metropolitan
Toronto to improve methods of processing Complaints by members of the Public against Police
Officers on the Metropolitan Police Force, S.O. 1981, c. 43.
Ibid., s. 14(3).
Ibid., s. 15(2).
Ibid., s. 19(1).
Ibid., s. 19(14).
An Act to revise the Metropolitan Police Force Complaints Project Act, 1981, S.O. 1984, c. 63.
An Act to revise the Police Act and amend the law relating to Police Services, S.O. 1990, c. 10.
Ibid., ss. 78, 91(2).
Ibid., s. 74.
Ibid., s. 93(2).
Ibid., s. 97 (1).
An Act for the establishment and conduct of a Project in The Municipality of Metropolitan
Toronto to improve methods of processing Complaints by members of the Public against Police
Officers on the Metropolitan Police Force, S.O. 1981, c. 43, s. 19(12).
An Act to revise the Police Act and amend the law relating to Police Services, s. 97(1).
Roderick M. McLeod, A Report and Recommendations on Amendments to the Police Services
Act Respecting Civilian Oversight of Police (Toronto: Miller Thomson, 1996). See generally
Dianne L. Martin, “Legal Sites of Executive-Police Relations: Core Principles in a Canadian
Context” (Paper delivered at the Ipperwash Inquiry / Osgoode Hall Law School Symposium,
June 29, 2004), pp. 20ff, online, http://www.ipperwashinquiry.ca/policy_part/meetings/pdf/
Martin.pdf#search=%22%22legal%20sites%20of%20executive-police%20relations%22%20%2B
%20dianne%201.%20martin%22%22 (accessed July 13, 2006).
An Act to revise the Police Act and amend the law relating to Police Services, s. 35 (creating
s. 57(1) of the Police Services Act).
Police Services Act, R.S.O. 1990, c. P.15, s. 56(1).
Ibid., ss. 22, 25(1)(a).
Ibid., s. 70; Ontario, Consultation Report of the Honourable George W. Adams, Q.C. to the
Attorney General and Solicitor General Concerning Police Cooperation with the Special
Investigations Unit (1998), online, Special Investigations Unit, http://www.siu.on.ca/adams.asp
(accessed July 6, 2006) [Adams report 1998]; Hon. George W. Adams, Review Report on the
Special Investigations Unit Reforms prepared for the Attorney General of Ontario (Toronto,
2003), online, Ministry of the Attorney General, http://www.attorneygeneral.jus.on.ca/
english/about/pubs/adams (accessed July 6, 2006) [Adams review report 2003].
Murray W. Chitra, Chair, Ontario Civilian Commission on Police Services, Policing in Canada:
Structure and Accountability Mechanisms (Paper delivered to the Policing and Police
Commissions in Multi-Ethnic Societies Round Table, Colombo, Sri Lanka, February 21, 2003),
p. 12.
Police Services Act, ss. 59(3), 59(4).
Ibid., s. 59(6).
Ibid., s. 61(2).
Ibid., s. 61(7).
Hon. Patrick J. LeSage, Report on the Police Complaints System in Ontario (2005), p. 28, online, Ontario Ministry of the Attorney General, http://www.attorneygeneral.jus.gov.on.ca/
english/about/pubs/LeSage/en-fullreport.pdf (accessed July 13, 2006) [LeSage].
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161
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166
Police Services Act, ss. 64(2)–64(3).
Ibid., s. 64(6).
Ibid., ss. 64(11)–64(15 ). Note that such disposition is only permitted if the officer consents.
Otherwise, a hearing is required.
Police Services Act, ss. 64(10), 68(1).
Ibid., s. 71(1).
Ontario Civilian Commission on Police Services, Annual Report 2004 , online, OCCPS,
http://www.occps.ca/englishwebsite/aboutoccps/annualreport2004.pdf (accessed Oct. 24,
2006), p 6.
Ibid., p. 8.
Ibid., pp. 39 and 46.
Formerly the Ministry of the Solicitor General.
LeSage, p. 83.
Ontario, Special Investigations Unit, Annual Report 2002–2003 (Toronto: Special Investigations
Unit, 2003), p. 1, online, SIU, http://www.siu.on.ca/siu_images/SIU%202003ReportENG.pdf
(accessed July 12, 2006).
Police Services Act, s. 113. See also Adams report 1998 (see note 127).
Police Services Act, s. 113(3).
An Act to revise the Police Act and amend the law relating to Police Services, s. 113.
Adams report 1998.
Adams review report 2003, p. 9 (see note 127).
The transfer of responsibility from the Solicitor General to the Attorney General occurred in
September 1992 following a report by Stephen Lewis on police and race relations in Toronto.
See Adams report 1998, p. 10.
Ontario, Special Investigations Unit, Annual Report 2004–2005 (Toronto: Special
Investigations Unit, 2005), p. 17, online, SIU, http://www.siu.on.ca/siu_images/
SIU%20Eng%20Final%20Web.pdf.
An act respecting police organization and amending the Police Act and various legislation,
S.Q. 1988, c. 75.
Police Act [Quebec], S.Q. 2000, c. 12.
Ibid., s. 171.
Quebec, Commissaire à la déontologie policière, Rapport Annuel 2000–2001, (Quebec:
Publications du Québec, 2001), p. 12.
Police Act [Quebec], ss. 174, 189. See also Ceyssens, p.7-67 (see note 35).
Police Act [Quebec], s. 148.
Ibid., s. 147. See also Ceyssens, p. 7-59.
Police Act [Quebec], ss. 162–163.
Canadian Association for Civilian Oversight of Law Enforcement (CACOLE), Compendium of
Civilian Oversight Agencies in Canada, Hyacinthe Miller, ed., (CACOLE, 2006). p. 36, online,
http://www.cacole.ca/Resource%20Library/Compendium/CACOLE%20Compendium%202006.
pdf (accessed Nov. 1, 2006) [CACOLE Compendium].
O.C. 920–90, 27 June 1990, Gazette Officielle du Québec 1990, Part 2, vol. 122, No. 28, p. 1760,
s. 12.
Paul Monty, then Police Ethics Commissioner for Quebec, speaking notes (January 2004),
pp. 2–3 (unpublished, on file with author).
CACOLE Compendium, p. 32.
Police Act [Quebec], s. 234.
Ibid., ss. 129, 198; Ceyssens, p. 7-15.
Police Act [Quebec], ss. 130, 199; Ceyssens, p. 7-17.
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An act respecting police organization and amending the Police Act and various legislation,
S.Q. 1988, c. 75, s. 101.
An act to amend the act respecting police organization and the Police Act as regards police
ethics, S.Q. 1997, c. 52, s. 36.
Police Act [Quebec], s. 145; see also Ceyssens, p. 7-48.
Police Act [Quebec], s. 143.
Ibid., s. 166; Ceyssens, p. 7-23, note 7.
Police Act [Quebec], s. 260.
See note 161. S. 12.
Conversation with Paul Monty, then Police Ethics Commissioner for Quebec, June 7, 2004.
Police Act [Quebec], s. 143; Ceyssens, p. 7-28.
Code of ethics of Québec police officers (see note 161), ss. 5(2), 6(1), 8(2), 11(1).
Domestic Models of Review of Police Forces (see note 1).
Email correspondence to Commission from Cyndy Dyck, Office of the Police Complaint
Commissioner of British Columbia, August 12, 2004 [Dyck correspondence]; see also Office of
the Police Complaint Commissioner, British Columbia, 1998 Annual Report, online,
www.opcc.bc.ca (accessed Oct. 24, 2006).
Commission of Inquiry into Policing in British Columbia, Closing the Gap: Policing and the
Community (Vancouver, B.C.: Commission of Inquiry into Policing in British Columbia, 1994)
(Commissioner: Hon. Justice Wallace T. Oppal), online, http://www.pssg.gov.bc.ca/
publications/oppal/ClosingTheGap.pdf (accessed August 12, 2004).
Ibid., p. 19.
CACOLE Compendium, p. 5 (see note 160).
Ibid., p. 6.
Police Act [B.C.], R.S.B.C. 1996, c. 367 (as am.), ss. 47(1), 47(2).
Philip C. Stenning, Review of Part 9 (Complaint Procedure) of the British Columbia Police Act,
as Amended by Section 36 of S.B.C. 1997, c. 37 (August 11, 1998) [unpublished, archived at
the Office of the British Columbia Police Complaint Commissioner], p. 19.
Police Act [B.C.], s. 56.
Ibid., s. 56.1(1). See also Dyck correspondence (see note 178).
Ibid., s. 59.1(2)(a).
Ibid., ss. 60, 60.1(2)(a).
Ibid., s. 60(4).
CACOLE Compendium, p. 7.
Police Act [B.C.], s. 62(1).
[1959] S.C.R. 121.
Proulx v. Quebec, [2001] 3 S.C.R. 9.
Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263.
McDonald Commission report, vol. 2, p. 1041.
R. v. Barnes [1991] 1 S.C.R. 449.
R. v. Mack [1988] 2 S.C.R. 903.
Unless otherwise indicated, information in this section is based on meetings and communications between Policy Review legal counsel and SIRC.
CSIS Act, s. 34(1).
In practice, some SIRC members have been named privy councillors in order to assume office.
Some members of SIRC have been without past political affiliation. It has not been possible
for SIRC to continue to mirror Parliament following major electoral changes in party representation, such as after the 1993 general election. There has never been an appointment of a
member with past affiliation with the Bloc Québécois (although the leader of that party in the
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House has consulted over the appointment of members from the province of Quebec).
Moreover, it took six years following the appearance of the Reform Party / Canadian Alliance
as an official party in the House for it to gain a representative on SIRC. There has always been
one member with past affiliations to the New Democratic Party.
CSIS Act, ss. 34(2)–34(3).
Ibid., s. 37.
Ibid., s. 38.
Ibid., s. 38(a).
Ibid., s. 40.
Ibid.,
Ibid., s. 54.
Ibid., s. 41(1)(a).
Ibid., s. 42(3).
Ibid., s. 38(c). Prior to amendment of the CSIS Act in 2001, SIRC also conducted investigations
and hearings with respect to ss. 39 and 81 of the Immigration Act, regarding recommendations of deportation where it is alleged that a person is either a security threat or, following
conviction for a serious criminal offence, that the person is involved in organized crime.
“Meeting Between the Security Intelligence Review Committee and the Arar Inquiry Policy
Review – Discussion Points,” June 21, 2004 [Discussion Points], and meeting of June 22, 2004
(Arar Commission Policy Review).
Ibid.,
Reviews (updated January 13, 2004), online, Security Intelligence Review Committee,
http://www.sirc-csars.gc.ca/reviews_e.html (accessed Aug. 23, 2006).
Canada, Security Intelligence Review Committee, SIRC Annual Report 2004-2005 (Ottawa:
Public Works and Government Services Canada, 2005), p. 12 [SIRC Annual Report 2004–2005].
SIRC’s annual reports are available online at http://www.sirc-csars.gc.ca/reports_e.html
(accessed February 21, 2006).
This investigation took place in 2003–2004. It is detailed in Canada, Security Intelligence
Review Committee, SIRC Annual Report 2003–2004 (Ottawa: Public Works and Government
Services Canada, 2004), pp. 13-14 [SIRC Annual Report 2003-2004].
SIRC Annual Report 2004–2005, pp. 4–36.
For an overview of the Target Approval Review Committee, see Jack Hooper testimony, Arar
Commission Factual Inquiry Public Hearing (June 22, 2004), pp. 458–474.
Canada, Security Intelligence Review Committee, SIRC Annual Report 1999–2000
(Ottawa:Minister of Supply and Services Canada, 2000), p. 13 [SIRC Annual Report 1999-2000].
Canada, Security Intelligence Review Committee, SIRC Annual Report 2002–2003 (Ottawa:
Public Works and Government Services Canada, 2003), pp. 15–16 [SIRC Annual Report
2002–2003].
Canada, Security Intelligence Review Committee, SIRC Annual Report 2001–2002 (Ottawa:
Public Works and Government Services Canada, 2002), p. 11 [SIRC Annual Report 2001–2002].
Canada, Security Intelligence Review Committee, SIRC Annual Report 1998–1999 (Ottawa:
Minister of Supply and Services Canada, 1999), p. 34 [SIRC Annual Report 1998–1999].
SIRC Annual Report 2002–2003, p. 17.
Canada, Security Intelligence Review Committee, Annual Report 1997–1998 (Ottawa: Minister
of Supply and Services Canada, 1998) [SIRC Annual Report 1997–1998], p. 53.
SIRC Annual Report 2001-2002, p.15.
Canada, Security Intelligence Review Committee, SIRC Annual Report 2000–2001 (Ottawa:
Public Works and Government Services Canada, 2001), p. 27.
Ibid., p. 28.
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SIRC Annual Report 2002–2003, p. 23.
SIRC Annual Report 2001–2002, p. 16.
SIRC Annual Report 1997–1998, p. 22.
SIRC Annual Report 2004–2005, p. 32.
SIRC Annual Report 2001–2002, p. 48.
Ibid., p. 21.
SIRC Annual Report 1998–1999, p. 39.
CSIS Act, s. 38(c).
Ibid., s. 41.
Canada, Rules of Procedure of the Security Intelligence Review Committee in Relation to its
Function Under Paragraph 38(c) of the Canadian Security Intelligence Service Act, March 1985,
s. 46(2), online, Security Intelligence Review Committee, http://www.sirc-csars.gc.ca/
complaints_rules_e.html (accessed July 14, 2006) [SIRC Rules of Procedure].
CSIS Act, s. 46.
Canadian Human Rights Act, R.S.C. 1985, c. H-6, s. 45(6).
CSIS Act, s. 50.
Ibid., s. 48(2).
SIRC Rules of Procedure, s. 46(2).
Ibid., ss. 48(2)–48(3).
Murray Rankin, “The Security Intelligence Review Committee: Reconciling National Security
with Procedural Fairness”, 3 C.J.A.L.P. 173, p. 184.
SIRC Rules of Procedure, ss. 48(4)–48(5).
Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711. The case
involved the review of the deportation of a permanent resident based on alleged links with
organized crime. Although national security information was not involved, the court’s reasoning is applicable here.
CSIS Act, s. 39. There are actually two exceptions to complete access. SIRC, like the IG, is excluded from receiving Cabinet confidences, including Cabinet communications to CSIS.
Moreover, in 1988, SIRC entered into a “Third Party-Access Protocol” with CSIS that potentially
limits SIRC access to CSIS documents containing information provided by third parties (foreign
governments and organizations) if the latter withhold consent, although CSIS “will use its best
efforts to obtain authority to disclose information provided by third parties when requested
to do so by SIRC”: Memorandum from Chairman of SIRC to Director of CSIS, May 25, 1988,
with Annex of same date. In the mid-1990s, SIRC publicly complained when a CSIS document
it had sought was instead returned to its donor agency: Security Intelligence Review
Committee, Annual Report 1995–96 (Ottawa: Minister of Supply and Services Canada, 1995),
p. 5.
“O’Connor Commission – Questions and Answers” (SIRC responses to questions by the Arar
Commission Policy Review), August 15, 2005.
CSIS Act, s. 53.
Ibid., s. 54.
Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385.
CSIS Act, s. 52(2).
Unless otherwise noted, information in this section is based on meetings and communications
between Policy Review legal counsel and the Inspector General of CSIS.
CSIS Act, s. 30.
Keeping Canadians Safe, “Inspector General of the Canadian Security Intelligence
Service” (webpage), online, Public Safety and Emergency Preparedness Canada,
www.psepc-sppcc.gc.ca/abt/wwa/igcsis/igcsis-en.asp (accessed Aug. 23, 2006).
303
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256
257
258
259
260
261
262
263
264
265
266
267
268
269
270
271
272
273
Report of the Auditor General of Canada to the House of Commons, Nov. 1996 (Ottawa: Minister
of Supply and Services Canada, 1996), ch. 27, “The Canadian Intelligence Community – Control
and Accountability,” s. 27-93, online, Office of the Auditor General of Canada,
http://www.oag-bvg.gc.ca/domino/reports.nsf/html/9627ce.html (accessed Aug. 23, 2006)
[1996 Report of the Auditor General of Canada].
Keeping Canadians Safe, “Inspector General of the Canadian Security Intelligence Service”
(webpage). See also CSIS Act, ss. 30, 33, 40.
In interviews, the IG termed this the “validation process.” It is a detailed review of the CSIS
Director’s annual report, including a detailed validation of the facts behind, quite literally,
every statement. The aim is to complete this validation process by the end of the calendar year
in which the Director’s report to the Minister is issued, although, on certain occasions, this certificate has come years late.
See Keeping Canadians Safe, “A Strategic Perspective for the Inspector General of CSIS”, online, Public Safety and Emergency Preparedness Canada, http://www.psepc-sppcc.gc.ca/
abt/wwa/igcsis/stratper-en.asp (accessed July 24, 2006) [“A Strategic Perspective”].
CSIS Act, s. 33(3).
Keeping Canadians Safe, “Inspector General of the Canadian Security Intelligence Service”
(webpage).
See “A Strategic Perspective” (see note 259).
For example, the Minister once requested that the IG look into and report on the matter of an
employee at CSIS who had lost some classified documents. Specific requests of this kind from
the Minister appear to be rare occurrences. There is no express statutory provision for requests from the Minister, but the view held by the IG is that the power is implied, given the
spirit and theory behind the IG’s office.
Keeping Canadians Safe, Certificate of the Inspector General CSIS – 2001, 2002, 2003, online,
Public Safety and Emergency Preparedness Canada, http://www.psepc-sppcc.gc.ca/abt/
wwa/igcsis/cert2001-en.asp, http://www.psepc-sppcc.gc.ca/abt/wwa/igcsis/cert2002-en.asp,
http://www.psepc-sppcc.gc.ca/abt/wwa/igcsis/cert2003-en.asp (accessed Aug. 24, 2006).
CSIS Act, s. 12. The IG considers whether key legal and policy standards related to targeting
were followed. This includes a review of whether “reasonable grounds” existed to justify the
targeting and techniques used, whether the specific activities of the proposed target constituted
“threats to the security of Canada,” whether the investigation was focused to the extent “strictly
necessary” and the scope and intrusiveness of the investigation were proportionate to the seriousness of the threat and, where the proposed targeting and investigation involved activities
related to lawful advocacy, protest or dissent, or sensitive institutions and values, whether
those interests were appropriately considered and protected.
CSIS Act, s. 31(2).
P.C. 1996–899, June 19, 1996.
National Defence Act, R.S.C. 1985, c. N-5 (as amended).
Ibid., s. 273.63(1).
Ibid., ss. 273.63(4), 273.63(5).
Ibid., s. 273.63(2).
Ibid., s. 273.63(3).
Canada, Communications Security Establishment Commissioner, Annual Report 2005–2006
(Ottawa: Public Works and Government Services Canada Canada, 2006), p. 14, online, Office
of the Communications Security Establishment Commissioner, http://csec-ccst.gc.ca/
ann-rpt/2005-2006/ann-rpt_e.pdf (accessed Aug. 11, 2006) [CSE Commissioner Annual
Report 2005–2006].
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274
275
276
277
278
279
280
281
282
283
284
285
286
287
288
289
290
291
292
293
294
295
296
297
298
299
300
301
302
303
304
“Review Function,” online, Office of the Communications Security Establishment
Commissioner, http://www.csec-ccst.gc.ca/functions/review_e.php (accessed Aug. 11, 2006).
National Defence Act, s. 273.65.
Ibid., ss. 273.65(4)(e), 273.65(8).
Canada, Communications Security Establishment Commissioner, Annual Report 2003–2004
(Ottawa: Public Works and Government Services Canada Canada, 2004), p. 9 [CSE
Commissioner Annual Report 2003–2004].
CSE Commissioner Annual Report 2005–2006, p. 9.
Ibid., p. 11.
Ibid., p. 16.
The CSE Commissioner takes the position that nothing in Part V.1 of the National Defence Act
or in the Inquiries Act precludes the Commissioner from accessing information holdings protected by Cabinet privilege.
CSE Commissioner Annual Report 2005–2006, p. 9.
“Complaints Procedure,” online, Office of the Communications Security Establishment
Commissioner, http://www.csec-ccst.gc.ca/functions/complaints-proced_e.php (accessed
Aug. 23, 2006).
CSE Commissioner Annual Report 2005–2006, p. 13.
Privacy Act, R.S.C. 1985, c. P-21, s. 2.
Ibid., s. 12.
Office of the Privacy Commissioner of Canada, Privacy: Annual Report to Parliament
2005–2006 (Ottawa: Public Works and Government Services Canada Canada, 2006), p. 9,
online, OPCC, http://www.privcom.gc.ca/information/ar/200506/200506_pa_e.pdf (accessed
July 5, 2006) [Privacy Commissioner’s Annual Report 2005–2006].
Privacy Act, ss. 19, 21, 22, 23.
Ibid., s. 34.
Ibid., s. 34(2).
Exempt Personal Information Bank Order No. 13 (RCMP), S.O.R./90-149.
Exempt Personal Information Bank Order No. 14 (CSIS), S.O.R./92-688.
Exempt Personal Information Bank Order No. 25 (RCMP), S.O.R./93-272.
Privacy Act, s. 36. As provided for in s. 70(1) of the Act, the Privacy Commissioner does not
have access to Cabinet confidences.
Privacy Act, s. 36.
Privacy Commissioner’s Annual Report 2005–2006, p. 59.
Audit of the Personal Information Management Practices of the Canada Border Services
Agency – Trans-Border Data Flows, Final Report (June 2006), online, Office of the
Privacy
Commissioner
of
Canada,
http://www.privcom.gc.ca/information/pub/
ar-vr/cbsa_060620_e.asp (accessed August 15, 2006).
S. 59(2) of the Privacy Act specifically limits investigation of national security, defence and
international affairs to specially designated officers and employees, in recognition of secrecy
issues.
Privacy Act, s. 40.
Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403.
Access to Information Act, s. 36.
Ibid., s. 69.1.
Ibid., ss. 62, 64.
Ibid., s. 59(2).
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305
306
307
308
309
310
311
312
313
314
315
316
317
318
319
320
321
322
323
324
325
326
327
Information Commissioner of Canada, Annual Report, Information Commissioner, 2005–2006
(Ottawa: Public Works and Government Services Canada Canada, 2006), p. 27, online,
http://www.infocom.gc.ca/reports/pdf/oic05_06E.PDF (accessed Aug. 23, 2006).
Access to Information Act, s. 37(1).
Ibid., ss. 38–40.
Donald J. Savoie, Breaking the Bargain: Public Servants, Ministers, and Parliament (Toronto:
University of Toronto Press, 2003), pp. 49–52.
The Information Commissioner made submissions on changes effected by the Anti-terrorism
Act in Office of the Information Commissioner of Canada, “Remarks to Senate Special
Committee on Anti-Terrorism (Review of the Anti-Terrorism Act),” Ottawa, May 30, 2005, online, OICC, http://www.infocom.gc.ca/speeches/speechview-e.asp?intspeechld=112 (accessed
July 12, 2006).
Reg Whitaker, “Access to Information and Research on Security and Intelligence: The Canadian
Situation” in Peter Hanks and John D. McCamus, eds., National Security: Surveillance and
Accountability in a Democratic Society (Cowansville, Quebec: Éditions Yvon Blais, 1989),
pp. 183–196.
The Act protects anyone living in Canada against discrimination by any of the following
federally regulated employers or service providers: federal departments, agencies and Crown
corporations, including chartered banks, airlines, television and radio stations, interprovincial
communications and telephone companies, buses and railways that travel between provinces,
First Nations, and other federally regulated industries, such as certain mining operations.
The Canadian Human Rights Commission provides a list on its website of private sector
employers under federal jurisdiction. Source: http://www.chrc-ccdp.ca/discrimination/
federally_regulated-en.asp?pm=1 (accessed Aug. 23, 2006).
Canadian Human Rights Act, s. 45.
Ibid., s. 38(c).
Ibid., s. 45(4).
Ibid., s. 46(1).
Ibid., s. 46(2).
Opening Statement of Mary Gusella, Chief Commissioner, Canadian Human Rights
Commission, to the Subcommittee on Public Safety and National Security of the Standing
Committee on Justice, Human Rights, Public Safety and Emergency Preparedness, House of
Commons, 38th Parl., 1st Sess., June 15, 2005, online, Parliament of Canada,
http://www.parl.gc.ca/infocomdoc/38/1/snsn/meetings/evidence/snsnev17-e.htm#lnt-1350869
(accessed July 21, 2006). [Opening Statement of CHRC Chief Commissioner to House
Subcommittee on Public Safety and National Security].
Canadian Human Rights Act, s. 64.
Opening Statement of CHRC Chief Commissioner to House Subcommittee on Public Safety and
National Security.
Canadian Human Rights Act, s. 43.
Ibid., s. 44.
Ibid., s. 33(2).
Ibid., s. 52.
Ibid., s. 58.
“What Do We Audit?” online, Office of the Auditor General of Canada, http://www.
oag-bvg.gc.ca/domino/other.nsf/html/auqdn_waqv_e.html (accessed July 21, 2006) [“What
Do We Audit?”].
1996 Report of the Auditor General of Canada, ch. 27 (see note 256).
Ibid., para. 27.36.
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328
329
330
331
332
333
334
335
336
337
338
339
340
341
342
343
344
345
346
Now the Canada Border Services Agency and Canada Revenue Agency.
Report of the Auditor General of Canada to the House of Commons, Nov. 2003 (Ottawa: Public
Works and Government Services Canada Canada, 2003), paras. 10.120–10.162, online, OAGC,
http://www.oag-bvg.gc.ca/domino/reports.nsf/html/20031110ce.html (accessed July 24, 2006).
“A Message From the Auditor General of Canada” in Report of the Auditor General of Canada
to the House of Commons, Mar. 2004 (Ottawa: Public Works and Government Services Canada
Canada, 2004), online, OAGC, http://www.oag-bvg.gc.ca/domino/reports.nsf/html/
20040300ce.html/$file/20040300ce.pdf (accessed July 24, 2006).
Report of the Auditor General of Canada to the House of Commons, Mar. 2004 (Ottawa: Public
Works and Government Services Canada Canada, 2004), ch. 3, s. 3.22, online, OAG,
http://www.oag-bvg.gc.ca/domino/reports.nsf/html/20040303ce.html/$file/20040303ce.pdf
(accessed July 24, 2006).
C4ISR is the military acronym for command, control, communications, computers (C4), intelligence, surveillance and reconnaissance (ISR).
“A Message From the Auditor General of Canada” in Report of the Auditor General of Canada
to the House of Commons, Apr. 2005 (Ottawa: Public Works and Government Services Canada
Canada, 2005), online, OAG, http://www.oag-bvg.gc.ca/domino/reports.nsf/html/
20050400ce.html/$file/20050400ce.pdf (accessed July 24, 2006).
Report of the Auditor General of Canada to the House of Commons, Nov. 2005 (Ottawa: Public
Works and Government Services Canada Canada, 2005), paras. 28–29, online, OAG,
http://www.oag-bvg.gc.ca/domino/reports.nsf/html/20051100ce.html/$file/20051100ce.pdf
(accessed July 24, 2006). The Auditor General notes that “[i]t is our understanding that the
government has continued to work on a mechanism that would increase the role of Parliament
in security and intelligence matters. The details have yet to be presented to Parliament. I encourage the government to do so.”
Auditor General Act, R.S.C. 1985, c. A-17, s. 7.
Ibid., s. 8.
Ibid., s. 11.
“What is Legislative Auditing,” online, Office of the Auditor General of Canada,
http://www.oag-bvg.gc.ca/domino/other.nsf/html/auqdn_lavg_e.html (accessed Aug. 23,
2006) [“What is Legislative Auditing?”].
Ibid.,
The Auditor General receives many audit requests from individual citizens, groups, members
of Parliament, senators, and others. The requests are all carefully reviewed and given consideration in the selection process: “What Do We Audit?.”
“What is Legislative Auditing?”
Auditor General Act, s. 13(4).
“What is Legislative Auditing?”
Ibid.
The reports of the Commissioner of the Environment and Sustainable Development are referred to the Committee on Environment and Sustainable Development.
“What is Legislative Auditing?”
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�VII
Review of National Security Activities:
The International Experience
1.
INTRODUCTION
The Policy Review mandate requires me to base my recommendations in part
on an examination of review models used by other countries. In this chapter I
set out my observations about these models.
I begin with an overview of the foreign review models that I selected for
examination.1 My research with respect to the eight countries leads me to a
number of general observations.2 I discuss below issues relating to the structure
of review mechanisms; common challenges in the review of national security
policing; and features essential for review of national security policing.
I then turn to a detailed examination of each of the eight countries. I discuss the principal review models in each country, where necessary setting out
the constitutional and governmental context. I then describe the law enforcement and security intelligence structures, and the principal review and oversight
structures.
Appendix C of this Report contains a list of the foreign agencies, as well as
other persons with whom my counsel consulted by either teleconference, meetings in person or written correspondence. Their generous assistance is very
much appreciated. Appendix D contains a list of the persons who participated
in the Roundtable of International Experts on Review and Oversight, who also
kindly contributed their time to assist in my consideration of the many questions
raised by the Policy Review.
For convenience, a list of the many acronyms used in this chapter is included at the end of the chapter.
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1.1
OVERVIEW
1.1.1
Structure of Review Mechanisms
There are significant differences in the way that review and oversight of national security activities is organized in different countries. The structure of review mechanisms is closely related to a country’s history, constitutional structure
and existing government institutions, and to the organization of its police and
security agencies. Within these different structures, however, review agencies
confront many similar challenges.
Germany has no independent body that reviews complaints against the police. In the other seven countries that I examined, police forces involved in national security activities are subject to review by something more than a purely
complaint-based body. Five of these eight countries have some form of review
body with jurisdiction over both policing and intelligence activities; Belgium,
Germany and New Zealand do not.
Some review bodies have jurisdiction over police forces with both intelligence-gathering and traditional policing responsibilities, while others have general jurisdiction over all public authorities. Some review bodies, like the
Norwegian EOS Committee or the U.K.’s covert investigation review authorities,
have functionally defined jurisdiction that encompasses the activities of both
police and intelligence agencies. In Australia and the U.K., jurisdiction over the
national security activities of the police is shared between two different review
bodies. In the United States, oversight is conducted by inspectors general for
specific departments and agencies rather than by police or intelligence function.
In summary:
•
Police forces in England and Wales, which all carry out national security
policing to varying degrees, are subject to the complaint-processing jurisdiction of the Independent Police Complaints Commission (IPCC) and the
Investigatory Powers Tribunal. For certain covert activities, they are also
subject to the review-based jurisdiction of the Interception of
Communications Commissioner (ICC) and the Office of Surveillance
Commissioners (OSC). The police are subject to these reviews of certain
covert activities, no matter what type of investigation they are carrying out,
for example, national security or conventional law enforcement. Indeed because the jurisdiction of the ICC and the OSC is function-based — defined
by the covert activity in issue — a large number of public authorities fall
�REVIEW MECHANISMS: THE INTERNATIONAL EXPERIENCE
•
•
•
•
within their jurisdiction. Police forces in the U.K. are also subject to substantial “effectiveness and efficiency” scrutiny by Her Majesty’s Inspectorate
of Constabulary. The IPCC handles complaints against the Serious
Organised Crime Agency, which, among other functions, has an important
role combating money-laundering and terrorist financing in its capacity as
the United Kingdom’s financial intelligence unit. Many of the police-like
powers of Customs and Immigration authorities in England and Wales are,
or will soon be, reviewed by the IPCC.
Police forces in Northern Ireland are subject to similar regimes, including
reviews of certain defined covert activities. The applicable complaint-based
bodies are the Police Ombudsman for Northern Ireland, rather than the
IPCC, and the Investigatory Powers Tribunal that also has jurisdiction in
England and Wales.
National security policing in Australia is conducted by the Australian Federal
Police, who are under the complaint-processing jurisdiction of the
Commonwealth Ombudsman, as well as the review-based jurisdiction of
the Ombudsman with respect to covert investigative activities in certain circumstances. The Commonwealth Ombudsman has jurisdiction over approximately 150 other public authorities, including most of Australia’s
intelligence agencies, and the new, integrated Australian Crime Commission
(ACC). Integration among domestic agencies, including across federal and
state/territory jurisdictions, is an emerging issue in Australia. The
Ombudsman is increasingly working in co-operation with other accountability bodies, including the review authority for the security intelligence
services. Indeed there have been formal recommendations for co-operation among review bodies, and a statutory provision for “arrangements” between review bodies was created to avoid accountability gaps with respect
to review of the ACC.
National security policing in Belgium is conducted by divisions of the regular police, which fall under the complaint-processing and review jurisdiction of an independent standing committee answerable to Parliament called
Committee P. Committee P also has jurisdiction over other public authorities with police powers, such as customs authorities. Committee P has a
statutory obligation to share information and collaborate with Committee I,
a similarly constituted body that reviews Belgium’s intelligence agencies.
There is no independent review body for the police forces in Germany, nor
any agency similar in structure to Canada’s SIRC to review its intelligence
agencies. A specialized parliamentary committee, the Parliamentary Control
Panel, reviews activities conducted by the German intelligence services,
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•
•
•
•
such as the reception and analysis of air passenger information and financial transaction information. A separate body, the G-10 Commission, reviews interceptions of private communications.
National security policing in Norway is conducted largely by a division of
the regular police called the Police Security Service, which has a separate
statutory mandate. The Police Security Service is under the complaint-processing and review jurisdiction of the EOS Committee, which also reviews
Norway’s two security intelligence agencies. Since the jurisdiction of the
EOS Committee is functionally defined, questions have arisen in Norway as
to whether there are sections of the ordinary police, and of other authorities such as immigration, that fall under this functional definition.
The New Zealand Police conduct national security policing and are subject
to the complaint-based jurisdiction of the Police Complaints Authority. The
Police Complaints Authority also has jurisdiction to investigate, on its own
motion, incidents where a member of the Police appears to have caused
death or serious bodily harm. The security intelligence services are reviewed
by a separate body.
National security policing in Sweden is largely conducted by a division of
the police called the Security Service, or Såpo, which operates under direction from government ordinances and which has separate offices and
structures. The ordinary police also carry out national security policing.
Both fall under the jurisdiction of the Parliamentary Ombudsmen’s office,
as do the intelligence services, the immigration and customs authorities,
and the administration of foreign affairs. The Ombudsmen’s office has a
complaint-processing and review mandate over these agencies. However,
its role as “secondary supervisor” and its small size preclude close and regular scrutiny of any of these agencies.
National security policing within the United States is conducted principally
by the FBI, which is subject to the complaint-processing, audit, review and
investigation jurisdiction of the Inspector General of the Department of
Justice. An Inspector General reviews the Department of Homeland
Security, which also engages in law enforcement and intelligence activities
related to national security and which includes U.S. Customs and Border
Patrol, U.S. Citizenship and Immigration Services, and the Transportation
Security Authority. In addition, the CIA, the Department of Defense, which
includes a number of constituent intelligence agencies, and the State
Department, including the Bureau of Research and Intelligence, all have
inspectors general.
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The different ways that countries organize their police and security services
make strict comparisons of structure difficult. Overall, the jurisdiction of foreign
review bodies over law enforcement or intelligence matters is somewhat fluid
and may overlap with the jurisdiction of other accountability bodies.
Nevertheless, while the institutional structures that different countries choose to
review domestically focused national security agencies are quite different, the
tools that are given to these review bodies and the challenges they face are relatively similar.
1.1.2
Common Challenges
Foreign review agencies are grappling with many common challenges in providing for the accountability of law enforcement and security intelligence agencies. These include the following:
•
•
•
•
•
Increased integration and information sharing among domestic and foreign
national security actors.
An increased blurring of the distinction between security intelligence and
criminal intelligence.
An overlap in counter-terrorism investigation between ordinary police units
and national security police units (e.g., proceeds of crime investigations occurring in both contexts), such that national security policing is difficult to
define.
The burden on resources that complaint-processing can cause in a policing
context. To help ease this burden, several agencies have the power to refer
investigations of complaints back to the police or to other agencies. In
England and Wales the IPCC also has the power to actively supervise the
investigation of a complaint by the police.
Issues regarding the coordination of review and criminal prosecutions. In
several countries review bodies have had experience with investigations
that overlap with criminal investigations or proceedings. In general, review
bodies proceed carefully with their investigations in these circumstances
and consult with prosecuting authorities. Review bodies may defer releasing their reports until criminal proceedings have been concluded.
The way that different countries are dealing with the integration of the activities of different government actors in the national security field holds valuable lessons for Canada. Many of the review bodies that we surveyed consider
the review of the integrated national security activities of different government
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actors to be a pressing challenge for their agencies. Most noted the advantages
of an accountability system that allows for monitoring integrated activity.
The majority of review bodies that we surveyed have developed some
means of addressing issues of integration in the national security field, either
by creating an accountability body with jurisdiction over multiple government
agencies or by establishing robust mechanisms for information exchange and
co-operation between accountability bodies. Only in New Zealand and Germany
do agency-based review bodies have little power either to share information
or conduct joint reviews with accountability agencies for other organizations. However, the New Zealand Police Complaints Authority does consult
on a general level with other accountability bodies to avoid duplication
around complaints.
In Australia, the Commonwealth Ombudsman, who has general jurisdiction over public authorities, including the police and security intelligence services, has the statutory power to enter into arrangements with other accountability
bodies to coordinate review. The Parliamentary Ombudsman also conducts informal joint reviews with other accountability bodies, although information sharing is somewhat limited. Further, the Inspector General of Intelligence and
Security, who reviews only the security and intelligence agencies, is obliged
by statute to consult with the Ombudsman before beginning an inquiry. The increasing level of federal-state integration in national security operations has
also prompted a parliamentary committee to call for greater co-operation between state ombudsmen, the Commonwealth Ombudsman and the Inspector
General of Intelligence and Security. As a result, the Inspector General and
the Commonwealth Ombudsman have just signed a protocol governing
joint investigations.
In Belgium, the body that reviews police activity (Committee P) and the
body that reviews intelligence activity (Committee I) are required by statute to
exchange information and co-operate in investigations. In addition, the reports
of the two committees are submitted to the same standing parliamentary commissions. With the chair of the Privacy-Protection Commission, the chairs of
Committee P and Committee I sit on a joint committee that hears reviews of security clearance decisions. Committee P also co-operates on a formal basis with
the Centre for Equal Opportunities and Opposition to Racism. Committee P has
jurisdiction over both federal and local police officers, which facilitates review
since Belgium is a federal state.
Issues surrounding the integration of national security activities have also
arisen in Norway. The EOS Committee, Norway’s review body for public security and intelligence activity, currently faces questions as to whether its
�REVIEW MECHANISMS: THE INTERNATIONAL EXPERIENCE
functionally defined review mandate extends beyond the security intelligence
agencies to cover the national security activities of the ordinary police force, the
immigration authorities and the customs service. The EOS Committee already has
the power to investigate in areas that fall outside its functionally defined mandate to clarify issues related to investigations that fall within its mandate. The
Committee has had problems, however, following the course of a police investigation involving both the regular police force and the Police Security Service,
including information-sharing activity. The EOS Committee and the Police
Complaints body also communicate in certain circumstances regarding issues
that touch on the jurisdiction of both bodies.
In Sweden, responsibility for review of public authorities, including the
Swedish Security Service, the regular police force, the military-operated intelligence agencies, the customs and immigration authorities, and foreign affairs, is
divided among the four Parliamentary Ombudsmen. The Ombudsmen meet regularly to share information, and are considering conducting more formalized,
joint reviews of public authorities whose work is interrelated or integrated.
The IPCC in England and Wales has the power to exchange information
with other accountability bodies. The Commission has conducted joint investigations with other review agencies and, recently, a formal statutory gateway
was created to allow for information-sharing and joint investigations with the
Parliamentary Ombudsman to facilitate investigations of certain complaints
against Her Majesty’s Revenue and Customs Department. A similar statutory gateway has been proposed for complaints in the context of immigration enforcement activities, over which the Independent Police Complaints Commission will
soon receive jurisdiction. Through its jurisdiction over the Serious Organised
Crime Agency, the IPCC also has jurisdiction over the former Customs and
Immigration investigation branches and over financial intelligence activities.
Similarly, the Police Ombudsman for Northern Ireland has jurisdiction over certain aspects of Customs activity and expects to receive jurisdiction over most immigration enforcement activity in the near future.
The security intelligence community in the United States is the largest and
most complex of any of the countries that I studied. Perhaps as a result, it is in
the U.S. that co-operation amongst oversight bodies is most highly developed.
By law, inspectors general have access to information held by other federal government departments or agencies. Inspectors general often share information
and jointly investigate matters that touch on two or more areas of responsibility, either on their own initiative or at the request of Congress. An Intelligence
Community Inspectors General Forum has also been established to bridge areas
of responsibility, as well as to identify matters requiring joint investigation and
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common themes in review and oversight activity. The inspectors general for the
Department of Homeland Security and the Department of Justice have also concluded agreements with other accountability bodies, like the Civil Liberties
Protection officials in the Department of Homeland Security and the Office of
the Director of National Intelligence regarding the division of responsibility in
areas of shared jurisdiction. The U.S. inspectors general also stressed the need
for a form of comprehensive observation of all national security activities. In
the United States, this role is currently played by congressional committees.
Overall, the international review agencies that I surveyed consider the ability to share information, co-operate with other accountability bodies, and access
information about a range of government departments and agencies to be important tools to ensure that increasingly integrated national security activities
can be monitored efficiently and effectively. In Australia and Belgium, information sharing and coordination among review agencies also helps to overcome
problems of jurisdiction that arise in the context of a federal state, a solution that
is particularly relevant to Canada.
1.1.3
Essential Review Features
Across different jurisdictions, certain features are seen as essential to assuring accountability for covert activities by the state.
All of the review agencies that I surveyed are legally required to maintain
the secrecy of sensitive information. The ability to maintain secrecy is viewed as
vital to the ability of a review agency to gain the trust of the agencies that it reviews and of the executive branch of government. Similarly, to foster public
trust and confidence, independent, publicly credible bodies or individuals must
be responsible for review. In every jurisdiction, the appointment process for
members of review bodies is designed to engender public confidence in both
the independence and the competence of reviewers.
An important power of the review bodies that I studied is wide access to
documents, premises and personnel, subject to limited exceptions. All of the review bodies surveyed have a general power to access relevant documents. Most
have the power to question the personnel of the agencies over which they have
jurisdiction, as well as powers of entry onto agency premises. For no review
body that I surveyed may the agency being reviewed decide which documents
are relevant, and, thus, determine those to which the review body has access.
Access varies widely, however, in relation to documents covered by Cabinet
privilege or an equivalent, information subject to third-party caveats, or information that would disclose the identity of informants or human sources.
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Finally, jurisdiction to conduct both broad-scale, self-initiated reviews and
process complaints was considered extremely useful by a number of review
agencies. Representatives of several of the review bodies told me that a coordinated framework for complaint handling and self-initiated review provides
greater opportunities for law enforcement to learn from particular incidents. In
addition, several review bodies noted that by keeping track of trends in complaints and by aggregating complaints for investigation, they were able to identify systemic problems in the agencies they review.
3
DETAILED OBSERVATIONS
2.
AUSTRALIA
2.1
OVERVIEW
As a federal country, Australia has police forces at both the state/territorial level
and the federal level. The federal-level police force — the Australian Federal
Police (AFP) —plays the principal role in national security law enforcement.4
Australia also has six intelligence agencies at the federal level, and a special investigatory and criminal intelligence agency called the Australian Crime
Commission (ACC). The ACC is a new integrated body of federal and state/territorial representatives from various police and other domestic agencies. It has
special powers for criminal investigation and intelligence operations and extensive powers to share information with other agencies.5
Since 9/11, Australia has taken several counter-terrorism measures, including enhancing investigation and information-sharing powers, and creating new
terrorism offences in the Criminal Code.6
Both the AFP and the ACC are reviewed by the Commonwealth
Ombudsman, a primarily complaint-based mechanism with some review power
over certain covert activities.7 The Commonwealth Ombudsman also has jurisdiction over most federal bodies, including some of the intelligence agencies, but
the Office’s powers in respect of the Australian Intelligence Community (AIC)8
are limited. Australia’s security intelligence agencies are primarily overseen by
the complaint- and review-based regime of the Inspector-General of Intelligence
and Security (IGIS).
A notable feature of Australia’s accountability mechanisms is their legislative provision for “arrangements” between accountability bodies to close
“accountability gaps” created by integration among domestic police and security
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intelligence structures, and between national and state bodies. In addition, the
IGIS was recently given a statutory obligation to consult with the Ombudsman
before beginning an inquiry, with a view to avoiding duplicating inquiries.9
2.2
LAW ENFORCEMENT AND SECURITY INTELLIGENCE
2.2.1
Australian Federal Police
As I have noted, the Australian Federal Police play the principal role in national
security law enforcement in Australia. The AFP provides police services in relation to federal law10 (including counter-terrorism laws)11 and property, and protection of federal interests,12 as well as “protective services” to dignitaries and
protected witnesses.13 The AFP operates in accordance with the Australian
Federal Police Act 1979 and ministerial directives issued under the Act.
The AFP’s main operational units are Counter-Terrorism, Border and
International Network, Economic and Special Operations, Intelligence,
Protection and International Deployment Group.14 The AFP collects intelligence,
including intelligence related to counter-terrorism.15
The national security activities of the Australian Federal Police include
domestic and international co-operation. Domestically, for example, the AFP
often works co-operatively with state/territory police forces and participates in
Joint Counter-Terrorism Teams with members of these forces.16 It also operates
the Transnational Crime Coordination Centre, which provides domestic and international law enforcement agencies with a point of contact for collaborating
on the investigation and prevention of transnational crime, including terrorism.17
In addition, the AFP has the Law Enforcement Cooperation Program, with
liaison officers in foreign countries to facilitate information exchange.18 Its
liaison officers in London, Washington and Kuala Lumpur are dedicated to
counter-terrorism.19
2.2.2
Australian Crime Commission
The Australian Crime Commission was created in January 2003.20 The ACC includes members from the Australian Federal Police, state/territory police forces,
the Australian Customs Service, the Australian Securities and Investments
Commission, the Australian Tax Office, the Australian Security Intelligence
Organisation and others.21 The ACC collects, analyzes and disseminates criminal intelligence; and undertakes “special (intelligence) operations” and “special
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investigations,” using various investigative powers, where authorized by its
board. It also provides reports and strategic criminal intelligence assessments to
its board, and advises it on national criminal intelligence priorities.22
The Australian Crime Commission’s board consists of the Commissioner of
the AFP (who is the chair), the eight state and territory police commissioners,
the Director-General of Security (i.e., the head of the Australian Security
Intelligence Organisation), the Chair of the Australian Securities and Investments
Commission, the CEO of the Australian Customs Service, the Secretary of the
Attorney-General’s Department, the Chief Police Officer of the Australian
Territory and the CEO of the ACC.23 A board determination that an intelligence
operation is a “special operation” or that an investigation is a “special investigation”24 allows an “examiner”25 to exercise special powers. In particular, an examiner may conduct a private examination under oath of a witness concerning
the operation or investigation.26 An examiner may also require government agencies to provide information in certain cases.27
When the ACC obtains evidence that would be admissible in a prosecution
for an offence, it must provide the evidence to law enforcement authorities.28 In
addition, the CEO may give information to domestic or foreign law enforcement
agencies,29 other Australian government departments30 or the Australian Security
Intelligence Organisation.31
2.2.3
Australian Security Intelligence Organisation
The Australian Security Intelligence Organisation (ASIO) gathers and analyzes intelligence to advise the federal government and other Australian “authorities”
about threats to national security.32 ASIO’s functions are set out in its governing
statute.33 They include collecting, correlating, evaluating and communicating intelligence; advising ministers and Australian “authorities”; collecting foreign intelligence within Australia; and providing government agencies with security
assessments used in determining security clearances and permissions to enter the
country.34 ASIO’s governing statute also sets out its powers, including limitations such as a prohibition on enforcing security measures.35 ASIO is further regulated by guidelines from its responsible minister, the Attorney-General.36 The
organization currently has approximately 980 staff, but has funding approval to
expand to 1,860 by June 30, 2011.37
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2.2.4
Australian Secret Intelligence Service
The Australian Secret Intelligence Service (ASIS) is Australia’s foreign intelligence
collection agency, relying on human sources to obtain information.38 Established
in 1952,39 ASIS first received a legislative basis in 2001.40 ASIS’ functions, powers and limitations are set out in its governing statute.41 Its activities are further
limited by the Rules to Protect the Privacy of Australians, issued by the Minister
for Foreign Affairs.42 ASIS may perform its activities only in the interests of “national security,” “foreign relations” or “national economic well-being” to the extent that those matters are affected by the “capabilities, intentions or activities of
people or organisations outside Australia.”43 A recent government inquiry into
Australia’s intelligence agencies found that ASIS is taking on a growing role in
gathering intelligence on non-state actors, representing “perhaps the most substantial transition in its history.”44 ASIS does not have law enforcement responsibilities or “police functions.”45
2.2.5
Defence Signals Directorate
The Defence Signals Directorate (DSD) is Australia’s signals intelligence agency.
It is situated within the Intelligence and Security Group of the Department of
Defence. Like ASIS, DSD’s functions, powers and limitations were first defined
by legislation in 2001.46 DSD may collect signals intelligence only outside the domestic Australian telecommunications network,47 and only to the extent that
Australia’s “national security,” “foreign relations” or “national economic wellbeing” are “affected by the capabilities, intentions or activities of people or organisations outside Australia.”48 DSD does not have police functions or law
enforcement responsibilities.49
2.2.6
Office of National Assessments
According to its governing statute, the Office of National Assessments (ONA) assembles “information” and produces analytical assessments on “international
matters that are of political, strategic or economic significance to Australia” for
provision to ministers and others in government.50 ONA bases its assessments on
information from various sources, including secret intelligence collected by other
agencies.51 It has approximately 140 staff.
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2.2.7
Defence Imagery and Geospatial Organisation
The Defence Imagery and Geospatial Organisation (DIGO) acquires, produces
and distributes imagery and geospatial-based intelligence in support of
Australian Defence Force and government decision makers.52 DIGO is part of the
Department of Defence. It is characterized as a “single source collection and
analytical agency,” although it seems its role is still somewhat in flux.53
2.2.8
Defence Intelligence Organisation
The Defence Intelligence Organisation (DIO) conducts foreign intelligence assessments relevant to Australian security, relying on information gathered both
covertly and overtly. Unlike ONA, DIO is not a separate statutory body, but operates within the Department of Defence.54
2.3
REVIEW AND OVERSIGHT
2.3.1
Commonwealth Ombudsman
2.3.1.1
Jurisdiction
The Australian Federal Police, the Australian Crime Commission, most of
Australia’s intelligence agencies, and approximately 150 other public authorities
are subject to the jurisdiction of the Commonwealth Ombudsman.55 In 2005, the
Commonwealth Ombudsman was also given extended jurisdiction over immigration matters,56 including a specific mandate to review the circumstances of
people who have been in immigration detention for more than two years.57
The Ombudsman’s office describes its review model as “generalist,” with
“clusters of specialties” for activities such as security intelligence, policing and
immigration. It finds this model desirable principally because complaints against
public authorities have much in common — individuals want public officials to
discharge their functions with due respect for the rules that regulate those functions. Its broad jurisdiction allows the Office to observe and draw on such commonalities in fulfilling its mandate. It also avoids the tendency toward “capture”
of a review body, which occurs when a body loses its independence by becoming too close to the decision making and operations of the agency it is
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reviewing. Further, its multi-agency review jurisdiction allows the Office to observe the full scope of integrated activities.
The Ombudsman’s office advised that as a specialized area, intelligence activities likely do need review by a separate body such as the Inspector-General
of Intelligence and Security. Indeed, the Office ordinarily defers to the IGIS to
review the intelligence agencies. It urged, however, that complaint themes for
conventional and national security policing also have much in common — individuals want police officers to respect applicable laws and procedures regardless of the type of investigation. Moreover, national security policing will
always be a small and closely related aspect of general policing, and separating
the two may be neither possible nor desirable. The Office noted the benefits of
collaboration among review bodies.
2.3.1.2
Mandate
The Commonwealth Ombudsman is charged with investigating activity for propriety on grounds set out in its governing statute. These include compliance
with law, reasonableness and proper exercise of discretion.58
2.3.1.3
Functions
The Commonwealth Ombudsman carries out this mandate principally through
complaint handling, but can also initiate its own investigations (“own motion”
investigations).59 The Office is also tasked with reviewing some covert investigative activities carried out by certain agencies, including the AFP and the ACC.
Among these are telephone-intercept activities and certain covert operations carried out by law enforcement agencies in “serious offence” cases.60
Complaint processing
The Ombudsman receives approximately 20,000 complaints a year, of which
five percent involve law enforcement authorities. The majority of complaints are
referred to either the agency that has been called into question or another external review body. Pursuant to statute, the Ombudsman’s office is notified of
all but “minor” complaints against AFP members.61 It refers most such complaints
to the AFP for investigation, although it retains oversight of the AFP’s investigations. Similarly, the Office has referred complaints about the intelligence agencies within its jurisdiction to the Inspector-General of Intelligence and Security,
as discussed below.62
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Investigating complaints against the police can often raise difficult questions about the relation of the investigation to a criminal investigation or
prosecution into a related set of events. For example, a review body may come
into possession of potentially exculpatory information during a criminal investigation. While there is no statutory provision covering such a situation, the
Ombudsman does have the general power to make disclosures in the public interest. The Ombudsman stated that he would likely disclose exculpatory information where there might otherwise be a miscarriage of justice, but would be
less likely to disclose inculpatory information. Since the Ombudsman has the
power to collect information that might be self-incriminating, any risk of disclosure would make agencies and the public less likely to provide information.
However, the Office has disclosed such information where there was a credible
threat to life or well-being.
Similarly, the Ombudsman’s office may have before it a complaint that relates to a criminal prosecution in process at the same time. In such a situation,
the Office will often defer its investigation until the prosecution has been completed. This avoids an excessive burden on those involved, conflict between
what is said in court and what is said to the Ombudsman, and any suggestion
that the Ombudsman’s office is effectively doing the work of the prosecution or
the defence. In addition, the evidence in a criminal prosecution is often useful
to the complaint investigation.
“Own Motion” Investigations and Review Function Over Some Activities
The Commonwealth Ombudsman may also identify matters for investigation on
his own initiative.63 The Ombudsman stated that he had recently been making
increased use of his “own motion” investigation powers and his review powers
to address issues arising from integrated activities, noting that these powers are
particularly important in covert areas of activity where complaints are unlikely.
One such area is Australian Crime Commission activity because the ACC’s role
does not bring its staff into close contact with members of the public.64
As part of its review functions, the Ombudsman reviews the AFP’s and the
ACC’s records for compliance with record-keeping requirements for telecommunications interception warrants and reports on any breaches of the
Telecommunications (Interception) Act 1979 discovered in the process.65 The
Crimes Act 1914 also requires the Ombudsman to review the propriety of “controlled operations.”66 Controlled operations usually involve law enforcement officers engaging in conduct that, unless authorized by a statutory certificate,
would constitute an offence. Similarly, the Surveillance Devices Act 2004 requires
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the Ombudsman to review the use by law enforcement agencies of defined surveillance devices for compliance with the Act.67
The Ombudsman recently completed an own motion investigation into the
cancellation of visas and the subsequent detention of long-term permanent residents of Australia. The investigation was initiated because of several serious
complaints made to the Ombudsman.68
Arrangements to Address Accountability Gaps69
Although it has not yet done so, the Office of the Ombudsman can also enter
into investigation “arrangements” with other accountability bodies with jurisdiction over members of the integrated Australian Crime Commission.70 The rationale for this statutory mechanism seems to be an acknowledgment that
accountability gaps could exist, partly because many members of the ACC are
seconded from numerous other domestic agencies and thus covered by various
legislative frameworks, and partly because the ACC combines both federal-level
and state-level personnel.71
The Ombudsman’s office often works informally with many other review
bodies in reviewing matters that touch both areas of responsibility, including in
particular the Inspector-General of Intelligence and Security. While they are constrained to some extent by secrecy legislation, the Ombudsman and the
Inspector-General have found joint investigations and other forms of co-operation highly useful. For example, the two offices have conducted several joint reviews concerning complaints flowing from the execution of overt entry and
search warrants by the Australian Security Intelligence Organisation that were
supported by the Australian Federal Police and various state police forces.
Because of such integrated police and intelligence activities — which can include state police — the Parliamentary Joint Committee on ASIO, the Australian
Secret Intelligence Service and the Defence Signals Directorate recently recommended that “consideration be given” to “greater liaison between” the
Ombudsman, the state ombudsmen and the Inspector-General, including a
memorandum of understanding or protocol governing possible joint reviews of
combined ASIO/police operations.72 A memorandum of understanding was concluded between the Ombudsman and the IGIS on December 14, 2005.
2.3.1.4
Powers
The Ombudsman has the power to compel all documents and information that
he or she believes to be relevant,73 and can enter police premises and cause
individuals to attend to answer questions under oath.74 Recent legislative
�REVIEW MECHANISMS: THE INTERNATIONAL EXPERIENCE
amendments have clarified that an agency that provides documents to the
Ombudsman for the purpose of an investigation, but without a statutory notice
having been issued by the Ombudsman, will not thereby have waived legal professional privilege or be in breach of the Privacy Act or a secrecy provision in
another enactment.75 However, in some cases the Ombudsman may be prevented from requiring information or production, or from entering a particular
place, by a certificate from the Attorney-General on grounds such as public interest, security or Cabinet privilege.76 Because the Office and the agencies under
review tend to work co-operatively to address such concerns, these certificates
are rare.
Following an investigation, the Ombudsman can make findings and recommendations and, in the case of complaints, can ask that the respective department or agency report back to the Office on any corrective action taken in
response.77 The Ombudsman does not have binding remedial powers.
2.3.1.5
Reporting
The Ombudsman submits reports of its complaints investigations to the minister responsible for the respective department or agency.78 Where a department
or agency has not taken recommended corrective action within a reasonable
time, the Ombudsman may submit a report to the Prime Minister79 and a special report to the House of Representatives and the Senate.80
Upon completing an investigation, the Ombudsman reports to the
Commissioner of the AFP actions by AFP members that merit criticism, and can
request further action.81 If in the Ombudsman’s view, adequate and appropriate
action is not taken, the Office may inform the Prime Minister and provide a report to Parliament.82
When a complaint is filed about the AFP, the Ombudsman must inform
complainants of the outcome.83 The Ombudsman’s governing statutes are otherwise silent as to reporting obligations to complainants.
The Ombudsman also submits annual reports to the responsible minister,
for “presentation to the Parliament,”84 and may similarly submit special reports
on any matter that arises in connection with the Office’s mandate.85
2.3.1.6
Appointment
The Commonwealth Ombudsman is appointed by the Governor-General for a
term not exceeding seven years and may be reappointed.86 The statute does not
set out any requisite qualifications for appointment.
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2.3.2
Inspector-General of Intelligence and Security
2.3.2.1
Jurisdiction
The Inspector-General of Intelligence and Security has varying review authority
over six agencies: ASIO, ASIS, DSD, DIO, DIGO and ONA.87
The Inspector-General’s office noted that its multi-agency jurisdiction offers several advantages: a comprehensive view of the activities of the various intelligence agencies; the ability to ensure consistent interpretations by the
agencies of their shared legislation; and the ability to scrutinize integrated and
information-sharing activities. It observed, however, that a review body with
such multi-agency jurisdiction must be properly resourced to fulfill its mandate.
2.3.2.2
Mandate
The Inspector-General’s mandate is generally expressed in the objects of the
Act:
(a) to assist Ministers in the oversight and review of:
(i) the compliance with the law by, and the propriety of particular activities of, Australian intelligence or security agencies;
(ii) the effectiveness and appropriateness of the procedures of those agencies relating to the legality or propriety of their activities; and
(iii) certain other aspects of the activities and procedures of certain of those
agencies;
(b) to assist Ministers in ensuring that the activities of those agencies are consistent with human rights; and
(c) to allow for review of certain direction given to ASIO by the AttorneyGeneral.88
2.3.2.3
Functions
The Inspector-General has a complaint-processing function, an “own motion” investigation function, and an inquiry function pursuant to ministerial or prime
ministerial request. However, these functions, and the matters in which they can
be engaged, vary according to the agency in question.89 In general, the IGIS has
�REVIEW MECHANISMS: THE INTERNATIONAL EXPERIENCE
the broadest functions with respect to ASIO, and narrower ranges of functions
with respect to ASIS, DSD, DIGO, DIO and ONA.
For example, with respect to ASIO, the IGIS can inquire into the legality and
propriety of ASIO activities; the effectiveness and appropriateness of its procedures relating to legality or propriety; and the consistency of its activities with
human rights instruments, all pursuant to either a complaint, the InspectorGeneral’s own motion or the minister’s request.90
With regard to ASIS, DIGO and DSD, however, the IGIS can inquire only
into ”the effectiveness and appropriateness of the procedures relating to legality or propriety of the activities of that agency” pursuant to ministerial request,
and not pursuant to complaint or its own motion.91
The Act sets out further review powers and limits. These include the
power to inquire into whether certain ministerial directions to ASIO are justified,92 and a general prohibition on inquiries, without ministerial approval, into
any matter that occurred outside Australia.93 In all cases, the Inspector-General
requires the minister’s approval before inquiring into a matter that occurred outside Australia.94
The Inspector-General can also be directed by the Prime Minister to inquire
into certain matters,95 including into the actions of agencies outside its ordinary
statutory purview. For example, the Prime Minister asked the Inspector-General
to look into whether there was any intelligence that warned of the 2003 bombing in Bali. That review included the Australian Federal Police.96
2.3.2.4
Powers
The Inspector-General can compel any information from any person that he or
she believes is relevant to any inquiry he or she is conducting. The statute does
not exclude information covered by solicitor-client or Cabinet privilege, but does
require the Inspector-General to arrange for the protection of any information
with a national security classification.97 Any information so obtained cannot be
used as evidence in criminal proceedings except in very limited circumstances.98
The statute also provides for consultation with the Auditor-General to avoid
duplication of inquiries.99 A similar statutory provision for consultation with the
Commonwealth Ombudsman was recently inserted into the IGIS Act.100 The
Inspector-General noted the co-operation that already exists between his Office
and the Office of the Ombudsman.101 He also noted the Parliamentary Joint
Committee’s recommendation for formalized co-operation, and the recent memorandum of understanding between the two offices that resulted, which I discussed earlier.
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2.3.2.5
Reporting
After completing an inquiry, whether pursuant to a complaint, a ministerial request or his or her own motion, the Inspector-General must provide a draft copy
of the report to the head of the agency in question. If the agency provides comments on the draft report within a reasonable time, the Inspector-General must
include relevant comments in the final report.102
The Inspector-General must give copies of the final report to the head of
the agency and to the responsible minister. Where the Prime Minister had requested the inquiry, the Inspector-General must also provide a copy to the Prime
Minister.103 The report must contain conclusions and recommendations, and may
include a recommendation that an individual receive compensation.104
The head of the relevant agency may propose action in response to such
reports. If the Inspector-General is not satisfied that the action is adequate and
appropriate, he or she may discuss the matter with the responsible minister and
provide a report to the Prime Minister.105
Where an individual has filed a complaint, the Inspector-General must provide a written response to the complainant, although this response does not
necessarily include a copy of any report or other document otherwise produced.
Before doing so, the Inspector-General must ensure that the head of the relevant agency agrees that the content of the response will not prejudice security,
Australia’s defence or Australia’s relations with other countries.106
The Inspector-General must also provide an annual report to the Prime Minister,
including comments on any inquiry concerning ASIO’s collection or communication of intelligence about a particular individual, comments on any review, and
comments on ASIS’ and DSD’s compliance with rules on the communication
and retention of intelligence information on Australian persons.107
The Prime Minister must give copies of such reports to the Leader of the
Opposition in the House of Representatives and cause a copy to be laid before
each House of Parliament.108
2.3.2.6
Appointment
The IGIS is appointed by the Governor-General on the recommendation of
the Prime Minister after consultation with the Leader of the Opposition.109 The
appointment is for a term not exceeding five years and may be renewed
only once.110
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3.
BELGIUM
3.1
OVERVIEW
Belgium is a constitutional monarchy with a parliamentary system of governance. Power is divided among three branches: legislative, executive and judicial. The legislative branch, Parliament, is made up of a House of Representatives
and a Senate. The executive branch formally consists of the King and his ministers, but it is the Prime Minister and his or her ministers who exercise the powers of the executive branch. However, the King must sign legislation passed by
Parliament for it to become law.111
Belgium is also a federal state. Legislative jurisdiction is divided among the
federal government, three regions (Flanders, Wallonia and Brussels) and three
linguistic communities (Flemish, French and German).112 The federal government has legislative jurisdiction over foreign affairs, national defence and justice.113 Its jurisdiction includes the authority to regulate law enforcement bodies
and security intelligence agencies. The 10 provinces and 589 communities and
municipalities also have some jurisdiction over internal security matters and public order.114 Policing at the federal level is carried out by the Federal Police and
at the local level by almost 200 local police forces.115 Belgium has two security
intelligence agencies: a civil security intelligence service and a military intelligence service.
The Belgian Parliament recently passed legislation creating terrorism-specific offences,116 including offences specific to the financing of terrorism;117 and
legislation increasing police investigative powers.118
Belgium’s review landscape is notable in part because its police agencies
are all subject to the same review body, Committee P, and its two security intelligence agencies are subject to a similar body, Committee I. Both committees
are governed by the same statute. Committee P is mandated to review the police forces’ compliance with law, respect for individual rights and effectiveness.
It has both complaint-based and review-based jurisdiction over all police forces
and individuals vested with police powers. Indeed, Committee P’s reports evidence a wide scope of review, from investigations into complaints from the public to various self-initiated reviews such as the review of warrants, studies of
alleged discrimination, and studies of the effectiveness of the police forces, including their counter-terrorism efforts and information-sharing practices.
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Committee I has a similar mandate with respect to scrutiny of Belgium’s intelligence agencies.
The Belgian review model is also notable because Committee P and
Committee I are empowered by law to conduct joint investigations, and are required to meet regularly and consult. Since 2005, the chairs of the two committees have also sat on a joint committee, together with the chair of the
Privacy-Protection Commission. This joint committee hears appeals from security-clearance decisions. The Belgian model shows that when properly empowered, review bodies for different agencies can co-operate productively and
effectively to monitor integrated national security activities.
3.2
LAW ENFORCEMENT AND INTELLIGENCE
3.2.1
Federal Police and Judicial Police
Belgium has police forces at both the federal and local levels, all provided for
by statute.119 The Federal Police are responsible for investigations affecting
more than one local police zone and for providing support to local police
forces. The Federal Police have five major divisions, one of which — the Judicial
Police — carries out specific types of criminal investigations such as those related to drug trafficking and organized crime. The Federal Police also have “special” units for certain activities and investigative techniques, and divisions in
charge of liaison with foreign agencies and local police forces.120
Within the Judicial Police is a counter-terrorism headquarters known as
programme Terro. This body coordinates and provides operational support and
expertise to field units and other domestic and international bodies involved in
counter-terrorism,121 including coordinating interaction between police units and
intelligence agencies. Some local police forces also have special counter-terrorism units. The most notable is the Brussels police counter-terrorism division,
known as the DR3, which comprises six investigative branches and handles the
majority of counter-terrorism investigations in Belgium.122 Belgium has
approximately 46,000 police officers.123
Since 1984, Belgium has also had in place the Groupe interforces
antiterroriste (GIA). Composed of representatives of the police and intelligence
agencies, this body coordinates information exchange between these organizations. The GIA analyzes intelligence, coordinates responses and is linked to the
government’s national crisis centre.124
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3.2.2
State Security Service and Intelligence and Security Service
Belgium has two intelligence agencies: the State Security Service (SE), and the
military and general Intelligence and Security Service (SGRS).125 Both are governed by statute.126
The SE is responsible for intelligence collection and analysis of any activity that threatens or could threaten internal domestic security and democratic and
constitutional order, external security and international relations, economic and
scientific capacity, and any other fundamental national interest as defined by
ministerial committee.127 These threats are further defined in the legislation, and
include terrorism and extremism.128
The SGRS is responsible for intelligence collection and analysis of any activity that threatens or could threaten territorial integrity, military defence planning and missions, the security of Belgians abroad, and any other fundamental
national interest as defined by ministerial committee.129 It must also ensure the
security of ministry of defence personnel, military installations, equipment and
systems; and protect military secrecy.130
The governing statute for the SE and the SGRS sets out their powers and
limitations, and oversees activities such as information collection, retention and
sharing.131 The legislation also creates the power in public servants and agencies, and in judicial authorities, to disclose information to these agencies in certain circumstances.132
3.3
REVIEW AND OVERSIGHT
3.3.1
Committee P
3.3.1.1
Jurisdiction
All of Belgium’s police forces, as well as all persons “individually assigned to investigate and ascertain violations of the law,” are subject to the jurisdiction of
the Standing Police Monitoring Committee (Committee P).133 A number of public authorities with personnel are generally understood to fall within this category, but disagreements abound as to whether they in fact do fall within
Committee P’s review134 jurisdiction. These include personnel working in customs, transport and environment authorities.
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Committee P expressed its preference for a review system like Belgium’s,
in which one agency specializes in reviewing police services and the other in
reviewing intelligence services. The Committee observed that combined with a
statutory mechanism for exchanging information and carrying out joint investigations, such a system allows each review body to specialize in the respective
work of the police or intelligence services, and responds to the differences in
operational culture, mandates and activities of the two services. Both
Committee P and Committee I noted, however, that there is increasing overlap
between intelligence activities and law enforcement activities.
3.3.1.2
Mandate
Committee P’s mandate is to review the police forces’ compliance with legal
and constitutional protections of individual rights, as well as their coordination
and effectiveness.135
The Committee reviews police activities, methods, internal regulations, directives and any document regulating members’ conduct.136 It addresses matters
as diverse as allegations of theft of personal items by police officers, the quality of holding cells and food provided by the police to detainees, allegations of
racism and discrimination, the adequacy of warrants, the efficiency of the federal police force’s approach to terrorism, the propriety and efficiency of police
integration with other domestic and international agencies, and the efficiency of
police information-sharing systems.137
3.3.1.3
Functions
Committee P undertakes its reviews either on its own initiative; on the initiative
of its investigation department138; upon receipt of a complaint; or upon request
by a House of Parliament, a minister given such authority under the statute, or
certain other authorities, such as prosecutors and local police authorities.139
In Committee P’s view, combining a complaint-processing and a review
function in one body is advantageous. The Committee finds that investigating
complaints helps develop knowledge of and expertise in the activities under review, and that complaints often indicate problems in certain areas. Committee
P has in fact shifted much of its focus from first-instance complaint processing
to analyzing the information that complaints provide about potential systemic
problems or other areas requiring greater scrutiny. In doing so, the Committee
is increasingly leaving resolution of complaints to police forces while monitoring outcomes and retaining the right to investigate if it is dissatisfied.
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Committee P made this shift for three main reasons:
(i)
It recognized that its complaint-processing burden was becoming
untenable;
(ii) It believes that police are best equipped to deal with most complaints and
more likely to self-improve if they bear primary responsibility for complaint
handling (under the scrutiny of, and with the threat of secondary recourse
to, an external monitor); and
(iii) It views the analysis of complaint trends and potential systemic problems
as a critical task.
3.3.1.4
Powers
Committee P has the right to any police document that it deems relevant to its
activities.140 When conducting investigations, the Committee can compel documents and information that it deems necessary from any person. In addition, police officers may give evidence to Committee P concerning matters covered by
professional secrecy.141 Where a police officer objects to disclosing information
on the grounds that it places an individual in physical danger, the chair of
Committee P determines the issue.142
Committee P’s investigation department has the power to conduct reviews
and investigations in places where the members of a police force work, and
may seize objects or documents from these places, except those relating to ongoing investigations or legal proceedings in progress.143 The police commander
or deputy police commander may object to the seizure of objects or documents
on the grounds that it may jeopardize the safety of an individual. In such cases,
Committee P’s chair will receive representations on the matter and determine
whether the investigators may proceed with the seizure.144 The Committee and
its investigation department can also seek the assistance of interpreters and experts.145 Committee P can make recommendations, but not binding orders.146 In
the context of Belgium’s civil law system, Committee P’s investigation department also undertakes judicial investigations into suspected criminal conduct by
members of the police force.147
Under its governing statute, Committee P is required to exchange information with Committee I about its activities, send Committee I its reports and conclusions, hold joint meetings where complementary information can be
exchanged, and jointly discharge its mandate in certain circumstances.148
Committee I has an identical mandate.149 These provisions have led committees
P and I to conduct several joint investigations, including an investigation of
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police and intelligence coordination and a current review of terrorism coordination among police and intelligence agencies.
Both committees spoke favourably about the potential benefits of such
co-operation. Among such benefits are the exchange of information on the integrated activities of police and intelligence services, particularly in an era of increasing overlap in the mandates of police and intelligence services; and
increased information sharing and co-operation. As Committee P stated, institutional co-operation among review bodies is vital where there is institutional
co-operation among the bodies being reviewed — otherwise, there is too great
a risk that one body or the other will escape scrutiny. However, the committees
noted challenges that have arisen in carrying out joint investigations, including
the following:
•
•
•
differences in operational culture, approaches, structures and objectives between the police and intelligence services;
differences in size of the respective forces and the corresponding
Committee workload; and
difficulty in reaching joint conclusions and recommendations. The committees noted, however, that much could be gained from joint investigations
with separate conclusions and recommendations.
The committees also noted that because they receive reports from both
committees and are empowered to request investigations, Parliament and the
ministers can play a role in encouraging coordination and co-operation in review
activities.150 This parliamentary monitoring role is performed for the most part
by standing parliamentary commissions with access to both committees’ reports.
Since 2005, Committee P has co-operated with Committee I in another way.
The chairs of Committee P and Committee I, along with the head of the PrivacyProtection Commission, sit on a committee that hears appeals from negative security-clearance decisions. Committee I’s chair is both the chair of this committee
and holds the chief bureaucratic position.151
Committee P also co-operates with the Centre for Equal Opportunities and
Opposition of Racism, as regulated by law and developed in a co-operation protocol. In addition, Committee P has concluded protocols creating systems to exchange information with the federal and local police, and is in the process of
negotiating further information-sharing protocols. Finally, Committee P maintains informal relationships with other national and international accountability
bodies, which can result in the Committee conducting an inquiry.
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3.3.1.5
Reporting
Committee P prepares reports of its investigations, including conclusions and
recommendations, and submits them to the responsible minister, the relevant police authority and the House of Representatives.152 It also submits annual reports
to the relevant minister and to both Houses of Parliament, as well as follow-up
reports where, in its view, its recommendations have not led to satisfactory corrective measures.153 Where only one House of Parliament has asked Committee P
to investigate a matter, the Committee submits a report to both bodies.154
3.3.1.6
Appointment and Composition
Committee P consists of five individuals appointed by the House of
Representatives for a five-year term. To be eligible for appointment, an individual must have at least seven years of high-level experience in criminal law,
criminology, public law or management, acquired in a setting similar to policing or intelligence. The Committee chair must be a judge. Although only two
members of Committee P currently have top secret clearance, all will be so
cleared in future.155
3.3.2
Committee I
3.3.2.1
Jurisdiction
Review of Belgium’s intelligence agencies is carried out by the Permanent
Committee for the Control of Intelligence Services (Committee I).156 Committee I
has jurisdiction over Belgium’s two principal intelligence-collection bodies: the
State Security Service (SE) and the military and general Intelligence and Security
Service (SGRS).157
Committee I’s jurisdiction used to be defined more broadly, and included
any new public body with a mandate to collect and analyze information in the
interest of security. Partly because of disagreements as to which agencies or activities this definition covered, the statute was amended in 1999.
Although Committee I no longer has jurisdiction over other bodies involved
in intelligence, its monitoring of both the SE and the SGRS has several advantages in the Committee’s view. It allows the Committee to compare the methods used and the information held by each service, and to observe how the two
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agencies collaborate and coordinate. It also allows the Committee to note when
information has flowed to another public authority, such as a police force, and
when such other bodies might take actions that could require scrutiny.
Committee I can then note these observations in its reports to Parliament, and
Parliament can choose to ask the appropriate authorities to look into the matter. By formulating recommendations in such cases, Committee I can also caution or urge the intelligence agency in question to alter its actions accordingly.
3.3.2.2
Mandate
Committee I is mandated to scrutinize the intelligence agencies’ respect for individual rights as guaranteed by statute and the Constitution, as well as their
coordination and effectiveness.158 The Committee reviews the agencies’ activities and methods, internal regulations, directives and all documents regulating
member conduct.159
Committee I’s reviews have covered a range of topics — the role of intelligence services in protecting national scientific and economic capacity, the conduct of the SE and the SGSR in certain investigations, complaints from members
of the public, the efficiency of the “protected persons” unit of the SE, and the
information-sharing practices of the SE and the SGSR.160
3.3.2.3
Functions
Committee I can conduct reviews on its own initiative, on the initiative of its investigation department,161 upon receipt of a complaint, or upon request by a
House of Parliament or by a minister identified in the statute.162 Committee I
shared Committee P’s view that combining a complaint-processing and review
function in one body is advantageous. The two functions are seen to both build
expertise and provide indicators that may contribute to more effective review in
the other function.
3.3.2.4
Powers
Like Committee P in relation to Belgium’s police forces, Committee I has the
right to obtain any document from the intelligence services that it deems relevant to its activities.163 When conducting investigations, Committee I can compel documents and information that it deems necessary from any person.
Intelligence officers may also give evidence to Committee I concerning matters
covered by professional secrecy.164
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Committee I’s investigation department has the power to inspect any premises where members of the intelligence services work, and may seize objects and
documents from these premises, except those relating to ongoing investigations.165 The relevant commander or deputy commander may object to the
seizure of documents if it might jeopardize the physical safety of an individual,
or if the documents contain classified information and the seizure might jeopardize the conduct of security or intelligence-related activities. In such cases,
the intelligence service may make representations to the chair of Committee I,
who will determine whether investigators may seize the objects or documents.166
The Committee and its investigation department can also seek the assistance of
interpreters and experts.167 Committee I can make recommendations but not
binding orders.168 In the context of Belgium’s civil law system, Committee I’s investigation department also undertakes judicial investigations into suspected
criminal conduct by members of the intelligence services.
As I noted above, Committee I and Committee P are required by statute to
exchange information and reports, and to meet regularly.169 Committee I concurred with Committee P that these provisions, while useful, are difficult to implement effectively.
3.3.2.5
Reporting
Like Committee P, Committee I prepares reports of its investigations, including
conclusions and recommendations, and submits them to the responsible minister. However, Committee I submits these reports to the Senate rather than to
both Houses of Parliament.170
Committee I submits its annual reports to both Houses of Parliament and
to the relevant minister. It also submits reports to both Houses of Parliament and
to the responsible minister where, in its view, its recommendations have not
led to satisfactory corrective measures.171 Where only one House of Parliament
has asked Committee I to investigate a matter, the Committee submits a report
to both bodies.172
3.3.2.6
Appointment and Composition
Committee I is composed of three individuals appointed by the Senate for a
five-year term. To be eligible for appointment, individuals must have a law degree and at least seven years of high-level experience in criminal law, criminology, public law or management, acquired in a setting similar to policing or
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intelligence. The Committee chair must be a judge. All members must have top
secret clearance.173
4.
GERMANY
4.1
OVERVIEW
Germany is a federal republic in which the division of powers between the
federal government and the 16 states has helped to shape the institutional framework of policing and security intelligence. That framework has traditionally
distinguished between police activity and intelligence activity, and assigned
the bulk of responsibility for policing to the states.174 The states also
collect intelligence.175
Legislative changes since September 2001 — termed the “first security package” and the “second security package” — have altered aspects of both policing and intelligence.176 The first security package amended substantive laws to
target extremist and terrorist organizations. The second security package
amended regulations to seventeen statutes and five statutory orders, broadening the scope of permissible actions for federal security and law enforcement authorities, and increasing information sharing between agencies.177 Funding for
national security and counter-terrorism was also increased.178
Notably, while Germany does have several of the accountability controls
typically found in liberal democratic countries — judicial scrutiny, privacy-protection instruments and ministerial oversight, for example — it does not have an
independent body to deal with complaints about the police.179 Its intelligence
agencies are scrutinized by a parliamentary committee called the Parliamentary
Control Panel.
Since Germany has no independent review agency dedicated to its police
services, I have not discussed German law enforcement agencies in this chapter. More information on policing in Germany is included in the Commission’s
Background Paper on International Models, which can be found on the
Commission website, www.ararcommission.ca.
This section of the chapter therefore focuses on Germany’s security intelligence landscape, and the applicable review and oversight mechanisms: the
Parliamentary Control Panel and the G-10 Commission.
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4.2
SECURITY INTELLIGENCE
Security intelligence services in Germany gather and evaluate information on
foreign and internal security, in part through covert means. They may not be attached to any police authority.180
4.2.1
Federal Office for the Protection of the Constitution
The Federal Office for the Protection of the Constitution (BfV)181 is Germany’s
federal domestic intelligence agency. It falls within the jurisdiction of the Federal
Ministry of the Interior.182 As set out in its governing statute, the BfV’s main function is to gather and analyze information on activities that are directed against
Germany’s “free and democratic order” or state security, activities carried out
by a foreign power in Germany, and activities in Germany that threaten German
foreign interests through force or preparations for the use of force.183 Since 2002,
the BfV’s mandate has also included gathering and analyzing information on activities “directed against the idea of international understanding,” especially
against the “peaceful coexistence of peoples.”184 In addition, the Office assists
with security clearance checks of personnel for security-sensitive civilian or military positions.185
The BfV says it works “closely . . . with other security authorities, in particular the other federal intelligence services [the MAD and the BND] responsible for foreign intelligence, and with police and criminal prosecution
authorities.”186 It uses both public information and covert intelligence methods.187
Its powers were recently expanded to allow it to obtain, subject to certain conditions, information from financial institutions, airlines, postal service providers
and telecommunications companies without disclosure to targeted customers.188
The BfV does not have the powers to arrest, search or interrogate, or to seize
property.189 It may hand over a matter to the courts, public prosecution office
or police to “decide independently” what action is required.190 The BfV employs
approximately 2,400 people.191
Every state also has its own Office for the Protection of the Constitution,
with a structure comparable to that of the BfV. Each office has regional jurisdiction and is subject to state regulation. The BfV does not have direct control
over the activities of the state offices, but is required to co-operate with them.192
When a surveillance target’s activities extend beyond the territory of a single
state, the BfV will take over responsibility for the investigation.193 Intelligence
gathered by the states is stored centrally by the BfV.194 The Federal Minister of
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the Interior has raised the question of whether the BfV might in future be given
the right to issue directives to the equivalent state-level authorities.195
4.2.2
Military Counterintelligence Service
Germany’s Military Counterintelligence Service (MAD)196 is part of the armed
forces, but is solely a domestic-intelligence service.197 Its statutory basis is in the
Military Counterintelligence Service Act.198 The MAD’s functions include gathering and evaluating information on anti-constitutional activities within the German
armed forces, and on activities such as espionage directed against the German
armed forces.199 However, the MAD is not involved in foreign military intelligence operations: these are conducted by the Federal Intelligence Service. The
MAD’s powers, like the BfV’s, have recently been enlarged to encompass gathering and analyzing information on activities directed against the idea of international understanding, especially against the peaceful co-existence of
peoples.200 The MAD may also now demand information from telecommunications and teleservice companies, and transmit personal information to other
agencies or institutions.201 The MAD currently has about 1,300 staff.202
4.2.3
Federal Intelligence Service 203
The Federal Intelligence Service (BND) is Germany’s foreign intelligence and
signals intelligence service.204 It comes under the jurisdiction of the Head of the
Federal Chancellery205 and has a statutory basis in the BND Act.206 Since 1994,
the BND has been authorized to monitor international telecommunications without prior concrete suspicion in order to prevent certain offences.207 However, the
BND may not target the specific communication lines of German citizens.208 Like
the BfV and the MAD, the BND may now request information from financial
service institutions, postal service providers, telecommunications services and
airlines.209 Recent legislation authorizes the BND to transmit personal information to the BfV, state offices for the Protection of the Constitution and the MAD,
where necessary to those organizations’ activities in certain circumstances.210
The BND currently has approximately 6,000 staff.211
4.2.4
Commissioner for the Federal Intelligence Services
Coordination between the federal intelligence services, and between these services and other agencies, is the responsibility of the Commissioner for the Federal
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Intelligence Services. The Commissioner must be a minister of state or a state
secretary within the Federal Chancellery.212
4.3
REVIEW AND OVERSIGHT
Germany has no arm’s-length agency to investigate complaints against its police
forces, nor any agency similar in structure to Belgium’s Committee I or Canada’s
SIRC to review its intelligence agencies. Instead, Germany’s intelligence agencies are scrutinized by a legislative committee called the Parliamentary Control
Panel (PKGr).213 A separate body, the G-10 Commission, reviews interceptions
of private communications.
4.3.1
Parliamentary Control Panel
4.3.1.1
Jurisdiction
Pursuant to its governing statute, the Parliamentary Control Panel has jurisdiction to review the activities of three agencies: the Federal Office for the
Protection of the Constitution, the Military Counterintelligence Service and the
Federal Intelligence Service.214
The Panel thus takes a functional approach to review, which “facilitates
seamless oversight” because different parts of the intelligence machinery work
closely together.215
4.3.1.2
Mandate
The PKGr’s mandate is to scrutinize and report on the general intelligence activities of the federal government, as exercised by the three intelligence agencies.216 Under the PKGr’s statute, “activities” refer to procedures that “enable an
intelligence service to operate and fulfill its task.”217 General activities are those
that relate to typical procedures.218 The Panel’s mandate includes review of both
the policies and operations of the intelligence services.219
The PKGr reviews certain information-gathering activities conducted by the
intelligence services in Germany. For example, it reviews information gathering
from financial and credit service institutions concerning accounts, account holders and financial transactions; and information gathering from airlines concerning their passengers’ names, addresses and other information.220
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The Panel also reviews intelligence operations of particular importance. An
operation is considered of particular importance when knowledge of the operation “is essential for the exercise of effective parliamentary control in the public interest.”221 Intelligence operations that are the subject of media scrutiny and
decisions to alter essential procedures fall within this definition.222
4.3.1.3
Functions
The PKGr carries out its monitoring work by hearing presentations from the executive and the heads of the intelligence services;223 conducting self-initiated reviews of the intelligence services’ files; and investigating complaints by members
of the three services or by the public.224 It also must approve the Federal Minister
of the Interior’s determinations on the risk categories in which strategic telecommunications surveillance may occur under the G-10 Act.225 These categories include international terrorism, serious narcotics crime, international money
laundering and counter-proliferation.226
The PKGr participates in drawing up guidelines for current and future intelligence activities.227 It also consults with the government on the intelligence
services’ annual budgets, provides an assessment of draft budgets to the
appropriate legislative budget committee228 and reviews the implementation of
budgetary plans for the intelligence services.229
The PKGr must meet at least once per quarter,230 and in practice meets
much more often.231 To facilitate parliamentary review of complex security
intelligence activities, laws and practices, a five-person secretariat provides
independent expertise and research assistance in support of the Panel’s review function.232
4.3.1.4
Powers
The federal government is obliged to provide the PKGr with comprehensive
information concerning the typical procedures of the German intelligence services. Under this rubric, the federal government gives the PKGr information about
both working procedures for the intelligence agencies and the results of intelligence operations.233 The federal government also must provide the Panel with
information on operations of particular importance.234 In addition, the PKGr
may call upon the federal government to report on other operations, a power
it uses regularly.235
Upon request, the PKGr has the power to visit the security services at any
time and to question intelligence service staff members.236 It can also compel
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information and documentation from the intelligence services and hold hearings,237 although the federal government may refuse to disclose information obtained from foreign authorities and may withhold information to protect sources
or third-party rights. The executive may also refuse to disclose information that
“touches upon core aspects of executive responsibility,” such as the decisionmaking process within the federal government, including consultations between
different departments.238 The government must provide reasons for such refusals
to disclose.
The Panel may appoint an external expert to conduct specific inquiries
on a case-by-case basis.239 It also approves the G-10 Commission’s rules
of procedure.240
4.1.3.5
Reporting
The PKGr submits two reports to the Bundestag per legislative session — one
mid-session and one at the end. These reports are subject to a statutory requirement of strict confidentiality, meaning that they may not disclose classified
information. However, there is one exception to the rule of strict confidentiality. With the approval of two thirds of the PKGr, the Panel may publish its assessment of a current operation, although it does not publish the details of the
operation itself.241 This exception has been created to both satisfy the public’s
need for information about current controversies and strengthen the PKGr’s role.
The PKGr must submit a special annual report on covert interception of
communications by the intelligence services and on the new powers assigned
to the intelligence services under the 2002 Counter-Terrorism Act,242 namely,
the review by the intelligence services of bank accounts, flight documents or
telecommunication connection data.243 These reports discuss the scope and
method of measures the intelligence agencies used to intercept mail and telephone communications.244
The federal states must also report to the PKGr annually on any measures
they have taken under the Counter-Terrorism Act.245
4.3.1.6
Appointment and Composition
The PKGr is composed of nine members elected by the Bundestag and representative of the political balance in the legislature. Each member must be elected
by a majority of the Bundestag. This requirement is intended to demonstrate
that Parliament as a whole has confidence in each Panel member, which in turn
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is intended to create a relationship of trust between the Panel and the government’s executive branch.246
The chair of the PKGr rotates on January first and July first every year, and
is appointed alternately by the majority and minority groups in the Bundestag.
Members remain part of the PKGr as long as they are members of the Bundestag
and not of the executive branch. When a legislative session ends and a new
Bundestag is elected, members remain in their roles until the Bundestag elects
a new Panel.247
The small number of members is intended to reflect the need for secrecy
and assure the intelligence services that any information the PKGr receives will
be treated confidentially.248 Panel secretariat staff undergo security checks but,
on the basis that they are the elected representatives of the people, PKGr members are not subject to such checks.249
4.3.2
G-10 Commission
4.3.2.1
Jurisdiction
Article 10 of the German Basic Law guarantees a right to communications privacy. Any restriction on this right must accord with the provisions of the Article
10 Act, commonly known as the G-10 Act.250 The G-10 Commission is responsible for approving any surveillance measures ordered by the federal intelligence services under this statute.251 In relation to the BfV and the MAD, the
G-10 Commission approves interceptions of the communications of individuals.
It also approves strategic communications interceptions for signals intelligence
purposes by the BND, which monitors communications channels as a whole
and then identifies individual communications for closer study.
4.3.2.2
Mandate and Functions
The G-10 Commission must review and approve, on a case-by-case basis for
compliance with the Act, all communications intercepts ordered under the G-10
Act and conducted by the federal intelligence services.252 The G-10 Commission
also reviews the federal intelligence services’ entire process of collecting, processing and using data.253 This mandate includes monitoring data-gathering and
deletion procedures, and data-processing practices. The G-10 Commission also
may consider individual complaints:254 it generally receives between 20 and
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30 complaints a year.255 Before the Commission reviews any matter, its secretariat
provides a preliminary assessment. The Commission must meet once a month.
4.3.2.3
Powers
The G-10 Commission exercises judicial, rather than political, control over
the covert surveillance activities of the intelligence services. Unlike German
courts, the G-10 Commission may refuse to approve an operation that it considers either unnecessary or inopportune.256 The Commission’s rulings are
binding on the intelligence services and on the government. However, individuals affected by surveillance activities may request judicial review of the
Commission’s decisions.257
The Commission members and the secretariat staff may require information from the intelligence services and may access all relevant documents, including data stored electronically. The Commission may also require access to
the intelligence services’ premises.258
4.3.2.4
Reporting
The G-10 Commission is not required to submit reports.259
4.3.2.5
Appointment and Composition
The four full and four deputy members of the G-10 Commission are appointed by the PKGr. The Commission chair must be qualified to hold judicial
office. Commission members are not normally members of the Bundestag, but
may be. However, they are generally members of or closely associated with political parties, although they hold office independently and are not bound by
any instructions. Members are expected to have technical, political or judicial
expertise in a relevant area. All members are entitled to take part in the
Commission’s meetings.260
The Commission’s secretariat staff must also be qualified to hold judicial
office and must have some technical expertise in the area of communications
surveillance and the applicable law.261
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5.
NEW ZEALAND
5.1
OVERVIEW
New Zealand is a member of the Commonwealth with constitutional and government structures similar to Canada’s. However, it is a unitary state with only
one police force, the New Zealand Police, whose activities include national security law enforcement activities. There are two principal security intelligence
agencies, the New Zealand Security Intelligence Service (NZSIS) and the
Government Communications Security Bureau (GCSB).
The New Zealand Police are subject to the complaint- and incident-based
jurisdiction of the Police Complaints Authority. The security intelligence agencies are subject to the complaint- and review-based jurisdiction of the InspectorGeneral of Intelligence and Security (IGIS).
5.2
LAW ENFORCEMENT AND INTELLIGENCE
5.2.1
Police
The New Zealand Police are organized into twelve districts262 and governed
by statute.263 There have been a number of recent counter-terrorism changes
to their organization and powers.264 The New Zealand Police also belong to
the Combined Law Agency Group (CLAG), a “joint forum” of New Zealand
law enforcement agencies.265 The CLAG is described as the “primary vehicle for
sharing information and for investigative co-operation on organised crime related matters.”266
5.2.2
Intelligence Agencies
Both of New Zealand’s two principal security intelligence agencies, the New
Zealand Security Intelligence Service and the Government Communications
Security Bureau, are civilian organizations. Other organizations, particularly the
Defence Directorate of Intelligence and Security and the External Assessments
Bureau, also assess and analyze foreign intelligence for government use.
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5.2.2.1
New Zealand Security Intelligence Service
The New Zealand Security Intelligence Service is governed by statute.267 Its mandate is to gather and analyze intelligence relevant to national security; advise
ministers and public authorities on security matters; conduct security clearance
inquiries; and co-operate with other authorities in New Zealand and abroad.268
According to the NZSIS, the “largest single component” of its security intelligence advice relates to counter-terrorism.269
In collecting its intelligence, the NZSIS uses methods that include covert
surveillance such as interception of both domestic and foreign communications.
Its governing statute sets out the Service’s powers and limitations. For example,
the NZSIS may apply for warrants to carry out certain investigative activities such
as search and seizure, but has no powers of arrest.270
5.2.2.2
Government Communications Security Bureau
The Government Communications Security Bureau is New Zealand’s signals intelligence agency. It first became the subject of an enabling statute in 2003,
which continued the GCSB and established it as a department of state.271
According to its governing statute, the GCSB’s functions include gathering
and analyzing foreign intelligence by intercepting communications; reporting to
the responsible minister on foreign intelligence; decoding and deciphering signals intelligence; and co-operating with other authorities in New Zealand and
abroad.272 The GCSB maintains satellite communications interception stations273
that “are useful to and are accessible by” other intelligence agencies, including
American and Australian agencies.274 The GCSB’s governing statute also limits
its powers.275
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5.3
REVIEW AND OVERSIGHT
5.3.1
Police Complaints Authority
5.3.1.1
Jurisdiction
The Police Complaints Authority is the review body for the New Zealand Police.
The Authority is complaint- and incident-based, and restricted in jurisdiction to
the New Zealand Police.276
5.3.1.2
Mandate and Functions
The Authority investigates complaints alleging misconduct or neglect of duty, or
concerning “any practice, policy, or procedure of the Police affecting” the complainant.277 Complaints are investigated to determine whether the activity called
into question was “contrary to law, unreasonable, unjustified, unfair, or undesirable.”278 The Authority may also, on its own motion, investigate cases in which
a member of the Police appears to have caused death or serious bodily harm.279
The Authority may investigate complaints itself, “review” the Police investigation of the complaint, or “oversee” a Police investigation and direct the Police
in doing so.280
5.3.1.3
Powers
The Police are required to provide the Authority with all necessary information
and assistance.281 The Authority may also compel production of information,
documents or things, and may examine persons under oath.282 However, the
Authority’s access will be blocked where either the Prime Minister certifies that
the “giving of any information or the production of any document or thing might
prejudice” New Zealand’s security, defence or international relations, or the
Attorney General certifies that doing so might prejudice the prevention, investigation or detection of offences, or involve disclosure of Cabinet secrets, injurious to the public interest.283
The Authority does not have the power to make binding recommendations
to the Commissioner of the New Zealand Police. It may only communicate its
opinion, with reasons and any recommendations, to the Commissioner.284 The
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Commissioner must notify the Authority of action proposed to be taken in response to Authority recommendations, and give reasons for any proposal not to
implement the Authority’s recommendations.285
5.3.1.4
Reporting
The Authority informs parties to a complaint of the results of an investigation “as
soon as reasonably practicable . . . and in such manner as [the Authority] thinks
proper.”286 If dissatisfied with the Commissioner’s response to its recommendations, the Authority may send its opinion and recommendation to the AttorneyGeneral and the Minister of Police, and transmit a report on the matter to the
Attorney-General for tabling in the House of Representatives.287
The Authority also submits annual reports to the Minister of Justice, to be
laid before the House of Representatives.288 Sensitive or classified information
would not appear in the annual reports, but would be dealt with in another
manner according to the circumstances.
The Authority has the discretion to publish other reports on the exercise of
its function or any particular case or cases.289
5.3.1.5
Appointment
The Authority is comprised of one person, who is appointed for a term of two
to five years, with the possibility of reappointment,290 on the recommendation
of the House of Representatives.291 The appointee must be a “barrister or solicitor of the High Court.”292
5.3.1.6
Other
A review of the Police Complaints Authority in 2000 resulted in broad recommendations for change.293 Subsequently, the Independent Police Complaints
Authority Amendment Bill proposed more limited amendments to the
Authority.294 The bill would increase the renamed Authority’s membership to
three persons, including a chairperson who was a current or former judge. In
the view of the Law and Order Select Committee, these changes were “needed
to enhance the Authority’s independence.”295 However, the Committee endorsed
continuing the Authority’s responsibility to maintain secrecy about its investigations, and preserving its recommendatory role.296 The new structure has been delayed by the establishment of a Commission of Inquiry into alleged police
misconduct, which has not yet issued its report.297
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The Police Complaints Authority does not share information with other accountability bodies because of the secrecy provisions that govern its investigations. However, to avoid duplication of effort, the Authority does communicate
on a general level with other bodies.
5.3.2
Inspector-General of Intelligence and Security
5.3.2.1
Jurisdiction
New Zealand’s two intelligence agencies, the NZSIS and the GCSB, are reviewed
by the Inspector-General of Intelligence and Security, whose jurisdiction is confined to these two bodies.
5.3.2.2
Mandate
The IGIS’s mandate is to:
assist each Minister who is responsible for an intelligence and security agency in the
oversight and review of that intelligence and security agency and . . . in particular,
(a) Assist the Minister to ensure that the activities of that intelligence and security
agency comply with the law; and
(b) Ensure that complaints relating to that intelligence and security agency are independently investigated.298
5.3.2.3
Functions
The IGIS carries out this mandate through five prescribed functions:
(i) complaint investigation;
(ii) investigation on the IGIS’s own motion, with notification to the Minister, or
at the Minister’s request, into compliance with the law by the agencies;
(iii) inquiry at the Minister’s request or on the IGIS’s own motion, subject to the
Minister’s concurrence, into the propriety of particular activities of an
agency where there has been adverse effect on any New Zealand person
by an agency;
(iv) review of the effectiveness and appropriateness of the procedures adopted
by the NZSIS to ensure compliance with legal requirements for interception
warrants; and
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(v) preparation and execution of programs for the “oversight and review” of the
agencies, provided the Minister approves them.299
The IGIS is prohibited from inquiring into any action taken by the
Minister300 and “[e]xcept to the extent strictly necessary for the performance of
his or her functions . . . into any matter that is operationally sensitive, including
any matter that relates to intelligence collection and production methods or
sources of information.”301
5.3.2.4
Powers
The IGIS can compel documents and testimony,302 and may receive evidence
otherwise inadmissible in a court of law.303 He or she has power of entry onto
agency premises, with notice to the head of the agency.304 The IGIS has access
to all security records relevant to an investigation305 except where the Minister
certifies that disclosure would prejudice certain interests and that disclosure
should not be made or should be limited.306
5.3.2.5
Reporting
The Inspector-General of Intelligence and Security cannot make binding orders.
Upon concluding an investigation, he or she prepares a report with conclusions
and recommendations for the Minister and the chief executive of the relevant
agency.307 In the case of a complaint, the IGIS also advises the complainant of
his or her conclusions “in terms that will not prejudice the security or defence
of New Zealand” or its international relations.308 The IGIS may report to the
Minister on an agency’s compliance with recommendations, and on the adequacy of any post-inquiry remedial or preventative measures.309
The IGIS also submits an annual report to the responsible minister and the
Prime Minister (who are traditionally one and the same).310 The Prime Minister
tables a version of this report in the House. Certain material may be excluded
after consultation with the IGIS.311
5.3.2.6
Appointment
The IGIS is appointed by the Governor-General on the recommendation of the
Prime Minister, after consultation with the Leader of the Opposition.312 The appointee must be a retired judge of the High Court of New Zealand.313 The term
of appointment is three years, with reappointment permitted.314
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6.
NORWAY
6.1
OVERVIEW
Norway is a constitutional monarchy with a parliamentary system of governance.
Power is divided among three branches: legislative, executive and judicial. The
legislative branch, the Parliament, consists of a lower chamber and an upper
chamber. The executive branch consists of the monarch, the Prime Minister and
the Cabinet.315
As Norway is a unitary state, policing, security and intelligence responsibilities fall to the national government. There is a national police force; a Police
Security Service with a separate statutory basis; and two security intelligence
agencies, the Intelligence Service and the National Security Authority. 316
The national police force and the Police Security Service are subject to a
new external complaint-based review body called the Special Unit for Police
Matters. The Police Security Service and the two security intelligence agencies
are subject to the same complaint-based and review-based review body: the
Norwegian Parliamentary Intelligence Oversight Committee (EOS Committee).317
The Norwegian government has undertaken several national security measures in recent years. These include appointing the Commission on the
Vulnerability of Society to report on measures to increase security and safety,318
and establishing the Directorate of National Protection319 and, in 2002, the Centre
for Information Security.320
6.2
LAW ENFORCEMENT AND INTELLIGENCE
6.2.1
National Police Force
Norway has only one police force: the Norwegian Police.321 The force is established pursuant to the Police Act.322
There are 27 local police districts, each with a chief of police.323 There are also
five central police institutions, including the National Criminal Investigation
Service, which assists the local police with technical and tactical expertise; and
the Police Security Service.
Norway’s ordinary police force does some national security policing inasmuch as certain divisions, such as the economics crime unit, are mandated to
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investigate matters including terrorism-financing and other investigations related
to national security. However, it is the Police Security Service that is charged with
investigating matters involving classified material.324
6.2.2
Police Security Service
The Police Security Service is an agency within the national police force that has
had a separate statutory basis since 2002.325 The establishment of a statutory
basis for the Police Security Service, as well as other reorganization in Norway’s
security intelligence and review landscape, followed a report by the Lund
Commission. The Commission was established in 1994 to “inquire into all allegations of illegal or irregular surveillance of Norwegian citizens, by any of the
intelligence and security agencies, from 1945 until the present.”326
The Police Security Service is tasked with “preventing terrorism, espionage
and threats to internal security.”327 It is considered one of Norway’s three intelligence agencies and in recent years has been subject to the greatest degree of
scrutiny by Norway’s monitoring committee for intelligence agencies.328
6.2.3
Intelligence Service
The Intelligence Service gathers and analyzes foreign intelligence — principally
signals intelligence.329 According to its 1998 governing legislation, it is mandated
to “procure, process and analyse information regarding Norwegian interests
viewed in relation to foreign states, organizations or private individuals, and in
this context [prepare] threat analyses and intelligence assessments to the extent
that this may help to safeguard important national interests.”330 This mandate
includes the “procurement of information concerning international terrorism.”331
The Service’s governing statute also sets limitations on its powers, including a
prohibition on monitoring or otherwise covertly procuring information on
Norwegian territory, concerning Norwegian individuals or entities.332
The Intelligence Service is organized as part of Norway’s armed forces.333
It was formerly a military agency, but today its staff is mostly civilian.334
6.2.4
National Security Authority
According to its governing legislation, the National Security Authority (NSA) “coordinate[s] protective security measures and oversee[s] [Norway’s] state of security.” It is also “the executive body in relation to other countries and international
organizations.”335 In other words, the NSA is responsible for proactive national
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security, identifying national objects of special interest, and reducing Norway’s
vulnerability to internal and external threats.336 It is also the highest authority in
Norway for issuing and withdrawing personnel security clearances, classifiying
and de-classifying information, and physically and electronically securing governmental and other sensitive premises against espionage.337 The NSA does not
conduct investigations or operations,338 but has “unhampered access to any area
where there is sensitive information or a sensitive object.”339 Established by legislation in 2001,340 it replaced the former military Defence Security Service and
is organized as a civilian directorate within the Ministry of Defence.341
The Norwegian government also has the Coordinating and Advisory
Committee for the Intelligence, Surveillance and Security Services, which coordinates and advises responsible ministers on information exchange between
Norway’s three intelligence bodies.342 The Committee consists of the three
agency heads, and three high-ranking ministry officials.343
6.3
REVIEW AND OVERSIGHT
6.3.1
Complaints Against the Police
Complaints against Norway’s police, including the Police Security Service, are investigated by a new complaint-based body that is external to the police: the
Special Unit for Police Matters. The Special Unit does not conduct regular reviews, and does not play a major role in handling complaints about the Police
Security Service.
Until January 1, 2005, complaints were investigated by the Special
Investigating Body for Police Matters (known as SEFO), which was internal to
the police. SEFO’s principal mandate is to investigate whether police employees have committed a criminal act, thus establishing a high threshold for beginning an investigation.
The Norwegian Parliamentary Ombudsman for Public Administration has
complementary jurisdiction to review complaints against the police, the immigration services and the customs administration.344 The Parliamentary
Ombudsman does not have jurisdiction to review any of the activities or agencies that fall within the EOS Committee’s terms of reference, or the activities of
the EOS Committee itself.345
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6.3.2
Norwegian Parliamentary Intelligence Oversight Committee
(EOS Committee)
6.3.2.1
Jurisdiction
Norway’s intelligence agencies, including the Police Security Service, are subject
to the review jurisdiction of the Parliamentary Intelligence Oversight Committee,
otherwise known as the EOS Committee. The Committee is tasked with reviewing all “intelligence, surveillance and security services carried out by, under
the control of, or on the authority of the public administration.”346
This provision is interpreted as meaning that the purpose of the intelligence, surveillance and security activity must be to safeguard national security
interests. Activities with different objectives, such as traffic surveillance or
criminal intelligence are not included. In other words, the jurisdiction of
the Intelligence Oversight Committee is defined functionally, rather than
by agency.347
The EOS Committee also advises that to date, this function-based definition
of jurisdiction has been interpreted as extending its authority only to the
Intelligence Service, the National Security Authority and the Police Security
Service. However, the functional definition of the Committee’s jurisdiction is intended to capture any other public or private entity that might engage in such
security or surveillance activity, including by statutory or organizational change,
or by informal arrangement or contract.
The Committee noted that in an era of increased integration among public
authorities engaged in counter-terrorism, new questions are arising about
whether it should be monitoring certain activities of other bodies, including the
ordinary police force, which often carries out counter-terrorism investigations
with the help of the Police Security Service; and immigration and customs authorities.348 These issues have not yet been formally tested. However, in its 2003
annual report the EOS Committee discussed whether its review jurisdiction
could or should extend to the economic crimes unit of Norway’s ordinary police force — the principal investigator of terrorism-financing cases — rather than
the Police Security Service.349 To clarify matters being investigated within its
functionally defined mandate, the EOS Committee also has the power to investigate issues outside that mandate.350
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The EOS Committee finds several advantages in its multi-agency jurisdiction.
These include:
•
•
•
•
insight into and knowledge of the entire security intelligence area, allowing for better assessment of complaints;
the ability to verify one agency’s statements about the role that another
agency might have played;
the ability to monitor communications and co-operation between the services; and
the avoidance of disputes as to whether the Committee properly has
jurisdiction.
An overlap of jurisdiction exists between the EOS Committee and the body
responsible for complaints against the police force,351 whether these complaints
are made against ordinary police officers or the Police Security Service. Due to
the overlap, the Director General of Public Prosecutions has issued guidelines
to the complaint-based body to advise the EOS Committee of any allegations
against the Police Security Service, investigations and recommendations, and
any matters that may be of interest to it. The Committee has a more limited reciprocal duty to inform of any findings that indicate activity that might fall within
the complaint-based body’s jurisdiction. Given such overlap in jurisdiction, the
EOS Committee maintains that such co-operation and communication are essential to fulfill the two bodies’ respective mandates.
The Committee added that if it received a complaint against the ordinary
police that appeared to deal with EOS-related questions, it would investigate
the complaint. It has already had occasion to ask the Police Security Service to
provide information from the ordinary police. However, the Committee has also
encountered problems in following the course of an investigation, including information-sharing activity, between the Police Security Service and sections of
the ordinary police such as the economic crimes unit, since it is commonly held
that it does not have jurisdiction over the latter.352
6.3.2.2
Mandate
The EOS Committee is mandated to:
1.
2.
ascertain and prevent any exercise of injustice against any person, and ensure that the means of intervention employed do not exceed those required
under the circumstances,
ensure that the activities do not involve undue damage to civic life, [and]
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3.
ensure that the activities are kept within the framework of statute law, administrative or military directive and non-statutory law.353
The Committee also has a more particularized mandate for each agency
within its purview:
(a) For the intelligence service: to ensure that activities are held within the
framework of the service’s established responsibilities, and that no injustice
is done to any person.
(b) For the security service: to ensure that activities are held within the framework of the service’s established responsibilities; monitor clearance matters
in relation to persons and enterprises for which clearance is advised against
by the security staff, or refused or revoked by the clearance authority; and
ensure that no injustice is done to any person.
(c) For the surveillance service: to monitor surveillance matters, operations and
measures for combating terrorist activities by means of electronic surveillance and mail surveillance; and monitor to ensure that the collection, processing, registering and filing of information concerning Norwegian
residents and organizations is carried out in accordance with current regulations, and meets the requirements for satisfactory routines within the
framework of the purpose stated in section 2 of the Act.
(d) For all services: to ensure that the co-operation and exchange of information between the services is held within the framework of service needs.354
In carrying out its mandate, the Committee is bound to “show consideration for national security and relations with foreign powers.”355
6.3.2.3
Functions
The EOS Committee carries out its mandate through three principal functions:
investigations of complaints; self-initiated reviews; and investigations, on its own
initiative, into “matters and factors that it finds appropriate to its purpose, and
particularly matters that have been subjected to public criticism.”356
The EOS Committee finds advantages both to combining and to separating
the two functions of complaint-processing and self-initiated reviews. On the one
hand, combining the two functions allows for improved monitoring and resource
efficiency and decreased risks of proliferating classified documents, inasmuch as
one body, rather than two, is carrying out the complaint-handling and selfinitiated review functions. On the other hand, as noted above in the discussion
of Australia’s Commonwealth Ombudsman, an agency that performs regular
357
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self-initiated reviews of the intelligence agencies’ files can become too close to
their decision making and operations to independently examine complaints, in
which case separating the two functions might be desirable. However, the
Committee noted that precautions can be taken to avoid such “capture.” These
include not advising before operations are undertaken and not giving input on
procedures or policies. Indeed, the EOS Committee is prohibited from such activities by its governing statute, and believes, as did the legislator, that this is an
important safeguard of independence. Specifically, the EOS Committee’s governing statute prohibits it from “instruct[ing]” the agencies, and from “be[ing]
used by these for consultations.”357 According to one commentator, this prohibition on consultations was set out in the statute to preclude the possibility of
the Committee exercising ongoing oversight of the agencies, and thereby compromising “the need for critical independence.”358
6.3.2.4
Powers
The EOS Committee has the power to compel documents and testimony, including from the ordinary police force, other parts of the public administration,
and the private sector.359 Indeed, the Committee can carry out investigations
with these other bodies, as long as the investigation is to further an investigation within its jurisdiction.360
The Committee does not have access to the ministries’ “internal documents.”361 The Committee chair also recently stated that the Committee does not
ask for access to files that relate to the identity of sources/agents or that reveal
the capacities of foreign co-operating services.362 This derives in part from the
Committee’s statutory obligation to “show consideration for national security
and relations with foreign powers.”363
The EOS Committee also has communications links with SEFO and its successor, the Special Unit for Police Matters.
Upon concluding an investigation or self-initiated review, the Committee
makes findings and recommendations. It does not make binding orders.364
6.3.2.5
Reporting
In the context of complaint investigations, the Committee is required to make
statements to complainants that are as complete as possible without revealing
classified information. These statements must also be sent to the head of the
agency, and if the Committee finds “valid grounds for criticism or other
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comments,” to the ministry concerned.365 Statements to complainants must be
unclassified. The Committee may decide whether they should be made public.366
The Committee also files annual reports with the Parliament. These reports
are unclassified,367 unless in the Committee’s view the Parliament “should familiarize itself with classified information.”368 The Committee may also file a special report where it finds that there are “factors” that should be made known to
the Parliament immediately.369
6.3.2.6
Appointment and Composition
The Committee is composed of seven members, who are elected by the
Norwegian Parliament for a five-year period.370 Sitting members of the Parliament
are not eligible, but “care is . . . taken to ensure that [the Committee appointees]
reflect the main political interests represented in Parliament.”371 They must
have the highest level of national security classification and are bound to a duty
of secrecy.372
7.
SWEDEN
7.1
OVERVIEW
Sweden is a constitutional monarchy and parliamentary democracy. Power is
divided among three branches: the legislative Parliament; the executive, which
consists of the monarch, the Prime Minister and the Cabinet; and the judiciary.373
A unitary state, Sweden has one national police force, which includes the
police security service known as Såpo. Sweden also has several security intelligence agencies. All of the law enforcement, security and intelligence agencies
fall under the review jurisdiction of Sweden’s Parliamentary Ombudsmen. The
Office has complaint-based and self-initated review mandates, but for reasons
that I discuss below, carries out only occasional scrutiny of these agencies.
In recent years, the Swedish government has taken a number of national
security measures. It passed the Act on Criminal Responsibility for Terrorist
Crime, which, among other things, created terrorism offences and increased
the right to use secret surveillance,374 and the Act on Extradition from Sweden
under the European Arrest Warrant.375 Both acts were based on European Union
directives.376 It also established a commission to review Sweden’s emergency
preparedness following 9/11,377 created the Swedish Emergency Management
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Agency378 and allocated separate funds for “strengthening Swedish emergency preparedness.”379
7.2
LAW ENFORCEMENT AND SECURITY INTELLIGENCE
7.2.1
National Police Service
Sweden’s national police service comprises police authorities for each of the
country’s 21 counties, and includes the National Criminal Investigation
Department, the National Counter-Terrorism Unit, the Security Service, and liaison officers in other countries.380 The duties and powers of the police service are
set out in statute.381 The service has approximately 23,000 employees.382
7.2.2
Security Service
The Security Service’s mandate is to “direct and perform police activities aiming
at the prevention and detection of offences against national security, and also —
even if activities do not refer to such offences — police activities relating to
counter-terrorism . . . . ”383 The Security Service collects “security intelligence,”
as it “gathers intelligence on various matters that may be used to combat international terrorism or to counter threats to [Sweden’s] democratic system and national security.”384
The Security Service works closely with the “regular police service” to prevent crime. That is, “regular police units perform investigations and operational
field work while the [Security Service] provides crime intelligence, resources and
methodological know-how.” The Service also works closely with government
agencies within the “Swedish Total Defence System,” and uses a “central register” for compiling the intelligence that it collects.385
The Security Service describes its “prime task” as “crime prevention,” stating that “[t]o be able to prevent and detect crimes against national security, [it]
must engage in security intelligence gathering . . . [meaning intelligence] that
may be of importance to external and internal security and to counter-terrorism
activities.”386 The Security Service’s work includes intelligence processing, analysis and national security threat assessments.387
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7.2.3
Military Intelligence and Security Service
Sweden’s Military Intelligence and Security Service collects and analyzes intelligence related to foreign military threats to Swedish security. This body was first
placed on a statutory basis in 2000388 and operates under the armed forces.
7.2.4
National Defence Radio Centre
Sweden’s National Defence Radio Centre (FRA)389 carries out signals and communications intelligence, and operates under the armed forces. General instructions for the Radio Centre are set out in a statute. However, this statute
does not explicitly define the Radio Centre’s powers.390
7.2.5
Other
In addition to those bodies that gather intelligence, the Swedish Emergency
Management Agency (SEMA), which was created in July 2002, uses “research
and intelligence to compile knowledge” that might be “useful” to Swedish
public authorities. SEMA is also charged with coordinating information security in Sweden. The National Defence Radio Centre assists SEMA by
contributing expertise.391
7.3
REVIEW AND OVERSIGHT
7.3.1
Parliamentary Ombudsmen’s Office
7.3.1.1
Jurisdiction
The Swedish police service and security services392 are all subject to review by
the Office of the Parliamentary Ombudsmen,393 which has general jurisdiction
over public authorities.394
The Ombudsmen’s office divides its review responsibilities among its four
elected Ombudsmen, according to the agency in question. The police force and
the Security Service are the responsibility of the Chief Ombudsman, but the
military-operated intelligence agencies are the responsibility of another
Ombudsman, who also reviews the Customs authorities.395 A third Ombudsman
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reviews the immigration authorities and the administration of foreign affairs.396
This Ombudsman recently completed an in-depth review of the propriety of the
co-operation and interaction between police authorities and immigration authorities related to the arrest and deportation of a failed asylum-seeker.397
According to the Chief Ombudsman, such division of responsibility among
the four Ombudsmen affords specialization and efficiency. The four
Ombudsmen also meet regularly to share information and discuss cases, especially those involving two or more public authorities. Indeed, to give a more
comprehensive picture for monitoring purposes, the office is considering more
formalized joint, self-initiated reviews of public authorities whose work is integrated or interrelated. The Chief Ombudsman observed that in an increasingly
complex public sector, being able to see a full picture and to share information
is advantageous. On the other hand, he noted that intelligence agencies and
police involved in national security activities need a form of dedicated review
that allows for regular and specialized supervision, which the generalist ombudsman model does not provide.
7.3.1.2
Mandate
The Parliamentary Ombudsmen’s mandate is to ensure that public authorities,
including individuals employed by the civil service or local governments, or
whose work otherwise involves the exercise of public authority, comply with the
law and “fulfil their obligations in other respects.”398
7.3.1.3
Functions
The Ombudsmen carry out their mandate by investigating complaints, conducting self-initiated reviews, and initiating “other inquiries as [they] may find
necessary.”399 They also “contribute to remedying deficiencies in legislation” by
making representations to the legislative or executive branches of government
when an issue arises during the course of their review activities.400 The
Ombudsmen may choose to refer complaints to another authority if they are of
the view that the complaint can be more appropriately investigated and appraised by that authority.401 Indeed, the Chief Ombudsman advised that in most
instances his Office is a complaint institution of complementary recourse.402
The Chief Ombudsman also noted that even though primary complaint investigation is frequently undertaken by other accountability bodies, the complaint-processing function consumes the majority of the Ombudsmen’s
resources.403 As a result, the Office has little time for self-initiated reviews of the
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public authorities within its purview. For example, it normally visits only three
police locations each year, which means that there can be up to 25 years between self-initiated reviews of a particular public authority. In addition, in the
last 15 years, the Office has conducted only two “own initiative” investigations
into the police Security Service,404 and in the last 20 years, no such investigations
of Sweden’s other intelligence agencies.
7.3.1.4
Powers
Under the Swedish constitution, the Ombudsmen have access to the minutes
and documents of any public authority; and these institutions, as well as government officials, must provide Ombudsmen with the information requested.405
This provision is interpreted as allowing the Ombudsmen to access any
information or data, whether classified or not. The Ombudsmen choose which
investigations and reviews they will undertake,406 and may impose fines to secure information.407
The Parliamentary Ombudsmen have various remedial powers. For example, they can offer “opinions” about whether an action by a public official complied with the law,408 or was otherwise erroneous or improper; offer “advisory
statements”; act as special prosecutors and lay criminal charges against public
officials;409 and invoke disciplinary measures, such as salary deductions, suspensions and dismissals.410
7.3.1.5
Reporting
The Ombudmen’s Office submits annual reports to the Parliamentary Committee
on the Constitution, which then files its own written report and notifies the
Parliament.411 The Ombudsmen may also submit special reports to the
Committee, but this power is generally used only to recommend changes to existing legislation. Reports and decisions on the merits of individual cases are immediately made public.
7.3.1.6
Appointment and Composition
The Ombudsmen are elected by the Parliament for renewable, four-year terms.412
No prerequisite qualifications are set out in statute for election to the position
of Ombudsman, but by tradition, Ombudsmen must be acceptable to all political parties in Parliament. Almost without exception, the Ombudsmen have
formerly held high judicial offices, a practice that is intended to secure their in-
363
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dependence and their competence to supervise the legality of the activities of
public authorities.
7.3.2
Other Forms of Review
The National Defence Radio Centre is also subject to review and oversight by
the Defence Intelligence Commission. The Commission consists of six persons,
most of whom are or have been members of Parliament. It reports directly to the
Swedish government. No corresponding review body exists on the civilian side,
notably for the Security Service. There is currently a proposal to appoint a similar standing commission to supervise the use of secret coercive measures such
as wire tapping by all relevant bodies, thus including the Security Service.
8.
UNITED KINGDOM
8.1
OVERVIEW
The law enforcement and security intelligence landscape in the United Kingdom
(U.K.) has undergone considerable change in recent years. A number of statutes
have created new terrorism offences and given national security actors enhanced
powers to investigate terrorism.413 Many covert intelligence-collection activities
have been placed under statutory regulation;414 many police structures have
been reformed;415 an independent body has been established to investigate the
police in Northern Ireland,416 and a new review body for the police has been established for England and Wales.417 The government has increased its national
security funding, including its allotment to law enforcement and intelligence
agencies engaged in counter-terrorism activities.418 It is also monitoring the operation of certain of its counter-terrorism measures through “independent review,”419 and promoting public discussion about the proper balance between
national security and rights and freedoms.420
The United Kingdom does not have a national police force for general law
enforcement.421 Policing is generally carried out by local and specialized police
forces in England, Wales, Scotland and Northern Ireland,422 all of which have a
Special Branch that focuses on covert intelligence work related to national security.423 The U.K. has three principal security intelligence agencies: the Security
Service (known as MI-5), the Secret Intelligence Service (known as MI-6) and the
Government Communications Headquarters.
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Notably, U.K. police forces are subject not only to complaint-based review
bodies, but also to bodies with complaint-based and review jurisdiction over a
set of covert investigative activities, no matter which public sector actor carries
them out.424 Thus, certain U.K. policing activities such as wiretaps and other surveillance activities are subject to review and complaint-based review because of
their covert nature, regardless of the type of investigation.
8.2
LAW ENFORCEMENT AND INTELLIGENCE
As I stated above, the U.K. does not have a national police force for general law
enforcement. In England and Wales, there are 43 local police forces;425 in
Northern Ireland, there is one general police agency, the Police Service for
Northern Ireland, and several specialized or local police agencies;426 and in
Scotland, there are eight police forces.427 The U.K. also has several national
forces with specific mandates.428 The mandate of the U.K.’s local forces therefore necessarily includes national security law enforcement, although the scope
and structure of their national security activities varies depending on the
local circumstance.429
8.2.1
Metropolitan Police Service
The Metropolitan Police Service, which polices the greater London area, plays
the leading role in counter-terrorism investigation by U.K. police. The
Commander of the Metropolitan’s Anti-Terrorist Branch is the national coordinator for the investigation of acts of terrorism. The Branch investigates acts of
terrorism both within its defined policing area and, in conjunction with local
forces, throughout the U.K.430
8.2.2
Special Branch
The Metropolitan Police Service includes a section — comprised of several hundred members — known as the Special Branch.431 Other police forces in the
U.K. also have their own Special Branches.432 According to March 2004
Guidelines issued by the Home Office, the “primary function” of Special Branch
is “covert intelligence work in relation to national security.”433 The Special
Branch is also “available” to local police forces to deploy on duties that include
“the prevention and detection of crime and the ensuring of public safety,” but
the Special Branch “should not be diverted” from its primary function “unless absolutely necessary.”434 “[C]ounter terrorist work . . . is currently the main focus
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of their activity.”435 The Special Branch “assist[s]” and “supports” the intelligencecollection efforts of the U.K.’s security intelligence agencies, in particular the
Security Service (described below) with which it often works in “close cooperation.”436 The Special Branch is staffed by police officers and by civilians.437
8.2.3
Police Service of Northern Ireland
The Police Service of Northern Ireland, formerly the Royal Ulster Constabulary
(RUC), was created in 2001 as a result of recommendations by the Independent
Commission on Policing in Northern Ireland.438 For many years the PSNI/RUC
Special Branch carried out anti-terrorism investigations in policing the conflict
between unionist (Protestant) and republican (Catholic) paramilitaries in
Ireland.439 The Special Branch has now been restructured within PSNI Crime
Operations Department as an intelligence-gathering group.
8.2.4
Serious Organised Crime Agency
The Serious Organised Crime Agency (SOCA) is “an intelligence-led agency with
law enforcement powers.”440 It was created by statute in 2005 and began operating on April 1, 2006.441 SOCA merges the National Crime Squad (NCS), the
National Criminal Intelligence Service (NCIS), the investigation branch of the
U.K. Immigration Service that deals with organized immigration crime, and the
investigative branch of HMRC that deals with drug trafficking and associated
criminal finance.442 It has a mandate to prevent and detect serious organized
crime; to gather, analyze, store and disseminate information on crime; and to
provide support to law enforcement partners, particularly U.K. police forces and
Her Majesty’s Revenue and Customs (HMRC).443 SOCA has taken over the NCIS’
role as the U.K.’s financial intelligence unit, and therefore works to combat terrorist financing and money laundering.444
The Agency is divided into four directorates: intelligence, which gathers
and assesses information; enforcement, which builds criminal cases and provides operational responses to threats; intervention, which focuses on confiscating criminal assets and working with the private sector; and corporate
services, which supports SOCA’s other functions.445 Although its agents have
police-type powers,446 including being able to covertly collect information, SOCA
is a civilian agency.447 It operates in close to fifty locations throughout the United
Kingdom and maintains liaison officers in various foreign countries.448 SOCA anticipates having approximately 4,200 full-time staff in 2006–2007.449
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The U.K. has three principal intelligence agencies: the Security Service, the
Secret Intelligence Service and the Government Communications Headquarters.
The Defence Intelligence Staff, which is a part of the Ministry of Defence, also
contributes security intelligence.
8.2.5
MI-5
The Security Service,450 also known as MI-5, is responsible for domestic security
intelligence. According to its governing statutes, the Security Service’s functions
are “the protection of national security and, in particular, its protection against
threats from espionage, terrorism and sabotage, from the activities of agents
of foreign powers and from actions intended to overthrow or undermine
parliamentary democracy by political, industrial or violent means”; the safeguarding of “the [U.K.’s] economic well-being”; and “support of the activities of
police forces and other law enforcement agencies in the prevention and detection of serious crime.”451 MI-5’s principal means of gathering intelligence are
covert human intelligence sources, directed surveillance, interception of communications and intrusive surveillance.452 The governing statutes contain several limitations on MI-5’s activities, such as the prohibition on its obtaining
information that exceeds its mandate.453 MI-5 has no police powers such as arrest or detention.454
8.2.6
MI-6
The Secret Intelligence Service,455 also known as MI-6, is responsible for foreign
intelligence. Specifically, its functions are to “obtain and provide information relating to the actions or intentions of persons outside the British Islands; and to
perform other tasks relating to the actions or intentions of such persons,” but
only “in the interests of national security, with particular reference to the defence
and foreign policies of [the government]; in the interests of the economic wellbeing of the [U.K.]; or in support of the prevention or detection of serious
crime.”456 Like MI-5, the functions, powers and limitations on powers of MI-6 are
set out in its governing statute.457 Also like MI-5, MI-6 has no police powers.
8.2.7
Government Communications Headquarters and Defence Intelligence
Staff
The Government Communications Headquarters (GCHQ)458 carries out signals
intelligence, in the same interests as MI-6 — national security, national
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economic well-being, and prevention or detection of serious crime.459
The GCHQ’s activities and powers are governed by the same statute as those
of MI-6.460
The Defence Intelligence Staff collect and analyze intelligence generally in
support of the Ministry of Defence, military commands and deployed
armed forces.461
8.3
REVIEW AND OVERSIGHT
The U.K. review landscape differs in England and Wales, Northern Ireland and
Scotland. The 43 local police forces of England and Wales, as well as the U.K.’s
specialized police services with national reach, are subject to the Independent
Police Complaints Commission (IPCC). The Police Service of Northern Ireland
is subject to the jurisdiction of the Police Ombudsman for Northern Ireland.
Complaints against the eight Scottish police forces are currently handled by the
police,462 but a multi-agency and public study of the government’s proposal to
establish “an independent complaints body” is underway.463 I give further details
of my examination of the IPCC and the Office of the Police Ombudsman for
Northern Ireland below.
Police services in the U.K. are also subject to the jurisdiction of Her Majesty’s
Inspectorates of Constabulary, inspection services that report to the responsible
minister on the effectiveness and efficiency of the police forces. Since these inspectorates are a part of the executive branch, and not “independent arm’s
length” agencies, I have not discussed them in detail. However, they formed
part of my examination largely because they appear to have a substantive role
in scrutinizing police activities and policies, including counter-terrorism activities. I set out my observations of these inspectorates, as well as the sources I consulted, in the Commission’s Background Paper and Supplementary Background
Paper on International Models, and I would refer the reader to those papers for
more information.
Police services in the U.K., as well as the intelligence services and numerous other public authorities, are also subject to review by the bodies created by
the Regulation of Investigatory Powers Act [RIPA], a statute that regulates the use
of certain covert investigative methods, no matter which public authority is carrying them out. I have discussed these review bodies in detail below.
Finally, the intelligence services are subject to the Intelligence Services
Commissioner, a body that is dedicated to reviewing only certain of their activities. This body is also established by the Regulation of Investigatory Powers Act,
and I also briefly discuss it below.
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8.3.1
Independent Police Complaints Commission
8.3.1.1
Jurisdiction
All local police forces in England and Wales, as well as the specialized police
forces with national scope, are subject to the jurisdiction of the new Independent
Police Complaints Commission (IPCC) that was established on April 1, 2004.464
The IPCC also has jurisdiction over the enforcement activities of the Customs
service (HMRC)465 as well as complaint-based jurisdiction over all aspects of
SOCA’s activities, including its role as the U.K.’s financial intelligence unit. A
recent government bill will add immigration enforcement complaints to the
IPCC’s jurisdiction.466
The IPCC’s jurisdiction is therefore quite broad, includes diverse law enforcement and accompanying intelligence activities, and comprises many forces
whose activities are integrated. The IPCC advised that it is too early in its existence to comment on whether there are advantages to its ability to observe such
integrated activities.
The IPCC’s role includes reviewing complaints, but it has a broader scope
as well. Law enforcement agencies have a duty to refer serious incidents, injuries
and deaths to the IPCC, even where there is no complaint or indication of misconduct. Finally serious allegations of misconduct not involving complaints also
have to be referred. It is then up to the IPCC to decide how these will be investigated, including the possibility that the IPCC will itself investigate.
With respect to immigration enforcement, the IPCC’s jurisdiction will be directed primarily at reviewing complaints about arrest and detention in the context of arrest. The IPCC’s terms of reference are also expected to extend to
handling complaints concerning powers of entry, powers of search and seizure,
powers to examine and otherwise obtain information or personal data, and powers related to removing persons from the United Kingdom.467 Similarly, the IPCC
has jurisdiction over the arrest and short-term detention powers of Customs officials. Again, the IPCC’s jurisdiction is focused on the exercise of police-type
powers; its terms of reference do not extend, for example, to taxpayer complaints about HMRC’s Inland Revenue functions.468 Both HMRC and the
Immigration Service enforcement branch have intelligence capabilities, and the
IPCC has the power to review intelligence activities in the context of an investigation into the use of enforcement powers. With respect to both agencies, the
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IPCC will focus on investigations regarding potential incidents of gross or criminal misconduct.
The IPCC’s jurisdiction over all police forces and other authorities in
England and Wales is independent of whether or not such bodies are engaged
in national security investigations.469 Indeed, the police forces have agreed to
refer to the IPCC any complaints they receive about the use of their counter-terrorism powers.470 The IPCC has a number of people with the requisite security
clearance to access and review national security information, and it has proper
storage and viewing facilities.
Overlapping Jurisdiction: Co-operation With Other Accountability Bodies
The IPCC’s jurisdiction overlaps with a number of other public authorities, including access-to-information and human rights authorities, and numerous commissions and ombudsmen. Where a matter or course of conduct that has been
called into question has involved more than just police forces, the IPCC has
sometimes engaged in joint investigations with other accountability bodies. For
example, it has worked with the Prisons and Probation Ombudsman and the
Healthcare Commission on certain matters. A “statutory gateway”471 was also recently created to allow for information exchange and co-operation between the
IPCC and the Parliamentary Ombudsman, both of which have review jurisdiction over certain aspects of the new Revenue and Customs department.472 That
is, the IPCC and the Parliamentary Ombudsman “may disclose information to
each other for the purposes of the exercise of” their respective mandates, and
“may jointly investigate” certain matters.473 A similar statutory gateway has been
proposed to allow the Parliamentary Ombudsman and the IPCC to disclose information to one another and where necessary conduct joint investigations related to immigration enforcement complaints.474
Statutory gateways have been devised in the U.K. to address overlapping
jurisdiction, the potential for duplication and the diminished observation and
accountability that can result when multiple review bodies have “silo” vision.
Among other things, statutory gateways allow “data sharing” between public
bodies, and the Department for Constitutional Affairs has published guidance
on the applicable laws, and the protocols that various bodies can establish.475
Data sharing can include national security information, provided applicable rules
are respected.
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8.3.1.2
Mandate
The IPCC is charged with securing and maintaining a “suitable” system for handling complaints made about police conduct. This mandate includes securing
“public confidence” in the system.476 The IPCC is also charged with making
recommendations about “police practice” that appear “necessary or desirable,”
and with specifically “recording” (i.e., investigating) police conduct that
may have involved committing a criminal offence or that may justify disciplinary proceedings.477
8.3.1.3
Functions
This mandate is carried out through the IPCC’s complaint-handling and
complaint-monitoring functions, as well as its authority to “record” or “call in”
matters for investigation in certain circumstances.478 The IPCC also has the authority to issue “guidance” to police forces regarding its handling of complaints
and recordable conduct, and its detection or deterrence of misconduct by police persons.479
The IPCC advises that it does not investigate or review 95 percent of the
complaints filed concerning police activity. Rather, these complaints are filed
with, referred to and/or investigated by the police and/or the respective Police
Authority.480 However, the IPCC retains the right to supervise or manage an investigation, or to conduct the investigation itself. Complainants may also appeal
investigation results to the IPCC.481
The IPCC’s investigations often intersect with or parallel police investigations, including national security investigations. While there are practical issues
to address, such as access to evidence that both bodies require, so far each body
involved has been able to carry out its own mandate without interfering in the
other’s. Statutory guidance was recently issued to help determine when the IPCC
or the police should suspend complaint-investigations because of a risk of prejudice to a proceeding.482 Complaint investigations may be postponed, for example, when the issues at the centre of the complaint are similar or identical to
the issues before a court in a criminal proceeding.483
The IPCC has a duty to disclose all relevant material to the Crown
Prosecution Service,484 which in turn must disclose the material to the defence
if it proceeds with a prosecution.485 Where the IPCC has not conducted an investigation leading to the criminal proceeding, however, it does not have any
automatic disclosure obligations.486 The Crown Prosecution Service may seek a
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court order requiring the IPCC to produce documents487 where the Crown reasonably believes that the material may undermine the prosecution case or assist
the case for the accused.488 The Crown may choose not to seek third-party disclosure of sensitive information, however, if the public interest would justify
withholding the information.489 To date, the IPCC has granted the Crown
Prosecution Service access to such material, but the Crown has not sought
court-ordered disclosure. To preserve its independent position, the IPCC likely
would require a Court order before making disclosure and might resist on the
basis of public interest principles.
8.3.1.4
Powers
The IPCC is entitled by statute to access any information in the possession of the
police,490 and has powers of entry, search and seizure in relation to police premises.491 Once a complaint is made or a conduct matter comes to notice, the affected police authority has a legal duty to secure all relevant evidence.492 Police
authorities and forces must turn over documents to the IPCC at “the earliest time
at which it is practicable,” and they may decline to do so “at all in a case in
which it never becomes practicable.”493 The IPCC advises that this provision has
not yet been tested, and that it has thus far received all documentation that it
has requested.
To date, the IPCC has not had difficulty accessing information that it required on national security files, including information subject to third-party
caveat. However, in practice, it has yet to require access to information that a
third party did not want released. The IPCC investigation has also conducted investigations into “highly sensitive” police corruption allegations in which the
police expressed concern that the sensitive information and investigation be
handled appropriately, but did not object to its disclosure or use. The IPCC can
interview individuals and collect evidence from other government agencies and
private individuals. While the IPCC can demand any information or documents
from police and other agencies subject to its jurisdiction, it cannot compel documents from agencies outside of its jurisdiction. However, its investigators have
all the powers of police officers. Therefore, if an IPCC investigation involves a
criminal aspect, then those investigators could obtain search warrants to seek
any necessary evidence.
The IPCC does not have the power to make binding conclusions; it can only
recommend the appropriate discipline or other action that should be taken.494
It is also obliged to notify the Director of Public Prosecutions when an investigation report indicates that a criminal offence may have been committed.495
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8.3.1.5
Reporting
The IPCC files annual reports with the Secretary of State, as well as reports
containing advice and recommendations, and such other reports as the IPCC
considers appropriate on matters that it believes “should be drawn to [the
Secretary of State’s] attention by reason of their gravity or of other exceptional
circumstances.” Annual reports are laid before Parliament, and other reports
are laid before Parliament if the Secretary of State “considers it appropriate to
do so.” Copies of annual reports are also provided to the police forces and
police authorities; and copies of other reports are provided to relevant chiefs
and authorities.496
Copies of complaint-investigation reports must be delivered to the relevant
chief police officer and police authority.497 The IPCC also has a duty to keep certain persons, including complainants, “properly informed” about the handling of
a complaint or recordable conduct matter.498 It has a duty to advise such persons about the findings of an investigation report, including any recommendations and any action taken by a police authority as a result.499 These duties are
subject to Secretary of State regulations precluding disclosure of information on
various grounds, including national security, the prevention or detection of
crime, the premature or inappropriate disclosure of information relevant to
prospective criminal proceedings and public-interest necessity.500
8.3.1.6
Appointment and Composition
The IPCC consists of “a chairman appointed by Her Majesty,” and not fewer
than ten other members appointed by the Secretary of State501 as either parttime or full-time members.502 IPCC’s members cannot be police officers or former officers.503 The chair and the members are appointed for a term of up to five
years, and are eligible for re-appointment.504 There are no statutory prerequisite
qualifications for appointment.
8.3.2
Police Ombudsman for Northern Ireland
8.3.2.1
Jurisdiction
The Police Ombudsman for Northern Ireland has jurisdiction over police forces
in Northern Ireland, including the Police Service for Northern Ireland (PSNI)
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and several other local or specialized police forces.505 The Police Ombudsman
will also shortly have jurisdiction in Northern Ireland over certain aspects of Her
Majesty’s Revenue and Customs department,506 and the Serious Organised Crime
Agency (SOCA — described above in section 8.2.4). The Ombudsman will also
have jurisdiction over criminal and other serious allegations against the
Immigration Service.
The Ombudsman’s jurisdiction therefore includes the PSNI’s counter-terrorism activities. The Ombudsman observed that in her experience, there is little distinction in Northern Ireland between national security law enforcement
and other law enforcement, and suggested that it would be difficult to draw a
line between them for review purposes. In the Northern Ireland experience, terrorist groups carry out all manner of ordinary crimes — fuel smuggling, bank
robberies, cigarette smuggling, drug smuggling and petty crimes, for example —
the proceeds of which are often used to fund terrorism. Investigations routinely
involve several sections of the police force, including the counter-terrorism section. The counter-terrorism section (previously the Special Branch) had and continues to have no investigation function. Investigations are carried out by the
PSNI’s criminal investigations department.
8.3.2.2
Mandate
The Police Ombudsman for Northern Ireland is mandated to investigate matters
of police conduct that are the subject of a public complaint, and/or that may
have involved the commission of a criminal offence or may justify disciplinary
proceedings, and/or may be in the public interest to investigate.507 The
Ombudsman is also required to investigate matters referred to her by the
Secretary of State, the Northern Ireland Policing Board and the Director of the
Public Prosecution Service. She can also investigate matters because she considers it in the public interest to do so. The Ombudsman is not permitted to investigate complaints relating to the “direction and control” of police forces,508 but
can investigate a “current practice or policy of the police” if she has reason to
believe that it would be in the public interest to do so.509
8.3.2.3
Functions
Complaints
The Ombudsman’s office carries out primarily a complaint-handling and criminal- and disciplinary-investigation function. The Ombudsman has the statutory
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power to refer a complaint to the Chief Constable of the relevant police force.510
If the Ombudsman refers a complaint to the police for investigation, she may supervise such investigation and approve the person charged with carrying it
out.511 However, the Ombudsman has made a policy decision that no complaints
will be referred back to the police for investigation, and hence the Ombudsman’s
office, rather than the PSNI, investigates all complaints requiring investigation.
The Ombudsman’s office advises that it frequently investigates PSNI conduct concurrently with the PSNI’s criminal investigations, including terrorism investigations, into the same or related events. At times, the Ombudsman’s office
and the PSNI both require access to the same evidence, and must negotiate such
access as the investigations run parallel. On occasion the Ombudsman has taken
primacy of an alleged crime scene.512 The Ombudsman also conducts independent investigations where there is an allegation of police officer involvement in terrorism.
While investigations may run parallel, the Ombudsman’s office does not
generally comment on the investigation while it is still active, but only after the
fact. If a prosecution is ongoing during the Ombudsman’s investigation, the
Ombudsman’s office will generally consult with the Director of Public
Prosecutions regarding any potential impact, and where necessary, will delay
publication of the investigation findings.
If the Ombudsman’s office finds potentially exculpatory evidence during
its investigation, its practice is to disclose it.513 The question of whether the
Ombudsman would disclose potentially exculpatory, but “classified” evidence recently arose. The Ombudsman dealt with the matter as required by law, which
involved making a disclosure application to a judge separate from the judge
who would preside over the criminal prosecution.
The Ombudsman’s office also has a duty to provide the police with information it has that indicates that a person may have committed an arrestable offence, if the information is likely to secure the arrest or conviction of a person.514
The Ombudsman’s office interprets this obligation strictly; to do otherwise would
undermine public confidence in the Office, since its role is not to assist the prosecution of its complainants.
Matters may also be referred to the Ombudsman by the Secretary of State,
the Northern Ireland Policing Board (the equivalent of the police authorities in
England and Wales) or the Chief Constable of the police, if any of these authorities believe it is in the public interest to do so.515 Similarly, the Ombudsman
may “of his own motion” investigate certain matters.516
The PSNI has consulted the Ombudsman on guidelines and policies, and
the Ombudsman has provided advice in these circumstances. In the
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Ombudsman’s view, such measures can help avoid questionable activity or complaints later, and are thus worthwhile.
8.3.2.4
Powers
The governing statute for the Office of the Ombudsman does not restrict the
Ombudsman’s access to documents and information from the PSNI and the
Policing Board. It states that they must provide “such information and documents as the Ombudsman may require.”517 The Ombudsman advised that she
therefore has access to caveated information provided to the PSNI by third parties, including foreign agencies. However, the Ombudsman can not compel information agencies or persons other than the PSNI and the Policing Board. This
issue has been raised in the context of PSNI activities integrated with other domestic agencies, including the armed forces. There has been some discussion of
whether the Ombudsman should have access to information from those other
bodies to fulfill its mandate.518
The Ombudsman also has all the powers of a police officer, including the
powers of search, seizure and arrest,519 and has used the arrest power on several occasions.
Following her investigations, the Ombudsman may refer a matter, with recommendations, to the Director of Public Prosecutions for Northern Ireland when
she believes a criminal offence may have been committed. The Ombudsman
may also refer a matter to the “appropriate disciplinary authority,” with reasons
and recommendations, when she believes that disciplinary proceedings should
be brought. The Ombudsman may also direct the Chief Constable to bring disciplinary proceedings. This is the only binding remedial power of the
Ombudsman’s office.
8.3.2.5
Reporting
The Ombudsman submits annual and five-year reports to the Secretary of State,
who lays such reports before both Houses of Parliament. The Ombudsman also
reports to the Secretary of State on matters the Secretary of State may request or
on matters the Ombudsman may determine to be of public interest. These reports must also be laid before both Houses of Parliament. Copies of all such reports are also provided to the Policing Board and the Chief of the PSNI.520 The
Ombudsman must report to the Secretary of State, the Northern Ireland Policing
Board and the Chief Constable on any matter that those bodies have referred or
that she has “called in” for investigation.
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Although there is no statutory obligation to report on a matter to a complainant, the Ombudsman may publish statements on any actions or decisions
her office has taken, including the reasons for such actions or decisions.521 All
complainants receive a reasoned letter explaining the outcome of any investigation of the complaint that the complainant has made.
The Ombudsman also must report to the Chief of the PSNI and to the
Police Board, and in some circumstances to the Secretary of State for Northern
Ireland, on any matters concerning police practices and policies that she
has investigated.522
8.3.2.6
Appointment and Composition
The Ombudsman is “appointed by Her Majesty” to serve on a part-time or fulltime basis for a period of seven years, or for a period ending on the date on
which the person turns 70, whichever is shorter.523 There are no statutory prerequisite qualifications for appointment and no eligibility for reappointment.524
8.3.3
RIPA Authorities
8.3.3.1
Jurisdiction
In 2000, the U.K. passed the Regulation of Investigatory Powers Act (RIPA). The
Act sought to regulate and review the use by public authorities of certain covert
investigative activities such as wiretaps, surveillance and use of human
sources.525 It allows for approval of such activities by persons other than judges,
such as senior officials of the respective agencies or the Secretary of State, but
requires review of certain aspects of the activities by a designated high court
judge or former judge. It also provides a regime for handling public complaints
about the prescribed activities.
The statute applies regardless of which public authority is carrying out the
investigative activity, although it regulates certain authorities differently than others.526 It applies no matter how the objective of the investigative activity is described, whether conventional law enforcement, national security law
enforcement, criminal intelligence, security intelligence or regulatory enforcement, for example.
RIPA therefore establishes a function-based monitoring regime in which the
use of certain investigative activities is variously regulated, depending on which
agency carries out the activities; and in which investigative activities are
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reviewed by corresponding review bodies. Generally stated, the review-body
regime is as follows:
•
•
•
•
•
Interceptions of communications are inspected by the Interception of
Communications Commissioner (ICC), regardless of which of the
approximately 100 authorized agencies conducted the actual interception.527
Acquisitions and disclosures of data about the medium, location, time, etc.
of communications — but not about the content — by more than 800 authorized agencies are reviewed by the ICC.528
Covert-surveillance and human-source activities are inspected by the Chief
Surveillance Commissioner. In some cases, these activities are approved
prior to their use, either by the Surveillance Commissioners where law enforcement and other agencies carry them out, or by the Intelligence Services
Commissioner (ISC) where the intelligence services carry them out.529
Investigations of encrypted data will be inspected by the Office of
Surveillance Commissioners (OSC), once that part of RIPA comes into
force.530
Complaints regarding any of these activities are investigated and adjudicated by the Investigatory Powers Tribunal (IPT).531
The Interception of Communications Commissioner stated that he saw an
advantage in a function-based monitoring regime. It allowed him to develop an
expertise in one particularized aspect of covert activity, and to avoid the risk of
“capture” by any one agency because he inspected the activities of so many. He
stated that this system worked largely because his review mandate was limited
to a small number of activities, that is, he was not charged with comprehensive
review of the numerous public agencies within his jurisdiction.532
8.3.3.2
Mandate and Functions
The RIPA authorities generally monitor compliance with the statute’s conditions
for authorization and use of the prescribed covert investigative activities, as they
are expressly mandated to do by statute. That is, their respective mandates, with
the exception of the Office of Surveillance Commissioners,533 do not exceed the
limited review activities — and in some cases approval activities — that are expressly set out in the statute.
For example, Part I, Chapter I of RIPA sets out, among other things, the
conditions for authorizing a wiretap. Such conditions may include necessity and
proportionality; the persons who may apply for and issue warrants authorizing
the wiretap; the contents of an application for such a warrant; or restrictions on
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the use of the information procured from the wiretap.534 The Interception of
Communications Commissioner is charged with limited review of these statutory
requirements; for instance, he personally reviews intercept warrants to determine whether the authorization, warrant-content and warrant-renewal requirements were met. However, he does not have the authority to inspect a police
or intelligence service’s activities more generally to address questions such as
whether an agency is undertaking prescribed activities without lawful authorization, whether the information-gathering that preceded the warrant application was undertaken lawfully, or whether the agency is complying with
information-sharing rules or is undertaking activities that exceed its mandate.535
The Interception of Communications Commissioner has a small staff and a
secretariat shared with other RIPA bodies. The Commissioner personally reviews
intercept warrants through biannual reviews, spending approximately a halfday at each agency. A team of inspectors, consisting of one Chief Inspector and
five inspectors, reviews the use of “communications data” (data about the
medium, location, time, etc., rather than the content, of the communication) by
over 800 public authorities.
The Office of Surveillance Commissioners, which has approximately 950
public authorities under its purview,536 consists of the Chief Surveillance
Commissioner, six part-time commissioners, three part-time assistant commissioners and seven full-time inspectors. The Office visits each of the law enforcement agencies within its purview once a year for a period of several days,
and each of the other public authorities within its purview for approximately one
day every two to three years.
As I noted above, RIPA established a separate body — the Investigatory
Powers Tribunal — to address public complaints about the prescribed covert activities. While the review and complaint-processing functions are thereby separated by RIPA, the statute requires that the various review bodies give the
Tribunal “all such assistance” as it may require in carrying out its mandate.537 The
Tribunal advises that it has not yet had recourse to this provision, though it has
access to certain information by virtue of its shared secretariat with the ICC and
the ISC.
The IPT has received hundreds of complaints since it was established. At
the time of writing, no complaint had been upheld.
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8.3.3.3
Powers
The public agencies that are subject to RIPA have an obligation to provide “all
such documents and information as [the RIPA authorities] require for the purpose
of enabling [them] to carry out [their] functions.”538
In addition to its power to compel documents, the Investigatory Powers
Tribunal may conduct proceedings related to the complaints it receives.539 It has
the power to make “any such award of compensation or other order as [it]
think[s] fit,” including the quashing of warrants or authorizations, and the destruction of records.540 Appeals from orders of the Tribunal are available in certain circumstances.541
Unlike the IPT, the other RIPA authorities do not have the authority to issue
binding orders.542 Where they find a breach of the statute, they report it as described below.
8.3.3.4
Reporting
The Chief Surveillance Commissioner, the Interception of Communications
Commissioner and the Intelligence Services Commissioner submit annual reports to the Prime Minister, who lays these reports before Parliament, with the
exception of any information that the Prime Minister, in consultation with the
ICC or Chief Commissioner, deems “prejudicial” to national security or other defined interests.543
The ICC and the ISC also submit reports to the Prime Minister on other matters as they see fit. The ICC submits reports to the Prime Minister on any
breaches of the statutory provisions within his purview and on any inadequacy
that he identifies in arrangements by public agencies for compliance with the
statute.544 The Chief Surveillance Commissioner is also charged with reporting
on certain appeal determinations that he makes.545
The Investigatory Powers Tribunal submits reports to the Prime Minister
only where it makes findings “in favour of” a complainant and any determinations relating to “any act or omission” or authorization by the responsible
Minister.546 The Tribunal does not file annual reports with the Prime Minister
and is prohibited from reporting anything to a complainant other than “a statement” that a determination has been made in the complainant’s favour.547
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8.3.3.5
Appointment
The Interception of Communications Commissioner, the Intelligence Services
Commissioner, and the Surveillance and Assistant Surveillance Commissioners
are appointed by the Prime Minister, and must hold or have held high judicial
office.548 The Prime Minister announces these appointments in Parliament.
Investigatory Powers Tribunal members each receive a Letter Patent signed by
the Queen confirming their appointments.549 The IPT President must hold or
have held high judicial office; ordinary IPT members have the same prerequisite or can be lawyers with at least 10 years’ experience.550
The Surveillance Commissioners are appointed for a term of three years,551
and the IPT members for five years.552 All are eligible for reappointment. There
is no statutory restriction on the length of term for which the ICC and the ISC
may be appointed.
9.
UNITED STATES
9.1
OVERVIEW
A number of agencies in the United States are involved in national security. The
principal civilian agencies are the Central Intelligence Agency (CIA),553 which is
responsible for gathering foreign intelligence; the Federal Bureau of Investigation
(FBI),554 which handles domestic security; and the Department of Homeland
Security (DHS),555 which deals with immigration, border protection, customs and
critical infrastructure. The State Department also has a Bureau of Intelligence
and Research, which relies on all-source intelligence to create intelligence assessments, and generally analyzes and applies intelligence information to further
U.S. diplomatic interests.556 The Department of Defense (DoD) has its own large
intelligence apparatus,557 including responsibility for the National Security
Agency (NSA),558 which intercepts electronic and other signals.559
The principal accountability mechanisms for the FBI, the DHS, the CIA and
the DoD are their respective offices of inspectors general and congressional
oversight committees. By statute, Civil Liberties Protection officers have also
been created within the DHS and the Office of the Director of National
Intelligence. I have not set out information about the congressional committees
in this chapter, but the reader may consult the Background Paper on
International Models for more information.560 I have discussed the offices of the
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inspectors general at some length below, even though they are not formally at
arm’s length from the bodies over which they have jurisdiction, because I believe that they offer various features worthy of mention.561
At the time of writing, the national security landscape in the United States
is in a state of flux. The FBI, the CIA and the DHS are reorganizing their intelligence capabilities in response to the final report of the 9/11 Commission,562 the
Intelligence Reform and Terrorist Prevention Act of 2004,563 and the final report
of the Commission on the Intelligence Capabilities of the United States Regarding
Weapons of Mass Destruction.564 The military intelligence apparatus has also
been affected by these initiatives. These changes follow a major bureaucratic reorganization effected by the Homeland Security Act of 2002 and a significant expansion of government surveillance powers in the USA PATRIOT Act of 2001.565
The U.S. president also authorized warrantless interceptions of communications
to or from persons within the U.S., which has generated controversy.566
There is a strong movement at the federal level toward consolidating national security intelligence expertise and increasing information sharing between
agencies. The newly created Office of the Director of National Intelligence has
been mandated to lead this effort. The National Counterterrorism Center, created
in 2004,567 was recently transferred to the Director of National Intelligence to integrate the anti-terrorism capabilities of different agencies.568
9.2
LAW ENFORCEMENT AND SECURITY INTELLIGENCE
9.2.1
The Office of the Director of National Intelligence
In December 2004, American intelligence services were reorganized by the
National Security Intelligence Reform Act of 2004.569 Before this reform, the
Director of Central Intelligence coordinated the American Intelligence
Community570 and served as the Director of the Central Intelligence Agency.
Under the new act, primary responsibility for coordinating and managing national intelligence activities lies with the Director of National Intelligence (DNI),
to whom the Director of the CIA reports. The DNI has also replaced the Director
of the CIA as the chief intelligence advisor to the President and Congress on matters of national security.571
The DNI has direct authority over the CIA,572 and must ensure that the
Agency complies with law and the Constitution.573 As a result of his or her
role in determining the intelligence community’s budget574 and priorities,575
the Director also has indirect oversight and tasking authority over the other
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14 agencies. In addition, the DNI has some power over staffing arrangements576
and training programs577 for the intelligence community as a whole. Acting
through the various host departments, the Director must ensure that these
14 agencies are acting legally.578
9.2.2
Federal Bureau of Investigation
The FBI is a branch of the Department of Justice and is established by statute.579
It has over 30,000 employees,580 and is responsible for regular policing of matters within federal jurisdiction, as well as internal national security matters.581
The FBI recently created a special National Security Branch, consolidating
the Bureau’s counter-terrorism, counter-intelligence and intelligence functions.582
It has four sections: the Directorate of Intelligence, the Counterintelligence
Division, the Counterterrorism Division and the Weapons of Mass Destruction
Directorate.583 One of the objects of the National Security Branch is to integrate
the FBI’s counter-terrorism and counter-intelligence investigative and operational
capabilities with its intelligence capabilities.584
The Directorate of Intelligence is established under statute and has responsibility for supervising all domestic intelligence activities.585 The Directorate
collects intelligence information and receives information from the CIA and foreign partners. It then analyzes and distributes this information within the FBI,
and in some circumstances to state and municipal law enforcement and other
federal agencies.586 The Counterintelligence Division is the principal counterespionage agency within the United States. It aims to prevent penetration of
U.S. intelligence services or government agencies by foreign powers; and stop
the unauthorized acquisition of critical American classified information systems
and technology.587 The Counterterrorism Division focuses on preventing and
disrupting terrorism. Within the Counterterrorism Division, the FBI operates a
Terrorism Financing Operations section to combat terrorist financing networks.
The Division participates in over 100 Joint Terrorism Task Forces, where local
police, FBI, CIA and other government officials work in integrated teams.588
Finally, the Weapons of Mass Destruction Directorate is a more recent addition
to the National Security Branch, created in order to consolidate the FBI’s
Weapons of Mass Destruction components.589
9.2.3
Department of Homeland Security
The Department of Homeland Security was created by the Homeland Security
Act of 2002.590 The Act merged 22 separate agencies, including the law
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enforcement divisions of the former immigration and customs services. The DHS
has approximately 183,000 employees.591
The DHS is responsible for enforcing a wide range of U.S. laws and regulations. These law enforcement functions are divided among several DHS agencies, including U.S. Customs and Border Protection, which is responsible for
enforcing immigration and customs laws at and between U.S. ports of entry; the
U.S. Immigration and Customs Enforcement, which enforces U.S. immigration
and customs laws relating to the movement of people and goods, including
those that threaten national security; the Transportation Security Administration,
which protects U.S. transportation systems, including airports; the U.S. Coast
Guard, which is a military maritime service that protects U.S. interests in ports,
waterways, coastal and international waters, and maritime regions; and the U.S.
Secret Service, which protects senior government officials, including the
President, and investigates threats against such persons.
Most DHS agencies have an internal intelligence organization that supports
their specialized operational and investigative needs. However, two elements
within the DHS are formally designated members of the U.S. intelligence community: the Office of Intelligence and Analysis (formerly part of the Information
Analysis and Infrastructure Protection Directorate), which is the principal national security intelligence organization within the DHS;592 and the National
Intelligence Element of the U.S. Coast Guard.593
9.2.4
Central Intelligence Agency
The CIA, which was created by the National Security Act of 1947,594 is the principal American foreign intelligence agency.595 The number of employees of the
CIA is not publicly disclosed.596
The CIA is responsible for:
•
•
•
•
collecting intelligence through human sources and other appropriate means;
correlating, evaluating and disseminating national security intelligence;
providing overall direction and coordination of American foreign intelligence activities; and
performing other duties or functions related to national security or intelligence, as directed by the President of the United States or the Director of
National Intelligence.597
The CIA has no “police, subpoena, or law enforcement powers or internal
security functions.”598 The recent creation of the National Clandestine Service
within the CIA has expanded its human intelligence role. The National
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Clandestine Service will be responsible for coordinating, integrating and evaluating human intelligence across the U.S. intelligence community.599
9.2.5
600
National Security Agency
In the words of its official website, the mission of the National Security Agency
“is to intercept and analyze foreign adversaries’ communications signals.”601 The
NSA is the U.S. cryptologic organization — the code-makers and code-breakers.602 The Agency is the responsibility of the Department of Defense,603 and
forms part of the U.S. intelligence community. It was created by a presidential
secret memorandum in 1952604 and given a statutory basis in 1959.605 The
Agency’s foreign intelligence collection mandate is regulated by the Foreign
Intelligence Surveillance Act (FISA),606 which deals with the interception of communications of persons with the United States, and by a 1981 presidential executive order that deals with intelligence collection of communications outside
the United States.607
The NSA intercepts, decrypts and analyzes communications signals.608 It
may intercept only communications relating to foreign intelligence and counterintelligence.609 To intercept the communications of persons within the United
States who are believed to be agents of a foreign power — including terrorist
suspects610 — the NSA requires a judicial warrant issued by the Foreign
Intelligence Surveillance Court.611 Following the September 11, 2001 terrorist attacks, the U.S. president authorized the NSA to intercept without such a warrant
certain communications involving U.S. persons.612 Although the Inspector
General of the NSA has reviewed the program,613 the legality of the President’s
authorization remains unclear614 and the Senate Judiciary Committee is currently
investigating the program.615 The House of Representatives Permanent Select
Committee on Intelligence also recently announced its plan to increase oversight
of the NSA program.616
The NSA’s signals intelligence supports both civilian and military decision
making within the United States government.617 The Agency is also responsible
for protecting U.S. government and other technological communications systems, including“reporting, and responding to cyber threats [and] making
encryption codes to securely pass information between systems.”618 Finally, the
NSA conducts a significant amount of technological research and development
to protect American communications systems and enhance American technological communications abilities.619 The number of employees of the NSA is not
publicly disclosed,620 but it is known to be one of the largest U.S. intelligence agencies.621
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9.3
REVIEW AND OVERSIGHT
National security agencies in the United States are reviewed by congressional
oversight committees, the statutory and non-statutory inspectors general of the
various agencies, and in some cases by internal, but statutorily created, Civil
Liberties Protection officers. Inspectors general are formally part of the respective departments or agencies in which they operate, and are subject to the general supervision of the head of that department or agency. However, the
governing statute for inspectors general, the Inspector General Act of 1978,622
contains many provisions that provide some independence for the IGs. These
include requirements for selection without political affiliation; prerequisite criteria relating to fields of expertise; complete access to records and deliberations
of the relevant department or agency; public reporting; and dismissal by the
U.S. president only, who must report to Congress on the reasons for removal.
On this basis, and since I believe several other features of the IGs’ review tasks
are relevant to my mandate, I have discussed the inspectors general in some detail below. I have also provided a brief description of the Civil Liberties
Protection officers created in the Department of Homeland Security and the
Office of the Director of National Intelligence.
9.3.1
Inspectors General
9.3.1.1
Jurisdiction
The Inspector General Act623 and other statutes624 establish inspector general offices for a number of federal public authorities. Each Office of the Inspector
General has jurisdiction over a defined department or agency; the jurisdiction of
each Inspector General is therefore agency-based.
Within each department or agency over which an IG has jurisdiction, there
may be many well-established component organizations. For example, the jurisdiction of the Inspector General of the Department of Justice (IG DOJ) includes the FBI; the jurisdiction of the Inspector General of the Department of
Homeland Security (IG DHS) includes American customs, immigration and transportation security authorities, along with a number of other constituent divisions;625 and the jurisdiction of the Inspector General of the Department of
Defense (IG DoD) covers all defence intelligence agencies, including the
National Security Agency and its non-statutory Inspector General.626 An IG’s
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jurisdiction can be vast. For instance, the purview of the IG DHS is 183,000 DHS
employees; and the IG DHS has approximately 525 staff.
The Central Intelligence Agency has its own statutory IG (IG CIA).627 The
Director of National Intelligence has established a statutory inspector general
for the Office of the Director of National Intelligence.628 The U.S. State
Department also has a statutory inspector general,629 which recently reviewed
the Department’s Bureau of Intelligence and Research.630
The IG DOJ noted in discussion with Policy Review legal counsel that review jurisdiction over only one body — the DOJ — although internally varied,
allows the development of critical institutional knowledge and expertise. In his
view, U.S. government departments and agencies are too big and too complex
to allow for a workable and effective inspector general model with jurisdiction
over all government actors involved in national security and intelligence. The IG
DHS and the IG CIA shared this view.631
Integrated Activities
The IG DHS stated that it was important to have other agencies with “cross-executive jurisdiction” over certain specialized matters, such as the Government
Accounting Office, the Office of Management and Budget, and the Office of
Information Security.
Under the Inspector General Act, inspectors general are specifically mandated to conduct, coordinate and supervise relationships with other government
agencies in order to promote economy and efficiency, prevent fraud and abuse,
and identify and prosecute participants in fraud or abuse.632 The IG DOJ, IG
DHS, IG DoD and the State Department IG may request information or assistance from any federal, state or local government agency or entity.633 The IG CIA,
with the approval of the Director of Central Intelligence, may request information or assistance from any federal government agency.634 All statutory inspectors general are also members of the President’s Council on Integrity and
Efficiency,635 while inspectors general appointed by the heads of various agencies are members of the Executive Council on Integrity and Efficiency.636 These
councils provide training and support to IGs, including in relation to issues that
cut across different departments.637 In the national security field, the IGs have
also established an Intelligence Community Inspectors General Forum to bridge
areas of responsibility and determine whether there are common themes or matters requiring joint investigative action.638
The IGs of the DOJ and the DHS noted that co-operation and information
sharing between review bodies is necessary and desirable, in particular to address increasing integration. The IG DHS gave the example of the Homeland
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Security Operations Center and the Joint Terrorism Task Forces, which are either under DHS auspices or include DHS elements. For these reasons, the inspectors general often jointly investigate matters that touch on two or more areas
of responsibility, either at their own initiative or as directed by Congress.
The IG DOJ also emphasized that some form of comprehensive observation
of the full picture of national security agency action and interaction is necessary.
In the U.S., this role is played by congressional committees, which receive semiannual reports and hear testimony from all statutory inspectors general. I have
been told that the emerging role of the Inspector General for the Office of the
Director of National Intelligence may also fill this need.
9.3.1.2
Mandate
The inspectors general review their respective agencies for economy, efficiency
and propriety.639 This includes review for compliance with the U.S. Constitution,
statutes, executive orders, internal directives, policy and procedure.640
Since the passage of the PATRIOT Act in 2001,641 the IG DOJ must also designate an official to “review information and receive complaints alleging abuses
of civil rights and civil liberties by Department of Justice employees”; take measures to publicize this mandate; and submit semi-annual reports to Congress on
its fulfillment of this mandate. The IG DHS also has a detailed civil rights and
civil liberties accountability mandate,642 but does not have an explicit mandate
to handle civil liberties complaints.
9.3.1.3
Functions
To fulfill their mandates, the inspectors general conduct financial audits;643
process complaints;644 and carry out investigations645 at their own initiative,646
at the request of the head of their respective agencies or at the request
of Congress.647
Other statutory functions of the IGs include reviewing relevant legislation
to assess its impact on efficiency, and on the prevention and detection of abuse
in programs and operations; and recommending policies, and conducting, supervising or coordinating other activities to improve efficiency and to prevent
and detect abuse in programs and operations.648
Further, IGs often have functions that are specific to the agency under their
purview.649 For example, a core function of the IG DOJ is to investigate criminal wrongdoing by department employees, and complaints and other matters of
“urgent concern” reported by FBI members or contractors.650
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Investigations
Investigations can be carried out jointly with other IGs, and they can be complex and multidisciplinary. For example, the U.S. National Commission on
Terrorist Attacks Upon the United States (9/11 Commission) requested that inspectors general of the relevant departments and agencies
conduct investigations and reviews as necessary to determine whether and to
what extent personnel at all levels should be held accountable for any omission,
commission, or failure to meet professional standards in regard to the identification, prevention, or disruption of terrorist attacks, including the events of
September 11, 2001.651
The Inspector General of the Department of Justice recently completed a
report on the FBI’s incorrect identification of an American citizen in connection
with the Madrid bombings and the suspect’s subsequent imprisonment.652
The investigation included a detailed examination of the FBI’s fingerprint
identification processes, as well as the Bureau’s interaction with Spanish
National Police. The Mayfield report highlights the need for extensive law
enforcement expertise in a body that reviews national security policing.
Ultimately, many of the report’s conclusions about the propriety of the investigation turned on the IG’s evaluation of a bread-and-butter law enforcement activity: fingerprint identification.
The Inspector General of the DHS recently investigated two alleged incidents of criminal conduct by Border Patrol agents. The first investigation related
to alleged sexual contact between a Border Patrol agent and two women detained for entering the United States illegally.653 The second involved the shooting of an individual trying to flee across the U.S. border into Mexico.654
Complaint Handling
Complaint handling can require significant resources. Some IGs have therefore
developed systems to reduce the administrative burden. For example, the
Inspector General of the Department of Justice, which has about 400 staff and
jurisdiction over 110,000 people, receives approximately 10,000 complaints per
year. Since it has the right of first refusal for all non-frivolous allegations of misconduct, and since it lacks the resources to investigate such a high volume of
complaints, the Office of the IG decides whether to investigate a complaint itself or refer the complaint to other internal or external bodies. The decisions are
generally based on the seriousness of the allegation. In some cases of referral
to another body, the IG will require that he or she be kept informed of
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investigative results. The IG DOJ also monitors trends in complaints, sometimes
aggregates them for systemic investigation, and periodically reviews the complaint-handling function of the bodies to which it refers complaints.
The Inspector General of the Department of Homeland Security carries out
complaint processing in a similar manner. He refers the majority of complaints
to other internal and external review bodies, largely based on an assessment of
the seriousness of the complaint. The IG DHS has developed guidelines to
manage complaint referrals and memoranda of understanding with various internal bodies.
The Department of Justice Inspector General has received thousands of
complaints under its civil liberties complaint-handling mandate. Many of these
have been used to carry out systemic investigations, such as the 2003 investigation of alleged misconduct and abuse of individuals held on immigration
charges in connection with September 11 investigations.655 The IG DOJ advises
that while many of the complaints could not have been substantiated on their
own, the fact and process of aggregating them allowed for conclusions of misconduct and systemic problems.
Both the IG DOJ and the IG DHS advise that their complaint investigations
may overlap with or occur at the same time as criminal investigations or prosecutions. In such cases, they often proceed nonetheless, but with caution, so as
to avoid interfering or prejudicing the criminal case. The IG DHS also advises
that before he issues a report on a matter that may touch on an ongoing criminal investigation, he invites the relevant authorities to identify elements of information that could be prejudicial if disclosed. He may also delay publishing a
report, or may redact sensitive portions, until after the criminal case is closed.
9.3.1.4
Powers
The statutory inspectors general have subpoena powers applicable to non-federal government actors, and are directed by statute to use methods other than
subpoenas to obtain information from federal government actors.656 In general,
federal government actors co-operate in providing information. Information is
often obtained through other inspectors general.
The inspectors general of the DOJ and the DHS advise that in practice they
have access to information that is protected by a foreign third-party caveat only
if the originating agency agrees. They will also comply with any conditions that
the originating agency requires to allow access, including restrictions on further
dissemination. The IG DHS advises that he has had no reason to disseminate
such information.
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The inspectors general of the DOJ, the DHS and the DoD have police powers that include the power to carry firearms, make arrests, and seek and execute
search and seizure warrants.657 Although the Inspector General of the CIA does
not have police powers, the CIA is legally required to give the IG direct access
to all employees, files and other materials within the Agency.658
Responsibility for imposing discipline in all cases rests outside the Office of
the Inspector General, with bodies such as the Deputy Attorney General and the
Office of Professional Responsibility.659 The IG will make disciplinary recommendations to the appropriate department head.660
According to statute, when the IGs of the DoD, DOJ and DHS are pursuing investigations and other actions requiring access to information relating to
intelligence, counter-intelligence, national security, ongoing criminal investigations, undercover operations or protected sources, they are under the “direction and control” of the applicable department head.661 This direction and control
formally includes the power to prevent an investigation being completed and
sensitive information being disclosed.662 However, the use of these provisions
by a department head must be reported to Congress, along with reasons for
doing so.663 The IGs DOJ and DHS advised that this rule is commonly viewed
as a deterrent to undue use of the power. For example, with respect to IG DOJ
reports, the power has been invoked only once, in 1998.664 Other agency heads
also appear to have used the provisions rarely: neither the Secretary of National
Security nor the Director of the CIA has yet used them.665
The inspectors general make findings and recommendations with respect
to their investigative and monitoring activities, but do not have binding remedial or policy powers.666 The IGs of the Department of Justice, Department of
Homeland Security and Department of Defense can also conduct criminal investigations and make arrests.667 The IG CIA conducts criminal investigations
but does not make arrests. The inspectors general are also variously bound to
report activity that alleges criminal activity or on which there are reasonable
grounds to believe there was criminal activity.668 While they have the power to
make recommendations and to report on the department’s response, inspectors
general cannot make binding orders and have no power to order compensation.
9.3.1.5
Reporting
Inspectors general must file semi-annual reports with their respective congressional committees.669 With the exception of the IG CIA reports, inspector general reports are generally public, although certain information or reports will
sometimes remain classified. The reports may not publicly disclose confidential
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national security information or confidential information relating to an ongoing
criminal investigation.670 The IG CIA reports are classified.671 Reporting can be
delayed if the head of a department exercises his or her power to prohibit disclosure of information relating to intelligence, counter-intelligence, national security, ongoing criminal investigations, undercover operations or protected
sources, as described in the previous section. In the one instance of use of the
power with respect to an IG DOJ report, noted above, the IG’s report was delayed by six months.672
The non-statutory IG of the NSA and the other three intelligence sub-agencies within the Department of Defense673 must submit annual reports to the congressional intelligence committees. These reports must include a plan showing
the programs and activities scheduled for review by the relevant IG, as well as
any other matters relating to the independence and effectiveness of the Office
of the IG.674
9.3.1.6
Appointment and Composition
The President, subject to confirmation by the Senate, appoints statutory inspectors general.675 The Director of the NSA appoints the Inspector General of the
National Security Agency.676 The IG of the Department of Defense cannot be in
the military.677 Inspectors general are appointed on the basis of integrity and a
“demonstrated ability in accounting, auditing, financial analysis, law, management analysis, public administration, or investigations.”678 In addition, the IG
CIA must comply with the CIA’s security standards and have prior experience
in the field of foreign intelligence.679
9.3.2
New Civil Liberties Protection Officers
The Inspector General of the Department of Homeland Security does not have
the specific civil liberties complaint-handling function that the PATRIOT Act
granted the IG DOJ. Instead, a new Officer for Civil Rights and Civil Liberties has
been created within the DHS.680 This officer has a mandate to assist in policy development with a view to protecting civil liberties; overseeing compliance with
law and policy regarding civil rights and civil liberties; coordinating privacy protection with the DHS Privacy Officer; and investigating complaints regarding
civil rights and civil liberties that the Inspector General of the DHS chooses not
to investigate.681 The Officer has entered into a MOU with the Inspector
General’s office to “prevent duplication of effort and ensure the most effective,
efficient and appropriate deployment of resources.”682 Among other things, this
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MOU sets out decision-making procedures on whether the Inspector General’s
office or the Officer for Civil Rights and Civil Liberties will carry out primary investigation of a complaint. Pursuant to his statutory responsibility, the DHS
Officer for Civil Rights and Civil Liberties has produced semi-annual reports on
the implementation of his mandate.
A Civil Liberties Protection Officer has also been created as part of the
Office of the Director of National Intelligence.683 This officer is responsible for
ensuring that privacy and civil liberties protections are incorporated in policies
developed and implemented by the Office of the Director of National
Intelligence and by the different organizations within the intelligence community. The Officer also oversees compliance with the U.S. Constitution, and with
domestic law and policy relating to civil liberties and privacy; takes complaints
about abuses of civil liberties or privacy violations; and where appropriate, may
refer complaints to the inspectors general of the intelligence communities’ component agencies. The Officer also looks at the impact of technology on privacy
and conducts privacy impact assessments.684
10.
LIST OF ACRONYMS USED IN THIS CHAPTER
ACC
Australian Crime Commission
AFP
Australian Federal Police
ASIO
Australian Security Intelligence Organisation
ASIS
Australian Secret Intelligence Service
BfV
BND
CIA
Federal Office for the Protection of the Constitution
(Germany)
Federal Intelligence Service (Germany)
Central Intelligence Agency (U.S.)
Committee I
Standing Committee for the Monitoring of Intelligence
Services (Belgium)
Committee P
Standing Committee for the Monitoring of Police Forces
(Belgium)
DHS
Department of Homeland Security (U.S.)
DNI
Director of National Intelligence (U.S.)
DIO
Defence Intelligence Organisation (Australia)
DSD
Defence Signals Directorate (Australia)
EOS Committee
Committee for Oversight of the Intelligence, Surveillance
and Security Services (Norway)
393
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A NEW REVIEW MECHANISM FOR THE RCMP’S
NATIONAL SECURITY ACTIVITIES
FBI
FISA
GCHQ
Federal Bureau of Investigation (U.S.)
Foreign Intelligence Surveillance Act (FISA) (U.S.)
Government Communications Headquarters (U.K.)
GCSB
Government Communications Security Bureau
(New Zealand)
HMIC
Her Majesty’s Inspectorate of Constabulary (U.K.)
HMRC
Her Majesty’s Revenue and Customs (U.K.)
ICC
IG
Interception of Communications Commissioner (U.K.)
IGIS Inspector General (U.S.)
IGIS
Inspector-General of Intelligence and Security (Australia,
New Zealand )
IPCC
Independent Police Complaints Commission (U.K.)
IPT
Investigatory Powers Tribunal (U.K.)
ISC
Intelligence Services Commissioner (U.K.)
MAD
Military Counterintelligence Service (Germany)
MI-5
Security Service (U.K.)
MI-6
Secret Intelligence Service (U.K.)
MOU
Memorandum of Understanding
NSA
National Security Authority (Norway)
NZSIS
New Zealand Security Intelligence Service
ONA
Office of National Assessments (Australia)
OSC
Office of the Surveillance Commissioners (U.K.)
PKGr
Parliamentary Control Panel (Germany)
PSNI
Police Service for Northern Ireland (U.K.)
RIPA
Regulation of Investigatory Powers Act 2000 (U.K.)
SE
Surêté de l’État (Belgium)
SEFO
Special Investigating Body for Police Matters (Norway)
SGRS
Service général du Renseignement et de la Sécurité des
Forces armées (Belgium)
SIRC
Security Intelligence Review Committee (Canada)
SOCA
Serious Organised Crime Agency (U.K.)
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Notes
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
I refer the reader to Chapter XII, “Policy Review Process,” for a discussion of my reasons
for selecting these review models for detailed study, and the process I used to conduct this
examination.
To avoid undue repetition of substantial amounts of information contained elsewhere in this
chapter, I have excluded source citations and footnoted explanations to the information in the
Introduction.
Except where otherwise noted, the information in this chapter is based on meetings and communications between Policy Review legal counsel and representatives of the entities described
in this chapter.
This is in part due to a “referral” of legislative power from the states and territories to the federal government to allow the “Commonwealth,” as the federal government is known in
Australia, to counter terrorism through legislative change and enforcement. Such referrals of
power are authorized by section 51(xxxvii) of the Australian Constitution. See the
Commonwealth and States and Territories Agreement on Terrorism and Multi-jurisdictional
Crime, 5 April 2002, online, http://www.coag.gov.au/meetings/050402/terrorism.pdf (accessed
May 15, 2006); and related state, territory and Commonwealth legislation. See also the
Commonwealth of Australia Constitution Act, 1900 (U.K.), 63 & 64 Vict., c. 12, online,
http://www.comlaw.gov.au/comlaw/comlaw.nsf/440c19285821b109ca256f3a001d59b7/57dea3
835d797364ca256f9d0078c087/$FILE/ConstitutionAct.pdf (accessed May 15, 2006); and the
Department of Prime Minister and Cabinet, Protecting Australia Against Terrorism: Australia’s
National Counter-Terrorism Policy and Arrangements (Canberra: Commonwealth of Australia,
2004), p. 18, online, http://www.dpmc.gov.au/publications/protecting_australia/docs/
protecting_australia.pdf (accessed May 15, 2006).
Australian Crime Commission Act, 2002 (Cth.) [ACC Act].
“Australian and International Law to Combat Terrorism,” online, National Security Australia,
http://www.nationalsecurity.gov.au/agd/www/nationalsecurity.nsf/Page/What_Governments_
are_doingAustralian_and_International_Law_to_Combat_Terrorism (accessed May 15, 2006).
See discussion below.
The term “Australian Intelligence Community,” or “AIC,” is commonly used in Australia in reference to the Australian Security Intelligence Organisation (ASIO), the Australian Secret
Intelligence Service (ASIS), the Defence Signals Directorate (DSD), the Office of National
Assessments (ONA), the Defence Imagery and Geospatial Organisation (DIGO), and the
Defence Intelligence Organisation (DIO).
Inspector-General of Intelligence and Security Act, 1986 (Cth.), s. 16 [IGIS Act]. This obligation
also extends to consultations with the Auditor-General.
Australian Federal Police Act 1979 (Cth.), s. 8(1)(b)(i) [Australian Federal Police Act].
Criminal Code Amendment (Terrorism) Act 2003 (Constitutional Reference of Powers) (Cth.).
There are now 26 post-9/11 laws.
Australian Federal Police Act, s. 8(1).
Ibid. The Australian Protective Service was incorporated into the Australian Federal Police
(AFP) in July 2002.
Australian Federal Police, “A New Functional Structure for the AFP,” 82 Platypus (March 2004),
p. 41, online, http://www.afp.gov.au/__data/assets/pdf_file/3973/functional_model.pdf
(accessed May 15, 2006).
Ibid., p. 44.
Australian Federal Police, AFP Annual Report 2002–2003, p. 47, online,
http://www.afp.gov.au/about/publications/annual_reports/afp (accessed May 15, 2006).
395
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NATIONAL SECURITY ACTIVITIES
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
Australian Federal Police, “Australian Federal Police Counter Terrorism Measures.”
Australian Federal Police, “International: Law Enforcement Cooperation Program (LECP),” online, http://www.afp.gov.au/international/liaison/LECP (accessed May 15, 2006); AFP Annual
Report 2002–2003, p. 15. Indonesia and Australia also have a memorandum of understanding
regarding ongoing law enforcement collaboration to combat transnational crime and develop
police co-operation: AFP Annual Report 2002–2003, pp. 30, 42.
AFP Annual Report 2002–2003, p. 15.
ACC Act.
Australian Crime Commission, Annual Report 2003–04, p. 1, online, http://www.
crimecommission.gov.au/content/publications/annual_reports/2004/pub-ar-2004-1.pdf
(accessed May 15, 2006). See also the ACC Act, ss. 49, 58.
ACC Act, ss. 7A, 7C.
Ibid., s. 7B.
Ibid., s. 7C.
Examiners are appointed by the Governor-General and must have been legal practitioners for
at least five years: ACC Act, s. 46B.
ACC Act, Division 2.
Ibid., s. 20.
Ibid., s. 12.
Ibid., s. 59(7).
Ibid., s. 59(9). The information must be relevant to the performance of the department’s or
agency’s functions, and the CEO may provide recommendations.
Ibid., s. 59(11). The information must be relevant to security.
Australian Security Intelligence Organisation Act 1979 (Cth.), s. 17 [ASIO Act],
online, http://www.asio.gov.au/About/comp.htm (accessed May 15, 2006); http://www.
nationalsecurity.gov.au/agd/www/nationalsecurity.nsf/AllDocs/348468DF2890F6A0CA256FCC0
01222D0?OpenDocument (accessed May 15, 2006).
ASIO Act, s. 17.
Ibid., s. 17.
Ibid., ss. 17ff.
http://www.asio.gov.au/About/comp.htm (accessed May 15, 2006).
Media release 191/2005, issued on 15 October 2005 by the Australian Attorney-General,
the
Hon.
Philip
Ruddock,
MP,
online,
http://www.ag.gov.au/agd/WWW/
MinisterRuddockHome.nsf/Page/Media_Releases2005 (accessed May 15, 2006).
Inspector-General of Intelligence and Security, Annual Report 2002–2003 (Canberra:
Commonwealth of Australia, 2003), p. 27, online, http://www.igis.gov.au/annuals/
02-03/con_table.cfm (accessed May 15, 2006) [IGIS Annual Report 2002–2003].
Australia, Report of the Inquiry into Australian Intelligence Agencies (Canberra: Commonwealth
of Australia, 2004), p. 146 (Chair: Philip Flood, AO).
Intelligence Services Act 2001 (Cth.).
Ibid., ss. 6, 8, 9, 11, 12.
The Rules to Protect the Privacy of Australians are issued pursuant to s. 15 of
the Intelligence Services Act 2001. The current Rules are available online at
http://www.asis.gov.au/rules_to_privacy.html (accessed May 15, 2006).
Intelligence Services Act 2001, s. 11(1).
Report of the Inquiry into Australian Intelligence Agencies, p. 147.
Intelligence Services Act 2001, s. 11(2).
Ibid.
IGIS Annual Report 2002–2003, p. 33.
Intelligence Services Act 2001, s. 11(1).
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49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
Ibid., s. 11(2).
Office of National Assessments Act 1977 (Cth.), s. 5(1).
Office
of
National
Assessments, Corporate Plan for 2003–2006,
online,
http://www.ona.gov.au/corporate.shtml (accessed May 15, 2006); IGIS Annual Report
2002–2003, p. 43.
Intelligence Services Act 2001, s. 6B. DIGO was only recently put on this statutory footing by
the Legislation Amendment Act 2005 (Cth.).
Report of the Inquiry into Australian Intelligence Agencies, pp. 142–143.
IGIS Annual Report 2002–2003, p. 120.
Jurisdiction over the AFP is established by the Complaints (Australian Federal Police) Act 1981
(Cth.). Jurisdiction over the ACC, most intelligence agencies and other public authorities is established by the Ombudsman Act 1976 (Cth.). Legislation is expected to be introduced into
the Parliament in 2006 to repeal the Complaints (Australian Federal Police) Act and to place
the AFP under the jurisdiction of the Ombudsman Act.
Ombudsman Act 1976 (Cth.), s. 4(4); Migration and Ombudsman Legislation Amendment Act
2005 (Cth.), Schedule 2. See also Australia, Office of the Commonwealth Ombudsman,
Immigration Bulletin 6: “Progress on Immigration Matters,” December 14, 2005, online,
http://www.ombudsman.gov.au/commonwealth/publish.nsf/content/bulletin_2005_06
(accessed May 15, 2006).
Migration Act 1958 (Cth.), Part 8C. See also Australia, Office of the Commonwealth
Ombudsman, “Commonwealth Ombudsman review of circumstances of long-term immigration
detainees,”
July
14,
2005,
online,
Commonwealth
Ombudsman,
http://www.comb.gov.au/commonwealth/publish.nsf/Content/mediarelease_2005_04
(accessed May 15, 2006).
Ombudsman Act 1976, s. 15.
Ombudsman Act 1976, s. 5(1)(b); Complaints (Australian Federal Police) Act 1981 (Cth.),
s. 21A [Complaints (AFP) Act].
Telecommunications (Interception) Act 1979 (Cth.), s. 84; Crimes Act 1914 (Cth.), Part 1A.
See also the Surveillance Devices Act 2004 (Cth.), ss. 54ff., and the Ombudsman’s Annual
Report 2003–2004, pp. 62ff.
Complaints (AFP) Act, s. 6.
Australian Law Reform Commission, Keeping Secrets: The Protection of Classified and Security
Sensitive Information, ALRC 98, online, http://www.austlii.edu.au/au/other/alrc/
publications/reports/98/Ch_02.html (accessed May 15, 2006).
Complaints (AFP) Act, s. 21A; Ombudsman Act 1976, s. 5(1)(b).
Commonwealth Ombudsman, Annual Report 2003–2004 (Canberra: Commonwealth of
Australia, 2004), p. 61, online, http://www.comb.gov.au/publications (accessed May 15, 2006).
The Ombudsman’s 2003–2004 annual report noted that “[o]nly six complaints were received
in 2003–04 [regarding the ACC], largely reflecting the fact that the ACC’s role does not bring
its staff in close contact with members of the public.” In 2004–05, the Ombudsman received
12 complaints regarding the ACC: Commonwealth Ombudsman, Annual Report 2004–2005,
p. 55.
Telecommunications (Interception) Act 1979, s. 83.
Crimes Act 1914, Part IAB.
Surveillance Devices Act 2004, ss. 54ff.
Australia, Commonwealth Ombudsman, Department of Immigration and Multicultural Affairs:
Administration of s. 501 of the Migration Act as it Applies to Long-term Permanent Residents
(Canberra: Commonwealth Ombudsman, 2006), online, Commonwealth Ombudsman,
http://www.comb.gov.au/commonwealth/publish.nsf/AttachmentsByTitle/
reports_2006_01_pdf/$FILE/s501_immigration_feb-2006.pdf (accessed May 16, 2006).
397
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NATIONAL SECURITY ACTIVITIES
69
70
71
72
73
74
75
76
77
78
79
80
81
82
83
84
85
86
87
88
89
90
91
92
93
94
On accountability gaps in Australia generally, see Claire Pitham and Prof. John McMillan,
“Who’s Got the Map? The Changing Landscape of National Law Enforcement, Homeland
Security and the Role of Administrative Accountability Bodies,” academic paper forwarded to
Policy Review legal counsel by the Australian Commonwealth Ombudsman’s Office; and the
Commonwealth Ombudsman, Annual Report 2003–2004, p. 55.
Ombudsman Act 1976, s. 8B.
See ACC Act, s. 49. Such “cross-jurisdiction” and “integration” issues are increasingly common
for the Ombudsman, and in Australia generally. For example, a recent review of the use and
sharing of DNA material among law enforcement agencies (both at the federal and state/territory level) made several recommendations to address similar accountability gaps and overlaps. It proposed that review bodies coordinate to determine who should take the “lead role”
when numerous agencies have jurisdiction, and to “cover any jurisdictional gaps” created by
federalism considerations: Report of Independent Review of Part ID of the Crimes Act 1914 –
Forensic Procedures, ch. 5, p. 77, online,
http://www.ag.gov.au/agd/WWW/
criminaljusticeHome.nsf/D2801B61EABE80A2CA256809001328BA/F974FEAA49CD7F32CA256D
2500090F58 (accessed May 16, 2006). The Ombudsman also discussed the accountability gaps
arising from increasing integration in his 2003–2004 annual report, p. 55. See also the InspectorGeneral’s discussion below, which highlights a recommendation by a parliamentary joint
committee for “greater liaison between” the Ombudsman, state ombudsmen and the InspectorGeneral.
Parliamentary Joint Committee on ASIO, ASIS and DSD, Review of administration and
expenditure for ASIO, ASIS and DSD (Canberra: Commonwealth of Australia, 2005), tabled
March 14, 2005, p. 22.
Ombudsman Act 1976, ss. 9, 13, 14.
Complaints (AFP) Act, ss. 27, 29, 30.
Ombudsman Act 1976, ss. 8(2A)–8(2E), 8(3).
Complaints (AFP) Act, ss. 27(4), 30(3).
Ombudsman Act 1976, s. 15.
Ibid.
Ibid., s. 16. Where the report relates to a parliamentary department or to a court or tribunal,
provision is made for reporting to other individuals, such as the President of the Senate, etc.
Ibid., s. 17.
For example, actions that were contrary to law; unreasonable, unjust, oppressive or improperly discriminatory; in accordance with a law that fits one of the above descriptors; based on
mistake; or otherwise wrong; or that constituted an exercise of discretion for an improper
purpose or on irrelevant grounds, or followed by inadequate reasons to the complainant:
Complaints (AFP) Act, s. 31(1). See also ss. 26(3), (3A), (3B), 36(1).
Complaints (AFP) Act, ss. 32, 33.
Ibid., s. 37.
Ombudsman Act 1976, s. 19; Complaints (AFP) Act, s. 38.
Ombudsman Act 1976, s. 19.
Ibid., ss. 21–22.
IGIS Act, ss. 8ff.
Ibid., s. 4.
Ibid., s. 8.
Ibid., s. 8(1).
Ibid., s. 8(2)(c).
Ibid., s. 8(1)(d).
Ibid., s. 8(8)(a).
Ibid.
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95
96
97
98
99
100
101
102
103
104
105
106
107
108
109
110
111
112
113
114
115
116
117
118
119
120
Ibid., s. 9.
IGIS Annual Report 2002–2003, Annex 2 – Bali Inquiry Report.
IGIS Act, ss. 18, 19(1), 20.
Ibid., s. 18(6).
Ibid., s. 16.
Ibid.
See discussion above of Commonwealth Ombudsman.
IGIS Act, s. 21.
Ibid., s. 22.
Ibid, ss. 22(1), (2).
Ibid., s. 24.
Ibid., s. 23.
Ibid., s. 35(1), (2), (2B).
Ibid., s. 35.
Ibid., s. 6.
Ibid., s. 26.
For a summary, see http://www.belgium.be/eportal/application?origin=navigationBanner.jsp
&event=bea.portal.framework.internal.refresh&pageid=indexPage&navId=2681 (accessed
May 16, 2006).
For more information, see the Belgium government’s portal, http://www.belgium.be/
eportal/application?origin=hardcodedAboutBelgiumNavTeaser.jsp&event=bea.portal.
framework.internal.refresh&pageid=indexPage&navId=2679 (accessed May 16, 2006).
For a summary, see the Belgium government’s portal.
For a summary, see http://www.belgium.be/eportal/application?origin=navigationBanner.jsp
&event=bea.portal.framework.internal.refresh&pageid=indexPage&navId=2696 (accessed
May 16, 2006).
For a summary, see http://www.belgium.be/eportal/application?origin=navigationBanner.jsp
&event=bea.portal.framework.internal.refresh&pageid=indexPage&navId=1301 (accessed
May 16, 2006).
See parliamentary document 51K0258, online, http://www.lachambre.be/kvvcr/
showpage.cfm?section=flwb&language=fr&rightmenu=right&cfm=flwb.cfm?lang=F&
legislat=51&dossierID=0258 (accessed May 16, 2006). This legislation was passed following
the European Council’s Framework Decision of 13 June 2002 on combating terrorism (2002/475/JHA), online,
http://europa.eu.int/eur-lex/pri/en/oj/dat/2002/l_164/
l_16420020622en00030007.pdf (accessed May 16, 2006).
See parliamentary document 51K0383, online, http://www.lachambre.be/kvvcr/showpage.cfm?
section=flwb&language=fr&rightmenu=right&cfm=flwb.cfm?lang=F&legislat=51&dossierID=
0383 (accessed May 16, 2006). This legislation was passed following the European Council’s
Directive of 4 December 2001 relating to terrorism financing (2001/97/EC).
See EU Network of Independent Experts in Fundamental Rights, “The Balance between
Freedom and Security in the Response by the European Union and its Member States to
the Terrorist Threats,” pp. 27ff., online, http://www.statewatch.org/news/2003/apr/CFRCDF.ThemComment1.pdf (accessed May 16, 2006).
Loi organisant un service de police intégré, structuré à deux niveaux, M.B., 5 January 1999, 132,
as amended, online, http://www.juridat.be/cgi_loi/loi_F.pl?cn=1998120731 (accessed May 16,
2006).
All information in this paragraph is cited to http://www.polfed.be (accessed May 16, 2006).
See also the principal statute governing Belgian police forces, Loi organisant un service de
police intégré structuré à deux niveaux.
399
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NATIONAL SECURITY ACTIVITIES
121
122
123
124
125
126
127
128
129
130
131
132
133
134
135
136
137
138
139
140
141
142
143
144
145
See press release of the Chancellerie du Premier Ministre – Conseil des Ministres, dated March
30, 2004, online, http://www.belgium.be/eportal/application?origin=searchResults.jsp&event=
bea.portal.framework.internal.refresh&pageid=contentPage&docId=33881 (accessed May 16,
2006).
Ibid.
Belgium, Police fédérale, “La Police integrée. Qui fait quoi? – ’Police locale’ and ‘Police
fédérale,’” online, Police fédérale, http://www.polfed.be/pol_int_fr.php (accessed May 16,
2006).
See text of speech by Prime Minister Guy Verhofstadt, Committee meeting 18 March 2004,
debate on terrorism, p. 6, online, http://www.dekamer.be/doc/CCRI/pdf/51/ic202.pdf
(accessed May 16, 2006). See also, online, http://www.belgium.be/eportal/application?
languageParameter=fr&pageid=contentPage&docId=7849 (accessed May 16, 2006).
See the Loi organique des services de renseignement et de sécurité, M.B., 18 December 1998,
40312, as amended, online, http://www.juridat.be/cgi_loi/loi_F.pl?cn=1998113032 (accessed
May 16, 2006) [Loi organique des services]. See also, online, http://www.belgium.be/
eportal/application?origin=searchResults.jsp&event=bea.portal.framework.internal.refresh&
pageid=contentPage&docId=7849 (accessed May 16, 2006).
The initialisms are based on the French names for these agencies: thus, “SE” for Sûreté de
l’État and “SGRS” for Service général du Renseignement et de la Sécurité.
Loi organique des services, art. 2.
Ibid., art. 7. The ministerial committee is discussed in more detail under “Review and
Oversight.”
Ibid., art. 8.
Ibid., art. 11.
Ibid., art. 11, §§ 2, 3.
Ibid., arts. 12, 13.
Ibid., art. 14.
Loi organique du contrôle des services de police et de renseignements, M.B., 26 July 1991, 16576,
arts. 3, 9, as amended, online, http://www.juridat.be/cgi_loi/loi_F.pl?cn=1991071853 (accessed
May 16, 2006) [Loi organique du contrôle]. In French, Committee P is Comité permanent de
contrôle des services de police, or Comité P.
Committee P translates the French word contrôle as “monitoring” in English. However, for
consistency I have used the word “review” throughout this chapter.
Loi organique du contrôle, art. 1.
Ibid., art. 9.
Committee P’s 2003 annual report, online, Comité P, Rapport annuel 2003,
http://www.comitep.be/2003/Fr/RA_2003.pdf.
The governing statute expressly provides for the establishment of an investigations department
within Committee P with the authority to conduct investigations either on its own initiative or
at the request of Committee P. See Loi organique du contrôle, arts. 1, 15, 16.
Loi organique du contrôle, art. 8.
Ibid., art. 9.
Ibid., art. 24–art. 27 bis. Art. 24 states that this power is subject to certain forms of immunity
and privilege.
Ibid., art. 24 § 2.
Ibid., art. 27 bis. This power may be exercised only in the presence of the police chief or the
chief’s designate.
Ibid., art. 27 bis.
Ibid., art. 24 § 3.
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146
147
148
149
150
151
152
153
154
155
156
157
158
159
160
161
162
163
164
165
166
167
168
169
170
171
172
173
174
175
Ibid., arts. 9, 12.
Ibid., art. 16.
Ibid., arts. 52ff.
Ibid.
Ibid., arts. 8, 9, 11, 32, 33, 35.
Loi portant création d’un organe de recours en matière d’habilitations, d’attestations et d’avis
de sécurité du 11 décembre 1998, M.B., 7 May 1999, as amended, online,
http://www.juridat.be/cgi_loi/loi_F.pl?cn=1998121162.
Loi organique du contrôle, arts. 9, 11.
Ibid., art. 11.
Ibid.
Ibid., art. 4.
Ibid.. See also http://www.comiteri.be (accessed May 17, 2006). In French, Committee I is
Comité permanent de contrôle des services de renseignements, or Comité R.
Loi du 1 avril 1999, art. 4, amending art. 3 of the Loi du 18 juillet 1991 organique du contrôle
des services de police et de renseignements, M.B., 3 April 1999, 11161, online,
http://www.juridat.be/cgi_loi/loi_F.pl?cn=1999040131.
Loi organique du contrôle, art. 1.
Ibid., art. 33.
Comité R, Rapport d’activités 2003, online, http://www.comiteri.be/index_fr.html (accessed
May 17, 2006. The name Comité R is explained at note 156 of this report.
As with Committee P, the statute expressly provides for the establishment of an investigation
department within Committee I, and provides it with the authority to begin investigations on
its own initiative or at the Committee’s request. See the Loi organique du contrôle des services
de police et de renseignements, arts. 1, 39–40.
Loi organique du contrôle, arts. 32ff.
Ibid., art. 33 § 2.
Ibid., arts. 48ff. Art. 48 states that this power is subject to certain forms of immunity and
privilege.
Ibid., art. 51 bis.
Ibid.
Ibid., art. 48, § 3.
Ibid., arts. 33, 35.
Ibid., arts. 52ff.
Ibid., arts. 33, 35.
Ibid., art. 35.
Ibid.
Ibid., arts. 28ff.
See Grundgesetz (The Basic Law): The Constitution of the Federal Republic of Germany
(May 23, 1949), ed. Axel Tschentscher (Würzburg: Jurisprudentia Verlag Würzburg, 2002),
online, http://jurisprudentia.de/jurisprudentia.html (accessed May 17, 2006).
See
the
Office
for
the
Protection
of
the
Constitution
website
at
http://www.verfassungsschutz.de/en/about_us.html/bfv_engl.html (accessed May 17, 2006).
Note that the website has been reorganized since this report was researched. See also
Assembly of Western European Union, The interim European Security and Defence Assembly,
“Parliamentary oversight of the intelligence services in the WEU countries – current situation
and prospects for reform – Germany,” online, http://www.assembly-weu.org/en/
documents/sessions_ordinaires/rpt/2002/1801.html (accessed May 17, 2006) [Interim European
Security and Defence Assembly, “Parliamentary oversight”]. See also “Internal Affairs Ministers
401
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176
177
178
179
180
181
182
183
184
discuss security structures,” German News – English Edition (July 7, 2004), online,
http://www.germnews.de/cgi-bin/show/dn/2004/07/07.html/4 (accessed May 17, 2006).
See Oliver Lepsius, “Liberty, Security, and Terrorism: The Legal Position in Germany”
(May 2004) 5 German L.J. 435, pp. 437, online, German Law Journal,
http://www.germanlawjournal.com/pdf/Vol05No05/PDF_Vol_05_No_05_
435-460_special_issue_Lepsius.pdf (accessed May 17, 2006); Erik van de Linde, Kevin O’Brien,
Gustav Lindstrom et al., “Quick Scan of Post 9/11 National Counter-Terrorism Policymaking
and Implementation in Selected European Countries,” Research Project for the Netherlands
Ministry of Justice (Leiden: Rand Europe, May 2002), pp. 61–75, online, Rand Europe,
http://www.rand.org/randeurope/review/1.4-obrien.html (accessed May 17, 2006); German
Foreign Office, Report to the Security Council Committee established pursuant to Resolution
1373 (2001) concerning Counter-Terrorism, online, http://www.auswaertiges-amt.de/
www/de/infoservice/download/pdf/vn/ctc_bericht.pdf (accessed May 17, 2006); Markus Rau,
“Country Report: Germany,” in Terrorism as a Challenge for National and International Law –
Security versus Liberty, Christian Walter, Silja Vöneky, Volker Röben et al., eds., Max Planck
Institute for Comparative Public Law and International Law (Heidelberg: Springer, 2003),
online,
http://www.mpil.de/ww/en/pub/research/details/publications/staff/pub03.cfm
(accessed May 17, 2006) [Rau report].
See Lepsius, p. 441. See also Gesetz zur Bekämpfung des internationalen Terrorismus
(TerrorBekämpfG), 9 January 2002 (BGB1 I 2002, pp. 361, 3142) (Counter-Terrorism Act),
Abs. 1, § 6. German legislation can be found online at http://bundesrecht.juris.de/.
See van de Linde, O’Brien, Lindstrom et al., pp. 64–65.
For comments, see, for example, Amnesty International, “Back in the Spotlight: Allegations
of police ill-treatment and excessive use of force in Germany,” EUR 23/001/2004
(January 14, 2004), online, http://web.amnesty.org/library/print/ENGEUR230012004 (accessed
May 17, 2006); United Nations Committee against Torture, “Conclusions and recommendations of the Committee against Torture: Germany (Concluding Observations/Comments),”
CAT/C/CR/32/7
(11/06/2004),
online,
http://www.unhchr.ch/tbs/doc.nsf/0/
5d9c452885c30123c1256ebd00506b57?Opendocument (accessed May 17, 2006).
Christian Heyer, Secretariat of the Parliamentary Control Panel of the German Bundestag for
the Oversight of the Intelligence Services, “Parliamentary Oversight of Intelligence: The
German Approach” (Paper presented to The Changing Face of Intelligence: NATO Advanced
Research Workshop, Pluscarden Programme for the Study of Global Terrorism and Intelligence,
St. Anthony’s College, Oxford, England, December 2005) [unpublished], p. 9 [Heyer,
“Parliamentary Oversight”].
From the German Bundesamt für Verfassungsschutz.
Heyer, “Parliamentary Oversight,” p. 10.
Gesetz über die Zusammenarbeit des Bundes und der Länder in Angelegenheiten des
Verfassungsschutzes und über das Bundesamt für Verfassungsschutz (BverfSchG),
20 December 1990 (BGB1 I S p. 2954) (Federal Act on the Protection of the Constitution), § 3,
para. 1(1)–(3) [Federal Constitution Protection Act]. Cited in 2003 Annual Report of the Office
for the Protection of the Constitution, p. 13, online, http://www.verfassungsschutz.de/en/
publications/annual_reports/vsbericht2003.engl.html/vsbericht_2003_engl.pdf
(accessed
May 17, 2006).
Federal Constitution Protection Act, § 3, para.1(4); 2003 Annual Report of the Office for the
Protection of the Constitution, p. 13; Grundgesetz für die Bundesrepublik Deutschland (GG),
23 May 1949 (BGB1 III p. 100-1) (The Basic Law), most recently amended by the amending
act dated 26 July 2002 (BGB1 I S, p. 2863), §§ 9(2) and 26(1), online, http://www.
bundesregierung.de/en/Federal-Government/Function-and-constitutional-ba-,10206/
Basic-Law.htm (accessed May 17, 2006).
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See the Gesetz über die Voraussetzungen und das Verfahren von Sicherheitsüberprüfungen des
Bundes (Sicherheitsüberprüfungsgesetz – SÜG), 20 April 1994 (BGB1 I S, p. 867) (Security
Clearance Act); and the 2003 Annual Report of the Office for the Protection of the Constitution,
p. 14. See also the Rau report, p. 28. The definition of “security sensitive areas” was expanded
by the second security package.
2003 Annual Report of the Office for the Protection of the Constitution, p. 14.
Office for the Protection of the Constitution website; 2003 Annual Report of the Office for the
Protection of the Constitution, p. 13.
Federal Constitution Protection Act, § 8, paras. 5–8; Counter-Terrorism Act, § 1. See also the
Rau report, p. 21.
Lepsius, p. 14.
Office for the Protection of the Constitution website. The website has been reorganized since
this report was researched, and the wording may have changed.
Heyer, “Parliamentary Oversight,” p. 10.
Office for the Protection of the Constitution website. See also Interim European Security and
Defence Assembly, “Parliamentary oversight.”
Heyer, “Parliamentary Oversight,” p. 10.
Office for the Protection of the Constitution website. See also Interim European Security and
Defence Assembly, “Parliamentary oversight.”
See, for example, “Internal Affairs Ministers discuss security structures.”
From the German Militärischer Abschirmdienst.
Heyer, “Parliamentary Oversight,” p. 11.
Gesetz über den Militärischen Abschirmdienst (MAD-Gesetz– MADG), 20 December 1990
(BGB1 I 1990, pp. 2954, 2977), as amended (Military Counterintelligence Service Act).
Rau report, p. 23, note 99.
Military Counterintelligence Service Act, § 1, para. 1(2). Cited in the Rau report, p. 23.
Ibid., § 1, para. 11.
Heyer, “Parliamentary Oversight,” p. 11.
From the German Bundesnachrichtendienst.
Heyer, “Parliamentary Oversight,” pp. 9, 27–28.
Ibid., p. 9.
Gesetz über den Bundesnachrichtendienst (BND-Gesetz), 20 December 1990 (BGB1 I S,
pp. 2954, 2979) (Federal Intelligence Service Act).
See Lepsius, p. 451.
Heyer, “Parliamentary Oversight,” p. 27.
Counter-Terrorism Act, §§ 1(3), 3. Federal Intelligence Service Act, § 3.
Gesetz zur Beschränkung des Brief-, Post-, und Fernmeldegeheimnisses (G-10), 26 June 2001
(BGB1 I 2001, pp. 1254, 2298 (The Act on Article 10 of the Basic Law), Abs. 3 § 7 para. 2(1)
[G-10 Act]. See the Rau report, p. 24.
Heyer, “Parliamentary Oversight,” p. 10.
Ibid., p. 11.
Gesetz über die parlamentarische Kontrolle nachrichtendienstlicher Tätigkeit des Bundes
(Parlamentarisches Kontrollgremiumgesetz), 11 April 1978 (BGB1 I S 1978, p. 453)
(Parliamentary Control Panel Act), as amended by the Act of 26 June 2001 (BGB1 I S 2001,
p. 1254). For an overview of the rationale for creating a special panel of parliamentarians to
review the activities of the intelligence services, see Heyer, “Parliamentary Oversight,”
pp. 12–13. The initialism “PKGr” is from the German Parlamentarisches Kontrollgremium.
Parliamentary Control Panel Act, § 1.
Heyer, “Parliamentary Oversight,” p. 15.
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Parliamentary Control Panel Act, § 2; Heyer, “Parliamentary Oversight”.
Heyer, “Parliamentary Oversight,” p. 16.
Ibid.
Ibid.
Heyer, “Parliamentary Oversight,” p. 2; Lepsius, pp. 446–447.
Ibid.
Ibid.
For a detailed description of this process, see Heyer, “Parliamentary Oversight,” p. 17.
German Bundestag, Secretariat of the Parliamentary Control Commission (PKGr),
“Parliamentary Control of the Intelligence Services in Germany,” pp. 17–19; Heyer,
“Parliamentary Oversight,” pp. 15–20.
Infra note 278.
Heyer, “Parliamentary Oversight,” p. 28.
Ibid., p. 17.
Heyer, “Parliamentary Oversight,” pp. 21–22; “Parliamentary Control of the Intelligence Services
in Germany,” pp. 17–19.
Ibid.
Interim European Security and Defence Assembly, “Parliamentary oversight.”
Heyer, “Parliamentary Oversight,” p. 17.
Ibid., pp. 7, 21.
Ibid., p. 16.
Ibid.
Ibid., p. 17.
Ibid., p. 18.
Interim European Security and Defence Assembly, “Parliamentary oversight”; 2003 Annual
Report of the Office for the Protection of the Constitution, p. 15.
“Parliamentary Control of the Intelligence Services in Germany”, p. 22; Heyer, “Parliamentary
Oversight,” p. 18.
Heyer, “Parliamentary Oversight,” p. 18.
Ibid., p. 22.
“Parliamentary Control of the Intelligence Services in Germany,” p. 2706.
Act of 9 January 2002 (Federal Law Gazette 1, p. 361).
Heyer, “Parliamentary Oversight,” p. 20.
Lepsius, p. 448.
See note 242.
Parliamentary Control Panel Act, § 4; Heyer, “Parliamentary Oversight,” p. 14.
Parliamentary Control Panel Act, § 4; Heyer, “Parliamentary Oversight,” pp. 13–14. See also
Interim European Security and Defence Assembly, “Parliamentary oversight.”
Heyer, “Parliamentary Oversight,” p. 14.
Ibid., p. 17.
G-10 Act.
Heyer, “Parliamentary Oversight,” p. 27.
Heyer, “Parliamentary Oversight,” p. 22. The statute is cited in “Parliamentary Control of the
Intelligence Services in Germany,” pp. 28–31. See also Interim European Security and Defence
Assembly, “Parliamentary oversight”; and Article 10 Law, paras. 14–15, cited in Lepsius,
“Liberty, Security, and Terrorism,” p. 448. See also The Basic Law, art. 10(2).
Heyer, “Parliamentary Oversight,” p. 29.
Lepsius, p. 448; Heyer, “Parliamentary Oversight,” p. 29.
Heyer, “Parliamentary Oversight,” p. 29.
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278
Ibid., p. 28.
Ibid., p. 29.
Ibid., p. 30.
Ibid., p. 29.
Ibid., pp. 22, 28.
Ibid., p. 29. Note that in Germany, a student pursuing legal training will choose whether to
train for judicial office or legal practice. Therefore, unlike common law nations, the judiciary
is a separate stream of legal specialization in Germany.
See http://www.police.govt.nz/about/structure.php (accessed May 23, 2006). For an
organizational chart of the New Zealand Police, see http://www.police.govt.nz/about/
management-structure-2004.gif (accessed May 23, 2006).
Police Act 1958 (N.Z.), 1958/109, 17 RS. See also Ministry of Justice, Directory of Official
Information 2003–2005 Published by the Ministry of Justice Pursuant to Part III, Section 20 of
the Official Information Act 1982 (Wellington: Ministry of Justice, 2003), pp. 429–447, online,
http://www.justice.govt.nz/pubs/reports/2003/DOI-03-05/directory-03-05.pdf
(accessed
May 23, 2006). New Zealand statutes are available online through the New Zealand
Parliamentary Council Office at http://www.legislation.govt.nz/ (accessed May 23, 2006).
See http://www.police.govt.nz/service/counterterrorism (accessed May 23, 2006).
Ibid.
House of Representatives Foreign Affairs, Defence and Trade Committee, Report on
International Treaty Examination of the United Nations Convention Against Transnational
Organised Crime, the Protocol to Prevent, Suppress and Punish Trafficking of Persons, Especially
Women and Children, Supplementing the United Nations Convention Against Transnational
Organised Crime and the Protocol Against the Smuggling of Migrants by Land, Sea and Air,
Supplementing the United Nations Convention Against Transnational Organised Crime
(22 February 2002), para. 23(c), online, http://www.clerk.parliament.govt.nz/content/631/
fdtetoctpsm.pdf (accessed May 23, 2006).
New Zealand Security Intelligence Service Act 1969 (N.Z.), 1989/119, 21 RS [NZSIS Act].
NZSIS Act, s. 4(1).
New Zealand Security Intelligence Service, Report of the New Zealand Security Intelligence
Service: Report to the House of Representatives for the year ended 30 June 2003, p. 6, online,
http://www.nzsis.govt.nz/publications/ar03/nzsis-ar03.pdf (accessed May 23, 2006).
NZSIS Act, ss. 4(2)ff.
Government Communications Security Bureau Act 2003, (N.Z.) 2003/009, s. 3(a) [GCSB Act].
GCSB Act, s. 8(1)(a)–(d).
The Domestic and External Security Secretariat, Department of the Prime Minister and Cabinet,
“Securing Our Nation’s Safety: How New Zealand manages its security and intelligence agencies” (Wellington: The Domestic and External Security Secretariat, December 2000), p. 27.
Inspector-General of Intelligence and Security, Annual Report of the Inspector-General of
Intelligence and Security for the year ending June 1999, pp. 9–10, cited in The Domestic and
External Security Secretariat, “Securing Our Nation’s Safety: How New Zealand manages its security and intelligence agencies,” pp. 27–28.
GCSB Act, ss. 11, 14–17, 19, 22–25.
Complaints regarding the Immigration and Customs services are handled by New Zealand’s
Parliamentary Ombudsman: Ombudsmen Act 1975, Schedule I. For more information
on the New Zealand Parliamentary Ombudsman, see the Ombudsman’s website at
http://www.ombudsmen.govt.nz (accessed May 23, 2006).
Police Complaints Authority Act 1988 (N.Z.), 1988/002, s. 12(1)(a)(ii).
Ibid., ss. 27(1), 28(1).
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301
302
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304
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306
307
308
309
310
311
312
313
314
Ibid., s. 12(1)(b).
Ibid., ss. 17, 18, 19. The Authority appears to have had the Police investigate complaints in the
past, having hired its own investigators late in 2003: Louisa Cleave, “Workload surge taxes
watchdog,” The New Zealand Herald, October 1, 2004, online, http://www.nzherald.co.nz/
storyprint.cfm?storyID=3594659 (accessed May 23, 2006).
Police Complaints Authority Act 1988, s. 21(1).
Ibid., ss. 24(1), (2).
Ibid., ss. 26(1).
Ibid., ss. 27(2), 28(2).
Ibid., ss. 29(1).
Ibid., ss. 30.
Ibid., ss. 29(2), (3).
bid., ss. 35(1), (2).
Police Complaints Authority Act 1988, ss. 34(1), (2). The public release of decisions is “relatively rare”: Law and Order Select Committee, “Independent Police Complaints Authority
Amendment Bill: Commentary,” Presented to the House of Representatives on 17 November
2003, Office of the Clerk of the House of Representatives, p. 8, online, http://www.
clerk.parliament.govt.nz/Content/SelectCommitteeReports/18bar2.pdf (accessed May 23, 2006).
Police Complaints Authority Act 1988, s. 5(1).
Ibid., s. 4(2).
Ibid., s. 4(3).
The Honourable Sir Rodney Gallen, Review of the Police Complaints Authority (Wellington:
Ministry of Justice, October 2000), online, http://www.justice.govt.nz/pubs/reports/2001/
police_complaints/review_of_pca.doc (accessed May 23, 2006).
Law and Order Select Committee, “Independent Police Complaints Authority Amendment:
Commentary,” p. 2.
Ibid.
Ibid., pp. 8–9.
See “Related information and links: Police under Investigation,” The New Zealand Herald
(February 3, 2004), online, http://www.nzherald.co.nz/storyprint.cfm?storyID=3547492
(accessed May 23, 2006); Cleave, “Workload surge taxes watchdog”; Police Complaints
Authority (Commission of Inquiry into Police Conduct) Act 2004.
Inspector-General of Intelligence and Security Act 1996 (N.Z.), 1996/47, s. 4.
Ibid., ss. 11, 19.
Ibid., s. 11(3).
Ibid., s. 11(4).
Ibid., ss. 19(3), 23(2).
Ibid., s. 19(5).
Ibid., s. 21.
Ibid., s. 20(1).
Ibid., s. 26(3).
Ibid., s. 25(1).
Ibid., s. 25(2).
Ibid., s. 25(5).
Ibid., s. 27(1).
Ibid., ss. 27(3), (4).
Ibid., s. 5(2).
Ibid., s. 5(3).
Ibid., s. 6(1).
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Norway, Official Site in the U.K., “General info,” online, http://www.norway.org.uk/facts/
political/general/general.htm (accessed May 23, 2006). See also the Norway government’s
information site in English, online, http://www.odin.dep.no/odin/english/bn.html (accessed
May 23, 2006); Statewatch, “Norway: police and security agencies,” online, http://www.
poptel.org.uk/cgi-bin/dbs2/statewatch?query=Norway&mode=
records&row_id=18406 (accessed May 23, 2006); and U.S. Department of State, Background
Note: Norway, online, http://www.state.gov/r/pa/ei/bgn/3421.htm (accessed May 23, 2006).
Fredrik Sejersted, “Intelligence and Accountability in a State without Enemies: The Case of
Norway,” in Hans Born, Loch Johnson and Ian Leigh, eds., Who’s Watching the Spies?
Establishing Intelligence Service Accountability (Washington, DC: Potomac Books, Inc., 2005),
pp. 121–122 [Sejersted, “Intelligence and Accountability”].
Translation of the Norwegian name Utvalget for kontroll med etterretnings-, overvåknings- og
sikkerhetstjeneste, provided by the Committee. The Committee advises that it uses the word
“Parliamentary” to clarify that the committee is a parliament-appointed review body for the legislative branch. Note that the use of this name in this report differs from the names used in
previous Policy Review publications. The abbreviated English name of the Committee remains
the same, however: the EOS Committee, an acronym for the words in its Norwegian title,
etterretnings-, overvåknings- og sikkerhetstjeneste.
Ministry of Justice and the Police, “Statement on Safety and Security of Society,” Report no. 17
to the Storting (2001–2002), p. 2, online, http://www.odin.dep.no/jd/english/doc/white_paper/
012101-040002/dok-bn.html (accessed May 23, 2006).
Ibid., p. 3.
Lillian Røstad and Maria Bartnes Dahl, Centre for Information Security, “Experiences from establishing a national Centre for Information Security in Norway,” online, http://www.
terena.nl/conferences/tnc2003/programme/papers/p1c1.pdf (accessed May 23, 2006).
National Police Directorate, “The National Police Directorate — and a Short Introduction to the
Police in Norway,” online, http://www.straffet.com/eng/eng_pdf/NPD.pdf (accessed May 23,
2006) [National Police Directorate, “Introduction”].
Police Act, no. 53 of 4 August 1995. English version, without subsequent amendments, online,
http://www.ub.uio.no/ujur/ulov/english.html (accessed May 23, 2006).
National Police Directorate, “Introduction.”
Police Act, para. 17b, no. 5.
This was done by an amendment to the Police Act, no. 53 of 4 August 1995, adding ss. 17a,
17b and 17c. See Fredrik Sejersted, “Intelligence Oversight in Norway” (Geneva Centre for the
Democratic Control of Armed Forces: 2003), p. 7 [Sejersted, “Intelligence Oversight”].
Sejersted, “Intelligence and Accountability” p. 123.
National Police Directorate, “Introduction.”
See Leif Mevik, Chair of the Intelligence Oversight Committee, “Parliamentary Oversight
of the Intelligence Services: The Norwegian Experience” (Paper presented at the
Workshop on the Handbook on “Parliamentary Oversight of the Security Sector,” Bucharest,
Romania, March 29–30, 2004, organized by the Geneva Centre for the Democratic
Control of Armed Forces, and the Romanian Parliament), p. 3, online,
http://www.dcaf.ch/oversight/ev_bucharest_040329Mevik.pdf), in which it is noted that the
Security Service receives the greatest number of inspections (per the Instructions for
Monitoring of Intelligence, Surveillance and Security Services) (accessed May 23, 2006) [Mevik,
“Parliamentary Oversight”]; and Sejersted, “Intelligence and Accountability,” p. 134, in which
the author notes that the Police Security Service generates the most complaints.
Sejersted, “Intelligence and Accountability, p. 121.
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Act relating to the Norwegian Intelligence Service, 20 March 1998, s. 3, online,
http://www.ub.uio.no/ujur/ulovdata/lov-19980320-011-eng.pdf (accessed May 24, 2006)
[Intelligence Service Act].
Ibid.
Ibid., s. 4.
Sejersted, “Intelligence and Accountability,” p. 121; Intelligence Service Act, s. 2.
Sejersted, “Intelligence and Accountability,” p. 121.
Act relating to Protective Security Services, no. 10 of 20 March 1998, s. 8 [Security Act].
See http://www.nationmaster.com/encyclopedia/Nasjonal-Sikkerhetsmyndighet (accessed
May 24, 2006).
Sejersted, “Intelligence and Accountability,” p. 122.
Ibid.
Security Act, s. 10.
Security Act, which came into force in 2001. See Sejersted, “Intelligence Oversight,” p. 7.
Sejersted, “Intelligence and Accountability,” p. 122.
Sejersted, “Intelligence Oversight,” p. 46. See also Ministry of Justice and the Police, “Statement
on Safety and Security of Society,” (2001–2002), p. 4.
Sejersted, “Intelligence Oversight,” p. 46.
Act concerning the Storting’s Ombudsman for Public Administration, no. 8 of 22 June 1962,
s. 4; Directive to the Storting’s Ombudsman for Public Administration, 19 February 1980, s. 2;
Office of the Parliamentary Ombudsman for Public Administration, The Parliamentary
Ombudsman for Public Administration — Norway, Annual Report 2004, Summary
in
English,
Appendix
1,
online,
The
Parliamentary
Ombudsman,
http://www.sivilombudsmannen.no/eng/index.php?12 (accessed May 24, 2006).
Directive to the Storting’s Ombudsman for Public Administration (1980), s. 2. For more information on the Norwegian Parliamentary Ombudsman, see the Ombudsman’s website, online,
http://www.sivilombudsmannen.no/eng/index.php?32 (accessed May 24, 2006).
Act relating to the Monitoring of Intelligence, Surveillance and Security Services, no. 7 of
3 February 1995, ss. 1, 3 [Intelligence Monitoring Act]. See also Sejersted, “Intelligence and
Accountability,” pp. 124–125.
Sejersted, “Intelligence and Accountability,” pp. 124–25.
Fredrik Sejersted has noted that the issue is “growing” as co-operation among domestic agencies increases. He notes that the EOS Committee is “keeping its eye on” the coordinated efforts of the Police Security Service and the economic crimes unit of the ordinary police, as well
as the coordination between the Police Security Service and immigration authorities. See
Sejersted, “Intelligence Oversight,” p. 13, note 12.
In Norway, this issue is complicated by the fact that the economic crimes unit forms part of
the superior prosecution body, which is exempt from oversight by the EOS Committee. The
discussion is at section 2 of the Committee’s 2003 annual report, but the report is available in
Norwegian only.
Intelligence Monitoring Act, s. 3, para. 3.
Until January 1, 2005, this body was SEFO (the Norwegian acronym for the Special
Investigating Body for Police Matters). As of January 1, 2005, complaints against the police are
handled by a new agency called the Spesilaenheten for politisaker — the Special Unit for Police
Matters. In contrast to SEFO, this new body is external to the police.
See discussion above.
Intelligence Monitoring Act, s. 2.
Instructions for Monitoring of Intelligence, Surveillance and Security Services (EOS), issued
pursuant to s. 1 of Act No. 7 of 3 February 1995 relating to the Monitoring of Intelligence,
Surveillance and Security Services, s. 11 [Instructions].
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Intelligence Monitoring Act, s. 2.
Ibid., s. 3.
Ibid., s. 2.
Sejersted, “Intelligence and Accountability,” p. 133. Sejersted also discusses the “grey zone between consultations and discussions” and the fact that “the principle of retrospective oversight is difficult to maintain fully when it comes to operations that run for some period of
time.” See also Sejersted, “Intelligence Oversight,” pp. 30ff.
Intelligence Monitoring Act, ss. 4, 5; Instructions, s. 6.
Intelligence Monitoring Act, s. 3.
Instructions, s. 10.
Mevik, “Parliamentary Oversight,” p. 4.
Intelligence Monitoring Act, s. 2.
According to the EOS Committee, the Intelligence Monitoring Act, s. 2, presupposes that the
Committee cannot make binding decisions. See also the Instructions, s. 7.
Instructions, s. 8.
Intelligence Monitoring Act, s. 8.
Ibid.
Instructions, s. 13.
Intelligence Monitoring Act, s. 8.
Instructions, s. 1.
Sejersted, “Intelligence and Accountability,” p. 127.
Intelligence Monitoring Act, s. 9.
See http://www.sweden.se/templates/cs/CommonPage___3752.aspx (accessed May 24, 2006).
Ordinance (2003:148).
Ordinance (2003:1156).
Swedish Helsinki Committee for Human Rights, Annual Report 2003, p. 9.
Swedish
Security
Service,
Annual
Report
2003,
p.
2,
online,
http://www.securityservice.se/Publikationer/annual03.pdf (accessed May 24, 2006).
Ann-Louise Eksborg, Director-General, Swedish Emergency Management Agency,
“The Swedish Emergency Management Agency: Experiences and Conclusions after Two
Years,” p. 1, online, http://www.krisberedskapsmyndigheten.se/3673.epibrw (accessed
May 24, 2006) [Eksborg, “Swedish Emergency Management Agency”].
Ibid., p. 2.
See National Police Board, “Polis: A presentation of The Swedish Police Service,” online,
http://www.polisen.se/inter/mediacache//4347/4637/Polis_05_eng.pdf (accessed May 24,
2006) [National Police Board, “Polis”]. For more information on the national police service, see
National Police Board, “The Police Act with commentary” (Stockholm: Swedish National
Police Board, 1999), online, http://www.polisen.se/inter/mediacache//4347/4734/2671/
policeact_pdf.pdf (accessed May 24, 2006) [National Police Board, “Police Act”].
See National Police Board, “Police Act.”
See http://www.polisen.se/inter/nodeid=10232&pageversion=1.html; and National Police
Board, “Polis.”
Ordinances (1989:773) containing instructions to the National Police Board; and (2002:1050)
containing instructions to the Security Service. See also Swedish Security
Service, Annual Report 2002, p. 5, online, Swedish Security Service,
http://www.securityservice.se/Publikationer/annual02.pdf (accessed May 24, 2006).
National Police Board, “Polis,” p. 23.
Ibid.
409
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NATIONAL SECURITY ACTIVITIES
386
387
388
389
390
391
392
393
394
395
396
397
398
399
400
401
402
403
404
Swedish Security Service, Annual Report 2003, p. 6. See also Swedish Security Service, Annual
Report 2002, online, http://www.securityservice.se/ (accessed May 25, 2006).
Swedish Security Service, Annual Report 2003, p. 3.
Defence Intelligence Activity Act (2000:131); Related ordinance (2000:131).
Translation of the Swedish Försvarets Radioanstalt, on which the initialism is based.
Edict with Instructions for the National Defence Radio Centre (1994:714) (Förordning
(1994:714) med instruktion för Försvarets radioanstalt). The statute is available online in
Swedish only on the National Defence Radio Centre website at http://www.fra.se/rixlex/
1994-714.htm (accessed May 25, 2006).
Eksborg, “Swedish Emergency Management Agency,” p. 3.
The Act with Instructions for the Parliamentary Ombudsmen (1986:765), art. 2, online,
http://www.jo.se/Page.asp?MenuId=37&MainMenuId=12&ObjectClass=DynamX_Document&
Id=575&Language=en (accessed May 25, 2006) [Act with Instructions]. See also the summary
in English at the end of the Parliamentary Ombudsmen’s Report for the period 1 July 2000 to
30 June 2001, online, http://www.riksdagen.se/debatt/0001/forslag/jo1/jo1.pdf (accessed
May 25, 2006). Note that jurisdiction over “the armed forces . . . extends only to commissioned
officers with the rank of second lieutenant or above, and to those of corresponding rank”:
Act with Instructions, art. 2.
National Police Board, “Polis,” p. 5.
The Ombudsmen do not have jurisdiction over elected officials or members of policy-making
municipal bodies, the parliamentary administration, or the governing board of the National
Bank of Sweden: Act with Instructions, art. 2.
The reason for this division is largely historic. There used to be one ombudsman for all public authorities except the military, and another ombudsman for the military. The functions of
the Military Ombudsman have now been incorporated into the Parliamentary Ombudsmen’s
office, but a separation of responsibilities has been maintained. See The Swedish Parliamentary
Ombudsmen, Report for the Period 1 July 2003 to 30 June 2004 (Stockholm: Elanders Gotab,
2004), p. 483, online, The Swedish Parliamentary Ombudsmen, http://www.riksdagen.se/
srvfunc/dokarkiv/0405/bet/JO1.PDF (accessed May 25, 2006).
Swedish Parliamentary Ombudsmen, Report for the Period 1 July 2003 to 30 June 2004, p. 483.
Ibid., p. 516. A fourth Ombudsman is responsible for the fields of social welfare, public health,
and medical care and education.
Parliamentary
Ombudsmen,
“General
Information,”
online,
http://www.jo.se/Page.aspx?MenuId=12&ObjectClass=DynamX_Documents&Language+en
(accessed May 25, 2006). See the Act with Instructions, ss. 1, 3.
Act with Instructions, s. 5.
Ibid., s. 4.
Ibid., s. 18.
Due to the generalist nature, supervisory structure and small size of the Office of the
Ombudsmen, individuals often use other complaints or resolution mechanisms before
approaching it. In addition, the Ombudsmen have the power to refer complaints to other
“appropriate” authorities for resolution: Act with Instructions, s. 18. In some cases the
Ombudsmen’s office asks to be informed of the outcome of such referrals.
The Ombudsmen’s office has 55 employees, 30 of whom are lawyers. The office received approximately 5,100 complaints last year. For a discussion of the volume of complaints in the
Ombudsmen’s office, see B. Wieslander, The Parliamentary Ombudsman in Sweden, 2nd revised ed. (The Bank of Sweden Tercentenary Foundation: 1999), pp. 49–59.
The most recent of these was an investigation into the execution by the Security Police of an
order by the Swedish government to deport two Egyptian citizens. The investigation was
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405
406
407
408
409
410
411
412
413
414
415
416
417
418
419
420
completed in March, 2005. See http://www.jo.se/Page.aspx?MenuId=106&MainMenuId=
106&Language=en&ObjectClass=DynamX_DocumentSFS_Decision&Id=16251662 (accessed
May 25, 2006).
The Instrument of Government (1974:152), ch. 12, art. 6, online, http://www.jo.se/Page.asp?
MenuId=37&MainMenuId=12&Language=en&ObjectClass=DynamX_Documents&Id=571
(accessed May 25, 2006).
Act with Instructions, art. 6.
Ibid., s. 21. The Office of the Parliamentary Ombudsmen advises that this power has never
been used.
For example, in its 2000–2001 annual report, the Parliamentary Ombudsmen found that a police official had had “no basis in law” for issuing a warrant for a vehicle search. See
Parliamentary Ombudsmen’s Report for the period 1 July 2000 to 30 June 2001, pp. 546–47.
The Instrument of Government, ch. 12, art. 6. Any public prosecutor shall assist the
Ombudsman upon request. According to the Ombudsmen’s website, this power is rarely used.
Parliamentary Ombudsmen, “Powers and Sanctions,” online,
http://www.jo.se/
Page.aspx?MenuId=23&MainMenuId=12&ObjectClass=DynamX_Documents&SetLanguage=en
(accessed May 25, 2006). See also Act with Instructions, arts. 3ff.
Parliamentary Ombudsmen, “General Information.”
Riksdag Act, ch. 8, art. 11, online, http://www.jo.se/Page.asp?MenuId=37&
MainMenuId=12&ObjectClass=DynamX_Document&Id=573 (accessed May 25, 2006).
Terrorism Act 2000 (U.K.), 2000, c. 11; Anti-terrorism, Crime and Security Act 2001 (U.K),
2001, c. 24; Prevention of Terrorism Act 2005 (U.K.), 2005, c. 2; Serious Organised Crime and
Police Act 2005 (U.K.), 2005, c. 15; Terrorism Act 2006 (U.K.), 2006, c. 11.
Regulation of Investigatory Powers Act 2000 (U.K.), 2000, c. 23 [RIPA].
Police Reform Act 2002 (U.K.), 2002, c. 30. See also the website of the Secretary of State for
the Home Department [the Home Office], online, http://www.homeoffice.gov.uk (accessed
May 25, 2006); and the Serious Organised Crime and Police Act 2005. The Serious Organised
Crime Agency (SOCA) established by this Act assumed its duties on April 1, 2006: Serious
Organised Crime and Police Act 2005, ss. 1–59.
Police (Northern Ireland) Act 1998 (U.K.), 1998, c. 32.
The Police Reform Act 2002, created the Independent Police Complaints Commission for
England and Wales. See also http://www.ipcc.gov.uk/ (accessed May 25, 2006).
See the Home Office, “Counter-Terrorism & Resilience: Key Facts,” September 2004, online,
http://www.homeoffice.gov.uk/docs3/terrorism_keyfacts.pdf (accessed May 25, 2006).
See for example Lord Carlile of Berriew Q.C. (independent reviewer of the Terrorism Act
2000), “Report on the Operation in 2002 and 2003 of the Terrorism Act 2000”), online,
http://security.homeoffice.gov.uk/news-and-publications1/publication-search/
independent-reviews/TerrorismAct_ rpt1.pdf?view=Binary (accessed May 25, 2006); and Lord
Carlile of Berriew Q.C, “Anti-terrorism, Crime and Security Act 2001, Part IV, Section 28: Review
2003,” online, http://security.homeoffice.gov.uk/news-and-publications1/publication-search/
independent-reviews/atcsa-review-part7.pdf?view=Binary (accessed May 25, 2006). For a
listing
of
independent
reviews
of
terrorism
legislation,
see
online,
http://security.homeoffice.gov.uk/news-and-publications1/publication-search/
independent-reviews/ (accessed May 25, 2006).
See for example the Home Office, “Counter-Terrorism Powers: Reconciling Security and Liberty
in an Open Society: A Discussion Paper,” presented to the U.K. Parliament February 2004,
online,
http://security.homeoffice.gov.uk/news-and-publications1/publication-search/
general/ct-discussion?view=Binary (accessed May 25, 2006).
411
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NATIONAL SECURITY ACTIVITIES
421
422
423
424
425
426
427
428
429
430
431
The U.K. does, however, have certain national forces with specific mandates. For example, the
National Crime Squad (NCS) and the National Criminal Intelligence Service (NCIS) focus on
law enforcement and intelligence collection, respectively, in the area of organized crime. See
Police Act 1997 (U.K.), 1997, c. 50. See also http://www.nationalcrimesquad.police.uk/
(accessed May 25, 2006) and http://www.ncis.co.uk/ (accessed May 25, 2006). As I describe
in Section 8.2.4 of this chapter, on April 1, 2006, the U.K. government merged the NCS and
the NCIS, together with certain governmental investigative and intelligence sections, in the
new Serious Organised Crime Agency. See also the Home Office, “One Step Ahead: A 21st
Century Strategy to Defeat Organised Crime” (Crown: March 2004), also known as the
“Organised Crime White Paper.” Available online at http://www.homeoffice.gov.uk/
documents/cons-organised-crime-300704/organised-crime-300704?view=Binary (accessed
May 25, 2006). Other examples include the British Transport Police, the U.K. Atomic Energy
Authority Constabulary and the Royal Parks Constabulary.
For a list of U.K. local police forces, non-geographic police forces, and related agencies and
links, see http://www.police.uk/ (accessed May 25, 2006).
Note that the Metropolitan Police Special Branch will soon be amalgamated with its AntiTerrorist Branch. See note 431 below.
See RIPA and discussion below.
See http://www.police.uk/ (accessed May 25, 2006).
See http://www.psni.police.uk/ (accessed May 25, 2006).
See http://www.scotland.gov.uk/library/documents/police.htm (accessed May 25, 2006).
See note 421.
See the Policing Plans and other publications of the various forces, which can be accessed via
the http://www.police.uk/ portal (accessed May 25, 2006).
See the Metropolitan Police Service’s website, Anti-Terrorist Branch, online,
http://www.met.police.uk/terrorism/index.htm (accessed May 25, 2006). The Metropolitan
also appears to receive the bulk of the government’s funding to police for counter-terrorism.
See for example the Home Office press release, “Government Steps up its Fight Against
Terrorism . . . ,” dated March 19, 2004, online, http://press.homeoffice.gov.uk/
press-releases/Government_Steps_Up_Its_Fight_Ag?version=1 (accessed May 25, 2006) and
“Budget Boost to Regions for Street Crime, Counter-terrorism . . . ,” dated May 1, 2002, online,
http://www.policesupers.com/police-supers-news.asp?news_id=94 (accessed May 25, 2006).
See also “Terrorism – Policing the Unknown,” a speech by Home Office representative
Leigh Lewis to the Police Federation Annual Conference, May 20, 2004, online,
http://security.homeoffice.gov.uk/news-and-publications1/speeches-statement/
Speech_policing_the_unknown1.pdf?view=Binary (accessed May 25, 2006).
Her Majesty’s Inspector of Constabulary, “A Need to Know: HMIC Thematic Inspection of
Special Branch and Ports Policing” (Home Office Communications Directorate: January 2003),
p. 10. It appears that the Metropolitan Police Special Branch will be amalgamated with the AntiTerrorist Branch to form a single anti-terrorism directorate: see the Statement by Sir Ian Blair,
Metropolitan Police Commissioner, reported at “End for Special Branch After 122 Years,”
The
Daily
Telegraph
(September
9,
2005),
online,
Telegraph.co.uk,
http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2005/09/09/nspecials09.xml&sSheet
=/news/2005/09/09/ixhome.html (accessed May 25, 2006); “End of the Road for Special
Branch,”
The Guardian (September
9,
2005),
online,
The Guardian,
http://www.guardian.co.uk/crime/article/0,2763,1566085,00.html (accessed May 25, 2006);
“Special Branch to Close in Merger,” BBC News (September 9, 2005), online, BBC News,
http://news.bbc.co.uk/2/hi/uk_news/4227476.stm (accessed May 25, 2006).
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432
433
434
435
436
437
438
439
440
441
442
443
444
445
446
447
Home Office, Scottish Executive and Northern Ireland Office, “Guidelines on Special Branch
Work in the United Kingdom” (Home Office, Communications Directorate: March 2004), p. 6,
online, http://www.scotland.gov.uk/Resource/Doc/47171/0025036.pdf (accessed May 25,
2006) [Home Office, “Guidelines”].
Ibid., p. 2. This statement of the Special Branch’s function appears to differ from the statement
set out in the 1994 Guidelines, which provided that the role of Special Branch was “to gather
intelligence to meet national security requirements as well as to support other policing priorities such as the prevention of disorder.” See Her Majesty’s Inspector of Constabulary, “A Need
to Know: HMIC Thematic Inspection of Special Branch and Ports Policing” (Home Office
Communications Directorate: January 2003), p. 10. It may be relevant that in this report, the
HMIC found that “the role and responsibilities of Special Branch are unclear; the 1994 guidelines do not reflect the changed environment . . . . HMIC recommends that the Home Office
review and update the current Guidelines in order to clarify the role of Special Branch thereby
formalising its remit and priorities within the national security arena” (p. 13). More research
will be required on the precise nature of the Special Branch activities.
Home Office, “Guidelines,” p. 2.
Ibid., Foreword.
Ibid., p. 6 and Foreword.
Ibid., Foreword.
“About
PSNI,”
Police
Service
of
Northern
Ireland,
online,
http://www.psni.police.uk/index/about_psni.htm (accessed May 25, 2006). Independent
Commission on Policing in Northern Ireland, A New Beginning: Policing in Northern Ireland,
The Report of the Independent Commission on Policing for Northern Ireland (Norwich: The
Copyright Unit, 1999), online, Independent Commission on Policing for Northern Ireland,
http://www.belfast.org.uk/report/fullreport.pdf (accessed May 25, 2006) [Report of the
Independent Commission on Policing for Northern Ireland].
The RUC’s involvement in anti-terrorism policing is reviewed and analyzed in the Report of
the Independent Commission on Policing for Northern Ireland, esp. Ch. 1.
U.K., Home Office, Serious Organised Crime Agency, SOCA Annual Plan, 2006/7, p. 6, online, Serious Organised Crime Agency, http://www.soca.gov.uk/downloads/annualPlan.pdf
(accessed May 25, 2006) [SOCA Annual Plan].
Serious Organised Crime and Police Act 2005.
SOCA Annual Plan, p. 6.
Ibid., p. 7.
For more information on this aspect of SOCA’s activities, see the SOCA website at
http://www.soca.gov.uk/financialIntel/index.html (accessed May 25, 2006). See also
Sir Stephen Lander, SOCA, Review of the Suspicious Activity Reports Regime (SAR
Review),
March
2006,
online,
SOCA,
http://www.soca.gov.uk/downloads/
SOCAtheSARsReview_FINAL_Web.pdf (accessed May 25, 2006). In Canada, this role is filled
by the Financial Transactions and Reports Analysis Centre (FINTRAC), which I discuss in
Chapter V.
SOCA Annual Plan, pp. 7–8
Serious Organised Crime and Police Act 2005, s. 5.
See, for example, U.K., Home Office, “The introduction of oversight by the Independent Police
Complaints Commission (IPCC) of certain functions of Immigration Officers (IOs), in England
and Wales Regulatory Impact Assessment,” (2006), p. 5, online, Home Office Police,
http://police.homeoffice.gov.uk/news-and-publications/publication/police-reform/RIAIPCC_v5.pdf?view=Binary (accessed May 25, 2006) [Home Office, “Introduction of oversight”].
413
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NATIONAL SECURITY ACTIVITIES
448
449
450
451
452
453
454
455
456
457
458
459
460
461
462
463
464
465
466
SOCA Annual Plan,
p.
8.
See
also
SOCA
FAQs,
online,
SOCA
http://www.soca.gov.uk/faqs/index.html (accessed May 25, 2006).
SOCA Annual Plan, p. 7.
See the Security Service Act 1989 (U.K.), 1989, c. 5; http://www.mi5.gov.uk/ (accessed May 25,
2006); and U.K., “National Intelligence Machinery” (Crown: September 2001), online,
http://www.archive.official documents.co.uk/document/caboff/nim/0114301808.pdf (accessed
May 25, 2006).
Security Service Act 1989, s. 1; Security Service Act 1996 (U.K.), 1996, c. 35, s. 1.
http://www.mi5.gov.uk/output/Page77.html (accessed May 25, 2006).
Security Service Act 1989, s. 2.
Security Service Act 1989.
See
the
Intelligence Services Act 1994 (U.K.),
1994,
c.
13,
online,
http://www.opsi.gov.uk/acts/acts1994/Ukpga_19940013_en_1.htm (accessed May 25, 2006);
and U.K., “National Intelligence Machinery” (Crown: September 2001), online,
http://www.archive.official-documents.co.uk/document/caboff/nim/0114301808.pdf (accessed
May 25, 2006).
Intelligence Services Act 1994, s. 1.
Intelligence Services Act 1994.
See the Intelligence Services Act 1994; http://www.gchq.gov.uk/ (accessed May 25, 2006); and
U.K., “National Intelligence Machinery” (Crown: September 2001), online,
http://www.archive.official-documents.co.uk/document/caboff/nim/0114301808.pdf (accessed
May 25, 2006).
Intelligence Services Act 1994, s. 3.
Intelligence Services Act 1994.
U.K., “National Intelligence Machinery.”
However, a complainant who is dissatisfied with the results of an investigation can write to
Her Majesty’s Inspectorate of Constabulary for Scotland (discussed below), which reviews the
investigation and may request a reconsideration by the police. See Her Majesty’s Inspectorate
of Constabulary for Scotland, “The Role of HMIC in Police Complaints,” online,
http://www.scotland.gov.uk/Topics/Justice/Police/15403/2065 (accessed May 25, 2006).
See Scottish Executive, News Release, “Next steps on police complaints” (June 24, 2004), online, http://www.scotland.gov.uk/News/Releases/2004/06/5702 (accessed May 25, 2006); and
Scottish Executive, “Complaints Against the Police in Scotland: A Consultation Paper,” online,
http://www.scotland.gov.uk/consultations/justice/caps.pdf (accessed May 25, 2006).
The Independent Police Complaints Commission replaced the Police Complaints Authority on
April 1, 2004. See the Police Reform Act 2002, ss. 9ff.; and http://www.ipcc.gov.uk (accessed
May 25, 2006).
The Commissioners for Revenue and Customs Act 2005 (U.K.), 2005, c. 11 [Revenue and
Customs Act] combines the Inland Revenue, and Customs and Excise departments into a single department called Her Majesty’s Revenue and Customs [HMRC]. Pursuant to the Revenue
and Customs (Complaints and Misconduct) Regulations 2005, (U.K.) S.I. 2005/331, published
under s. 28 of the Commissioners for Revenue and Customs Act, the IPCC has jurisdiction over
certain aspects of the HMRC’s activities.
Bill 119, Police and Justice Bill (U.K.), 2006–2007 Sess., 2006, s. 38 (1st reading 25 January
2006), online, http://www.publications.parliament.uk/pa/cm200506/cmbills/119/2006119.htm
(accessed May 26, 2006) [Bill 119, 2006]. More information on the proposal is available in Bill
119-EN, “Explanatory Notes” (U.K.), 2006, online, http://www.publications.parliament.uk/
pa/cm200506/cmbills/119/en/06119x--.htm (accessed May 26, 2006); and in the Home Office
Regulatory Impact Assessment“ Introduction of oversight.”
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467
468
469
470
471
472
473
474
475
476
477
478
479
480
481
482
483
484
485
486
Bill 119, 2006, s. 38(2). The Prisons and Probation Ombudsman, not the IPCC, has jurisdiction
over conditions of detention in immigration holding facilities: Bill 119, 2006, s. 38(3).
Her Majesty’s Customs and Revenue Department has both Customs and Inland Revenue functions. The IPCC’s jurisdiction does not extend, for example, to taxpayer complaints.
This jurisdiction includes the Special Branches, though as noted above, this proposition has
not been tested yet, and much of their work would be subject to RIPA scrutiny.
There is statutory authority behind this agreement, insomuch as the IPCC can “call in” complaints or other matters for investigation by the IPCC: Police Reform Act 2002, Schedule 3,
s. 4(1)(c). Rather than the IPCC calling in all such complaints individually, the police forces
have agreed to simply refer all complaints regarding the use of anti-terrorism powers.
The Department for Constitutional Affairs defines a “statutory gateway” as an “express
statutory power to share personal data whether permissive or mandatory.” See “Public
Sector Data Sharing – A guide to Data Sharing Protocols,” November 2003, online,
http://www.dca.gov.uk/foi/sharing/toolkit/infosharing.htm (accessed May 25, 2006).
See note 465.
Revenue and Customs Act, ss. 28(3)–(4). The Regulations are available online at
http://www.opsi.gov.uk/si/si2005/20053311.htm (accessed May 26, 2006).
Bill 119, 2006, ss. 38(5), 38(6). The official name of the Parliamentary Ombudsman is the
Parliamentary Commissioner for Administration. The Commissioner has a statutory basis under
the Parliamentary Commissioner Act 1967 (U.K.), 1967, c. 13, and the Parliamentary
Commissioner Act 1994 (U.K.), 1994, c. 14.
See http://www.dca.gov.uk/foi/sharing/toolkit/infosharing.htm (accessed May 26, 2006); and
http://www.dca.gov.uk/foi/sharing/toolkit/lawguide.htm#part3 (accessed May 26, 2006).
Police Reform Act 2002, s. 10.
Ibid., s. 10(2)(b), Schedule 3, Parts 2, 3.
Ibid., s. 10, Schedule 3, Parts 2, 3.
Ibid., s. 22.
Police Reform Act 2002, Schedule 3, ss. 6ff. See generally, Independent Police Complaints
Commission (U.K.), Making the New Police Complaints System Work Better: Statutory Guidance,
2005, para. 5.4.13, online, http://www.ipcc.gov.uk/ (accessed May 26, 2006) [IPCC Statutory
Guidance]. This statutory guidance was issued pursuant to the Police Reform Act, s. 22. The
U.K.’s police forces are each subject to a Police Authority, which is charged with maintaining
efficient and effective police forces for its respective policing area. See Police Act (U.K.), 1996,
c. 16, ss. 3-0, 26.
Police Reform Act 2002, Schedule 3, s. 25. See generally, IPCC Statutory Guidance.
The Police (Complaints and Misconduct) Regulations 2004 (U.K.), S.I. 2004/643, s. 16, online,
http://www.opsi.gov.uk/si/si2004/20040643.htm#16 (accessed May 26, 2006); IPCC Statutory
Guidance, para. 5.4.13.
IPCC Statutory Guidance, para. 5.4.13.
Criminal Procedure and Investigations Act 1996 (U.K.), 1996, c. 25, s. 3; Criminal Justice Act
2003 (U.K.), 2003, c. 44, s. 32.
Criminal Procedure and Investigations Act 1996.
U.K., Attorney General, Attorney General’s Guidelines on Disclosure, para. 48, online, The
Legal Secretariat to the Law Officers, http://www.lslo.gov.uk/pdf/disclosure.doc (accessed
May 26, 2006) [Attorney General’s Guidelines]; U.K., Crown Prosecution Service, Crown
Prosecution Service Disclosure Manual (2005), Ch. 4, para. 27, online, The Crown Prosecution
Service, http://www.cps.gov.uk/legal/section20/chapter_a.html#001 (accessed May 26, 2006)
[Crown Prosecution Manual].
415
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NATIONAL SECURITY ACTIVITIES
487
488
489
490
491
492
493
494
495
496
497
498
499
500
501
502
503
504
505
506
507
508
509
510
511
512
513
514
515
516
517
518
519
520
521
522
523
524
525
The Crown may apply to the Court for a witness summons under s. 97 of the Magistrate’s
Court Act 1980 or in the Crown court, section 2 Criminal Procedure (Attendance of Witnesses)
Act 1965 as amended: Crown Prosecution Service Disclosure Manual, Ch. 4, para. 16; Attorney
General’s Guidelines on Disclosure, para. 52.
Attorney General’s Guidelines, paras. 51–54; Crown Prosecution Manual, Ch. 4.
Crown Prosecution Manual, Ch. 4, para. 23.
Police Reform Act 2002, s.17.
Ibid., s. 18.
Ibid., Schedule 3, ss. 1, 12.
Ibid., s. 17.
Police Reform Act 2002, Schedule 3, Part 3; s. 10.
Ibid., ss. 23(2)(b)–(c).
Ibid., s. 11.
Ibid., Schedule 3, s. 22; s. 29.
Ibid., ss. 20, 21.
Ibid., Schedule 3, ss. 23, 25–28.
Police Reform Act 2002, s. 20(6); The Police (Complaints and Misconduct) Regulations 2004
(U.K.), S.I. 2004/643, s. 12.
Police Reform Act 2002, s. 9.
Ibid., Schedule 2, s. 2.
Ibid., s. 9.
Ibid., Schedule 2, s. 2.
See Police (Northern Ireland) Act 1998, amended by the Police (Northern Ireland) Act 2000
(U.K.), 2000, c. 32, and the Police (Northern Ireland) Act 2003 (U.K.), 2003, c. 6.
Revenue and Customs Act 2005.
Police (Northern Ireland) Act 1998, ss. 50–56.
Ibid., s. 52(5).
Police (Northern Ireland) Act 2003 (U.K.), s. 13.
Police (Northern Ireland) Act 1998, ss. 53–54.
Ibid., s. 57.
Ibid.
This practice is consistent with the Criminal Procedure and Investigations Act 1996. The
Ombudsman’s office is not formally bound by this statute, but states that it regards itself as
being bound.
Criminal Law Act (Northern Ireland) 1967 (U.K.), 1967, c. 18, s. 5.
Police (Northern Ireland) Act 1998, s. 55.
Ibid.
Police (Northern Ireland) Act 2000, s. 66.
See for example House of Commons Northern Ireland Affairs Committee, “The Functions of
the Office of the Police Ombudsman for Northern Ireland,” 23 February 2005, pp. 22–23.
Police (Northern Ireland) Act 1998, s. 56.
Ibid., s. 61.
Ibid., s. 62.
Police (Northern Ireland) Act 2003, s. 13.
Police (Northern Ireland) Act 1998, Schedule 3, s. 1.
Ibid.
RIPA. This Act applies to Northern Ireland as well, and includes the establishment of a
Northern-Ireland-specific review body, the Investigatory Powers Commissioner for Northern
Ireland. The Scottish Parliament passed its own similar law, the Regulation of Investigatory
Powers (Scotland) Act 2000, A.S.P. 2000, c. 11.
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527
528
529
530
531
532
533
534
535
536
537
538
539
540
541
542
543
544
545
546
547
548
549
550
551
552
553
554
For example, the use of certain “intrusive surveillance” methods are subject to different authorization regimes, depending on whether a police agency or an intelligence agency wishes
to use the method: RIPA, ss. 32, 36, 41, 42.
See RIPA, Part I, Chapter I.
See RIPA, Part I, Chapter II.
See RIPA, parts II and IV. Note that the Office of the Surveillance Commissioners was created
by the Police Act 1997 rather than by RIPA, although RIPA effected some changes to its powers. For example, complaints are now handled by the IPT: RIPA, Part IV, ss. 65ff.
RIPA, Part III.
RIPA, Part IV, ss. 65ff.
A complete list of the public authorities that may seek covert surveillance authorizations is
found in Schedule 1 of the Regulation of Investigatory Powers Act 2000 (U.K.), and The
Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence
Sources) Order 2003, S.I. 2003/3171. The various acts and regulations governing covert surveillance activity in Great Britain are available online, Office of Surveillance Commissioners,
http://www.surveillancecommissioners.gov.uk/index.html (accessed May 26, 2006).
The OSC advises that although it is empowered to carry out general inspection activity, it does
not, as it asks all public authorities under its purview to provide detailed reports of any
breaches in procedures.
RIPA, ss. 5ff.
For a detailed listing of the Interception of Communication Commissioner’s mandate,
see RIPA, ss. 57–58. See also the ICC’s annual reports, found online at
http://www.official-documents.co.uk/ (accessed May 26, 2006).
Annual Report of the Chief Surveillance Commissioner, 2000–2001, p. 5.
RIPA, ss. 57(3), 59(3), 68(2), 68(8).
RIPA, ss. 40, 58, 60, 61, 68.
Ibid., s. 68.
Ibid., s. 67.
Ibid., s. 67.
Note that as described above, the OSC plays the additional role of authorization of certain surveillance activities, including certain activities undertaken by police forces, as well as determination of appeals of authorization refusals. See Part II, ss. 36ff. In this respect, the OSC does
have "binding" powers.
RIPA, ss. 58–60, 39; Police Act 1997, s. 107.
RIPA, ss. 58–60.
Police Act 1997, s. 107.
RIPA, s. 68.
Ibid., s. 68.
RIPA, ss. 57, 59, 63; Police Act 1997, s. 91.
RIPA, s. 65(1).
Ibid., Schedule 3, s. 1.
Police Act 1997, s. 91.
RIPA, Schedule 3, s. 1.
National Security Act of 1947, Pub. L. No. 80-253, 61 Stat. 495 (codified as amended at
50 U.S.C. § 401 note). An unofficial version of the U.S. Code can be found online at Cornell
Law School Legal Information Institute, http://www.law.cornell.edu/uscode (accessed May 26,
2006).
Exec. Order No.12,333, Part 1.14, 3 C.F.R. 200 (1981 Comp.), online,
http://www.fas.org/irp/offdocs/eo12333.htm (accessed May 26, 2006), as amended by Exec.
417
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561
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565
566
567
Order No. 13,284 (January 23, 2003), online, http://www.fas.org/irp/offdocs/eo/eo-13284.htm
(accessed May 26, 2006).
Homeland Security Act of 2002, 6 U.S.C. §§ 101ff.
U.S., Department of State, “Bureau of Intelligence and Research,” online, U.S. Department of
State, http://www.state.gov/s/inr/ (accessed May 26, 2006).
See 50 U.S.C. §§ 403–5.
National Security Agency Act of 1959, Pub. L. 86-36, 73 Stat. 63 (codified as amended at
50 U.S.C. § 402 note).
Two core documents that outline federal department responsibilities for U.S. national security,
offered as general reference materials to the reader, are the Homeland Security Presidential
Directive/HSPD-5, February 28, 2003, online, http://www.fas.org/irp/offdocs/nspd/hspd-5.html
(accessed May 26, 2006), and the National Response Plan, December 2004, online,
http://www.fas.org/irp/agency/dhs/nrp.pdf (accessed May 26, 2006).
The Background Paper is available on the Commission website, www.ararcommission.ca. Two
civil liberties boards have also been established at the executive level, but they are beyond
the scope of this chapter: the President’s Board on Safeguarding Americans’ Civil Liberties was
established by Exec. Order No. 13,353, 69 Fed. Reg. 53 (Sept. 1, 2004); a Privacy and Civil
Liberties Oversight Board within the Executive Office of the President was established by the
Intelligence Reform Act of 2004, being Title I of the Intelligence Reform and Terrorism
Prevention Act of 2004, Pub. L. No. 108-458, 118 Stat. 3638 § 1061 (codified at 5 U.S.C. §
601 note). The relationship between these two entities, and whether they will both continue
to exist, is unclear at the time of writing.
See discussion under “Review and Oversight” below.
The 9/11 Commission Report: Final Report of the National Commission on Terrorist Attacks
Upon the United States (New York: W.W. Norton, 2004), online, GPO Access,
http://www.gpoaccess.gov/911/index.html (accessed May 26, 2006).
Intelligence Reform and Terrorism Prevention Act of 2004.
Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass
Destruction, Report to the President of the United States (Washington, D.C.: U.S. Government
Printing Office, 2005), online, GPO Access, http://www.gpoaccess.gov/wmd/ (accessed
May 26, 2006).
Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism (USA PATRIOT Act) Act of 2001, Pub. L. No. 107-56, 115 Stat. 272. See also
Stephen J. Schulhofer, The Enemy Within: Intelligence Gathering, Law Enforcement, and Civil
Liberties in the Wake of September 11 (New York: The Century Foundation Press, 2002), p. 1.
See James Risen and Eric Litchtblau, “Bush Lets U.S. Spy on Callers Without Courts,” The
New York Times (December 16, 2005), A1 [Risen and Litchtblau article]; White House, Radio
Address, “President’s Radio Address” (December 17, 2005), online, White House,
http://www.whitehouse.gov/news/releases/2005/12/20051217.html (accessed May 26, 2006)
[Radio Address by President George W. Bush]; U.S., Congressional Research Service,
Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign
Intelligence Information, Memorandum by Elizabeth B. Bazan and Jennifer K. Elsea
(Washington D.C.: Library of Congress, January 5, 2006), online, Federation of American
Scientists Intelligence Resource Program, http://www.fas.org/sgp/crs/intel/m010506.pdf
(accessed May 26, 2006) [CRS report on NSA Intercepts]; U.S., Department of Justice, White
Paper, Legal Authorities Supporting the Activities of the National Security Agency Described by
the President (January 19, 2006) [U.S. Justice Department White Paper].
Exec. Order No.13,354 (August 27, 2004) establishing the National Counterterrorism Center, online, Federation of American Scientists, http://www.fas.org/irp/offdocs/eo/eo-13354.htm
(accessed May 26, 2006).
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579
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581
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583
584
585
586
587
Intelligence Reform and Terrorism Prevention Act of 2004 §1021. For an overview of this centre and the challenges involved in creating it, see U.S., Congressional Research Service,
The National Counterterrorism Center: Implementation Challenges and Issues for Congress,
by Todd M. Masse (RL 32816) (Washington, D.C.: Library of Congress, March 24, 2005), p. 16,
online, Federation of American Scientists Intelligence Resource Program,
http://www.fas.org/sgp/crs/intel/RL32816.pdf (accessed May 26, 2006).
Codified at 50 U.S.C. § 401 note, being Title I of the Intelligence Reform and Terrorism
Prevention Act of 2004.
The American Intelligence Community was established formally by President Gerald Ford in
Exec. Order No. 11, 905, 41 Fed. Reg. 7703 (February 19, 1976), online, Gerald R. Ford
Presidential Library and Museum, http://www.ford.utexas.edu/library/speeches/760110e.htm
(accessed May 26, 2006). The American Intelligence Community consists of 16 different
organizations. For a list and a description of each agency, see “Members of the
Intelligence
Community,”
online,
United
States
Intelligence
Community,
http://www.intelligence.gov/1-members.shtml (accessed May 26, 2006).
50 U.S.C. § 403.
Ibid. § 403-4a.
Ibid. § 403-1(f)(4).
Ibid. § 403-1(c).
Ibid. §§ 403-1(f), 403-1(c)(5)(C).
Ibid. § 403-1(e).
Ibid. § 403-1(f)(3)(A).
Ibid. § 403-1(f)(4).
28 U.S.C. §§ 531-540C.
“FBI History,” online, Federal Bureau of Investigation, http://www.fbi.gov/fbihistory.htm
(accessed May 26, 2006).
U.S., National Commission on Terrorist Attacks upon the United States, Staff Statement No. 9:
Law Enforcement, Counterterrorism, and Intelligence Collection in the United States
Prior to 9/11 (April 13, 2004), p. 1. The investigatory authority of the FBI is found at
28 U.S.C. § 533. Specific authority to investigate crimes against the United States is provided
for at 28 U.S.C. § 533(1).
U.S., FBI Transformation Efforts: Hearing Before the Subcommittee on Science, State, Justice and
Commerce, and Related Agencies of the House Committee on Appropriations, 109th Cong.
(2005), pp. 2–3 (Robert S. Mueller, III, Director, Federal Bureau of Investigation). The National
Security Branch represents the FBI’s response to the Intelligence Reform and Terrorism
Prevention Act of 2004 § 2001(c)(2), codified at 28 U.S.C. 532 note. The statute requires the
FBI to “develop and maintain a specialized and integrated national intelligence workforce.”
“National Security Branch Overview”, online, Federal Bureau of Investigation,
htttp://www.fbi.gov/hq/nsb/whitepaper.htm (accessed October 19, 2006) [“National Security
Branch Overview”]. The FBI has stated that it intends to continuously incorporate structural
changes across the National Security Branch in order to create efficiencies and promote
integration.
Ibid.
Intelligence Reform and Terrorism Prevention Act of 2004, § 2002.
“Facts and Figures,” online, Federal Bureau of Investigation, http://www.fbi.gov/priorities/
priorities.htm (accessed May 26, 2006).
“Investigative Programs, Counter Intelligence Division,” online, Federal Bureau of Investigation,
http://www.fbi.gov/hq/ci/cointell.htm (accessed May 26, 2006); “Focus on Counter
Intelligence, Part 1 of an Interview with FBI Assistant Director Dave Szady,” online, Federal
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589
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594
595
596
597
598
599
600
601
602
Bureau of Investigation, http://www.fbi.gov/page2/july04/szady072004.htm (accessed May 26,
2006).
“Protecting America Against Terrorist Attack: A Closer Look at the FBI’s Joint Terrorism Task
Forces,” online, Federal Bureau of Investigation, http://www.fbi.gov/page2/dec04/
jttf120114.htm (accessed May 26, 2006).
“National Security Branch Overview.”
6 U.S.C. §§ 101ff.
“Department of Homeland Security,” online, The Executive Office of the President, Office of
Management and Budget, http://www.whitehouse.gov/omb/budget/fy2005/homeland.html
(accessed May 26, 2006).
6 U.S.C. § 121
For more information on the Coast Guard intelligence capability, see “US Coastguard
Intelligence,” online, United States Intelligence Community, http://www.intelligence.gov/
1-members_coastguard.shtml (accessed May 26, 2006).
National Security Act of 1947. The Central Intelligence Agency Act of 1949, ch. 412 § 2,
63 Stat. 579 (codified at 50 U.S.C. § 401 note) supplemented the National Security Act of 1947.
It provided a statutory basis for the Agency’s budgetary secrecy and exempted it from disclosing the “organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency.” See 50 U.S.C. § 403g.
See “CIA Frequently Asked Questions,” online, Central Intelligence Agency,
http://www.cia.gov/cia/public_affairs/faq.html#3 (accessed May 26, 2006) [CIA FAQ].
CIA FAQ.
50 U.S.C. § 403-4a(d)(1)–(4).
Ibid. § 403-3(d)(1).
Office of the Director of National Intelligence, News Release, “Establishment of the National
Clandestine Service” (October 13, 2005), online, Office of the Director of National Intelligence,
http://www.dni.gov/press_releases/20051013_release.htm (accessed May 26, 2006). See also
U.S., Oversight Subcommittee Hearing on the Status of Implementation of the Intelligence
Reform and Terrorism Prevention Act of 2004, and the Stand-Up of the Office of the Director
of National Intelligence: Hearing before the Permanent Select Committee on Intelligence,
Subcommittee on Oversight, 109th Cong. (2005), p. 11 (General Michael V. Hayden, Principal
Deputy Director of National Intelligence), online, House of Representatives Permanent Select
Committee on Intelligence, http://intelligence.house.gov/Media/PDFS/Transcript072805.pdf
(accessed May 26, 2006); “General Michael V. Hayden Before House Permanent Select
Committee, Subcommittee on Oversight, July 28, 2005,” online, Office of the Director of
National Intelligence, http://www.dni.gov/testimonies/20050728_testimony.htm (accessed
May 26, 2006).
The NSA is sometimes referred to as the NSA/CSS. A presidential directive established the
Central Security Service (CSS) in 1972 to integrate the military cryptological capability into the
NSA. The CSS is still responsible for military cryptological elements. The Director of the CSS
is also the Director of the NSA: “About NSA,” online, National Security Agency,
http://www.nsa.gov/about/about00018.cfm#5 (accessed May 26, 2006). A brief history of the
NSA is given in Joel F. Brenner, “Information Oversight: Practical Lessons from Foreign
Intelligence,” Heritage Lectures No. 851, delivered June 25, 2004, and available online, The
Heritage Foundation, www.heritage.org/research/nationalsecurity/hl851.cfm (accessed May 26,
2006) [Brenner].
National Security Agency, “Frequently Asked Questions,” p. 1, online, National Security
Agency, www.nsa.gov/about/about00020.cfm (accessed May 29, 2006).
For more information about Signals Intelligence generally, see “Signals Intelligence,” online,
National Security Agency, http://www.nsa.gov/sigint/index.cfm (accessed May 29, 2006).
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616
50 U.S.C. § 403-5(b)(1); Exec. Order No. 12,333 §§ 1.11(j), 1.12(b), online, Ronald Reagan
Presidential
Library
Archives,
http://www.reagan.utexas.edu/archives/speeches/
1981/120481d.htm (accessed May 29, 2006).
U.S., Congressional Research Service, The National Security Agency: Issues for Congress, by
Richard A. Best (RL 30740) (Washington, D.C.: Library of Congress, January 16, 2001), p. 16,
online, Federation of American Scientists Intelligence Resource Program,
http://www.fas.org/irp/crs/RL30740.pdf (accessed May 29, 2006).
National Security Agency Act of 1959 § 402 note. The responsibilities of the NSA are set out
in Exec. Order No. 12,333 § 1.12(b).
Pub. L. 95-511, Title I, 92 Stat. 1796 (October 25, 1978) (codified as amended at 50 U.S.C.
§§ 1801ff.) [FISA].
Exec. Order No. 12,333.
50 U.S.C. § 403-5(b)(1). Exec. Order No. 12,333 authorizes the NSA to collect foreign
intelligence.
Exec. Order No. 12,333. For more information on what signals intelligence involves, see
“SIGINT Frequently Asked Questions,” online, National Security Agency, http://www.nsa.gov/
sigint/sigin00003.cfm (accessed May 29, 2006).
An agent of a foreign power includes an individual engaged in international terrorist activities: FISA, 50 U.S.C. § 1801(a)(4).
FISA, 50 U.S.C. § 1804.
Risen and Litchtblau article; Radio Address by President George W. Bush.
Office of the Director of National Intelligence, “Remarks by General Michael V. Hayden,
Address to the National Press Club: What American Intelligence & Especially the NSA Have
Been Doing to Defend the Nation,” January 23, 2006, Washington, D.C., online, Office of the
Director of National Intelligence, http://www.dni.gov/speeches/20060123_speech.htm
(accessed May 29, 2006).
See Risen and Litchtblau article; Radio Address by President George W. Bush; Letter from
William E. Moschella, Assistant Attorney General, to The Hon. Pat Roberts, Chairman, Senate
Select Committee on Intelligence, The Hon. John D. Rockefeller, IV, Vice Chairman, Senate
Select Committee on Intelligence, The Hon. Peter Hoekstra, Chairman, Permanent Select
Committee on Intelligence, U.S. House of Representatives, The Hon. Jane Harman, Ranking
Minority Member, Permanent Select Committee on Intelligence, U.S. House of Representatives
(December 22, 2005), online, Findlaw, www.findlaw.com (accessed May 29, 2006); CRS report
on NSA Intercepts; U.S. Justice Department White Paper; Letter from Arlen Specter, U. S. Senate
Judiciary Committee Chairman to U.S. Attorney General Alberto Gonzales (January 24, 2006),
online, Findlaw, www.findlaw.com (accessed May 29, 2006). See also Beth Nolan, Curtis
Bradley, David Cole et al., “On NSA Spying: A Letter to Congress,” New York Review of Books
53:2 (February 9, 2006), online, http://www.nybooks.com/articles/18650 (accessed May 29,
2006). Written by a number of leading American constitutional scholars and former government
officials, the letter questions the legality of the program. The essence of the debate turns
around whether the President had the authority to authorize the NSA program, or whether that
power lies with Congress.
U.S., Senate Committee on the Judiciary, Hearing on “Wartime Executive Power and the NSA’s
Surveillance Authority” (February 6, 2006), The Hon. Alberto Gonzales, Attorney General of
the United States appearing as witness.
U.S., House of Representatives Permanent Select Committee on Intelligence, Press Release,
“House Intelligence Agrees to Work Plan on NSA, FISA Oversight,” online, House of
Representatives Permanent Select Committee on Intelligence, http://www.fas.org/irp/news/
2006/03/hpsci030206.pdf (accessed May 29, 2006).
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618
619
620
621
622
623
624
625
626
627
628
629
630
631
632
633
634
635
Exec. Order No.12,333 § 1.12(b)(5).
“Information Assurance,” online, National Security Agency, http://www.nsa.gov/ia/index.cfm
(accessed May 29, 2006). The legal basis for this part of the NSA’s mandate is found in Exec.
Order No.12,333 § 1.12(b)(9).
Exec. Order No. 12,333 § 1.12(b)(9). See also National Security Agency Act of 1959 § 13;
“Research,” online, National Security Agency, http://www.nsa.gov/research/ (accessed May 29,
2006).
National Security Agency Act of 1959 § 6(a).
Best, p. 1. One recent press estimate has placed the number of employees at about 38,000:
Barton Gellman, Dafna Linzer and Carol D. Leonnig, “Surveillance Net Yields Few Suspects,”
Washington Post (February 5, 2006) A01, online, Washington Post, www.washingtonpost.com
(accessed May 29, 2006).
5 U.S.C. app.
5 U.S.C. app. §§ 1–12 (1978) § 11(2).
See for example, 50 U.S.C. § 403q, which creates and regulates the Office of the Inspector
General of the CIA.
The jurisdiction of the IG DHS over certain immigration and customs bureaus is explicitly set
out at 5 U.S.C. app. § 8I(e).
5 U.S.C. app. § 8H(a)(1)(A) and (g)(i). See also Department of Defense Directive 5106.1,
“Inspector General of the Department of Defense” (January 4, 2001), online, Washington
Headquarters Services, Executive Services Directorate, Directives and Records Division,
http://www.dtic.mil/whs/directives/corres/html/510601.htm (accessed May 29, 2006). While
the Inspector General for the Department of Defense was created by statute, the IG of the NSA
was created by a regulation of the Agency: NSA/CSS Directive 10-4, November 26, 1997, cited
in Brenner. Appointment of the NSA Inspector General is made by the NSA itself and so lacks
the independence of an outside appointment. See “Office of the Deputy Inspector General for
Intelligence,” online, United States Department of Defense, Office of the Inspector General,
http://www.dodig.osd.mil/Ir/index.html (accessed May 29, 2006).
50 U.S.C. § 403q (IG CIA).
The Intelligence Reform and Terrorism Prevention Act of 2004 §1078 gives the DNI the power
to establish an inspector general. This provision modifies the Inspector General Act of 1978 and
is codified at 5 U.S.C. app. § 8K.
5 U.S.C. app. § 2(1). See also the website of the U.S. Federal Inspectors General, IGNet at
http://www.ignet.gov/pande/pmembers1.html (accessed May 29, 2006).
U.S., United States Department of State and the Broadcasting Board of Governors, Office of
Inspector General, “Inspection of the Bureau of Intelligence and Research,” November 28,
2005, online, U.S. Department of State, http://oig.state.gov/documents/organization/58019.pdf
(accessed May 29, 2006).
5 U.S.C. app. § 5.
5 U.S.C. app. § 4(4).
5 U.S.C. app. § 6(a)(3). Note that when conducting certain sensitive investigations, including
investigations that may touch on matters of national security, the inspectors general of the
DHS, DOJ and DoD are under the control and direction of the head of their respective agencies: 5 U.S.C. app. §§ 8I(a)(1), 8E(a)(1) and 8(b)(1), respectively.
50 U.S.C. § 403q(e)(8). The agencies from which the IG CIA may request assistance are defined in 50 U.S.C. § 403a(c).
Exec. Order No. 12,301 (March 26, 1981), Integrity and Efficiency in Federal Programs,
online, The American Presidency Project, http://www.presidency.ucsb.edu/ws/
index.php?pid=43593&st=&st1=; Exec. Order No. 12,805 (May 11, 1992), Integrity and
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649
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653
654
Efficiency in Federal Programs, online, IG Net, http://www.ignet.gov/randp/igbrochure04.pdf
(accessed May 29, 2006); U.S., Inspector General Community, “An Introduction to the Inspector
General Community,” December 14, 2004, online, IG Net, http://www.ignet.gov/randp/
igbrochure04.pdf (accessed May 29, 2006) [Inspector General Community, “An Introduction”].
Exec. Order No. 12,805.
Inspector General Community, “An Introduction.” See generally the Inspector General
Community website at http://www.ignet.gov (accessed May 29, 2006).
For more information on the forum, see “Office of Deputy Inspector General for
Intelligence —Coordination,” online, Department of Defense, http://www.dodig.osd.mil/Ir/
coordination.htm (accessed May 29, 2006). See also the House of Representatives report on a
bill to enact the Intelligence Community, Rept. 104-620, June 13, 1996, § 132 and accompanying analysis, online, U.S. Government Printing Office, http://frwebgate.access.gpo.gov/
cgi-bin/getdoc.cgi?dbname=104_cong_reports&docid=f:hr620p1.104.pdf (accessed May 29,
2006).
5 U.S.C. app. § 4; for the IG CIA, 50 U.S.C. 403q(a).
5 U.S.C. app. § 4; for the IG CIA, 50 U.S.C. 403q(c)(1).
PATRIOT Act.
Intelligence Reform and Terrorism Prevention Act of 2004 § 8304, amending the Inspector
General Act of 1978 app. § 8I. See also Intelligence Reform and Terrorist Prevention Act of
2004 § 8302, amending the Homeland Security Act of 2002, 6 U.S.C. § 111(b)(1). The new section (G) states that a principal mission of the Department of Homeland Security is to “ensure
that the civil rights and civil liberties of persons are not diminished by efforts, activities, and
programs aimed at securing the homeland.”
5 U.S.C. app. § 4(a)(1); for the IG CIA, 50 U.S.C. § 403q(c)(1).
5 U.S.C. app. § 7; for the IG CIA, 50 U.S.C. § 403q(e)(3).
5 U.S.C. app. § 4(a)(1); for the IG CIA, 50 U.S.C. § 403q(c)(1).
5 U.S.C. app. § 6(a)(2); for the IG CIA, 50 U.S.C. § 403q(a)(1).
50 U.S.C. §403q(d)(4).
5 U.S.C. app. § 4(a). The IG CIA’s mandate is similar but is set out in a separate statute. See
50 U.S.C. § 403q(a).
See for example 5 U.S.C. app. §§ 8, 8E and 8I, respectively. Specific provisions regarding the
Inspectors General of the Intelligence Communities, which include the IG of the NSA, are
found at 5 U.S.C. app. § 8H.
5 U.S.C. app. §§ 8E(b)(1), (2), (4) and 8H(a)(1)(B).
U.S., Joint Inquiry into Intelligence Community Activities Before and After the Terrorist Attacks
of September 11, 2001, Report of the U.S. Senate Select Committee on Intelligence and U.S.
House Permanent Select Committee on Intelligence, S. Rep. No. 107-351; and H.R. Rep. No. 107792, (2002), pp. 15–16. For further examples of investigations, see the special reports published
by the IG DOJ in relation to the FBI, online, http://www.usdoj.gov/oig/ (accessed May 29,
2006).
U.S., Department of Justice, Office of the Inspector General, A Review of the FBI’s
Handling of the Brandon Mayfield Case: Unclassified Executive Summary (January 2006),
online, U.S. Department of Justice, Office of the Inspector General,
http://www.usdoj.gov/oig/special/index.htm (accessed May 29, 2006).
U.S., Department of Justice, FBI Media Release, “Border Patrol Agent Arrested for Civil Rights
Violation” (January 20, 2006), online, Department of Homeland Security,
http://www.dhs.gov/interweb/assetlibrary/BPagent_Arrested.pdf (accessed May 29, 2006).
U.S., Department of Justice, “Two U.S. Border Patrol Agents Charged by Federal Grand Jury
Indictment with Assault Charges” (April 13, 2005), online, Department of Homeland Security,
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678
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680
681
682
683
684
http://www.dhs.gov/interweb/assetlibrary/OIG_BPShooting_Apr05.pdf (accessed May 29,
2006).
See Inspector General of the Department of Justice, “The September 11 Detainees: A Review
of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation
of the September 11 Attacks” (June 2003); and the “Supplemental Report on September 11
Detainees’ Allegations of Abuse at the Metropolitan Detention Center in Brooklyn, New York”
(December 2003).
5 U.S.C. app. § 6(a); 50 U.S.C. §403q(e)(5).
5 U.S.C. app. § 6(e)(1).
50 U.S.C. § 403q(e)(2). CIA employees also have an obligation to co-operate with the IG.
5 U.S.C. app. §§12–13.
50 U.S.C. § 403q(a) and (c) (IG CIA); 5 U.S.C. app. §§ 4(4)(B)–(5); Meetings with IGs DoD, DOJ
and DHS.
5 U.S.C. app. §§ 8(b)(1), 8E(a)(1), 8I(a)(1). The relevant department head may also prohibit the
IG from carrying out or completing an inspection or investigation (see 5 U.S.C. app. §§ 8(b)(2),
8E(a)(2) and 8I(a)(2)), and in the case of the DOJ and DHS, may prevent disclosure of sensitive information or harm to U.S. national interests (see 5 U.S.C. app. §§ 8E(a)(2) and 8I(a)(2)).
See also 5 U.S.C. app. §§ 8(b)(2), 8I(a)(2) and 50 U.S.C. § 403q(b).
Ibid.
50 U.S.C. § 403(q)(b)(4) (IG CIA); 5 U.S.C. app. §§ 8(b)(3)–(4), 8E(a)(3), 8I(a)(3).
U.S., Office of the Inspector General of the Department of Justice, Epilogue (July 1998) to
CIA-Contra-Crack Cocaine Controversy: A Review of the Justice Department’s Investigations
and Prosecutions (December 1997), online, U.S. Department of Justice, Office of the Inspector
General, http://www.usdoj.gov/oig/special/9712/epilogue.htm (accessed May 29, 2006)
[IG DOJ, Epilogue].
L. Britt Snider, “Creating a Statutory Inspector General at the CIA” (2001) 10 Studies in
Intelligence 15, p. 20.
5 U.S.C. app. § 4(a).
5 U.S.C. app. § 6(e)(1), subject to guidelines issued by the Attorney General (§ 6(e)(4)).
50 U.S.C. § 403(q)(b)(5) (IG CIA); 5 U.S.C. app. § 4(d).
See 5 U.S.C. app. §§ 5 and 8H(g)(1); 50 U.S.C. § 403q(d).
5 U.S.C. app. § 5(e).
50 U.S.C. § 403q(d)(1).
IG DOJ, Epilogue.
The Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National
Reconnaissance Office.
5 U.S.C. app. § 8H(g).
5 U.S.C. app. § 3(a); 50 U.S.C. § 403q(b)(1).
Brenner.
5 U.S.C. app. § 8(a).
Ibid., § 3(a).
50 U.S.C. § 403q(b)(1).
6 U.S.C. § 345 (2002).
Intelligence Reform and Terrorism Prevention Act of 2004, § 8303(4), amending the Homeland
Security Act of 2002, 6 U.S.C. § 345(a).
Memorandum of Understanding between the Officer for Civil Rights and Civil Liberties and the
Inspector General, September 4, 2003.
50 U.S.C. § 403-3c. The Director of the CIA reports to the Director of National Intelligence, as
discussed above.
Ibid. § 403-3d.
�VIII
Characteristics of National Security
Activities Requiring Enhanced Review
1.
INTRODUCTION
National security activities aimed at maintaining the safety and security of our
country can affect rights and freedoms valued by Canadians and protected by
the Constitution. The challenge in a liberal democracy such as Canada is to keep
the country and its people secure from external and internal threats, including
threats of terrorist violence, while preserving the rights and freedoms essential
to democracy.1 The Supreme Court of Canada has observed:
On the one hand stands the manifest evil of terrorism and the random and arbitrary
taking of innocent lives, rippling out in an ever-widening spiral of loss and fear.
Governments . . . need the legal tools to effectively meet this challenge.
On the other hand stands the need to ensure that those legal tools do not undermine values that are fundamental to our democratic society — liberty, the rule
of law, and the principles of fundamental justice — values that lie at the heart of
the Canadian constitutional order and the international instruments that Canada has
signed. In the end it would be a Pyrrhic victory if terrorism were defeated at the cost
of sacrificing our commitment to those values.2
In this chapter, I draw attention to issues that should be considered in designing a review mechanism for the RCMP’s national security activities. In particular, I identify characteristics of national security investigations that are
different, in kind or at least in degree, from those of other criminal investigations
and that call for enhanced review.
National security activities involve the most intrusive powers of the state:
electronic surveillance; search, seizure and forfeiture of property; information
collection and exchange with domestic and foreign security intelligence and law
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enforcement agencies; and, potentially, the detention and prosecution of
individuals. The use of such powers may adversely affect individual rights
and freedoms.
The threat to rights and freedoms posed by national security activities is of
particular concern in the post-9/11 era. Understandably, terrorism has affected
the approaches of security intelligence and law enforcement agencies. Many
Western nations have made significant amendments to their legislation to create extraordinary powers of investigation, detention and prosecution in the terrorism context.3 Since September 11, 2001, there has been greater domestic and
international information sharing and co-operation with respect to terrorist
threats,4 as well as a significant shift in resources toward the prevention of terrorist activities.
Counter-terrorism national security investigations pose a greater potential
risk to rights and freedoms than most, if not all, traditional criminal investigations, particularly in the post-9/11 environment.5 In the discussion that follows,
I examine some of the distinguishing characteristics of national security investigations, their potential for adversely affecting rights and freedoms, and the
implications for review mechanisms. The point is to highlight what impact different characteristics of national security investigations could have on rights
and freedoms, with a view to assisting with the design of an appropriate review mechanism.
2.
SECRECY
The most compelling reason for developing a robust review mechanism for the
RCMP’s national security activities is the lack of transparency that necessarily
accompanies all national security investigations.
Such investigations inevitably involve surreptitious or covert activities by
law enforcement or security intelligence services, often including the use of
human sources, information obtained from foreign or international agencies,
and electronic and physical surveillance. To function effectively, Canada’s national security agencies must be able to protect their sources and investigative
methods, as well as information that could compromise ongoing investigations.
Classified information, information from human sources and certain information
provided by foreign governments must also be kept secret.6 Subjects of national
security investigations therefore may never know that they have been under investigation and thus are unlikely to be in a position to lay a complaint if anything improper occurred.
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Moreover, the Criminal Code,7 Immigration and Refugee Protection Act,8
Charities Registration (Security Information) Act9 and Canada Evidence Act10
make provision for in camera and ex parte hearings in order to protect confidential or classified information. As a result, some information that would otherwise be made public in judicial or administrative hearings is kept confidential
and may not be disclosed to the affected parties.11
Some degree of secrecy may also be necessary to protect the privacy and
reputations of those investigated. While being identified as a suspect in any
criminal investigation is hard, being linked to a terrorism investigation is particularly difficult. Openly identifying individuals as terrorism suspects can have serious ramifications for the individuals themselves, their families and any
organizations that are identified.12
The extraordinary powers introduced by Canada’s anti-terrorism legislation,
which I discuss in Chapter III, include discretionary ministerial powers to maintain the confidentiality of information related to national security in legal and administrative proceedings. Under the Canada Evidence Act, the Attorney General
of Canada has broad discretion to protect the disclosure of “potentially injurious”
and “sensitive” information.13 Persons who anticipate the disclosure of such information in the course of court proceedings must notify the Attorney General,
who may apply to the Federal Court for an order respecting disclosure. If a disclosure order is made, whether by the Federal Court or, on appeal, by the
Federal Court of Appeal or Supreme Court of Canada, the Attorney General has
the discretion to issue a certificate prohibiting disclosure in order to protect information obtained in confidence from or in relation to a foreign entity14 or to
protect national defence or national security.15 Such a certificate is binding even
during criminal proceedings. Although there are provisions for judicial review
of the certificate and for the stay of criminal trials when necessary to ensure
fairness to an accused,16 the grounds upon which the Attorney General exercises
his or her discretion may be difficult to review for compliance with constitutional
values because of the secrecy involved.17
Expert groups and commentators have voiced concern over the scope of
protected information under section 38 of the Canada Evidence Act, citing the
open court principle and the ability of the executive branch of government to
override a judicial decision authorizing disclosure.18 Others, however, note that
the courts have protected the open court principle even in the context of investigation of terrorism offences and that “[b]ecause the secrecy requirement
often cannot be avoided, it is the presiding judge who must serve as the bulwark
and the screen, safeguarding the public interest and protecting the integrity of
the process.”19
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Section 38 also affects the operation of the federal Access to Information Act
and provincial equivalents. These statutes generally provide a right of access to
information in the control of government institutions, based in part on the principle that government information should be available to the public, subject to
limited and specific exceptions. Access to information is one aspect of individual rights and freedoms in Canada. The Supreme Court of Canada has recognized that the overarching purpose of access to information legislation is to
facilitate democracy.20 Such legislation helps ensure that citizens have the information needed to participate meaningfully in the democratic process and that
politicians and bureaucrats remain accountable to the public.
Nevertheless, the federal Access to Information Act contains exemptions to
the right of access to information in the national security context, including access to information obtained in confidence from a foreign government, a foreign
institution or an international organization of states; information the disclosure
of which could be injurious to international affairs or defence; information pertaining to law enforcement and investigations; and personal information.21 The
Information Commissioner of Canada, who is responsible for administering the
Access to Information Act, may access all documents, except those protected by
Cabinet privilege, for the purpose of ascertaining whether a government institution is properly claiming these exemptions. The Information Commissioner’s
decisions in this regard are subject to review by the Federal Court. If, ultimately,
information is found to come within one of the Act’s exemptions, then the public has no right of access.
It is thus essential that the design of a review mechanism for the RCMP’s
national security activities take account of the fact that a great deal of what needs
to be reviewed may not be disclosed publicly. The significant challenge is therefore to come up with a process that, while not fully transparent, still engenders
public confidence and trust.
3.
POLICE POWERS AND TERRORISM OFFENCES
Following the events of 9/11, the Canadian government passed the Anti-terrorism Act and other statutes that created new terrorism offences and established
new powers in respect of those offences. I discuss both in greater detail in
Chapter III. Extraordinary powers include investigative hearing, preventive detention and enhanced electronic surveillance powers.
As a law enforcement agency, the RCMP also has police powers not provided to either CSIS or the Communications Security Establishment (CSE),
Canada’s main security intelligence agencies. The authority to use the broad
�CHARACTERISTICS REQUIRING ENHANCED REVIEW
range of powers conferred on the RCMP in the national security context may affect the rights and freedoms of individuals and thus must be considered when
designing a review mechanism.
3.1
POWERS UNDER ANTI-TERRORISM ACT
One of the newly created special investigative powers in relation to terrorist activity is the investigative hearing power. A person with information about a past
or future terrorist act may be compelled to take part in a judicial investigative
hearing to answer investigators’ questions put to him or her by a Crown attorney.22 The Supreme Court of Canada has upheld the constitutionality of judicial
investigative hearings.23 In Application under s. 83.28 of the Criminal Code (Re),
the majority of the Court concluded that the role of the judge presiding over the
hearing was not simply to ensure that the witness answered questions, but also
to ensure that the proceeding adhered to constitutional protections, including the
protection of individual rights and freedoms. It should be noted, however, that
only one application to conduct an investigative hearing has been made, retrospectively, with respect to the Air India matter,24 and the investigative hearing
has not actually been held.
Another new power is that of preventive arrest where a police officer has
reasonable and probable grounds to believe that the arrest or detention of a
person is necessary to prevent the carrying out of a terrorist activity.25 This power
has never been invoked. In addition, the Anti-terrorism Act26 created enhanced
electronic surveillance powers that may be exercised when terrorist activity is
being targeted. These powers are in addition to regular police powers,
which may also be directed towards the investigation and prevention of terrorist activity.
Other extraordinary investigative powers in the national security context
have yet to be reviewed by the courts. Commentators have varying views about
the outcome of legal challenges. On the one hand, concern has been expressed
that the judiciary may have difficulty avoiding “the temptation of being just a little more deferential towards the government and of leaning towards the state
and away from rights in the post-September 11 world.”27 On the other, arguments have been made that “[t]he procedural provisions confer power while at
the same time constraining resort to it” and “[r]estricting the reach or ambit of
the legislation in this manner to matters and concerns affecting the national security constitutes a restraining or minimally-impairing feature of this initiative
for purposes of constitutional analysis.”28
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3.2
POLICE POWERS
The design of a review mechanism for the RCMP’s national security activities
must take account of the fact that the RCMP has certain police powers that
the security intelligence agencies, CSIS and the CSE, do not possess. The use
of coercive police powers can result in significant curtailment of rights
and freedoms.29
The RCMP possesses significant coercive powers, including powers to arrest individuals (with or without warrants), detain individuals, conduct warrantless searches incidental to arrests, execute search warrants / entry into
premises (both overt and covert), seize evidence, draw and use firearms, use
non-lethal force (choke-hold, Taser, baton or pepper spray, for example), use
police dogs and lay charges. CSIS has only one of these powers: the power of
covert entry into premises pursuant to judicial authorization. Other intrusive
powers, including electronic surveillance, may be conducted by both police and
security intelligence agencies.
Police powers may be exercised in both national security investigations and
more traditional policing situations. However, the use of these powers in a national security context bears particular risks that may require a different form of
review. Most importantly, it is far less likely to be transparent or known to those
affected. The secret use of coercive powers calls for increased vigilance and enhanced methods of accountability.
It is also more likely that the exercise of police powers in a national security context will be based on information provided from foreign or other sources
that may not be disclosed publicly. As discussed below, there is also a concern
in the post-9/11 environment that the use of these powers in a national security
investigation may be discriminatory because of the types of offences involved
and the communities investigated.
If charges are not laid, or if a decision is made not to proceed with a prosecution after charges are laid, there may be very limited or no review of the exercise of these powers. For example, where an individual is arrested pursuant
to a warrant, the decision to issue the arrest warrant is made by a justice of the
peace or a judge based on evidence provided by police officers. If charges are
not proceeded with and no civil suit is pursued, the nature, quality and reliability
of the information used to obtain the arrest warrant will likely not be subject to
judicial review.
�CHARACTERISTICS REQUIRING ENHANCED REVIEW
It is consequently important that a review mechanism for the RCMP’s national security activities take account of the fact that the RCMP has the authority to employ a wide range of intrusive and coercive investigative techniques.
4.
INTERNATIONAL CO-OPERATION
International co-operation during national security investigations is clearly important and nothing I say here should be interpreted as indicating that such
co-operation should not take place or continue to expand as necessary to address global threats to our security. However, international co-operation during
national security investigations has the potential to significantly affect rights and
freedoms. As countries coordinate their law enforcement and security intelligence activities, the effects of practices such as information sharing are increasing exponentially, in both positive and potentially negative ways. My report on
the Factual Inquiry demonstrated that sharing information from investigations in
Canada with other countries can have a “ripple effect” beyond Canada’s borders,
with consequences that may not be controllable from within Canada. The legal
power of Canadian courts and governments to require respect of constitutional
rights and freedoms is exercised within Canada’s territorial borders. Once a person or information moves outside of Canada, it becomes difficult to ensure
treatment of that person or information in accordance with Canadian constitutional rights and values.
The Supreme Court of Canada has recognized this problem in the context
of extradition and deportation proceedings in Canada, particularly where the
affected person could face torture or the death penalty in the destination country. It has ruled that extradition to face the death penalty violates section 7 of
the Canadian Charter of Rights and Freedoms (the Charter)30 and that deportation to face torture is impermissible,31 though noting that there may be extraordinary exceptions. What is important for this discussion is that the Court has
stated that Canadian decision makers must consider the potential consequences
of their actions on rights and freedoms beyond Canadian borders. Where there
is a sufficient connection between Canadian government actions and a subsequent deprivation of liberty outside Canada in violation of the principles of fundamental justice, section 7 of the Charter may be unjustifiably infringed. The
Canadian government thus may bear responsibility within Canada for deprivations of liberty outside Canada that result from its actions.
Addressing issues beyond the direct risk of torture or death, the Supreme
Court recently held that compelled testimony from investigative hearings may
not be used against the witness in extradition or deportation proceedings and
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may not subsequently be passed on to other governments for prosecution purposes. The Court indicated that such a situation would violate the right against
self-incrimination and that judges presiding over investigative hearings should
set conditions to prevent such use of testimony.32
Canadian investigators may receive and act upon information from other
countries. Use of this information may have significant personal consequences
for individuals in Canada and their associates, such as investigation, surveillance,
arrest or prosecution. In some instances, such information may have been
acquired in ways inconsistent with rights and freedoms protected here. For
example, it may have been obtained through torture or other unacceptable investigation techniques, or in the absence of checks and balances to ensure reliability.33 While it is often important that Canadian investigators receive
information from other countries, special care needs to be taken to ensure that
the use of such information does not unfairly affect individuals in an investigation. As one American commentator has noted, “the most serious questions of
human rights will arise not here, but abroad” if countries try to “reap the benefits” of activities forbidden by international human rights conventions by
attempting to obtain information about the plans of terrorists in countries that
do not have similar standards in regard to issues such as interrogation, detention or surveillance.34
My concern about the potential unreliability of such information is heightened by the fact that the person to whom the information applies will have no
way to determine whether or not the investigators’ information is correct until
that information is divulged to him or her. In the meantime, investigators acting
on incorrect or unreliable information may proceed with a vast array of intrusive actions, from interviews of friends, employers and family to applications for
electronic surveillance or, potentially, investigative detention. Below, I refer to
personal information contained in RCMP and CSIS data banks that are exempt
from the Privacy Act and to exemptions in the Privacy Act that allow governments to deny access to personal information or the right to correct such information on grounds, for example, of law enforcement.
A mechanism for reviewing the RCMP’s national security activities must be
able to examine RCMP information-sharing practices, particularly practices for
sharing information with other countries, as well as the use made in Canada of
foreign-source information.
�CHARACTERISTICS REQUIRING ENHANCED REVIEW
5.
PRIVACY AND THE COLLECTION, USE AND SHARING
OF INFORMATION
5.1
PRIVACY
An important aspect of personal freedom that may be affected by national security activities is privacy. As the Commission of Inquiry Concerning Certain
Activities of the Royal Canadian Mounted Police (McDonald Commission) noted
in its report:
In a liberal society, which as a matter of principle wishes to minimize the intrusion
of secret state agencies into the private lives of its citizens and into the affairs of
its political organizations and private institutions, techniques of investigation that
penetrate areas of privacy should be used only when justified by the severity
and imminence of the threat to national security. This principle is particularly important when groups may be subjected to security intelligence investigations
although there is no evidence that they are about to commit, or have committed, a
criminal offence.35
Section 7 of the Charter guarantees 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. This broadly framed section encompasses
aspects of decisional, informational and personal privacy interests, such as rights
related to physical or psychological integrity or the right to space within which
to make basic personal choices.36 Specific protection for informational, territorial, spatial and personal privacy is also found in sections 8 and 9 of the Charter,
which recognize the right to be free from unreasonable search and seizure and
from arbitrary detention. Finally, international instruments such as the
International Covenant on Civil and Political Rights37explicitly protect the right
to be free from arbitrary interference with privacy.
The informational privacy interest also receives some legislative protection
at both the federal and provincial levels through statutes such as the federal
Privacy Act, which protects individual privacy with respect to information held
by government institutions. That act also provides individuals with a right of access to personal information about themselves held by government institutions
and a right to request correction of erroneous or incomplete personal information.38 However, a number of statutory exemptions allow government institutions
to deny individuals access to personal information about themselves, including
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access for the purpose of correcting erroneous information. In the national
security context, the most relevant exemptions relate to personal information
obtained in confidence from governments of foreign states or foreign institutions; information the disclosure of which could be injurious to international affairs, the defence of Canada or allied states or “the efforts of Canada toward
detecting, preventing or suppressing subversive or hostile activities;” information
pertaining to law enforcement or investigations; and information related to security clearances.39 The “investigations” referred to here include those pertaining to activities suspected of constituting threats to the security of Canada within
the meaning of the Canadian Security Intelligence Service Act. In Ruby v.
Canada, the Supreme Court of Canada upheld the ability of government to
make ex parte and in camera submissions to the court when exemptions from
disclosure on the ground of national security or protection of foreign confidences are claimed.40
There are also a number of “exempt banks,” that is, whole collections of information exempt from the Privacy Act. Of particular significance to any examination of the impact of national security activities on rights and freedoms is the
fact that, by executive order, the following personal information banks are designated exempt: (a) Criminal Operations Intelligence Records, under the control
of the RCMP;41 (b) Canadian Security Intelligence Service Investigational Records,
under the control of CSIS;42 and (c) National Security Investigations Records,
under the control of the RCMP.43 These exemptions, combined with the Attorney
General’s power to issue certificates under section 38 of the Canada Evidence
Act, as discussed above, have caused the Privacy Commissioner, among others,
to raise concerns about the extent, propriety and accuracy of information sharing among government agencies in the national security context.44 Moreover, the
lack of a review mechanism leaves individuals with no way to correct inaccurate or false information or to have information removed from the system.45
5.2
USE OF PERSONAL INFORMATION IN NATIONAL SECURITY
INVESTIGATIONS
Almost all national security activities will affect privacy interests, given the nature of national security investigations, where information about groups and individuals is collected and analyzed. The RCMP may collect, use and disclose
personal information about individuals in the course of investigations in the following ways:
•
individuals may be identified as suspects or persons of interest;
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•
•
•
•
•
•
individuals may be placed under physical or electronic surveillance and
their contacts may be traced;
individuals may be questioned;
human sources may be identified and solicited to provide information about
an individual;
information about individuals may be entered on computer databases;
information may be provided to other government, police and security intelligence agencies, both domestically and internationally; and
personal information may be contained in affidavits used to obtain search
or arrest warrants.
Whenever an investigator takes one of these steps, the broadly defined privacy interest of the individual is affected. The degree of intrusiveness varies.
For example, the interception of private communications pursuant to a warrant
is a significant intrusion, subject to external judicial scrutiny, whereas the decision to undertake physical surveillance to identify a pattern of behaviour is much
less intrusive and does not require a warrant or judicial approval.
It is also important to recognize that the RCMP may collect information from
a wide variety of sources, including internal sources, provincial and municipal
police forces, the Canada Border Services Agency (CBSA), Citizenship and
Immigration Canada, CSIS, the CSE, Transport Canada, foreign police agencies,
and foreign security intelligence agencies. The RCMP must assess the reliability
of information, decide whether to enter it in a national security data bank such
as the Secure Criminal Information System (SCIS) and determine how long the
information should be retained.
The individual affected may never know the nature, content or accuracy of
the information collected or the identity of persons to whom the information has
been disseminated. In R. v. Dyment, Justice La Forest commented specifically on
the importance of informational privacy, stating:
This too is based on the notion of the dignity and integrity of the individual. As the
Task Force put it: “This notion of privacy derives from the assumption that all information about a person is in a fundamental way his own, for him to communicate or retain for himself as he sees fit.” In modern society, especially, retention of
information about oneself is extremely important. We may, for one reason or another, wish or be compelled to reveal such information, but situations abound where
the reasonable expectations of the individual that the information shall remain confidential to the persons to whom, and restricted to the purposes for which it is divulged, must be protected.46
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If charges are laid and a prosecution proceeds to trial, the individual will
have the benefit of external scrutiny, including judicial scrutiny for compliance
with the Charter. If not, the individual may never learn to what extent the state
has delved into his or her private life or what information may remain on computer databases.47 Here again, the need for a credible, robust review mechanism is clear.
6.
SCOPE AND EXERCISE OF DISCRETIONARY POWERS
Many of the decisions made in the context of national security, including decisions by the police, are discretionary. They may include decisions to input information into national security databases, ask questions of individuals, select
suspects for investigation, recruit and use a human source, and act upon information supplied by a foreign government. Such decisions affect the privacy
rights and interests of individuals and, potentially, other rights such as the right
to freedom from adverse treatment on discriminatory grounds.48 Unless charges
are laid, there will likely be no external scrutiny of these discretionary decisions.
Another example of the use of discretion in the national security context
relates to cases involving non-citizens of Canada. In these cases, when the government has sufficient evidence, it may opt to lay charges under the criminal law
or to use immigration proceedings. Immigration law, including the security certificate process, provides for broader grounds of culpability and lower standards
of proof than criminal law.49 It also allows for some proceedings to be conducted in private, in the absence of the person arrested.50 The Supreme Court
of Canada has recognized that non-citizens may be subject to impermissible
discrimination,51 and the “non-citizen” category often overlaps with those
groups that may be vulnerable to racial, ethnic and religious profiling, which I
discuss below.
Many aspects of the national security activities of the RCMP are not directly
subject to legislation or regulation, but involve discretionary decisions about
what activities or persons will be investigated and how this will be done.52 Even
where policies or ministerial directives exist, they sometimes contain general
language and undefined terms, the application of which also necessarily involves the exercise of discretion.
The nature of intelligence-led policing and security intelligence poses particular challenges for ensuring the protection of fundamental rights and freedoms. Clearly, discretionary decisions by officials applying a law must be made
in compliance with the Charter.53 However, in the absence of specifically legislated measures to guide or review protection of rights and freedoms during
�CHARACTERISTICS REQUIRING ENHANCED REVIEW
national security investigations, complying with the values of the Charter is
a challenge.
The substantial discretion exercised by investigators on an operational level
in many national security activities is often not subject to external scrutiny. This
makes it difficult to assess or object to the impact of decisions on rights and
freedoms. An effective review mechanism can play an important role in ensuring that discretionary decisions are made in conformity with legal and policy requirements and with fundamental values considered important in Canada.
7.
POTENTIAL FOR DISCRIMINATION
7.1
RACIAL, ETHNIC AND RELIGIOUS PROFILING
The nature of national security investigations, particularly terrorism investigations in the post-9/11 environment, and the new terrorism offences that have
been created have increased the potential for discriminatory action by investigators. A properly empowered review mechanism can do much to address
perceptions and provide assurance that the RCMP does not engage in
such practices.
A number of the participants in this Inquiry raised concerns about the targeting of Arab and Muslim communities through racial, ethnic and religious profiling in the wake of the attacks of September 11, 2001.54 Profiling can be defined
broadly as the use of race, religion or ethnicity as the sole reason for or a factor in a decision to detain or arrest an individual or subject him or her to further investigation.55 It may stigmatize and place some groups in Canadian society
at risk.56 As the Canadian Bar Association has pointed out, compromises between security and civil liberties are “not demanded equally of all who are theoretically made more secure.”57 Certain ethnic and religious groups have been
targeted since 9/11. Intervenors and academic commentators have expressed
concern that such profiling undermines the liberty, privacy and equality of innocent Canadians. It may thus be found to be discriminatory under section 15
of the Charter.
A further issue is the fact that any profiling that may take place is the result
of a discretionary operational decision, removed from public debate or legislative scrutiny.58 Racial, ethnic and religious profiling practices emerge not from
a legislative direction, but from administrative discretion and investigative practice. This has prompted concerns that such discretion may be exercised without
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a thorough understanding of the cultural and religious milieu in which an investigation is being conducted.
7.2
INQUIRY INTO RELIGIOUS OR POLITICAL BELIEFS
National security activities raise a question regarding the protection of rights and
freedoms because they may lead to a considerable degree of state inquiry into
religious and political beliefs. A distinctive characteristic of some of the terrorism offences in the Criminal Code is that motivation is an element of the offence;
prohibited activity must be undertaken “in whole or in part for a political, religious or ideological purpose, objective or cause.”59 This requirement marks a
shift away from the traditional proposition in criminal law that motive is not a
necessary element of a crime, but, rather, may be a factor in determining a
proper sentence. The shift towards motive as an essential element in a crime provides increased reason for national security investigations to involve inquiry into
a subject’s personal religious or political beliefs, or for investigation to stem from
suspicions aroused by a subject’s personal beliefs.60
The requirement for proof of political or religious motive must be linked to
an intent to cause serious harm. It is designed to impose “an extra burden of
proof upon the state.”61 Investigators may nonetheless lean toward increased
inquiry and investigation based on religious and personal beliefs.62 This could
raise concerns about profiling in addition to the concerns about privacy and
freedom of religion and expression.
7.3
EXPRESSION AND ASSOCIATION
Freedom of thought, belief, opinion, expression and association, which is essential to democracy, is protected under section 2 of the Charter. However, it has
long been recognized that one of the greatest concerns regarding national security investigations is their potentially chilling effect on legitimate dissent.
Indeed, one of the major issues raised by the McDonald Commission was the
improper targeting of legitimate dissent.63 Those who exercise freedoms to challenge our social, economic and political structures should not “have their activities noted in secret security dossiers to be used against them by the state.”64
The breadth of the new terrorism offences, which include financing and
facilitating, also increases the potential for state scrutiny of a wide range of associational and expressive activities, as well as invasions of privacy.65
The “participating, facilitating, instructing and harbouring” provisions of the
Code make it an offence, for example, to knowingly participate in or contribute
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to, directly or indirectly, any activity of a terrorist group, including knowingly recruiting new individuals for the purpose of enhancing the ability of a terrorist
group to facilitate or commit terrorist activities.66 These provisions have been criticized as overly broad and vague, leaving the door open for officials to exercise
their discretion improperly.67
Even where an organization is not proscribed as a terrorist organization, the
perception that it may be under scrutiny by the RCMP or CSIS may have a chilling effect on both the associational and expressive activities of individuals
and organizations in its respect.68 It can be difficult to discern the appropriate
limits between gathering information needed to identify terrorist activities and
limiting legitimate political dissent. Thus, this issue is relevant in designing a review mechanism.
8.
ROLE OF COURTS
Because of the nature of most national security investigations, the courts provide
less oversight in their regard than they do for other criminal investigations. This
reduced level of judicial oversight is a further reason for independent review.69
Few national security investigations receive the degree of external scrutiny
found in the investigative hearing process or in criminal prosecutions. The goal
of preventing terrorism in the national security context may lead to the collection of a diverse range of information by both domestic and foreign police and
security intelligence agencies. Moreover, where national security is involved, a
decision may be made not to lay charges when a crime has been committed, so
as to protect Canada’s foreign relations, the security of sources or informationsharing protocols with other countries. Unless charges are laid, however, the
choice of investigative targets, methods of information collection and exchange,
and means of investigation generally will not be subject to judicial scrutiny,
media coverage or public debate.
The courts have an attenuated role in national security investigations and
prosecutions as a result of amendments to the Criminal Code made by the Antiterrorism Act, which significantly reduced the extent of judicial oversight of the
activities of law enforcement and security intelligence actors, especially in the
area of surveillance.70 The RCMP’s national security investigations are frequently
aimed primarily at preventing and disrupting terrorist activity, rather than prosecuting individuals after terrorist offences have been committed. The information and intelligence that enables law enforcement and security intelligence
services to perform this function may be of such a nature that it would not be
admissible as evidence in a criminal prosecution. Furthermore, the RCMP may
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receive information in national security investigations that was originally collected by CSIS or the CSE, which are bound by different and, in many respects,
less onerous legal standards regarding the use of electronic surveillance. In other
areas, such as international information sharing, there is no judicial oversight
whatsoever. As a result, in national security investigations, court scrutiny of government action against individuals for compliance with the Charter is less frequent. Rights and freedoms consequently may be eroded more easily.71 The
Canadian Bar Association has noted:
[I]f an investigative agency gathers information knowing that there will not be a
criminal charge, there may be even less incentive to respect guaranteed rights and
freedoms.72
Below, I discuss statutory limits on judicial oversight of national security activities in relation to authorizations for the interception of private communications, the detention of terrorist suspects, and criminal prosecutions. Judicial
oversight may also be restricted in the national security context by section 38 of
the Canada Evidence Act, which I discuss earlier in this chapter. Moreover,
under the Immigration and Refugee Protection Act, the courts are limited to the
judicial review of executive decisions regarding security certificates.73 No judicial determination on the merits is available. The limits on judicial scrutiny of the
RCMP’s national security activities should be a consideration in the design of a
review body.
8.1
AUTHORIZATIONS
8.1.1
Criminal Code
The Anti-terrorism Act made significant changes to the judicial authorization
procedure for communication surveillance warrants and the threshold for arrest
of a suspect under the preventive detention powers.
Unlike the situation for other offences in the Criminal Code, communications intercept authorizations may be granted in terrorism investigations even
where the same information could be obtained in a less invasive manner.74 In
addition to providing the police with easier access to intrusive surveillance methods, the Criminal Code allows a judge to authorize interceptions for longer periods of time and provides a relaxed test for delaying notification of surveillance
subjects. The chart below summarizes the differences between the provisions
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regarding interception of private communications in relation to terrorism offences75 and in relation to regular criminal offences.
DIFFERENCES IN JUDICIAL AUTHORIZATIONS FOR INTERCEPTION
OF COMMUNICATIONS
Terrorism Offences
Regular Criminal Offences
Test to obtain
No requirement for
investigative necessity.
Interception would be in
the best interests of
justice.76
Proof of investigative necessity
required, i.e., other methods
have been tried and have failed,
are unlikely to succeed or are
impractical.
Interception would be in the
best interests of justice.77
Initial length
of time
Up to one year.78
Up to 60 days.79
Renewals
Up to one year.80
Up to 60 days.81
Notification of
suspect
Same as for regular
offences.
Within 90 days of end of
surveillance period.82
Extension of
notification
period
Up to three years.83
Up to three years.84
Criteria for
granting
extension
No continuing investigation
requirement.
Extension must be in the
interests of justice.85
Investigation must be
continuing.86
Extension must be in the
interests of justice.87
As may be seen from the chart, the Criminal Code amendments allow the police to use invasive methods of surveillance without demonstrating the actual or
likely failure of other methods, continue surveillance for quadruple the usual
length of time with no judicial review, and delay notification of the subject of
the surveillance for three years after the investigation has been completed.88
Without debating the merits of these provisions here, I note that the decreased
judicial oversight for electronic surveillance is an issue that has implications for
the design of an appropriate review mechanism for the RCMP’s national security activities.
One of the new powers that the Criminal Code gives law enforcement authorities to deal with the threat of terrorism is that of preventive arrest,89 for
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which it sets a lower threshold than for the normal power of arrest. A terrorist
suspect may be arrested and subjected to restrictive, court-ordered conditions
without being charged with a criminal offence. While the requirement for the
Attorney General’s consent provides some balance, law enforcement agencies
have greater discretion and are subject to less judicial scrutiny when they employ this extraordinary power. Where a warrant is obtained or an individual is
held until he or she appears before a judge, the use of the preventive arrest
power is subject to judicial oversight. However, where an individual is detained
based on an officer’s suspicion and then released before the detention is reviewed, there is no provision for judicial oversight regarding the propriety of
the detention.
The Attorney General is required to make annual reports to Parliament on
the use of the investigative hearing and preventive arrest powers. However,
these reports may not disclose any confidential national security information90
and there is no requirement to report the number of warrantless arrests made
under section 83.3(4) of the Criminal Code where the individual was released
prior to appearing before a judge. The reports provide very little information. For
instance, the summary on the use of the investigative hearing and preventive detention powers in the 2004–2005 report states only that no applications were initiated and that there are no data to report.91
There is no question about the legitimate need for confidentiality in national security matters. However, the lack of detailed information in these reports
does little to allay public concerns regarding the use and potential abuse of
powers.92 An independent review agency could review the use of the preventive arrest power in detail. As the Canadian Arab Federation and Canadian
Council on American–Islamic Relations emphasized in their oral presentation to
the Inquiry, an independent review body will help ensure that these extraordinary provisions are being used appropriately and in accordance with Charter values, thereby increasing the confidence of all Canadians in the RCMP.93
My final comment on the attenuation of judicial oversight in respect of the
investigation of terrorist offences relates to the prospect that search warrants
may be sealed under section 38 of the Canada Evidence Act. Sealing a warrant
prevents public scrutiny at this stage of the investigation, creating an additional
need for effective review in a context where many investigations may never
reach the prosecution stage.94
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8.1.2
Communications Security Establishment
There are many players in national security investigations. The reduction or lack
of judicial oversight in relation to the interception of private communications is
not confined to the actions of law enforcement officials. Under the National
Defence Act, the Communications Security Establishment (CSE) may intercept
the private communications of Canadians and persons within Canada when targeting communications originating outside Canada,95 subject to ministerial authorization. Thus, when the RCMP receives information from the CSE, it may
come into possession of information that was not collected pursuant to a judicial authorization.
Canadian courts have no jurisdiction to issue warrants with respect to persons outside Canada.96 The National Defence Act substitutes executive authorization for judicial authorization in relation to the interception of private
communications of Canadian citizens or permanent residents, so long as the interception is directed at a foreign entity and satisfactory measures are in place
to protect the privacy of Canadians.97 Criminal Code requirements relating to
wiretap authorizations do not apply to the CSE insofar as it operates under ministerial authorizations.98 Information obtained by the CSE may be shared, subject to strict conditions, with other Canadian or foreign law enforcement or
security services.99
Under the National Defence Act, ministerial authorization may be granted
where the Minister of National Defence is satisfied of the following:
(a) the interception will be directed at foreign entities located outside Canada;
(b) the information to be obtained could not reasonably be obtained by other
means;
(c) the expected foreign intelligence value of the information that would be derived from the interception justifies it; and
(d) satisfactory measures are in place to protect the privacy of Canadians and
to ensure that private communications will only be used or retained if they
are essential to international affairs, defence or security.100
The CSE Commissioner scrutinizes the legality of the CSE’s interception of
communications pursuant to ministerial authorizations, ensuring that the intercepts comply with the terms of the authorizations. However, the Commissioner
does not review the Minister’s decision to authorize interception. Thus, the authorization is not reviewed for compliance with the criteria set out in section
273.65(2) of the National Defence Act or in the Charter.101
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8.2
PROSECUTIONS
In Canada, the rights of the accused in a criminal proceeding are safeguarded
by an independent judiciary in the context of an adversarial trial. However,
Criminal Code prosecutions for terrorist offences have been rare, and this will
likely continue to be the case in the future. To date, there have been only two
cases where charges have been laid under the Code’s anti-terrorism provisions.
In the event of criminal prosecutions for national security offences, both the
Criminal Code and the Canada Evidence Act provide for procedures that may
involve in camera proceedings. The Criminal Code allows both secret evidence
and in camera proceedings in relation to the listing of terrorist entities, as well
as the use of evidence received in confidence from foreign sources.102 In addition, section 38 of the Canada Evidence Act may require secret proceedings and
evidence.103 Taken as a whole, these provisions mandate secrecy in some situations and therefore may intrude upon the ability of the accused to know the
case to be met and may fetter the open court principle.104 Judicial oversight may
consequently be less complete and less effective than would otherwise be the
case. Another important consideration is that public scrutiny and accountability
are diminished.
The infrequent use of criminal prosecutions contrasts with the more common recourse to administrative detention under the Immigration and Refugee
Protection Act.105 Five men are currently subject to security certificates under the
Act and three are in detention. Procedural safeguards available in the immigration context are inferior to those available to criminal defendants. The standards
intended to ensure reliability of evidence in criminal trials do not apply.106 When
a section 38 certificate is issued under the Canada Evidence Act in a criminal
proceeding, the information subject to the certificate may not be disclosed or introduced into evidence. Section 38.14 of the Act nevertheless does provide that
a criminal trial judge may make any order that is necessary to protect the accused’s right to a fair trial, including a stay of the criminal proceedings, provided it respects section 38. While both section 78 of the Immigration and
Refugee Protection Act and section 38 of the Canada Evidence Act provide for
in camera and ex parte hearings, section 78 of the Immigration and Refugee
Protection Act allows a federal court judge to rely on information that may never
be disclosed to the detainee, even in summary form, when reviewing the reasonableness of the Minister’s decision to deport the individual. Moreover, as I
mention above, judges of the Federal Court conducting a hearing under
�CHARACTERISTICS REQUIRING ENHANCED REVIEW
section 78 may not evaluate security certificates on the merits107 and the judge’s
decision on the reasonableness of a certificate may not be appealed.108
9.
CONCLUSION
There are a number of common investigative activities relating to national security that, in the absence of criminal prosecutions, will probably not be subject
to external judicial review. As well, those who are directly affected will probably never know about many of these actions, including decisions in regard to
the following:
•
•
•
•
•
•
•
•
•
•
•
•
selecting a subject for investigation;
selecting associates of targets and initiating or extending investigations;
initiating physical surveillance of individuals;
interviewing individuals;
designing questions to be asked of individuals;
recruiting and using human sources to obtain information;
inputting information into national security databases;
receiving information from and imparting information to other Canadian
institutions (federal and provincial police, security intelligence or other
agencies or departments, such as the CBSA or Transport Canada);
receiving information from and imparting information to foreign agencies;
acting upon information provided by other agencies;
referring matters to another agency (for proceedings under the Immigration
and Refugee Protection Act rather than criminal proceedings, for example);
and
arresting and releasing individuals pursuant to the preventive detention
provisions of the Criminal Code.
The reality is that many discretionary operational decisions will not be subject to judicial review, particularly when there is no prosecution. And while
other aspects of RCMP national security activities, such as the issuance of search
warrants, remain subject to judicial oversight, that oversight in some instances
is attenuated when it comes to terrorism-related investigations and the exemption of certain information from aspects of both the Access to Information Act
and Privacy Act regimes.
In taking measures to protect Canada’s national security interests, we must
always keep in mind the importance of protecting the rights and freedoms of individuals in Canada. In this regard, the words of the McDonald Commission ring
true: “Canada must meet both the requirements of security and the requirements
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of democracy: we must never forget that the fundamental purpose of the former
is to secure the latter.”109
Notes
1
2
3
4
5
6
7
8
9
10
11
Canada, Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted
Police, Freedom and Security Under the Law, Second Report, vol. 1 (Ottawa: Supply and
Services Canada, 1981), p. 43 (Chair: D.C. McDonald) [McDonald Commission report].
Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 at paras. 3–4.
See generally Victor Ramraj, Michael Hor and Kent Roach, eds., Global Anti-Terrorism Law and
Policy (Cambridge: Cambridge University Press, 2005).
United Nations Security Council Resolution 1373, UN SCOR, 56th Sess., 4385th mtg.,
UN
Doc.
S/RES/1373
(2001),
online,
UN
Security
Council,
http://daccessdds.un.org/doc/UNDOC/GEN/N01/557/43/PDF/N0155743.pdf?OpenElement
(accessed Feb. 1, 2006).
For a sampling of concerns and views on these issues, see the essays collected in
Ronald J. Daniels, Patrick Macklem and Kent Roach, eds., The Security of Freedom: Essays on
Canada’s Anti-Terrorism Bill (Toronto: University of Toronto Press, 2001) [Daniels et al.];
David Daubney et al., Terrorism, Law & Democracy: How Is Canada Changing Following
September 11? Papers presented at a conference organized by the Canadian Institute for the
Administration of Justice held in Montreal, Quebec, Mar. 25–26, 2002 (Montreal: Canadian
Institute for the Administration of Justice, 2002); and, in the U.S. context, David Cole and
James X. Dempsey, Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of
National Security, 2nd ed. (New York: The New Press, 2002).
The Security of Information Act, R.S.C. 1985, c. O-5 (as am. by the Anti-terrorism Act, S.C. 2001,
c. 41), discussed in more detail in Chapter III, protects confidential government information.
Confidential sources may also be safeguarded by the doctrine of police informer privilege. See
R. v. Leipert, [1997] 1 S.C.R. 281 at paras. 9–14. See also Royal Canadian Mounted Police Public
Complaints Commission v. Canada (Attorney General) (2005), 336 N.R. 101 (F.C.A.).
R.S.C. 1985, c. C-46, ss. 83.06, 83.28 (as am. by the Anti-terrorism Act, S.C. 2001, c. 41).
S.C. 2001, c. 27, s. 78.
S.C. 2001, c. 41, s. 113.
R.S.C. 1985, c. C-5, s. 38 (as am. by the Anti-terrorism Act, S.C. 2001, c. 41).
The problems inherent in the use of secret evidence have been highlighted by a number of
groups in submissions to parliamentary committees. See, e.g., testimony of George D. Hunter,
Vice-President of the Federation of Law Societies of Canada, before the Special Senate
Committee on the Anti-terrorism Act, 38th Parl., 1st Sess. (Special Senate Committee on the
Anti-terrorism Act), Oct. 17, 2005. p 16:24; Canadian Bar Association, “Submission on the
Three Year Review of the Anti-terrorism Act,” Submission to the Subcommittee on Public Safety
and National Security of the Standing Committee on Justice, Human Rights, Public Safety and
Emergency Preparedness, House of Commons, 38th Parl., 1st Sess. (House Subcommittee on
Public Safety and National Security) and the Special Senate Committee on the Anti-Terrorism
Act, 2005, p. 31 [Canadian Bar Association submission to Parliament]; B’nai Brith Canada,
“A Review of Canada’s Anti-terrorism Act: Presentation to the House of Commons
Subcommittee on Public Safety and National Security of the Standing Committee on Justice,
Human Rights, Public Safety and Emergency Preparedness and to the Senate of Canada Special
Committee on the Anti-Terrorism Act,” 2005, pp. 15–16; Testimony of Kathy Vandergrift,
�CHARACTERISTICS REQUIRING ENHANCED REVIEW
12
13
14
15
16
17
18
19
20
21
22
Director of Policy, World Vision Canada, before the House Subcommittee on Public Safety and
National Security, Sept. 20, 2005, pp. 9–10; Canadian Arab Federation, Canadian Council on
American–Islamic Relations and Canadian Muslim Lawyers Association, “Joint Statement of
Principles & Recommendations for Real Security,” Submissions to the House Subcommittee on
Public Safety and National Security, 2005 [Joint Statement of Principles].
See R. v. Ottawa Citizen Group Inc. (2005), 255 D.L.R. (4th) 149 (Ont. C.A.) at paras. 55, 64.
See also British Columbia Civil Liberties Association, National Security: Curbing the Excess to
Protect Freedom and Democracy, A Brief Prepared for the House of Commons Subcommittee
on Public Safety and National Security and the Senate Special Committee on the Anti-terrorism Act, 2005 at 43 [B.C. Civil Liberties Association submission to Parliament]; Testimony of
Faisal Joseph, Legal Counsel, Canadian Islamic Congress, before the House Subcommittee on
Public Safety and National Security, Sept. 20, 2005 at 15 (all testimony cited to English version
of the evidence); Canadian Civil Liberties Association, Written Submissions to the Senate
Special Committee on the Anti-terrorism Act, 2005 at 12 [Canadian Civil Liberties Association
Senate Committee submissions].
R.S.C. 1985, c. C-5, s. 38.
As defined in the Security of Information Act, s. 2(1).
Canada Evidence Act, s. 38.13.
Ibid., ss. 38.131, 38.14.
Lorne Sossin, “The Intersection of Administrative Law with the Anti-Terrorism Bill” in Daniels
et al., pp. 425–426 (see note 5).
Canadian Bar Association submission to Parliament, pp. 22–25 (see note 11); Amnesty
International, “Security through Human Rights: Amnesty International Canada’s Submission to
the Special Senate Committee on the Anti-Terrorism Act and House of Commons SubCommittee on Public Safety and National Security as part of the Review of Canada’s AntiTerrorism Act,” 2005, pp. 9–10 [Amnesty International submission to Parliament]; B.C. Civil
Liberties Association submission to Parliament, pp. 54–57 (see note 11); Jennifer Stoddart,
“Position Statement on the Anti-terrorism Act: Submission of the Office of the Privacy
Commissioner of Canada to the Senate Special Committee on the Anti-terrorism Act,” May 9,
2005, online, www.privcom.gc.ca/media/nr-c/2005/ata_050509_e.asp (accessed July 24, 2006)
[Privacy Commissioner of Canada Position Statement]; Testimony of John Reid, Information
Commissioner of Canada, before the Special Senate Committee on the Anti-terrorism Act,
May 30, 2005, p. 12:7; Ann Cavoukian, Information and Privacy Commissioner of Ontario,
“Submission to the House of Commons Subcommittee on Public Safety and National Security
regarding the Anti-Terrorism Act Review,” 2005, p. 4, adopted by David Loukidelis, Information
and Privacy Commissioner for British Columbia, in his submission to the House Subcommittee,
2005, p. 3 [Ontario and B.C. Information and Privacy Commissioners’ House Subcommittee
submissions]; Canadian Muslim Lawyers Association, Submission to the House Subcommittee
on Public Safety and National Security, 2005, p. 15; Canadian Civil Liberties Association Senate
Committee submissions, p. 14 (see note 12); Iris Almeida and Marc Porret, Canadian
Democracy at a Crossroads: the Need for Coherence and Accountability in Counter-Terrorism
Policy and Practice (Montreal: International Centre for Human Rights and Democratic
Development, 2004), pp. 38–39; Jeremy Patrick-Justice, “Section 38 and the Open Courts
Principle” (2005) 54 U.N.B.L.J. 218; Kent Roach, “Ten Ways to Improve Canadian AntiTerrorism Law” (2005) 51 Crim. L.Q. 102.
Stanley Cohen, “State Secrecy and Democratic Accountability” (2005) 51 Crim. L.Q. 27, p. 33.
Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403.
Access to Information Act, R.S.C. 1985, c. A-1, ss. 13, 15, 16, 19.
Criminal Code, s. 83.28.
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23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
Application under s. 83.28 of the Criminal Code (Re), [2004] 2 S.C.R. 248.
Application under s. 83.28 of the Criminal Code (Re), 2003 BCSC 1172, aff’d [2004] 2 S.C.R. 248.
See discussion in Chapter III; Criminal Code, s. 83.3.
S.C. 2001, c. 41.
Kent Roach, “Did September 11 Change Everything? Struggling to Preserve Canadian Values
in the Face of Terrorism” (2002) 47 McGill L.J. 893, p. 925–926. See also Kent Roach,
September 11: Consequences for Canada (Montreal: McGill–Queen’s University Press, 2003),
ch. 4.
Stanley Cohen, “Law in a Fearful Society: How Much Security?” (2005), 54 U.N.B.L.J. 143,
pp. 151, 153.
On this point, see “Submissions to Commission of Inquiry into the Actions of Canadian Officials
in Relation to Maher Arar,” (Written submission of the Canadian Civil Liberties Association, Arar
Commission Policy Review Public Submissions), Feb. 2005, p. 1 [Canadian Civil Liberties
Association submissions to Inquiry].
United States v. Burns, [2001] 1 S.C.R. 283.
Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3.
Application under s. 83.28 of the Criminal Code (Re), [2004] 2 S.C.R. 248.
This concern is expressed by the B.C. Civil Liberties Association in its submission to Parliament,
p. 84 (see note 11). The Association recommends prohibiting reliance in any form by any
court or agency on information that is derived from torture. The Association reiterated its concerns in its Policy Review submissions dated Mar. 2005, pp. 21–22 and in its oral presentation
to me: Oral Submission of Jason Gratl, Transcript of Arar Commission Policy Review Public
Hearing, Nov. 18, 2005, pp. 609–610. The Canadian Bar Association submission to Parliament,
at p. 17 (see note 11) also expresses concerns about the possibility of information being obtained by torture and about the reliability of any information obtained from foreign sources.
See also A (FC) v. Secretary of State, [2005] UKHL 71, in which it is affirmed that evidence obtained through torture should not be used.
Philip B. Heymann, “Civil Liberties and Human Rights in the Aftermath of September 11”
(2002) 25 Harv. J.L. & Pub. Pol’y 441, pp. 453–454. See also “Submissions to Factual Inquiry
and Policy Review on Behalf of The Redress Trust, the Association for the Prevention of
Torture and the World Organisation Against Torture,” paras. 68–80, 97–98; Oral Submissions
of Carla Ferstman for The Redress Trust, the World Association For the Prevention of Torture
and the World Organisation Against Torture, Transcript of Arar Commission Policy Review
Public Hearing (Nov. 15, 2005), pp. 79–80; Oral Submissions of Hilary Homes for Amnesty
International, Transcript of Arar Commission Policy Review Public Hearing (Nov. 16, 2005),
pp. 192–193, 198–201; Oral Submissions of Riad Saloojee for the Canadian Arab Federation and
Canadian Council on American–Islamic Relations, Transcript of Arar Commission Policy Review
Public Hearing (Nov. 17, 2005), pp. 222–223.
McDonald Commission report, p. 513.
R. v. Dyment, [1988] 2 S.C.R. 417 at 428, per La Forest J. (concurring). See also Daniel J. Solove,
“Privacy and Power: Computer Databases and Metaphors for Information Privacy” (2000–01)
53 Stanford L. Rev. 1393, pp. 1413, 1436.
19 Dec. 1966, 999 U.N.T.S. 171, art. 17, online, Office of the High Commissioner for Human
Rights, http://www.unhchr.ch/html/menu3/b/a_ccpr.htm (accessed Aug. 2, 2006).
Privacy Act, R.S.C. 1985, c. P-21, s. 12.
Ibid., ss. 19, 21, 22, 23.
[2002] 4 S.C.R. 3.
Exempt Personal Information Bank Order, No. 13 (RCMP), S.O.R./90-149.
Exempt Personal Information Bank Order, No. 14 (CSIS), S.O.R./92-688.
�CHARACTERISTICS REQUIRING ENHANCED REVIEW
43
44
45
46
47
48
49
50
51
52
Exempt Personal Information Bank Order, No. 25 (RCMP), S.O.R./93-272.
Oral Submissions of Jennifer Stoddart, Privacy Commissioner of Canada, Transcript of Arar
Commission Policy Review Public Hearing (Nov. 16, 2005), pp. 113–114 [Privacy Commissioner
of Canada oral submissions to Inquiry]; Oral Submissions of Warren Allmand for the
International Civil Liberties Monitoring Group, Transcript of Arar Commission Policy Review
Public Hearing (Nov. 17, 2005), p. 445–446. See also Privacy Commissioner of Canada Position
Statement (see note 18). Tamra Thomson, Director of Legislation and Law Reform for the
Canadian Bar Association, has recommended to Parliament that these exemptions be repealed
or specific safeguards be put into place to protect individual privacy: Testimony of Tamra
Thomson before the Special Senate Committee on the Anti-terrorism Act, May 2, 2005,
pp. 9:28–9:29.
See “Policy Review of the Commission of Inquiry in Relation to Maher Arar” (Written submission of the Canadian Bar Association, Arar Commission Policy Review Public Submissions),
Nov. 2005, p. 5 [Canadian Bar Association submission to Inquiry].
R. v. Dyment, [1988] 2 S.C.R. 417 at 429–430.
This point was made by the Canadian Bar Association in its submission to the Inquiry, pp. 8–9
(see note 45).
For a critical perspective on the exercise of discretion under the Anti-terrorism Act, see
W. Wesley Pue, “The War on Terror: Constitutional Governance in a State of Permanent
Warfare?” (2003) 41 Osgoode Hall L.J. 267, pp. 281–285.
Canada’s use of immigration law rather than criminal law to deal with suspected terrorists is
a subject of concern to the UN Committee against Torture: United Nations Committee against
Torture, “Consideration of Reports Submitted by States Parties Under Article 19 of the
Convention: Conclusions and Recommendations of the Committee against Torture, Canada,”
UN CATOR, 34th Sess., UN Doc. CAT/C/CO/34/CAN (2005), para. 4(e). Canada submits periodic reports to the Committee under the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, 10 Dec. 1984, 1465 U.N.T.S. 585, online,
http://www.ohchr.org/english/law/cat.htm (accessed Aug. 4, 2006). See also testimony of JeanPaul Laborde, Chief, Terrorism Prevention Branch, United Nations Office on Drugs and Crime,
before the Special Senate Committee on the Anti-terrorism Act, June 20, 2005, pp. 14:16–14:17,
stating that a state’s first obligation under U.N. Security Council Resolution 1373, para. 2 is to
prosecute or extradite suspected terrorists. Removal should be considered only where there
is insufficient evidence to prosecute.
Immigration and Refugee Protection Act, s. 78; Audrey Macklin, “Borderline Security” in
Daniels et al. (see note 5). Considerable controversy has been created by the federal government’s attempt to deport several men detained pursuant to security certificates under the
Immigration and Refugee Protection Act despite the existence of pre-removal risk assessments
finding that the men would face a significant risk of torture if returned to their home countries. See, e.g., Amnesty International submission to Parliament, p. 18 (see note 18); Canadian
Jewish Congress, “Brief to the House Subcommittee on Public Safety and National Security of
the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness
on its Review of the Anti-terrorism Act (ATA) and Related Security Matters,” 2005, p. 5;
Canadian Council for Refugees, “Brief to the House of Commons Subcommittee on Public
Safety and National Security of the Standing Committee on Justice, Human Rights, Public Safety
and Emergency Preparedness – Anti-terrorism Act Review,” 2005, pp. 7–8.
Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143.
Such discretion is arguably protected from political interference, at least in its specific application, by the principle of “police independence.” See on this point the discussion of police
independence in Chapter IX.
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53
54
55
56
57
58
59
60
61
62
63
64
65
66
Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120.
See, e.g., Application for Standing of the Council of Canadians and the Polaris Institute,
Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar (Arar
Commission), p. 6; Application for Standing of the Canadian Labour Congress, Arar
Commission, pp. 3–4; Application for Standing of the Muslim Community of Ottawa-Gatineau,
Arar Commission, pp. 10–11; Application for Standing of the Canadian Council on
American–Islamic Relations, Arar Commission, p. 7; Application for Standing of the Canadian
Arab Foundation, Arar Commission, p. 3; Application for Standing of the Muslim Canadian
Congress, Arar Commission, p. 4.
Sujit Choudhry and Kent Roach, “Racial and Ethnic Profiling: Statutory Discretion,
Constitutional Remedies, and Democratic Accountability” (2002) 41 Osgoode Hall L.J. 1, para.
2 (QL) [Choudhry and Roach]. See also R. v. Brown (2003), 64 O.R. (3d) 161 (C.A.) at paras.
9, 42–46; Report of the Commission on Systemic Racism in the Ontario Criminal Justice System
(Toronto: Queen’s Printer for Ontario, 1995) (Co-Chairs: M. Gittens and D. Cole), p. 358.
See National Organization of Immigrant and Visible Minority Women of Canada, “Submission
to the Special Senate Committee on the Review of the Anti-terrorism Act,” Oct. 17, 2005,
pp. 6–7.
Canadian Bar Association submission to Parliament, p. 4 (see note 11).
Choudhry and Roach, para. 58 (see note 55); Reem Bahdi, “No Exit: Racial Profiling and
Canada’s War Against Terrorism” (2003) 41 Osgoode Hall L.J. 293, para. 6 (QL); Lesley A.
Jacobs, “Securer Freedom for Whom: Risk Profiling and the New Anti-Terrorism Act,” Book
Review (2003) 36 U.B.C.L. Rev. 375. A similar worry has been expressed by Muslim groups,
which would like to see the government provide quantifiable data on the ethnicity, religion
and citizenship of individuals interviewed or otherwise investigated by the government bodies involved in national security: Joint Statement of Principles (see note 11); Testimony of
Ziyaad Mia, Former Director, Canadian Muslim Lawyers Association, before the Special Senate
Committee on the Anti-terrorism Act, May 2, 2005, p. 9:36.
Criminal Code, s. 83.01(1)(b).
See, e.g., Kent Roach, “The New Terrorism Offences and the Criminal Law” in Daniels et al.,
p. 156 (see note 5); Canadian Civil Liberties Association submissions to Inquiry, p. 3 (see note
29); Amnesty International submission to Parliament, p. 16 (see note 18); International Civil
Liberties Monitoring Group, “Submission Concerning the Review of the Anti-Terrorism Act,”
Brief to the House Subcommittee on Public Safety and National Security, 2005, p. 7; Canadian
Association of University Teachers, “Submission to the House of Commons Subcommittee on
Public Safety and National Security Regarding the Review of the Anti-terrorism Act,” 2005,
p. 23; Statement by Ed Cashman, Regional Executive Vice-President, Public Service Alliance
of Canada, to the Special Senate Committee on the Anti-terrorism Act, Sept. 26, 2005; Joint
Statement of Principles (see note 11).
Stanley Cohen, “Law in a Fearful Society: How Much Security?” (2005), 54 U.N.B.L.J. 143,
p. 158.
On this point, see, e.g., B.C. Civil Liberties Association submission to Parliament, pp. 43–46
(see note 11), specifically the Association’s critique of the RCMP’s actions in relation to Younus
Kathrada.
McDonald Commission report, pp. 445–511.
Ibid., p. 46. See also pp. 47, 409.
See, e.g., David Schneiderman and Brenda Cossman, “Political Association and the AntiTerrorism Bill” in Daniels et al., pp. 173–194 (see note 5).
Criminal Code, ss. 83.18–83.23.
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67
68
69
70
71
72
73
74
75
76
77
78
79
80
81
82
83
84
85
86
87
88
Canadian Bar Association submission to Parliament, p. 33 (see note 11); World Vision Canada,
Submission to the House Subcommittee on Public Safety and National Security, 2005; Imagine
Canada, “Submission to the Senate Special Committee on the Anti-terrorism Act,” 2005, pp. 3–8.
See, e.g., testimony of Omar Alghabra, National President of the Canadian Arab Federation,
before the Special Senate Committee on the Anti-terrorism Act, June 13, 2005 at 13:34, arguing that there has been a chill in civic and religious participation amongst Muslims in Canada;
Testimony of Thomas Hegghammer, Senior Analyst with the Norwegian Defence Research
Establishment, before the Special Senate Committee on the Anti-terrorism Act, Mar. 14, 2005
at 4:20, stating that many imams in Norway and Britain do not discuss political issues in
mosques, even in a moderate vein, for fear of coming to the attention of the security services.
See also the judgment of the U.S. Supreme Court in United States v. United States District Court,
407 U.S. 297 (1972) at 314.
Canadian Civil Liberties Association submissions to Inquiry, p. 5 (see note 29).
Privacy Commissioner of Canada oral submissions to Inquiry, pp. 112–113 (see note 44). See
also Privacy Commissioner of Canada Position Statement (see note 18), where the Privacy
Commissioner questions whether this change is necessary or desirable.
Some groups have called for a greater emphasis on prosecutions in the national security context. See, e.g., testimony of David Morris, former member of the Board of Directors, Canadian
Lawyers for International Human Rights, before the Special Senate Committee on the Antiterrorism Act, May 2, 2005, pp. 9:39–9:40, arguing that, where measures other than criminal
prosecutions are used in a national security context, the government and the security establishment should be required to demonstrate the necessity and effectiveness of the measures
taken.
Canadian Bar Association submission to Parliament, p. 20 (see note 11).
Immigration and Refugee Protection Act, ss. 78ff.
This change is criticized in the Privacy Commissioner of Canada Position Statement (see
note 18), in which the Commissioner argues that the investigative necessity requirement should
be reintroduced.
Organized crime offences are treated in the same way as terrorism offences in the Criminal
Code in regard to the interception of private communications.
Criminal Code, ss. 185(1.1), 186 (1.1).
Ibid., ss. 185(1), 186(1).
Ibid., s.186.1(c).
Ibid., s. 186(4)(e).
Ibid., s. 186.1(c).
Ibid., s. 186(7).
Ibid., s. 196(1).
Ibid., s. 185(2).
Ibid., s. 185(2).
Ibid., s. 196(5).
Ibid., s. 196(3). The continuing investigation must relate to an authorized offence, or the subsequent investigation of an offence listed in s. 183 of the Criminal Code, commenced as a result of information obtained from the investigation of the authorized offence.
Ibid., s. 196(3).
In her submission to the Special Senate Committee on the Anti-terrorism Act, the Privacy
Commissioner of Canada states that this change has serious implications for individual privacy
and argues that the ordinary time limits should apply to electronic surveillance warrants in national security investigations: Privacy Commissioner of Canada Position Statement (see note
18). Similarly, the Canadian Bar Association contends that delayed notice of wiretap warrants
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89
90
91
92
93
94
95
96
97
98
99
100
101
diminishes the accountability of law enforcement officials: Canadian Bar Association
submission to Parliament, p. 25 (see note 11). See also Ontario and B.C. Information and
Privacy Commissioners’ House Subcommittee submissions, p. 3 (see note 18). On the other
hand, the lack of harmonization of notice periods can hamper police investigations. While
notification of a wiretap can be delayed for three years, notification times relating to search
warrants and other technical searches are for shorter periods. Hence, an investigative target
can be alerted to an investigation even where a delay in notification has been granted by a
court: Giuliano Zaccardelli, Commissioner, RCMP, Testimony before the Senate Special
Committee on the Anti-Terrorism Act, Apr. 11, 2005, p. 7:29.
Criminal Code, s. 83.3. The preventive arrest provisions apply only to persons suspected of
involvement with terrorism.
Criminal Code, s. 83.31.
Attorney General of Canada, Annual Report concerning Investigative Hearings and
Recognizance with Conditions, Dec. 24, 2004–Dec. 23, 2005, SECTION III – STATISTICS, online, Department of Justice Canada, http://www.justice.gc.ca/en/anti_terr/annualreport_20042005.html (accessed Aug. 3, 2006).
In their joint Policy Review submissions, the Canadian Arab Federation and Canadian Council
on American–Islamic Relations expressed concern about reports from members of Canada’s
Muslim and Arab communities that the RCMP and CSIS have inappropriately threatened to
use the preventive arrest powers to intimidate individuals during interviews or compel their
co-operation in investigations: “Policy Review Submissions” (Written submission of the
Canadian Arab Federation and Canadian Council on American–Islamic Relations, Arar
Commission Policy Review Public Submissions), Feb. 21, 2005, pp. 10–11. This concern is
based on anecdotal accounts collected in a publication by the Canadian Council on
American–Islamic Relations submitted to the Inquiry, Presumption of Guilt: A National Survey
on Security Visitations of Canadian Muslims, online, Canadian Council of American-Islamic
Relations, http://www.caircan.ca/downloads/POG-08062005.pdf (accessed Jan. 12, 2006).
Oral Submissions of Riad Saloojee for the Canadian Arab Federation and Canadian Council on
American–Islamic Relations, Transcript of Arar Commission Policy Review Public Hearing,
Nov. 17, 2005, pp. 220–221, 229–230.
See Ottawa Citizen Group Inc. v. Canada (Attorney General) (2004), 122 C.R.R. (2d) 359,
especially Justice Lufty’s “Post scriptum: too much secrecy???” at paras. 34–45.
R.S.C. 1985, c. N-5, s. 273.65 (as am. by the Anti-terrorism Act).
Rt. Hon. Antonio Lamer, Communications Security Establishment Commissioner, “Note for
Remarks to the Special Senate Committee on the Three Year Review of the Anti-Terrorism Act,”
2005, p. 2.
See Privacy Commissioner of Canada Position Statement (see note 18), arguing that prior judicial authorization should be required to allow the CSE to intercept the Canadian end of private conversations. A warrant similar to those provided for under the Canadian Security
Intelligence Service Act could be required.
National Defence Act, s. 273.69.
See testimony of Keith Coulter, Chief, CSE, before the Special Senate Committee on the Antiterrorism Act, Apr. 11, 2005, pp. 7:43–7:44, 7:52; Testimony of John Ossowski, Director
General, Policy and Communications, CSE, before the Special Senate Committee on the Antiterrorism Act, Apr. 11, 2005, p. 7:48.
National Defence Act, s. 273.65(2).
The CSE Commissioner most likely would not have access to the Cabinet confidences on
which the ministerial authorization was based: testimony of the Rt. Hon. Antonio Lamer,
Commissioner, Communications Security Establishment, before the House Subcommittee on
Public Safety and National Security, June 15, 2005, p. 8.
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102
103
104
105
106
107
108
109
Criminal Code, ss. 83.05(6)(a), 83.06.
See ss. 38.02(1)(c), 38.11(1), 38.12(2), 38.13(5), 38.13(8). See also Ottawa Citizen Group Inc.
v. Canada (Attorney General) (2004),122 C.R.R. (2d) 359 at paras. 34–45. Justice Lufty states
at para. 44 that s. 38 is “the antithesis” of the open court principle, “a cornerstone of our
democracy.”
See Vancouver Sun (Re), [2004] 2 S.C.R. 332.
Immigration and Refugee Protection Act, ss. 78ff.
Ibid., s. 78(j).
Ibid., ss. 80(1), 80(2).
Ibid., s. 80(3). See generally Hamish Stewart, “Is Indefinite Detention of Terrorist Suspects
Really Constitutional?” (2005) 54 U.N.B.L.J. 234.
McDonald Commission report, p. 43.
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�IX
Fundamental Objectives of Review
1.
INTRODUCTION
Before turning to an assessment of the status quo and to my specific recommendations on a review mechanism for the national security activities of the
RCMP, the objectives of such a mechanism need to be set out. The overarching
objective can be simply stated: a review mechanism should work to ensure that
the RCMP is accountable for its national security activities. In a democratic system of government based upon the protection of individual rights and freedoms,
every public institution — and particularly every institution with powers that
can profoundly affect the lives of Canadians, like a police force — must be answerable for its activities.
In police work in general, and arguably more so in national security police
work, the police require considerable powers of intrusion. However, those powers must have limits. Most fundamentally, they must be exercised within the
context of the values of our free and democratic society — liberty, the rule of
law, the principles of fundamental justice and respect for equality. The police
are given powers on the condition that they will exercise those powers within
the limits of this context. A basic principle of our system is that public institutions, including the police, must be answerable for acting outside the limits
placed on their powers.
The RCMP is accountable to the Minister, who is politically responsible
for the Force in Parliament, and to the courts, which review the legality of
RCMP activities in a range of contexts. Ultimately, the RCMP, the Minister and
the courts are all accountable to the public at large, on whose behalf each institution operates.
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This overarching objective of working to ensure accountability can be broken down into three more specific objectives:
1)
2)
3)
to provide assurance that RCMP activities are in conformity with the
Canadian Charter of Rights and Freedoms (the Charter), the law and the
standards of propriety that are accepted in Canadian society;
to foster accountability of the RCMP to government; and
to foster accountability to the public, thereby maintaining and enhancing
public trust and confidence in the RCMP.
These three objectives are subject to an important institutional or functional
imperative: a review mechanism should not function so as to itself impair national security, nor should it impair the lawful and appropriate conduct of the
RCMP and the operation of the criminal justice system. In Chapter VIII, I set out
several features of national security activities that speak to the need for enhanced
review. Other features of national security, including some of those mentioned
in Chapter VIII, must also be considered in designing a review mechanism so
as not to endanger Canadians’ national security or unduly hinder the operation
of the criminal justice system. For example, the need to respect and protect the
secrecy of certain information is a critical component of the national security activities of the RCMP and other national security actors, and a review mechanism
must not operate so as to expose information that should remain secret. A review mechanism should also recognize that RCMP national security activities
are highly integrated with those of other federal and provincial police and other
agencies. Integration is a key element of the Government’s approach to national
security, and a review mechanism must function effectively within the framework of integration.
I discuss each objective in greater detail below. Before turning to the
objectives, however, it is important that I set out what I mean by a
review mechanism.
2.
REVIEW VERSUS OVERSIGHT
The terms of reference that form the basis of this Inquiry direct me to make recommendations on “an independent arm’s-length review mechanism for the activities of the Royal Canadian Mounted Police with respect to national security.”1
In the literature on the subject, “review” is sometimes used to mean a particular type of accountability mechanism. While details and features differ, “review
mechanism” generally refers to a mechanism that assesses an organization’s activities against standards like lawfulness and/or propriety, and delivers a report
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of that assessment, with recommendations, to those in government politically responsible for the organization. Activities are usually examined after they have
occurred. In this model, a review mechanism is not responsible for carrying out
recommendations. It remains at arm’s length from both the management of the
organization being reviewed and from the government.
Other accountability mechanisms are more directly involved in managing
the organization in question. These are sometimes referred to as “oversight”
mechanisms. Again, while features vary, oversight mechanisms are often directly
involved in the decision making of the organization they oversee. Involvement
can be through setting standards against which the organization’s activities
are evaluated, pre-approving operations, implementing and enforcing recommendations, and/or imposing discipline. The organization’s activities are sometimes assessed while they are going on. In their pure forms, oversight
mechanisms can be seen as direct links in the chain of command or accountability: they both review and are responsible for the activities of the overseen
body. By contrast, review mechanisms are more appropriately seen as facilitating accountability: they ensure that the entities to which the organization under
review is accountable, and the public, receive an independent assessment of
that organization’s activities.
In conducting the Policy Review, I have not confined my research and investigations to review mechanisms as defined above. I have examined a broad
range of accountability mechanisms. Indeed, it is apparent from my examination
that very few accountability mechanisms used in Canada or abroad can be neatly
categorized as either wholly “review” or wholly “oversight.” Most are a hybrid
of the features described above.2 However, the terms are useful in assessing the
general approach that is most appropriate for the RCMP’s national security activities. There are two choices:
•
•
a mechanism that facilitates the accountability structure already in place by
examining completed activities (review); or
a mechanism that itself becomes to some extent responsible for directing
the RCMP’s activities and so involves a change to the accountability structure (oversight).
I am satisfied that the most appropriate accountability mechanism for the
RCMP’s national security activities is a review model. An oversight mechanism
could confuse, or even lessen, both the RCMP’s accountability to government
and government’s responsibility for the RCMP. A body that engages in oversight
might also lose some of its independence from the RCMP and become implicated in decisions that should be subject to independent review after the fact.
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Most importantly, I base my conclusion on the fact that an oversight mechanism
would not respect the doctrine of police independence.
2.1
POLICE INDEPENDENCE AND ACCOUNTABILITY
The doctrine of police independence gives police a significant level of independence from government, and any discussion of RCMP accountability and
government responsibility must take this fact into account.
The outer limits of the doctrine of police independence continue to evolve,
but its core meaning is clear: the Government should not direct police investigations and law enforcement decisions in the sense of ordering the police to investigate, arrest or charge — or not to investigate, arrest or charge — any
particular person. The rationale for the doctrine is the need to respect the rule
of law. If the Government could order the police to investigate, or not to investigate, particular individuals, Canada would move towards becoming a police state in which the Government could use the police to hurt its enemies and
protect its friends, rather than a free and democratic society that respects the rule
of law.
The modern origin of the doctrine of police independence is found in a
1968 British common law case, Ex Parte Blackburn, in which Lord Denning
stated the following:
I have no hesitation in holding that, like every constable in the land, [the
Commissioner of the London Police] should be, and is, independent of the executive. He is not subject to the orders of the Secretary of State, save that under the
Police Act, 1964, the Secretary of State can call upon him to give a report, or to retire in the interests of efficiency. I hold it to be the duty of the Commissioner of
Police of the Metropolis, as it is of every chief constable, to enforce the law of the
land. He must take steps so to post his men that crimes may be detected; and that
honest citizens may go about their affairs in peace. He must decide whether or not
suspected persons are to be prosecuted; and, if need be, bring the prosecution or
see that it is brought. But in all these things he is not the servant of anyone, save
of the law itself. No Minister of the Crown can tell him that he must, or must not,
keep observation on this place or that; or that he must, or must not, prosecute this
man or that one. Nor can any police authority tell him so. The responsibility for law
enforcement lies on him. He is answerable to the law and to the law alone.
3
This articulation of a broad doctrine of police independence has been influential, and many courts have accepted it. Most recently, the Supreme Court
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of Canada, in R. v. Campbell and Shirose,4 accepted Lord Denning’s articulation
in relation to the police where they are engaged in criminal investigations.
However, Lord Denning’s statement has also been the subject of debate.
Several commentators have questioned whether Lord Denning should have
based the doctrine of police independence on a series of civil liability cases
holding that there was no master and servant relationship between the police
and the government.5 Others have argued that Lord Denning wrongly synthesized the idea that the police should be immune from improper political control or direction with the broader and different idea that the police should not
be answerable to the responsible minister, but only in a court of law. Although
judicial review is an important restraint on the police, it generally occurs only
in cases that result in criminal charges and trials. As discussed in Chapter VIII,
most of the RCMP’s national security activities do not result in criminal charges
or trials.
In Campbell and Shirose, the Crown tried to defend police conduct in conducting a “reverse sting” operation, in which RCMP officers sold drugs to the accused, on the basis that the police were part of the Crown or agents of the
Crown and protected by the Crown’s public interest immunity. Justice Binnie for
the unanimous Supreme Court rejected such an argument:
The Crown’s attempt to identify the RCMP with the Crown for immunity purposes
misconceives the relationship between the police and the executive government
when the police are engaged in law enforcement. A police officer investigating a
crime is not acting as a government functionary or as an agent of anybody. He or
she occupies a public office initially defined by the common law and subsequently
set out in various statutes.6
The Court noted that the RCMP “perform a myriad of functions apart
from the investigation of crimes” and that “[s]ome of these functions bring
the RCMP into a closer relationship to the Crown than others.” However, the
Court stressed that “in this appeal . . . we are concerned only with the status of
an RCMP officer in the course of a criminal investigation, and in that regard the
police are independent of the control of the executive government.”7 The Court
noted that this principle “underpins the rule of law,”8 which “is one of the ‘fundamental and organizing principles of the Constitution.’”9 The Court also quoted
with approval the extract from Lord Denning’s 1968 decision in Ex Parte
Blackburn set out above.
The Campbell and Shirose case is significant in its recognition of the doctrine of police independence from the executive in the context of criminal investigations and its connection of the principle to the rule of law.10 The rule of
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law stresses the importance of impartially applying the law to all, and especially
to those who hold state and governmental power.
I am not suggesting that police independence is, or ought to be, absolute.
Complete independence would run the risk of creating another type of police
state, one in which the police would not be answerable to anyone. Two principal lines of accountability prevent this second form of police state: the rule of
law; and answerability to the responsible Minister, the elected government and
ultimately the people.
As well as being the foundation of the doctrine of police independence, the
rule of law is important in holding the police answerable for their conduct. As
discussed in Chapter VIII, the courts play an important role in ensuring that the
police operate within the framework of the law. For example in criminal cases
that reach the courts, police activities in investigating crimes are examined and
assessed against legal, including Charter, standards.11 Courts also play a role in
authorizing certain police activities such as electronic surveillance and search
and seizure powers.12 As I have noted, however, only a small part of the RCMP’s
national security activities are reviewed by the courts, particularly in the national
security context. Thus, while the line of accountability to the courts is important,
it does not include all relevant activities.
The elected government also has an important role in ensuring that police
forces remain accountable and answerable for their conduct. In some cases this
role is manifested through a requirement that action not be taken without special government authorization. For example, the RCMP and other police forces
must have the Attorney General’s consent before laying charges for a terrorism
offence under the Criminal Code or the Security of Information Act, and before
using the extraordinary police powers of investigative hearings or preventative
arrests related to terrorism investigations. As this approval requirement relates
directly to individual criminal investigations, it can be seen as a restraint on the
doctrine of police independence. The extraordinary nature of police powers
and the serious implications of crimes affecting national security have resulted
in a narrowing of police independence in relation to this type of criminal behavior. In their submissions to me, the RCMP acknowledged that these consent
requirements “provide[d] a sober second thought on operational decisions.”13
The Minister responsible for the RCMP, the Minister of Public Safety (the
Minister), also has a more general accountability function. As described in
Chapter II, section 5 of the Royal Canadian Mounted Police Act (RCMP Act)
provides that while the Commissioner of the RCMP has the control and management of the Force, he or she does so “under the direction of the Minister.”14
However, this power of direction must be interpreted in the context of the doc-
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trine of police independence developed in Campbell and Shirose. In that case,
Justice Binnie explained:
While for certain purposes the Commissioner of the RCMP reports to the Solicitor
General, the Commissioner is not to be considered a servant or agent of the government while engaged in a criminal investigation. The Commissioner is not subject to political direction. Like every other police officer similarly engaged, he is
answerable to the law and, no doubt, to his conscience.15
As Justice Hughes commented in his APEC report: “In respect of criminal
investigations and law enforcement generally, the Campbell decision makes it
clear that, despite section 5 of the RCMP Act, the RCMP are fully independent
of the executive. The extent to which police independence extends to other situations remains uncertain.”16
While the doctrine of police independence limits the Minister’s ability to direct individual criminal investigations, the power set out in section 5 of the
RCMP Act has been used by the Minister to provide policy directives17 that do
not interfere with individual investigations. The directives provide critical ministerial direction for how RCMP activities are to be carried out generally. For example, in April 2002 and November 2003 the Minister issued four directives that
provide important guidance for the RCMP’s national security activities. They provide that RCMP national security investigations are to be coordinated at National
Headquarters; that the RCMP must inform the Minister of high-profile national
security investigations; that information sharing with foreign intelligence agencies requires ministerial approval; and that national security investigations in
sensitive sectors must be pre-approved by the Assistant Commissioner, Criminal
Intelligence Directorate, and, in relation to post-secondary institutions, must not
“impact upon the free flow and exchange of ideas normally associated with an
academic milieu.”18
The extent of the Minister’s ability to issue directives in a way that is consistent with the principle of police independence is evolving. Other commissions of inquiry have commented on this issue. For example, the McDonald
Commission considered the concept of police independence at some length and
concluded that:
[T]he Minister should have no right of direction with respect to the exercise by the
R.C.M.P. of the powers of investigation, arrest and prosecution. To that extent, and
to that extent only, should the English doctrine expounded in Ex parte Blackburn
be made applicable to the R.C.M.P.19
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However, even with respect to the “quasi judicial” police functions of investigation, arrest and prosecution, the McDonald Commission distinguished between control and direction on the one hand, and accountability on the other.
It concluded that the Minister should have the right to be:
informed of any operational matter, even one involving an individual case, if it
raises an important question of public policy. In such cases he may give guidance
to the Commissioner and express to the Commissioner the government’s view of the
matter, but he should have no power to give direction to the Commissioner [emphasis in original].20
The McDonald Commission expressed serious reservations about the idea
that the responsible minister should be kept ignorant of day-to-day police operations. It believed that such an approach could undermine ministerial responsibility for RCMP policies. The Commission wanted to prevent any
misunderstanding that important “questions concerning the distinction between
legitimate dissent and subversive threats to the security of Canada” and about
the “legality and propriety of a particular method of collecting intelligence in the
context of a particular case,” would fall under the operational independence of
the police. In the Commission’s view, the police should be answerable to the
Minister for such policy decisions, and the Minister in turn should be answerable to Parliament for RCMP policies. 21
The Independent Commission on Policing for Northern Ireland (the Patten
Commission) concluded that the term “police independence” should be replaced
by the term “police responsibility,” to highlight the distinction between legitimate
police independence from direction or control and illegitimate claims that the
police are not answerable for their activities. It argued as follows:
Long consideration has led us to the view that the term “operational independence”
is itself a large part of the problem. In a democratic society, all public officials must
be fully accountable to the institutions of that society for the due performance of
their functions, and a chief of police cannot be an exception. No public official, including a chief of police, can be said to be “independent”. Indeed, given the extraordinary powers conferred on the police, it is essential that their exercise is
subject to the closest and most effective scrutiny possible. The arguments involved
in support of “operational independence” — that it minimises the risk of political
influence and that it properly imposes on the Chief Constable the burden of taking
decisions on matters about which only he or she has all the facts and expertise
needed — are powerful arguments, but they support a case not for “independence”
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but for “responsibility”. We strongly prefer the term “operational responsibility” to
the term “operational independence”.22
Police operational responsibility as conceived by the Patten Commission
involves the right of police to make decisions free from external direction or control. However, it rejects the idea that police “conduct of an operational matter
should be exempted from inquiry or review after the event by anyone.”23
I agree with both the McDonald Commission and the Patten Commission
that there is an important distinction between control and direction on the one
hand, and accountability on the other. Section 5 of the RCMP Act gives the
Minister, and government in general, an important role with respect to each.
The Minister has a responsibility to provide policy direction to the RCMP. While
direction of operational matters is more controversial, I agree with the McDonald
Commission that “if it raises an important question of public policy . . . . [the
Minister] may give guidance to the Commissioner and express to the
Commissioner the government’s view of the matter.”24 To avoid concerns about
improper influence, such guidance and expression of views should be given
publicly, where possible, and always in writing. Further, in the case of extraordinary police powers, it may be necessary to restrain police independence to
protect the values of our free and democratic society.
The RCMP is also generally accountable to the Minister. The Minister must
be informed of RCMP conduct and be answerable to Parliament and the
Canadian public for conduct that is inconsistent with the rule of law or with
public policy. Without such answerability, we run the risk, particularly concerning activities that are not reviewed by the courts, of the police not being accountable to anyone.
2.2
SUMMARY
Given the complex balance between police independence and police accountability, I would be concerned about the effect a true oversight mechanism might
have. A mechanism that itself had the power of direction over the RCMP could
interfere with the doctrine of police independence. This would especially be so
if directions were issued on operational matters and individual cases. The powers of direction inherent in oversight could also dilute or impair the independence of the review of RCMP activities. A body that pre-approved or directed
activities would become tied to those activities. The body would be placed in
the position of reviewing its own directions or approvals, and the independence of its assessment could be brought into question.
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There is also a real risk that adding an oversight mechanism would work
to diminish ministerial responsibility for RCMP activities and RCMP accountability
to the Minister. As I have said, I agree with both the McDonald Commission
and the Patten Commission that the police should be accountable to government
and that government, through the Minister, should be responsible for police
policies. This is particularly so for national security activities. An oversight mechanism that included the power to impose policy on the RCMP or to be involved
with ongoing operations could water down ministerial responsibility by creating a temptation for the government to defer action to the oversight mechanism.
The principle of police independence, and the sometimes politically controversial nature of issues affecting the police, can make governments reluctant to become involved. In my opinion, greater accountability to the Minister and greater
ministerial responsibility for RCMP activities are highly desirable.
Therefore, I believe that the accountability mechanism that is contemplated
by the mandate should be a review mechanism as described above.
3.
PRIMARY OBJECTIVES OF A REVIEW MECHANISM
3.1
ASSURANCE OF CONFORMITY WITH THE LAW AND
STANDARDS OF PROPRIETY
The first objective of a review mechanism should be to review the RCMP’s national security activities to ensure that those activities conform to law and to our
society’s fundamental values, and to report on deviations from these values.
This is a necessary first step in ensuring RCMP accountability and engendering
public trust and confidence.
As noted above, police independence does not mean that the police are
free to carry out their activities in any manner they choose. A fundamental constraint on police power is the rule of law. As the McDonald Commission stated:
[T]he rule of law must be observed in all security operations . . . . In our context
this means that policemen and members of a security service, as well as the government officials and ministers who authorize their activities, are not above the law
. . . . They must not take the law into their own hands. This is a requirement of a
liberal society.25
The Supreme Court of Canada made the same point more recently in the
Suresh case.26 There, the Court emphasized that while powerful tools are needed
to effectively meet the threat of terrorism, it would be too great a price if
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terrorism were defeated at the cost of sacrificing our commitment to the values
that are fundamental to our society — liberty, the rule of law and the principles
of fundamental justice.
The legal standards against which RCMP activities should be reviewed include the Canadian Charter of Rights and Freedoms, which itself embodies
Canada’s fundamental values. Review should also include compliance with domestic statute law, such as the RCMP Act, the Criminal Code, the Anti-terrorism
Act, human rights legislation and all other legislation applicable to the RCMP’s
national security activities. In addition, activities should be assessed against
Canada’s international obligations, and against the standards set out in ministerial directives and internal RCMP policies. While not strictly “laws,” these standards are important norms that guide RCMP activities. As mentioned above,
ministerial directives constitute general, but important, forms of policy direction
by the Government: they provide guideposts in assessing the propriety of RCMP
conduct. Internal RCMP policies constitute guideposts in assessing whether the
RCMP is respecting its own internal rules and accountability mechanisms; these
policies should also be subject to review to ensure they meet external standards.
To be effective, a review mechanism assessing conformity with law should
look at more than adherence to the strict letter of the law. It should also assess
the propriety of activities. This is especially important in the national security
context, where police activities can have serious implications for human rights.
By “propriety,” I am referring mainly to whether RCMP actions were fair and proportionate. These concepts are inherent in Charter and human rights legislation,
and should be emphasized in the context of a review mechanism.
In Canada, proportionality has been an objective of review for propriety as
far back as the 1969 Mackenzie Commission. That commission concluded that
review of certain RCMP national security decisions would “ensure that the rights
of individuals had not been unnecessarily abrogated or restricted in the interests
of the security of the state and its allies, and that no unnecessary distress had
been caused to individuals.”27 In its first annual report, the Security Intelligence
Review Committee (SIRC) noted that one of the purposes of its review was to
ensure that CSIS activities “do not involve any unreasonable or unnecessary exercise” of its power.28
Three principles for assessing propriety on the basis of proportionality identified by Ian Leigh, a participant in the Policy Review Roundtable of International
Experts on Review and Oversight, are as follows:
•
Investigative methods should be proportionate to the threat being investigated, and evaluated against possible damage to civil liberties and democratic structures;
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•
•
The least intrusive method should be used wherever possible; and
Discretion should be circumscribed so that the level of authorization is proportionate to the invasion of privacy.29
Similarly, fairness is another standard against which police conduct can be
measured to assess propriety. The Mackenzie Commission first proposed adopting a review mechanism for some RCMP national security decisions to provide
protection “against arbitrary, hasty or ill considered judgments.”30 SIRC, likewise,
reviews CSIS activity to make sure that “while effectively protecting the nation’s
security against non-military threats, [CSIS] treats individual Canadians fairly, and
. . . uses its intrusive powers with restraint and with an overriding sensitivity to
democratic values.”31 Shirley Heafey, the former chair of the Commission for
Public Complaints Against the RCMP (CPC) has identified similar functions for
the CPC and national security matters:
•
•
•
To ensure powers are used fairly in an environment where the activities of
the RCMP will only rarely be reviewed by the courts;
To ensure individuals are not targeted unfairly because of their racial background; and
To ensure that all individuals “enjoy equal benefit, and protection of the
law.”32
I have cited these approaches to proportionality and fairness as examples.
It is not possible, nor do I believe it would be wise, to set out an exhaustive definition. My point is that a robust review mechanism should assess conduct
against not only constitutional, statute, common law or policy standards, but
also against propriety in the sense of proportionality or fairness. Proportionality
and fairness will also be an important guide in assessing the other standards
against which RCMP activities will be reviewed, in particular the standards set
out in internal RCMP policies and in ministerial directives. While the standards
to be applied will generally be developed outside the review mechanism, review
should include assessing those standards in the context of the impact of RCMP
activities on the rights and freedoms of individuals.
Some participants in the Policy Review suggested that there should also
be review for efficiency or effectiveness of RCMP activities. This is sometimes
referred to as review for “efficacy.” For example, at the Roundtable of Canadian
Experts on Review and Oversight, Wesley Wark argued that while review
for propriety is very important, it is also important that police forces and
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intelligence agencies be reviewed and assessed for efficacy. By efficacy,
Professor Wark was referring to competence and capacity. He stated:
The issue in efficacy-based reviews is competence and capacity. It is essentially
about knowledge. That is the thing that we require from security and intelligence
communities. It is a thorough-going deep, available knowledge of threats to the security of Canada.
It is very hard to know what the reality is. And in some ways it has to be hard
to know what the reality is because there is a real need for secrecy in this field.
But that need for secrecy has to be balanced against what I think of as a fundamental transformation in public attitudes and approaches to intelligence and security matters in this country, and worldwide, that have been stimulated by the
events of September 11th and . . . the terrible intelligence failure of the Iraq war and
the ways in which many publics feel that they were, as the common phrase goes,
neo-conned into a war.
We are in a new era, which I call an era of public intelligence, in which there
will be simply a strong expectation that publics have a right and a need to know
as much as possible about the activities and the competencies of the intelligence and
security community that serves them.33
Professor Wark’s argument should be considered. The need to be assured
of efficacy is relevant to the intelligence community as a whole, and may be an
appropriate subject for the proposed Parliamentary Committee on National
Security.
I note that it was concern about the propriety of actions taken with respect
to Maher Arar that gave rise to this Inquiry. I have not conducted the Inquiry
with the goal of making recommendations about the efficacy of the RCMP’s national security activities, and I am therefore not in a position to evaluate whether
an independent review mechanism is needed from this perspective. However,
review for propriety will inevitably raise issues of competence and capacity.
This is evident from my Factual Inquiry report where, for example, the issue of
training RCMP officers in the area of national security policing procedures was
closely related to an assessment of their conduct for propriety. Also, analyzing
proportionality may involve a balancing of impact upon individual rights against
the utility or efficacy of a particular practice or procedure. In these circumstances, issues of efficacy and propriety are interwoven, and comments about
competence or capacity related to propriety will be highly useful and desirable.
Thus, while efficacy will not be the primary objective of the review mechanism
I recommend, it will in many cases be a necessary element of a robust review
for propriety.
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3.2
FOSTER ACCOUNTABILITY TO GOVERNMENT
The second objective of a review mechanism is to enhance or foster the RCMP’s
accountability to those who are politically responsible for the Force, while enhancing and facilitating government responsibility or answerability for RCMP
activities. As discussed above, notwithstanding the principle of police independence and the limits it places on Government interference with criminal investigations, the RCMP is accountable to the Government for, at a minimum,
the legality and propriety of its activities; and the Government, through the
Minister, is responsible to Parliament and to Canadians for the legality and propriety of RCMP activities.
The degree to which the Government can direct or control the RCMP’s dayto-day activities is evolving and being debated. As is evident from some of my
recommendations in the Factual Inquiry, I believe that greater ministerial direction is warranted for national security activities. In my view, beyond any controversy about the Minister’s ability to give the RCMP direction, a fundamental
element of the RCMP’s status and role is that the Force be accountable to the
Minister for unlawful or improper conduct, and that the Minister be responsible
for ensuring that such conduct does not reoccur.
A review mechanism should foster such accountability and responsibility by
reviewing RCMP activities as discussed under the first objective and reporting on
the review. Reporting should include making recommendations for correction
or improvement to the RCMP and to the Minister. Inherent in the review and reporting function is an obligation to follow up: a review mechanism should investigate what has been done to correct previously identified shortcomings and
report on those as well.
Fostering accountability and responsibility requires a review mechanism
that is independent of both the Government and the RCMP. The concerns underlying the principle of police independence — possible improper political interference in criminal investigations — are also present with respect to a review
mechanism. If the mechanism is completely in the Government’s hands, it could
be used for an improper purpose. I am not saying the Government would intentionally do so, but, as discussed in more detail under the next objective, the
possibility lessens public confidence in the process. A mechanism with significant independence from government should substantially reduce and even eliminate this concern. An independent mechanism can provide an independent and
objective assessment of the legality and propriety of the RCMP’s national security activities, on the basis of which the RCMP can be held accountable and the
Minister can exercise appropriate direction over the RCMP.
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3.3
FOSTER ACCOUNTABILITY TO THE PUBLIC AND FACILITATE PUBLIC
TRUST AND CONFIDENCE
The third fundamental objective of a review mechanism is to foster RCMP accountability to the public. The important consequence of such accountability
will be to engender public trust and confidence in the RCMP, which is essential
if the Force is to carry out its role effectively. Public trust and confidence are to
some extent a product of the first two objectives I have set out: assurance that
the RCMP is operating lawfully and appropriately, and that it is answerable to
those in government who are responsible for it.
As noted above, the RCMP has been granted significant powers to carry
out its policing function, especially in the area of national security, and the exercise of many of these powers can be quite intrusive on individual rights and
liberties. From evidence that I heard in the Factual Inquiry, and from the research conducted and submissions made in the Policy Review, it is clear to me
that there is concern that such powers be used lawfully and appropriately. This
concern arises largely from a lack of public information and public evaluation
of the RCMP’s national security activities. Without a means of being informed
whether RCMP powers are being used appropriately, it is difficult for the public to develop any sense of confidence and trust in the RCMP’s national security
activities.
The RCMP itself clearly recognizes the importance of public trust and confidence. In his submissions to me during the Policy Review public hearings,
Commissioner Zaccardelli stated:
Participants in your inquiry have called for an assurance that the rights and freedoms
of Canadians will always be respected. Nothing could be more important, not only
in keeping with shared values and guarantees that are enshrined in law and in the
Charter, but also to maintain one of the most precious resources available to society: trust.
At the RCMP we are viscerally aware that without trust we cannot work with
and for the Canadians and Canada we are mandated to serve. Without trust Canada
is at risk, and no amount of review or oversight would be able to restore the confidence of a nation.
In the end we all want and need the same thing: the comfort of knowing that
if and when any machinery of public service should fail, that fault will be found,
responsibility accepted, repairs and changes made.34
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I agree with this assessment. A fundamental goal of a review mechanism is
indeed to help provide the assurance that if something goes wrong, “fault will
be found, responsibility accepted, repairs and changes made.”
While it will always be necessary for certain aspects of the RCMP’s national
security work to take place behind closed doors, in my view, a fundamental
objective of a review mechanism is to bring increased transparency to the
RCMP’s activities. This is accomplished in two ways. First, a review mechanism
should bring to the public’s attention information that can be disclosed without
compromising national security or endangering lives. Second, where information
must remain secret, a review mechanism must act as a kind of surrogate for the
public to investigate and assess the RCMP’s conduct, report any shortcomings to
the appropriate body, and follow up to determine if appropriate action has been
taken. Hans Born and Ian Leigh describe this aspect of review as providing a
“check from the viewpoint of the citizen.”35
As Commissioner Zaccardelli stated at the public hearing:
[N]o more will citizens sit back and let institutions like law enforcement, the military or other government entities, operate unilaterally without transparency, accountability or consequence.
The people of Canada are better informed and more challenging to even traditional[ly] sacrosanct training like ours than any generation before. Rather than
decry or resist these developments, I believe we need to embrace and adopt the active involvement of individuals in governance and even some elements of operations. We need to respond [to] the new paradigm around accountability, knowing
that doing so will only enhance our ability to achieve our goals.36
Commissioner Zaccardelli went on to endorse the concept of an independent review mechanism for the RCMP’s national security activities.
The RCMP is not the only institution operating in circumstances that are
not conducive to transparency. The public’s understanding of CSIS’ activities is
subject to the same limitations. One of the most important functions that SIRC
— the body that reviews CSIS — performs is to provide indirect, or surrogate,
transparency. In its first annual report, SIRC described its mission in the following terms:
For its part in the process, the Committee plans to ferret out with vigour information relevant to its duties and functions, and then, in deliberating and determining
the national security requirements involved, to provide fairness to individual
Canadians affected. The Committee is only one body in a complex maze of checks
and balances established by Parliament in the [CSIS] Act. But through its report, the
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Committee is the single body which can give Parliament annually an independent
insight into the workings of the maze. This the Committee intends to do to the best
of its abilities, judgement, and experience.37
If the public accepts them as being independent, thorough and fair, such
reports help to engender public confidence in the organization being reviewed.
The general view of nearly all who made submissions to me is that SIRC has
helped develop trust and confidence in CSIS in circumstances where the public
does not have direct access to CSIS’ operations. An RCMP review mechanism
needs to serve a similar objective.
To carry out this objective effectively, the review mechanism must itself
have the public’s trust and confidence. In some instances, public disclosure will
be limited to the review body attesting that it has thoroughly looked into an activity and is satisfied that the public’s rights and freedoms have been adequately
protected. Without trust and confidence in the review mechanism, such attestation will do little to promote trust and confidence in the RCMP.
Certain review features are essential if the review body is to engender public confidence in itself and in the RCMP’s national security activities. First, the review mechanism must be independent of and at arm’s length from both the
Government and the RCMP. I have already discussed the importance of independent review in fostering accountability to the Government in the previous
section of this chapter. There, I focused on independence from the potential for
improper political interference in the RCMP’s activities; in the present context, I
refer to independence in the judicial or quasi-judicial sense of having an unbiased, neutral assessor. To gain public confidence and trust, it is essential that
those responsible for review are, and are seen to be, free from interference by
government, the RCMP or any other group with a particular interest in the subject matter. As the Morand Commission noted, “Justice does not appear to be
done when the entire procedure is in the hands of the body against which the
complaint is made.”38 Public confidence and trust will not be fostered if the review mechanism is itself seen as biased. In this regard, I endorse the description of the role of the CPC found on its website: “The CPC carries out its duties
impartially . . . [It makes] unbiased findings and recommendations . . . aimed at
identifying, correcting and preventing recurring problems in policing.”39
A second feature of review needed to engender public confidence is to
have the review performed by competent individuals. The public must be satisfied that those carrying out review are qualified to do so. Given the secretive
nature of the activities being reviewed, I believe it is necessary to go beyond
competence and ensure the involvement of those who, through their
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background and experience, inspire confidence. As I understand it, this is what
lies behind the requirement that those appointed to SIRC be Privy Councillors.
While I am not saying that it is necessary to restrict a review body to Privy
Councillors, I believe that individuals appointed to a review body must have a
stature that engenders public confidence.
A third feature necessary to achieving the objective of public confidence
and trust is that the review process must itself be as transparent as possible.
Transparency includes an open and fair process for appointing individuals to the
review body, public education about the role and activities of the review
process, and as much disclosure as possible of the review body’s activities and
findings. The last two elements of transparency deserve particular emphasis.
Of course, public confidence will not be developed through a review mechanism if the public is unaware of the review mechanism’s functions and activities. Therefore, it is important that the body take on a role of creating public
awareness of its function. As I discuss in more detail below, this is especially true
for the complaints aspect of a review mechanism. While the body should not
“troll” for complaints — as this could have a negative effect on the appearance
of independence — the body or the Government should make the public aware
of the complaints process and how it works.
A review mechanism must also make its activities and findings available to
the public to the extent possible. While I acknowledge the importance of secrecy
in the national security field, my own experience in the Factual Inquiry clearly
shows that much can be made public without endangering Canada’s national security or putting individuals at risk. It is clear to me that accountability and public confidence are best engendered through transparency and the release of
information to the public. It is important for a review mechanism to play a role
in ensuring the public receives as much information as possible about the
RCMP’s national security activities and the process of review. I am not suggesting a cavalier approach to public disclosure. However, the review mechanism
should challenge the inclination to keep everything related to national security
from the public and should advocate for releasing all information where no
harm would result.
3.4
NOT TO IMPAIR NATIONAL SECURITY
As set out in the introduction to this chapter, these three fundamental objectives
are subject to an important institutional or functional imperative: a review mechanism should not function so as to itself impair national security, nor should it
impair the lawful and appropriate conduct of the RCMP and operation of the
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criminal justice system. In other words, the review mechanism needs to operate effectively in the context of the RCMP’s national security activities and
Canada’s national security landscape.
Some of the submissions I received approached the concept of a review
mechanism as a form of sanction for bad behavior. I disagree with that notion
entirely. I do not approach review as a sanction. In my view, a properly structured review mechanism can benefit the public as I describe above and can also
significantly benefit the organization being reviewed. Effective review can increase public confidence and trust in the organization. It can also provide assurance to the organization that its activities are being conducted lawfully and
appropriately, as well as guidance when they are not. I heard evidence in the
Factual Inquiry and received submissions in the Policy Review from those with
experience in organizations that are subject to review that a review mechanism
is of real and substantial benefit to the organization.
Several features of the RCMP’s national security activities should be kept in
mind in order to design a review mechanism that will not have an unintended
negative impact upon the RCMP, the legitimate objectives of its national security activities, or the criminal justice system as a whole. These features are
referred to throughout this report. However, I describe them briefly here as
they provide important context for my conclusions about the need for an
independent review mechanism for the RCMP and my recommendations about
that mechanism.
3.4.1
Police Independence
I dealt with police independence in some detail earlier in this chapter. Police
independence does not have the same implications for the work of an independent review mechanism as it does for the Minister and others in government
who could be perceived to have powers of control or direction over police
operational activities. Unlike the Minister, an independent review mechanism
would not have a statutory power to direct the Commissioner of the RCMP,
but only a mandate to make findings and recommendations about RCMP
activities. Moreover, a review body would normally examine the RCMP’s law
enforcement decisions only after they occurred; this significantly lessens concern
that review will negatively affect police independence. Even so, the nature of
national security policing discussed in Chapter V suggests that national security
files may be kept open for extended periods, and that a review body may sometimes have a legitimate interest in examining or commenting on RCMP law
enforcement decisions in relation to ongoing investigations. In doing so, a
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review mechanism, like a Minister, should respect the doctrine of police
independence that allows police to continue to make law enforcement decisions independently.
3.4.2
Operation of the Criminal Justice System
The RCMP’s national security activities are either criminal investigations or linked
to criminal investigations and, as such, relate directly to the operation of the
criminal justice system, including criminal prosecutions. Review mechanisms
have the potential to disrupt criminal investigations and prosecutions in several
ways. For example, to the extent that a review mechanism has powers of inquiry
like those of a public inquiry, issues will arise about fairness to individuals involved in any subsequent criminal or regulatory prosecutions. These include issues relating to the right to remain silent and the right to disclosure of relevant
information (section 7 of the Charter), and the right to a fair trial (paragraph
11(d) of the Charter).
In addition, because the review process will involve examining the activities carried out in connection with a criminal investigation, the review mechanism could itself become subject to disclosure obligations. As the Supreme Court
of Canada affirmed in R. v. Stinchcombe, the Crown has broad disclosure obligations to the defence in a criminal prosecution. Such obligations could extend
to material in the hands of a review mechanism,40 including the product of
the review mechanism’s own investigations such as notes of interviews or
witness statements, documents from other sources that the RCMP or the Crown
did not have, and the review mechanism’s own analyses. Moreover, in the
national security context, requests for disclosure could include secret documents — from both the RCMP and other sources — as well as documents created by the review body itself. I note that in the context of the Air India
prosecution, SIRC was compelled to release an edited version of its review of
CSIS in relation to the matter.
Leaving aside issues related to secrecy — which I discuss below — potential disclosure obligations on the part of the review mechanism may have an impact on the criminal justice process. I must say that it is not clear to me that all
such impacts would be negative. However, negative impacts are possible. At
the Canadian Experts Roundtable, Commissioner Dirk Ryneveld — the
Commissioner of the British Columbia Police Complaints Commission — explained that in a high-profile B.C. prosecution, he deferred investigating a complaint about police conduct related to the case until after completion of the
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prosecution. This practice could present difficulties in lengthy criminal investigations — which are common in national security cases.
Other negative effects on the criminal justice system are possible. For
example, in a review of ongoing criminal investigations, a reviewer could be
placed in the chain of evidence. In other words, if a reviewer examines physical evidence relevant to the criminal proceeding, the examination may have to
be explained when the evidence is sought to be introduced in court. I am
not raising these factors as impediments to robust review, but to note that
review may have an impact on the criminal justice system, and that minimizing
unnecessary and undesirable effects should be kept in mind in designing a review mechanism.
The work of a review body can be reconciled with the operation of the
criminal justice system in various ways. As Commissioner Ryneveld suggested,
the review body should have the discretion to suspend its investigation in the
public interest, including to prevent prejudice to an ongoing criminal investigation or prosecution. It may make sense for the review body to exercise this
discretion to suspend its investigations especially if a prosecution is imminent.
In such cases, the public interest in not unduly complicating the prosecution
may be high, and the state’s conduct may also be subject to judicial review as
part of the prosecution. However, in cases where there is a lengthy criminal
investigation that may never result in a prosecution, I expect there will be greater
public interest in having effective review, even if the review process may result in information that could be relevant should there be a subsequent criminal prosecution.
One way to help a review body manage information that may be relevant
in a subsequent trial is by giving it the discretion to disclose to the Attorney
General of Canada information it collects in its review functions. Although disclosing such information to the Attorney General of Canada would not make the
review body immune from requests by the accused in a criminal trial for the production of relevant information, it would diminish the importance of such requests by placing with the Attorney General of Canada copies of potentially
relevant material that should be disclosed to the accused. Under the Security
Offences Act,41 the Attorney General of Canada can pre-empt any national security prosecutions that provincial or territorial attorneys general may conduct.
After receiving material from the review body, the Attorney General would
be in a better position than the review body to determine whether the material
was relevant in an ongoing criminal prosecution and subject to Stinchcombe
disclosure obligations. The Attorney General of Canada would also be in a better position than the review body to invoke any relevant claims of privilege or
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claims to national security confidentiality. The Attorney General of Canada
would have both the duty to disclose under Stinchcombe and the ability under
sections 37 and 38 of the Canada Evidence Act to claim privilege over relevant
material that might otherwise be disclosed under Stinchcombe. In R. v. Chaplin,42
the Supreme Court recognized that the Attorney General may have access to
special procedures under the Canada Evidence Act to claim privilege and protect the confidentiality of material.
3.4.3
The Importance of Secrecy and the Protection of Sensitive Information
Earlier in this chapter, I discussed the importance of secrecy and the protection
of sensitive information in the national security context. Disclosure of secret or
sensitive information such as investigative techniques and the identity of sources
could work to harm Canada’s national security. In cases such as source identity,
lives may be put at risk. Also, disclosing information that foreign agencies had
provided on the understanding that it not be disclosed could harm relationships
with those agencies and stifle international co-operation. These potential consequences must be kept in mind in designing a review mechanism.
In my view, a review mechanism requires access to all relevant information
necessary to carry out its function effectively. Therefore, with limited and isolated exceptions, the review mechanism should not be barred from information
because that information is secret or sensitive. In turn, the review mechanism
must itself be subject to obligations not to disclose. As discussed in Chapter VI,
this approach to review has worked well with CSIS and SIRC, as well as with
the Communications Security Establishment (CSE) and the CSE Commissioner.
3.4.4
Excessive Review
Some who made submissions to me asked that I be conscious of what they
referred to as the “burden of review.” By this they meant that review involves
burdens and costs, as well as benefits. In addition to financial implications, review may redirect organizational resources away from the mandate of the
agency to the review process, and the attention of personnel away from their
work to the process.
I agree that it is important to keep the burden of review in mind. A review
should not be so onerous that it hinders the RCMP from carrying out its important functions. I am particularly conscious of duplicative mechanisms for review:
in designing a review mechanism for the RCMP’s national security activities, it
is necessary to be mindful of other mechanisms that perform the same function.
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3.4.5
Ability to Deal with the Integrated Nature of National Security Activities
In chapters IV and V, I describe in some detail the highly integrated nature of
the RCMP’s national security activities. Integration is an extremely important element of the Government’s approach to protecting Canada’s national security.
The nature of integration ranges from units such as INSETs (Integrated National
Security Enforcement Teams) — where personnel from many agencies work together on national security criminal investigations — to relationships that are less
structured and exist, for example, primarily for information sharing. Integration
raises two issues that are critical to effective review:
•
•
To what extent should review encompass the activities of non-RCMP personnel who are working under RCMP control and direction?
To what extent does the work of a review mechanism need to extend beyond the RCMP?
Regarding the first issue, I believe it is critical that a review mechanism be
able to assess all national security activities under the RCMP’s control and direction. Excluding any such activities on the grounds that they are carried out
by personnel who are not formally or permanently members of the RCMP would
mean that the review is incomplete. INSETs, for example, are clearly under
RCMP control and direction. All members — whatever their home organization
— work together on the same investigations. It would be impossible to comprehensively assess an INSET investigation without assessing the conduct of all
those involved in it.
In some circumstances, the activities of a participant from an outside agency
may not fall under RCMP control and direction. I understand, for example, that
even in INSETs, CSIS personnel have a different role than police personnel: they
do not participate directly in INSET criminal investigations, but are present to
monitor such investigations and facilitate information exchanges. In such circumstances, however, an RCMP review mechanism must be able to review the
conduct of CSIS personnel as it relates to the INSET activities. For example, it
will be necessary in information exchanges to review whether it was appropriate for the RCMP to receive the information as they did or to provide information to CSIS. By contrast, it is not critical for an RCMP review mechanism to
assess the conduct of the CSIS representatives as it relates to CSIS’ mandate. As
I discuss in more detail below, this is better left to SIRC.
The same is true of other personnel who interact with the RCMP in either
formally integrated units or less-structured relationships. The activities of such
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individuals that are directly related to RCMP criminal investigations and that are,
or should be, under RCMP control and direction must be subject to review by
an RCMP review mechanism.
Because some INSET personnel are from provincial agencies, the issue of
constitutional jurisdiction arises. In my opinion, there is no constitutional impediment to a federal review mechanism assessing activities that are under RCMP
control and direction. The federal government clearly has constitutional jurisdiction over national security policing. In addition, the RCMP is a federal police
agency and its activities fall within federal jurisdiction. INSET activities are under
RCMP control and direction, and this control and direction extends to those personnel from other agencies, including provincial agencies. In these and similar
circumstances I see no constitutional impediment to review of those activities by
a federal mechanism.
The question of constitutional jurisdiction becomes more complex if a federal mechanism has the power to compel a provincial actor to take action or the
power to discipline an individual whose home agency is provincial. However,
given my conclusions about the objectives of a review mechanism, it is not necessary for me to deal with that issue. As I said above, an effective review mechanism should have a mandate of making findings and recommendations, not of
imposing discipline, compelling remedial action or engaging in oversight.
The second integration issue that is important to the objectives of a review
mechanism is the extent to which a review mechanism should go beyond the
personnel and material that are under RCMP control and direction to effectively
carry out its mandate. Although a review mechanism should focus on assessing
RCMP national security activities, in my view, it will need to go beyond the strict
confines of the RCMP to achieve this objective.
Given the role of integration and co-operation among agencies in national
security activities, it does not seem to me possible to assess RCMP activities without understanding the circumstances in which these activities occur. For example, if the RCMP takes action based on information it has received from another
agency, it may be necessary to determine the circumstances in which that information was provided in order to assess the propriety of the RCMP’s conduct.
The RCMP review mechanism will need the power to have access to all information and individuals necessary to review the RCMP’s activities, even if that information or those individuals are from other agencies, whether federal or
provincial. I am not suggesting that the RCMP mechanism should assess the
other agencies’ conduct — only that it must have the power to access information and personnel from those agencies.
�FUNDAMENTAL OBJECTIVES OF REVIEW REVIEW
The need to go beyond the RCMP is important in another way. Because of
the integrated and co-operative approach that the Canadian government has
taken to address threats to national security, review of only one agency, such
as the RCMP, will sometimes not be enough. To assess the merits of some complaints, the activities of multiple national security actors will have to be reviewed.
My own experience from the Factual Inquiry illustrates this point: to assess Mr.
Arar’s case, I had to investigate the activities of several national security actors.
The point was also made in many of the submissions I received. Riad Saloojee,
who appeared at the public hearings on behalf of the Canadian Arab Federation
and the Canadian Council on American-Islamic Relations, underscored the point
by pointing out that some who felt that their rights might have been affected by
government action did not know which agency to complain about.
In these circumstances of integrated national security activities, it is critical
that there be an ability to integrate review. In other words, it is important to
have available a mechanism that can accomplish review of multiple agencies
when the activity being reviewed involves multiple agencies. I provide recommendations to ensure integrated review in Chapter XI. For the purposes of this
chapter, it is important to note that to achieve the objective of operating effectively in the national security context, an RCMP review mechanism must be able
to integrate with review mechanisms for other national security actors.
Notes
1
2
3
4
5
6
7
8
9
10
See Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar,
online, www.ararcommission.ca/eng/index.htm (accessed June 16, 2006) [Arar Commission].
See chapters VI and VII.
R. v. Metropolitan Police ex parte Blackburn, [1968] Q.B. 116 at 135–136. See also R. v. Chief
Constable of Sussex ex parte International Trader’s Ferry Ltd. [1999] 1 All E.R. 129.
[1999] 1 S.C.R. 565.
Fisher v. Oldham Corporation, [1930] 2 K.B. 364; Attorney General for New South Wales v.
Perpetual Trustee Company, [1955] A.C. 457. In the Canadian context, see McCleave v. City of
Moncton (1902), 32 S.C.R. 106 at 108–109. For an examination of other early Canadian civil liability jurisprudence, see Stenning, Legal Status of the Police (Ottawa: Law Reform Commission
of Canada, 1981), pp. 102–112. Professor Stenning concludes that “none of these cases, however, determines the implications of the constitutional status of the police in terms of their
liability to receive direction of any kind with respect to the performance of their duties.” Ibid.,
p. 110. See also G. Marshall, Police and Government (London: Methuen, 1965).
Supra note 4 at para. 27.
Ibid. at paras. 28–29.
Ibid. at para. 29.
Ibid. at para. 18.
Quebec Secession Reference, [1998] 2 S.C.R. 217 at 249.
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11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
See Chapter VIII.
See Chapter III.
“RCMP Response to the Commission of Inquiry into the Actions of Canadian Officials in
Relation to Maher Arar,” (written submission to the Arar Commission Policy Review Public
Submissions) February 21, 2005, p. 28 [RCMP submission].
R.S.C.1985, c. R-10, s. 5 [RCMP Act].
Supra note 4 at para. 33.
Canada, Commission for Public Complaints Against the RCMP, RCMP Act — Part VII,
Subsection 45.45(14), Commission Interim Report Following a Public Hearing Into the complaints regarding the events that took place in connection with demonstrations during the Asia
Pacific Economic Cooperation Conference in Vancouver, B.C. in November 1997 at the UBC
Campus and at the UBC and Richmond detachments of the RCMP (Ottawa: The Commission
for Public Complaints Against the RCMP, 2001), para. 10.2 (Commissioner: Ted Hughes, QC).
“Directives” are sometimes referred to by the Minister as “directions.”
See Chapter IV.
Canada, Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted
Police, Freedom and Security under the Law, Second Report, vol. 2 (Ottawa: Supply and
Services Canada, 1981), p. 1013, para. 19 (Chair: D.C. McDonald) [McDonald Commission report, vol. 2].
Ibid.
Ibid., p. 869, para. 60.
The Independent Commission on Policing for Northern Ireland, A New Beginning: Policing in
Northern Ireland (Belfast, U.K.: September 1999), para. 6.20, online, www.belfast.org.uk/
report.htm.pdf (accessed June 16, 2006).
Ibid., para. 6.21.
McDonald Commission report, vol. 2, p. 1013, para. 19.
Canada, Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted
Police, Freedom and Security under the Law, Second Report, vol. 1 (Ottawa: Supply and
Services Canada, 1981), p. 45 (Chair: D.C. McDonald) [McDonald Commission, report, vol. 1].
For the relevant portion of the Suresh decision, see Chapter VIII.
Canada, Mackenzie Commission, Report of the Royal Commission on Security (Abridged)
(Ottawa: The Queen’s Printer, 1969), p. 41, para. 114 (Chair: M.W. Mackenzie) [Mackenzie
Commission report].
Canada, SIRC Annual Report, 1984–1985 (Ottawa: Minister of Supply and Services Canada,
1985), p. 4.
Ian Leigh, National Legal Dimension of the Democratic Control of the Security Sector: Values
and Standards in Developed Democracies (Geneva: Centre for the Democratic Control of
Armed Forces, 2002), DCAF Working Paper No. 80, p. 13. Professor Leigh cites the McDonald
Commission for the principles.
Mackenzie Commission report, p. 41, para. 110.
SIRC Annual Report, 1984–1985, p. 22.
Shirley Heafey, “Civilian Oversight in a Changed World,” in David Daubney et al., eds.,
Terrorism, Law and Democracy: How is Canada Changing Following September 11? (Montreal:
Les éditions thèmis 2002) 395 at 398.
Wesley Wark, Transcript, Roundtable of Canadian Experts on Review and Oversight (Arar
Commission Policy Review), June 10, 2005, pp. 76–77.
Giuliano Zaccardelli, Royal Canadian Mounted Police, Transcript of Policy Review Public
Hearing, Arar Commission (November 18, 2005), pp. 721–722.
�FUNDAMENTAL OBJECTIVES OF REVIEW REVIEW
35
36
37
38
39
40
41
42
Hans Born and Ian Leigh, Making Intelligence Accountable: Legal Standards and Best Practice
for Oversight of Intelligence Agencies (Oslo: Publishing House of the Parliament of Norway,
2005), p. 23.
Zaccardelli, pp. 719–720.
SIRC Annual Report,1984–1985, p. 25.
Ontario, Royal Commission into Metropolitan Toronto Police Practices, Report of the Royal
Commission into Metropolitan Toronto Police Practices (Toronto: The Commission, 1976)
(Commissioner: D.R. Morand).
Commission for Public Complaints Against the RCMP, “Welcome!”, online,
www.cpc cpp.gc.ca/DefaultSite/Home/index_e.aspx? ArticleID=1 (accessed April 10, 2006).
For a discussion of such disclosure obligation, see R. v. Stinchcombe, [1991] 3 S.C.R. 326. In a
criminal prosecution, the Crown has a legal duty to disclose all relevant information to the defence, whether or not the Crown intends to use the information at trial and regardless of
whether the information is inculpatory or exculpatory. Information in the Crown’s possession
is not the property of the Crown for use in securing a conviction, but the property of the public to be used to ensure that justice is done. The Crown may withhold information from the
defence only if the information is irrelevant or covered by a form of legal privilege, such as
solicitor-client privilege or police informer privilege. The trial judge may review any decision
by the Crown to withhold information. In principle, information should not be withheld if
there is a reasonable possibility that withholding it will impair the right of the accused to make
full answer and defence.
R.S.C. 1985, c. S-7.
[1995] 1 S.C.R. 727 at 741.
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�X
Is the Status Quo Adequate?
1.
INTRODUCTION
To this point, I have set out the background information that I think is necessary to address the question raised by the Inquiry mandate. I have outlined the
nature and characteristics of the RCMP’s national security activities, the Canadian
national security landscape, the Canadian and international experiences with review of national security activities, and the fundamental objectives of review.
The first question that arises is whether the status quo is adequate in light of this
information. The answer to this question was never a foregone conclusion; maintaining the status quo was one of the options included in the Policy Review
Consultation Paper issued in October 2004.
It would be wrong to equate maintaining the status quo with no review
and no accountability. In this chapter I will examine the existing review mechanisms that can be applied to the RCMP’s national security activities. These
mechanisms include both internal and external controls. Internally, individual
RCMP officers are subject to directions from senior officers and internal discipline
under the RCMP Code of Conduct and disciplinary hearings. There are also several ministerial controls. These include specific requirements for the Attorney
General’s consent for many national security prosecutions and powers, and the
use of ministerial directives by the Minister of Public Safety to provide policy
guidance for RCMP national security activities.
The RCMP’s national security activities are also subject to various external
controls and review mechanisms. Among these are judicial oversight resulting
from the prosecution process and judicial requirements for authorizing certain
police powers. Courts in Canada have stressed quite properly the importance of
the independent judiciary in maintaining the rule of law and respect for rights
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and freedoms, even in the face of serious threats to national security.1 In addition to judicial review, the Commission for Public Complaints Against the RCMP
(CPC) reviews how the RCMP handles public complaints about the conduct of
individual officers and can initiate its own public interest hearings. Finally, like
other federal agencies, the RCMP is subject to review by several other accountability bodies, including the Auditor General, the Canadian Human Rights
Commission (CHRC) and the Privacy Commissioner.
Although the functions of all these existing review and accountability bodies and processes are important, I conclude that they are inadequate for effective review of RCMP national security activities. In reaching this conclusion, I
have been guided by a number of factors.
A primary factor is the changing nature of the RCMP’s national security activities. As I discussed in Chapter III, the RCMP was given many new legal powers and responsibilities under the Anti-terrorism Act enacted at the end of 2001.
Although the RCMP must exercise these new powers and responsibilities in a
manner consistent with its law enforcement mandate, both the secret nature of
national security policing and its reliance on information sharing with a wide
range of domestic and foreign agencies bear similarities to CSIS’ mandate as
Canada’s civilian security intelligence agency. However, review of CSIS’ national
security activities differs greatly from review of the RCMP’s national security activities. As discussed in Chapter VI, to ensure the legality and propriety of its dayto-day conduct, CSIS is reviewed by both the Inspector General and the Security
Intelligence Review Committee (SIRC). In contrast, the RCMP’s national security
activities are generally reviewed only if there are complaints about individual officers, even though many national security activities will remain secret and improprieties may result from systemic factors.
The changes in the RCMP’s organizational structure for national security
policing since 2001, which I examined in Chapter IV, have been as significant
as the Force’s increased powers. Increased integration of RCMP national security policing with the activities of CSIS, the Canada Border Services Agency, immigration authorities, and municipal and provincial police forces, and increased
information sharing within and between governments are an important feature
of Canada’s approach to national security, but present new and difficult challenges for review bodies. Review bodies should have powers and resources that
are adequate and commensurate to the powers and resources devoted to pursuing the vital and pressing goal of national security. In its 2004 national security policy, the Government of Canada recognized that to ensure compliance
with the rule of law, review should keep pace with the evolving nature of national security activities.2 The Auditor General, the Commission for Public
�IS THE STATUS QUO ADEQUATE?
Complaints, the Security Intelligence Review Committee and the Privacy
Commissioner have all independently raised concerns in recent reports about the
adequacy of their powers or resources in the new security environment.3 A crucial challenge for Canada and other democracies will be to ensure that review
and accountability structures develop in step with the increased integration and
intensity of the State’s security activities.
A second factor I considered is the domestic experience with review bodies as examined in Chapter VI. Both SIRC and the Communications Security
Establishment (CSE) Commissioner have broad, self-initiated review powers,
while the CPC has no similar powers over the RCMP. SIRC was created as a review body with broad powers at the same time that CSIS was created as a civilian security intelligence agency as recommended by the McDonald Commission.
However, the McDonald Commission also recommended that an independent
body have some review powers over the RCMP.4 This recommendation was not
implemented when the CPC was created in 1988, and the need for review powers has only increased in importance since that time.
Self-initiated review powers are critically important with respect to national
security policing because of the distinct qualities of such policing. As I describe
in the preceding chapter, national security investigations differ from other police investigations because of the secret nature of much national security policing; the difficulty of monitoring information sharing and intelligence analysis; the
infrequency of prosecutions with consequent judicial review of police activity;
and the potentially adverse effects of national security investigations, including
those on privacy and equality.
A further influence on my conclusion that the status quo is not adequate
was the international experience with review of security intelligence agencies
and national security policing discussed in Chapter VII. All democracies are
struggling with the challenges to review and accountability presented by increased integration, increased information sharing and increased powers in the
national security field. Several, including the United Kingdom and the United
States, have taken steps to more effectively review national security activities, including those carried out by the police. Experts and policy-makers from around
the world have expressed considerable interest in the Inquiry’s conduct and
conclusions. Going forward and building on this experience, I believe that
Canada can and should aspire to become a leader in effective review of the
state’s national security activities.
Finally, I have been guided by the objectives of and constraints on effective review as examined in the preceding chapter. A primary objective of review
is to maintain public confidence in the agency subject to review. The need to
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maintain such confidence is particularly important with respect to national security activities, which by their nature often must remain secret.
In this vein, I am influenced by the fact that none of the groups that made
public submissions on this issue defended the status quo as adequate. Indeed,
the RCMP Commissioner, on behalf of the RCMP, acknowledged that strengthening the present system as it applies to national security investigations would
promote public confidence.5 The CPC, the body currently responsible for monitoring public complaints against the RCMP, including those arising from its national security activities, strongly argued that it does not have the powers it
needs to review those activities effectively.6
Another important objective of a review process is to ensure that the agency
being reviewed respects the law and human rights. It is significant that the existing review process — especially the CPC — is complaint-driven, and that
many of the RCMP’s national security activities are secret and thus will not likely
become the subject of complaints. Furthermore, existing discipline and complaint mechanisms are designed to deal with allegations of misconduct against
individual RCMP officers. They are not well suited to examining whether the
RCMP’s organizational practices and culture are designed to ensure proper conduct, including compliance with existing laws and ministerial directives. They
also do not recognize that people may be harmed by conduct that stems, not
from intentional or individual misconduct, but from inadequate systemic and
organizational controls.
In reaching the conclusion that the status quo is inadequate, I have been
conscious of the need that increased review not harm the RCMP’s legitimate national security activities, including the need to work with other agencies in an
integrated fashion and to share information. I have been careful to consider the
unique aspects of policing, as distinct from security intelligence, including the
issue of police independence discussed in Chapter IX.
Increased review powers and new review structures should not be seen as
mechanisms that will simply restrain or hamper state security activities. Proper
review can help ensure that the agency being reviewed respects its mandate
and uses efficient, effective and fair procedures. I was impressed by the testimony of Mr. Jack Hooper, CSIS’ Assistant Director of Operations, who stated
that despite “tremendous resistance to having external review” when CSIS was
first created, his view now is that “[e]xternal review has made [CSIS] better” and
that SIRC’s external audits of CSIS’ activities perform “an invaluable function.”7
Commissioner Zaccardelli also spoke eloquently during the Policy Review public hearings of the RCMP’s need for trust and public confidence, and how effective and independent review can contribute to that process.8 It is my hope
�IS THE STATUS QUO ADEQUATE?
that the recommendations proposed in this report, if implemented, will make the
RCMP better and increase public confidence in the Force.
2.
WHY THE RCMP’S INTERNAL CONTROLS
ARE NOT ADEQUATE
As would be expected given its large size and enviable reputation, the RCMP has
devoted considerable effort to internal controls and accountability structures.
These are described in some detail in Chapter IV.
Even the best internal review and discipline mechanism may not inspire
public confidence and trust as an independent process would, however. In the
national security context, in which much police activity must remain secret for
legitimate reasons, the issue of public confidence and trust is especially important. In a free and democratic society, even legitimate claims of secrecy can raise
understandable concerns and suspicions. In the national security environment,
the public must have confidence that independent and respected people will see
what the public cannot see and ask the difficult and informed questions the
public cannot ask.
Another reason internal processes are inadequate is that they are often tied
to complaints from the public or from other RCMP members about the conduct
of individual members of the Force. Although public complaints should be taken
seriously, and no one within the RCMP should turn a blind eye to their colleagues’ misconduct, an effective review mechanism will have to be concerned
with systemic failures and deficiencies as much as with the failures of individuals within the organization. Effective review should seek to reform and discipline
systems, even where it would not be possible or fair to discipline individuals.
Moreover, the secrecy of many of the RCMP’s national security activities limits
a complaint-based approach. Even within the RCMP, knowledge about national
security activities will be restricted by the need-to-know principle.
In concluding that the internal controls within the RCMP are not adequate,
I do not want to be interpreted as criticizing or diminishing the importance of
these controls. Indeed, I believe that independent review will be more effective
to the extent that it is integrated with and supported by effective internal controls. In this respect, I agree with Mr. Arar’s counsel when they state in their
submission to the Policy Review that:
Internal audit mechanisms are essential in making timely identification of investigative errors, which can promptly foreclose the escalation of undesirable and harmful violations of human rights that might otherwise occur if not immediately
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addressed. Since an external review mechanism may not operate to prevent harm
until ‘after the fact’, an internal audit mechanism is an important first line of defence. The integral functions of internal audit will be made more effective if the external review mechanism works in concert with it by establishing clear criteria for
internal audit processes and reviewing compliance . . . . [A]ny effective external review body must build on and supervise the internal audit procedures that have and
will be put in place within the context of national security investigations.9
While internal controls are vital and must complement external review, by
definition they lack the quality of independence that will inspire public confidence in the often secret national security field. Furthermore, many internal controls focus on allegations of individual misconduct and not on systemic matters
that may be fundamentally important when assessing the propriety of the
RCMP’s national security activities.
3.
WHY MINISTERIAL CONTROLS ARE NOT ADEQUATE
Section 5 of the RCMP Act provides that the RCMP Commissioner is under the
direction of the Minister of Public Safety. As discussed in the preceding chapter
and in Chapter IV, however, the Minister’s powers to direct the RCMP are constrained by the doctrine of police independence. This constraint would prohibit
the Minister from directing individual RCMP decisions to start investigations,
make arrests, conduct searches and carry out other law enforcement activities.
Ministerial directives issued in November 2003 direct the Commissioner to
inform the Minister of “high profile” national security investigations and cases.10
While it is appropriate for the Minister to have this information and to issue
public policy directions and guidelines to the RCMP, many national security
cases will never become high-profile. Moreover, with the responsibilities of
a large department, the Minister does not have time to review all those that do
become high-profile. Even if the Minister could somehow review all these files,
he or she may, for understandable and legitimate reasons related to police independence, be reluctant to intervene in law enforcement decisions in individual cases.
Ministerial directives issued in 2002 and 2003 provide a valuable framework
for information sharing and other agreements between the RCMP and other
agencies. A 2003 directive requires ministerial approval of information-sharing
agreements with foreign intelligence agencies.11 However, this directive does
not contemplate ministerial monitoring of information sharing or compliance
with such agreements. These matters would be of legitimate concern to an in-
�IS THE STATUS QUO ADEQUATE?
dependent review body, but are unlikely to command attention from the responsible minister.
There are other limits to the Minister’s ability to monitor the RCMP’s national
security activities. Unlike CSIS, the RCMP does not have an inspector general to
act as the Minister’s eyes and ears, and it would be inappropriate to expect either the Minister’s senior civil service or the Minister’s political staff to play such
a role. For reasons related to police independence and expertise, parliamentary
committees also may be more reluctant to monitor the RCMP’s national security
activities than those of other agencies and departments.12
Even when combined with the RCMP’s internal controls, ministerial controls
may not be adequate to inspire public confidence. Although ministers can and
should act with independence and integrity, they are also responsible to
Parliament and the public for national security. There may be a tendency — or
a perceived tendency — for a minister to err on the side of caution and secrecy
with respect to national security matters, where one failure may have devastating results. A minister might be seen to be too closely identified with the
Government’s response to terrorism or other threats to national security. The
Ontario Provincial Police pointed out in their submission that “it is inevitable that
there would be less public confidence in a system of enhanced ministerial oversight than in other forms of oversight.”13 In such an environment, there is a need
for independent review beyond what even the most dedicated and conscientious
of ministers can perform.
In concluding that ministerial controls are not adequate, I do not want to
be interpreted as criticizing or diminishing the importance of such controls. I believe that the Minister should be encouraged to provide policy guidance to the
RCMP in writing. In my view, the 2002 and 2003 ministerial directives are helpful in giving the RCMP transparent and sensible guidance on its national security activities. As the RCMP noted in its submission, ministerial directives establish
a policy framework for the RCMP, “provide the RCMP with standards in selected
areas of policing activity for achieving a balance between individual rights and
effective policing practices,” and “inform the public about the character of supervision provided by the political executive to the RCMP.”14
I also believe that the independent review of RCMP national security activities that I recommend in the following chapter will be more effective to the extent that the Minister pays close attention to the review body’s reports and
implements its recommendations, where appropriate. The Minister should also
have the power to ask the review body to examine certain matters, where appropriate — I note that SIRC has often been tasked by the Minister to examine
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various matters. Ministerial responsibility and control is a fundamental and valuable feature of Canada’s parliamentary democracy.
A consideration of ministerial controls on the RCMP’s national security activities would not be complete without examining the important role of attorneys
general. As discussed in Chapter III, the attorney general of the province or of
Canada must agree to start proceedings in relation to a broad range of terrorism
offences under the Criminal Code, and the Attorney General of Canada must
agree to start proceedings for offences under the Security of Information Act. An
attorney general’s consent is also required before the police can use the powers of investigative hearing and preventive arrests in terrorism investigations. As
mentioned earlier, the RCMP stated in its submissions that “the consent requirement means that to some extent the federal and provincial prosecutors
often provide a sober second thought on operational decisions.”15 Attorneys
general should approach consent requirements in a quasi-judicial manner consistent with their unique constitutional responsibilities within government to ensure that justice is done and that rights and freedoms are respected. However,
it is significant that the Anti-terrorism Act does not rely only on prior consent
by the Attorney General, but also provides for various judicial controls.
In addition, the Attorney General’s consent is not required for certain police powers in the national security field, including powers of electronic surveillance, the performance of acts that would otherwise be illegal,16 the opening
of investigations or the exchange of information — all matters that may have serious consequences for the individual concerned.
Without in any way diminishing the importance of ministerial controls in the
national security field, I cannot conclude that ministerial controls alone or combined with the RCMP’s internal controls will provide adequate review of the
RCMP’s national security activities to inspire public confidence or respect for
rights and freedoms.
4.
WHY JUDICIAL CONTROLS ARE NOT ADEQUATE
The RCMP’s national security activities are subject to a number of judicial controls. Prior judicial authorization is required for electronic surveillance, and
judges play a key role in supervising the extraordinary powers of preventive arrests and investigative hearings. Indeed, the Supreme Court has recently affirmed
the important role that judges will play in the conduct of investigative hearings,
including the open court presumption.17 In addition, national security prosecutions will allow an accused to challenge police conduct in obtaining evidence,
on the basis that the evidence has been obtained in a way that violates the
�IS THE STATUS QUO ADEQUATE?
Charter and that its admission would bring the administration of justice
into disrepute.
Judicial controls are of great value in maintaining Canada’s commitment to
the rule of law, and the independence of the judiciary is especially important
when national security is threatened. However, the judiciary is a reactive institution that can respond to police misconduct only when it becomes an issue in
a criminal prosecution or the subject of a civil lawsuit or a judicial review of executive behaviour. Because many of the RCMP’s national security activities will
remain secret for legitimate reasons, affected individuals may never know that
they have been the subject of a national security investigation. Even if they do
know, they may not have the resources for a civil action or an action for damages under the Charter. The affected individual may be faced with claims of national security confidentiality that could prevent a full trial on the merits.
Furthermore, the state may, for legitimate reasons, decline to prosecute a case
because of a lack of admissible evidence that can be revealed in open court
and disclosed to the accused, or a lack of a reasonable prospect of conviction.
The reality is that most of the RCMP’s national security activities will never be
the subject of judicial review.
5.
WHY THE CPC’S EXISTING POWERS ARE NOT ADEQUATE
It would be wrong to suggest that there is no independent review mechanism
now in place to review the RCMP’s national security activities. As discussed in
Chapter VI, the RCMP Act permits any person to complain about RCMP conduct, either directly to the RCMP or to the CPC. In extraordinary circumstances,
such as the APEC demonstration and the Arar case, the CPC has begun its own
public interest investigation or hearings. Normally, however, a complaint against
the RCMP will be investigated by the RCMP itself, with possible further review
by the CPC should the complainant not be satisfied with how the RCMP has
settled the matter. The CPC can propose a resolution of the complaint — and
reports that the RCMP accepts its resolution in most cases — but accepting this
resolution remains a matter for the RCMP Commissioner.
While the existing system does allow some independent civilian scrutiny of
the complaints process, and the CPC has in the past made a valuable contribution to the review of the RCMP, I conclude that it is inadequate for effective review of the RCMP’s national security activities. One limit of the present system
is that it is complaint-driven. As discussed above, many of the RCMP’s national
security activities will remain secret and thus will not be subject to complaints.
Even with respect to activities that are not secret, such as the interviewing of
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possible witnesses, some complainants may be unwilling to come forward with
a complaint against the RCMP. Shirley Heafey, the former chair of the CPC, has
spoken of the reluctance of possible complainants in national security cases to
come forward. Several other intervenors, including the Canadian Arab Federation
and the Canadian Council on American-Islamic Relations, have confirmed that
many in the Muslim and Arab communities are reluctant to bring forward complaints against the authorities. While the existing RCMP Act provides some valuable alternatives to personal complaints — namely third-party complaints and
public interest investigations and hearings — I agree that an effective review of
the RCMP’s national security activities cannot rely solely on complaints.
Complaints can provide a valuable window into RCMP activities, but given
the secret and covert nature of many of the Force’s national security activities,
complaints in the national security context will provide only a small window into
those activities. In 2003, the Auditor General concluded that “there should be
more consistency in the extent of independent review applied to any environment where intrusive investigative measures are used.”18 The Auditor General
noted that many national security investigations will not result in prosecutions
or detailed supervision by the courts, and that the CPC does not review RCMP
activities systematically to determine compliance with the law and ministerial direction.19 Specifically, the Auditor General stated:
The Commission for Public Complaints against the RCMP, in comparison to the
Security Intelligence Review Committee, does not undertake reviews aimed at systematically determining compliance with the law, nor does its mandate provide for
unrestricted access to all information.20
I agree that the CPC is deficient in this regard and does not have review
powers to ensure systematically that the RCMP’s national security activities are
conducted in accordance with the law and with respect for rights and freedoms.
The existing CPC has fewer powers available to it than other review bodies in the national security field, including SIRC, the CSE Commissioner, the
Privacy Commissioner and the Information Commissioner. In its submissions to
this Inquiry, the CPC frankly and clearly argued that it lacked sufficient powers
to review the RCMP. It observed that the current review process was crafted before integrated or intelligence-led policing and with:
limited national security functions in mind . . . . As the CPC is a complaint-based
review system, few intelligence-led policing activities will likely become the subject
of reviews. The ability to perform audits of RCMP files would greatly enhance the
CPC’s effectiveness in this area . . . . The constraints imposed on the CPC include
�IS THE STATUS QUO ADEQUATE?
an inability to access all relevant information and the need for a complaint to base
a review, investigation or hearing. Since 1988, changes in the way the RCMP police
this country have only magnified the limits hampering the CPC’s ability to review
RCMP conduct. Intelligence-led policing, integrated policing and a re-emergence
by the RCMP in the field of national security activities have only served to highlight
the CPC’s pre-existing limitations.21
Although the CPC raises these concerns about lack of powers with respect
to all its dealings with the RCMP, its lack of powers could particularly weaken
its effectiveness in the national security context because of the role of national
security confidentiality. I am convinced that to do an adequate job, a review
body must have unrestricted access to all information, including confidential national security information. The increase in information exchange between governments around terrorism investigations also means that the RCMP will
increasingly have information obtained from a foreign entity during national security investigations. In such an environment, it is vitally important that the body
that reviews the RCMP’s national security activities have the same powers to access RCMP information that SIRC has in relation to CSIS.
In the past, the CPC has had difficulty getting access to information that
would be harmful to international relations, national security or defence.22 Any
difficulty in having access to such information raises distinct concerns in the national security context, where most information by definition will relate to national security and often may have implications for international relations. The
CPC also was recently denied access to information covered by informer privilege.23 In the national security field, there may be extensive reliance on informers. Moreover, there is a legitimate public interest in ensuring that proper
practices and procedures are followed with respect to informers, who might
provide unreliable and even deliberately misleading information.
The existing jurisprudence further suggests that the CPC may have difficulty obtaining information provided to the RCMP by its legal advisors. This
raises distinct concerns in the national security context because of the requirements that an attorney general consent to the prosecution of terrorism and
Security of Information Act offences, as well as to investigative hearings and
preventive arrests. When evaluating the propriety and legality of a past event, a
review body may have a legitimate public interest in examining the legal advice
the RCMP has received about that past event. In its own submission, the RCMP
recognizes that requirements for the Attorney General’s consent operate as a
“sober second thought” on some operational decisions. In such a context, the
review body may have a legitimate interest in examining the content and pattern
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of such sober second thoughts. I hasten to add, however, that solicitor-client
privilege remains an important and foundational privilege. A review body would
not have an interest in seeing information exchanged between an individual
RCMP member and that member’s lawyer, or legal advice that the RCMP has received about an ongoing dispute with the review body.
Some might argue that the need-to-know rules and concerns about leakage
suggest that the RCMP’s review body should not have access to information covered by national security confidentiality. I reject these arguments. Those who are
entrusted with review functions will be subject to security clearances and possible prosecution under the Security of Information Act. I am also influenced by
CSIS’ submission about its positive experience with SIRC and the Inspector
General around national security confidentiality, where it noted that:
[initial] concerns that comprehensive SIRC/IG access to Service files would cause
nervous international partners and liaisons to restrict intelligence exchanges have
not, in the long run, come to pass. Related worries about SIRC/IG ability to provide
proper security to Service information and protect its human sources and sensitive
collection methodologies have not been justified – “leakage” of classified information has not been a factor.24
In my view, CSIS’ positive experience with SIRC suggests that increased review of the RCMP’s activities can take place without compromising the RCMP’s
vital responsibilities for national security.
6.
WHY THE EXISTING POWERS OF OTHER
ACCOUNTABILITY BODIES ARE NOT ADEQUATE
The CPC is not the only body that could review the RCMP’s national security activities at this time. Several other federal review bodies, including the Auditor
General, the Canadian Human Rights Commission and the Privacy
Commissioner, could also review RCMP activities in certain circumstances.
Although each of these could make important and distinctive contributions to
review, I nevertheless conclude that even when collectively combined with the
CPC, they lack sufficient powers, resources and expertise to fully and effectively
review the RCMP’s national security activities.
Each of these agencies has a different mandate. The Auditor General is generally concerned with the efficiency of governmental work, although the Office
has shown an increasing interest in ensuring that proper systems are in place.
In a November 2003 report, the Auditor General raised concerns about whether
the review of the RCMP was adequate, compared to the review available for
�IS THE STATUS QUO ADEQUATE?
much of Canada’s security intelligence community.25 While the Office has done
valuable work on various national security matters and can bring fresh and critical eyes to a broad range of governmental work, it does not have the expertise to review RCMP national security activities to ensure their legality and
propriety. As the British Columbia Civil Liberties Association (BCCLA) noted in
its supplementary submission, the Auditor General’s criticisms are appropriately
“focused on enhancing performance and efficiency” and not on “respect for the
rule of law and civil liberties.”26
The Canadian Human Rights Commission has legal expertise, but focuses
on the important issue of discrimination. I believe that the review body for the
RCMP should work closely with the CHRC, especially concerning allegations of
racial or religious profiling or other discriminatory practices. However, as the
BCCLA argued, equality is not the only constitutional value that can be adversely
affected by national security investigations. A review body should have expertise with respect to the Charter and statute law as they affect all police powers,
and on issues such as privacy, fairness and reliability of investigative procedures.
I also note that regarding CSIS, sections 45 and 46 of the Canadian Human
Rights Act allow the Canadian Human Rights Commission to refer matters to the
Security Intelligence Review Committee where the Minister has indicated that
there are national security concerns. Consideration should be given to enacting
a similar provision to allow the Canadian Human Rights Commission to refer
matters involving the RCMP and national security to the enhanced review body.
More statutory gateways are needed between the various review bodies that examine matters affecting national security so as to ensure that investigations are
not frustrated by concerns about national security confidentiality. In appropriate circumstances, an enhanced review body might be able to assist the work
of the CHRC in investigating complaints that involve the RCMP and national security matters.
In her submission to this Inquiry, the Privacy Commissioner was candid
about the limits on her resources and powers when it comes to reviewing the
RCMP’s national security activities: “We recognize and accept that we cannot
exercise effective oversight on our own. The task is simply too large and too important to be entrusted exclusively to any single agency.”27 At the same time, the
Privacy Commissioner, like the Auditor General, has already made valuable contributions to the review of the RCMP. In 2002, the Privacy Commissioner reviewed the information-handling practices of both Integrated National Security
Enforcement Teams and Integrated Border Enforcement Teams,28 and plans to
examine data banks that are exempt from public disclosure within the RCMP for
compliance with the Privacy Act.29
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Despite the fact that these review bodies cannot themselves provide adequate review of RCMP national security activities, I envision that they will continue to play a role in the enhanced review that I recommend. As in other areas
of governance, there is much to be said for checks and balances and multiple
perspectives when it comes to review. While every effort should be made to
avoid wasteful duplication of review structures, it is valuable that the Auditor
General, the CHRC and the Privacy Commissioner all approach review of the
RCMP with different perspectives and different mandates. Moreover, each of
these bodies can help remind the institution that reviews the RCMP’s national security activities of its distinct concerns.
All review institutions should meet regularly to share information and work
plans with other review institutions. In some cases, coordinated reviews, and
even joint reviews, may be appropriate. In the next chapter I will recommend
a new institution that can play a valuable role in coordinating review. At the
same time, all the review bodies examined in this section have important responsibilities across the federal government. There remains a need for specialized and day-to-day review of the RCMP’s national security activities.
Notes
1
2
3
4
Re s. 83.28 of the Criminal Code, [2004] 2 S.C.R. 248; Re Vancouver Sun, [2004] 2 S.C.R. 322;
R. v. Malik, [2005] B.C.J. 350 (B.C.S.C.).
“As the legal authorities and activities of our security and intelligence agencies evolve to respond to the current and future security environment, it is vitally important that we ensure that
review mechanisms keep pace.”: Securing an Open Society: Canada’s National Security Policy
(Ottawa: Privy Council Office, 2004), p. 19, online, http://www.pco-bcp.gc.ca/docs/
Publications/NatSecurnat/natsecurnat_e.pdf.
2003 Reports of the Auditor General of Canada to the House of Commons, Chapter 10: “Other
Audit Observations” (Ottawa: Public Works and Government Services Canada, 2003), paras.
10.139–10.150, online, http://www.oag-bvg.gc.ca/domino/reports.nsf/html/20031110ce.pdf
[Auditor General of Canada report]; “Submissions of the Commission for Public Complaints
Against the RCMP Regarding the Policy Review of the Commission of Inquiry into the Actions
of Canadian Officials in Relation to Maher Arar” (Written submission to the Arar Commission
Policy Review Public Submissions), February 21, 2005, pp. 20–40 [CPC submission]; SIRC
Annual Report 2004–2005: An Operational Review of the Canadian Security Intelligence
Service (Ottawa: Public Works and Government Services Canada, 2005), p. 95, online,
http://www.sirc csars.gc.ca/pdfs/ar_2004-2005_e.pdf; Privacy Commissioner of Canada
Submission to the Arar Commission Policy Review (Written submission to the Arar Commission
Policy Review Public Submissions), November 2, 2005 [Privacy Commissioner of Canada
submission].
The McDonald Commission stated: “Our view is that the work of an external review body
should go beyond the traditional role of the Ombudsman of responding to individual complaints and should involve a continuing review of the adequacy of the R.C.M.P.’s practices.
Such matters, we feel, should be within the mandate of an external body charged not only with
�IS THE STATUS QUO ADEQUATE?
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
reviewing the R.C.M.P.’s disposition of complaints, but also with identifying problems within
the R.C.M.P. which may have contributed to the incidents in question [emphasis in original].”
Canada, Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted
Police, Freedom and Security under the Law, Second Report, vol. 2 (Ottawa: Supply and
Services Canada, 1981), p. 987, para. 52 (Chair: D.C. McDonald).
The RCMP, the Ontario Provincial Police and the Ottawa Police Service in their respective
submissions directed us to the many existing review mechanisms on police forces. The
Canadian Association of Chiefs of Police raised concerns about the lack of a policy framework
for integrated policing.
CPC submission.
Hooper testimony, Arar Commission Factual Inquiry Public Hearing (June 22, 2004),
pp. 435–436.
Giuliano Zaccardelli, Transcript of Arar Commission Policy Review Public Hearing
(November 18, 2005).
“Policy Review Submission of Maher Arar” (Written submission to the Arar Commission Policy
Review Public Submissions), November 14, 2005, pp. 2–3 [Arar submission].
Exhibit P-12, Tab 24, Arar Commission Factual Inquiry.
Ibid.
”The RCMP is a police force and as such its investigations are carried out at arm’s-length
from government . . . . The practice is for police matters to be subject to independent review
by special-purpose commissions, and ultimately by the courts . . . . [There is a] general practice, in Canada and elsewhere, of not engaging Parliament in the review of police investigations . . . . ” A National Security Committee of Parliamentarians: A Consultation Paper (2004),
pp. 9–10, online, ww2.psepc-sppcc.gc.ca/publications/national_security/nat_sec_cmte_e.pdf
(accessed April 25, 2006).
“Submission on Behalf of the Ontario Provincial Police to the Commission of Inquiry into the
Actions of Canadian Officials in Relation to Maher Arar” (Written submission to the Arar
Commission Policy Review Public Submissions), p. 13.
“RCMP Response to the Commission of Inquiry into the Actions of Canadian Officials in
Relation to Maher Arar” (Written submission to the Arar Commission Policy Review Public
Submissions), February 2005, p. 27 [RCMP submission].
Ibid., p. 28.
Criminal Code, ss. 25.1, 186.
Re s. 83.28, supra note 1; Re Vancouver Sun, supra note 1.
Auditor General of Canada report, para. 10.161.
Ibid., para. 10.144.
Ibid., para. 10.161.
CPC submission, pp. 35, 37, 39.
Re Rankin, [1992] F.C. No. 502.
Royal Canadian Mounted Police Public Complaints Commission v. Attorney General of
Canada, 2005 F.C.A. 213 at para. 32.
“Control, Accountability and Review: The CSIS Experience” (Written submission to the Arar
Commission Policy Review Public Submissions), February 21, 2005, p. 5.
Auditor General of Canada report, para. 10.120ff.
“British Columbia Civil Liberties Association Supplementary Submission” (Written submission
to the Arar Commission Policy Review Public Submissions), November 9, 2005, p. 15.
Privacy Commissioner of Canada submission, p. 2.
Privacy Commissioner of Canada, Annual Report to Parliament 2003–2004, pp. 48–49, online,
http://www.privcom.gc.ca/information/ar/200304/200304_e.pdf.
Privacy Commissioner of Canada submission, p. 6.
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�XI
Recommendations
1.
INTRODUCTION
The RCMP is presently subject to a number of different accountability mechanisms, both internal and external, for its national security activities. While they
perform valuable roles in facilitating its accountability, I have reached the conclusion that the RCMP’s national security activities can most effectively be reviewed by a new review mechanism with enhanced powers that would be
located within a restructured Commission for Public Complaints Against the
RCMP (CPC).
This chapter contains my recommendations and rationale for this review
mechanism, as well as for independent review of five other departments and
agencies, and for mechanisms to coordinate the work of all national security
review bodies. A summary list of the recommendations is set out at the end of
this chapter.
Before turning to a discussion of my recommendations, I believe it is useful to summarize the following points made in the previous three chapters:
•
•
•
what I mean by “review;”
the important characteristics of national security; and
the fundamental objectives of review.
1.1
REVIEW VERSUS OVERSIGHT
In Chapter IX, I describe the difference between “review” and “oversight,” and
explain why I believe that the most appropriate accountability mechanism for
the RCMP’s national security activities is a review body. To summarize, a review
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body assesses the activities of an organization against standards such as lawfulness and propriety and delivers reports, which often contain recommendations,
to those in government who are politically responsible for the organization. In
contrast, an oversight body performs the same functions but plays a more direct role in the management of the organization.
One of the main reasons I reject the option of an oversight mechanism is
that it could intrude upon the principle of police independence if it became involved in management or operational decisions relating to the RCMP’s activities
as a law enforcement agency. There is also a risk that an oversight mechanism
could confuse or even diminish the accountability of the RCMP to government
and, correspondingly, the responsibility of government for the RCMP. Finally,
there is a danger that an oversight body’s review function would be compromised by its active involvement in the activity being reviewed. This could occur
where the oversight body approved or, alternatively, failed to veto or prevent
an activity by the agency subject to oversight.
In contrast, a body that exercises nothing but review has greater independence and can maintain a critical distance from the activities being reviewed.
I note that it was broadly accepted by virtually all participants in this Inquiry that
the “review mechanism” referred to in my mandate should in fact be a review
body rather than an oversight mechanism.
1.2
CHARACTERISTICS REQUIRING ENHANCED REVIEW
Many of my conclusions and recommendations address the special characteristics of national security that I describe in detail in Chapter VIII. In summary,
these are:
Lack of Transparency
The lack of transparency in national security investigations means that those affected will often not know that an investigation is taking place or has been completed. Even if they do learn of the investigation, they will seldom be aware of
the specific investigative steps that may have an impact on their interests. As a
result, the usefulness of a complaints process such as that provided by the existing Commission for Public Complaints Against the RCMP (CPC) is greatly diminished. Instead, what is needed to achieve accountability for national security
investigations is a review body that is able to conduct self-initiated reviews similar to those conducted by the Security Intelligence Review Committee (SIRC),
which reviews the frequently secret activities of CSIS.
�RECOMMENDATIONS
Increased Information Sharing
As the flow of information between agencies increases, so too does the need for
a strong and effective review mechanism. To ensure that information sharing is
being conducted in conformity with law and policy and that it is not having an
unfair or improper impact on individuals or groups, it is essential that RCMP
policy in this regard be followed. A strong system of review should play an important role in ensuring that information-sharing practices comply with policy
and accepted norms.
Increased International Co-operation
National security investigations typically involve more co-operation with agencies of foreign governments than do other criminal investigations, and it most
often includes information sharing. The RCMP has policies to guide decision
making about information sharing when there are potential human rights implications. In the Factual Inquiry report, I concluded that the policies are inadequate, especially in relation to terrorism investigations, and should be
strengthened to ensure that greater attention is paid to the human rights implications of sharing information with countries with poor human rights records,
as well as receiving information from them. Decisions in such instances are vitally important and must be made in ways that are accountable and subject to
independent review. It is therefore essential that there be a strong review mechanism that has ready access to all relevant information and is not tied to the investigation of individual complaints.
Potential for Racial, Ethnic and Religious Profiling
National security investigations create more of a potential for discriminatory profiling decisions than virtually any other type of criminal investigation. Moreover,
any such decisions in the national security context are highly unlikely to be
made public or come to the attention of the individuals affected. The likelihood
of a complaint that could form the basis for review is small. A purely complaintsdriven review process would fall well short of the mark in terms of providing
accountability for discriminatory profiling decisions. An enhanced, robust review system should go a long way toward addressing the perceptions of some
that discriminatory profiling is a reality in the national security field.
Lack of Judicial Scrutiny
One of the most effective means of ensuring accountability for law enforcement
activities is scrutiny by the courts. However, the opportunity for judicial scrutiny
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in the case of national security investigations is far less than for all other types
of criminal investigations because of the much smaller number of prosecutions.
Moreover, in the case of national security investigations, judicial pre-authorizations for certain investigative steps are necessarily obtained ex parte — in the absence and without the knowledge of those affected — and there is no
opportunity to challenge them if there is no subsequent prosecution. Enhanced
and effective independent review is essential to compensate for this lack of judicial scrutiny.
1.3
OBJECTIVES OF REVIEW
The overarching objective of review of the RCMP’s national security activities is
straightforward: to hold the RCMP accountable for those activities. To summarize my analysis in Chapter IX, this overarching objective may be broken down
into a number of more specific objectives, as follows.
Ensure Conformity With Law, Policy and Standards of Propriety
Review should provide assurance that the activities of the RCMP comply with the
Canadian Charter of Rights and Freedoms (the Charter), the law, ministerial directives, RCMP policy, international obligations and standards of propriety that
are expected in Canadian society. Although the review body should focus mainly
on legality and propriety, it should not be prevented from making recommendations dealing with the efficacy of national security activities, particularly when
issues in this regard arise out of propriety reviews or complaints.
Foster Accountability to Government
The second fundamental objective of review of the RCMP’s activities is to enhance or foster the RCMP’s accountability to those politically responsible for it
and, concurrently, to enhance and facilitate government answerability for those
activities. Notwithstanding the principle of police independence and the limits
it places on government involvement in criminal investigations, the RCMP is accountable to the government for, at a minimum, the legality and propriety of its
activities. In turn, the government, through the Minister, is responsible to
Parliament and to Canadians for the legality and propriety of RCMP activities. An
independent review mechanism should foster ministerial accountability and also
provide the Minister with recommendations for improvement.
�RECOMMENDATIONS
Foster Accountability to the Public and Facilitate Public Trust and
Confidence
The third fundamental objective of a review mechanism is to enhance the
RCMP’s accountability to the public, thereby engendering public trust and confidence in the Force. Certain features of review will be essential to achieve this
objective. First, the review mechanism must be independent of and at arm’s
length from both government and the RCMP. Second, the public must be satisfied that those carrying out the review are qualified to do so. Finally, the review
body must aim for as much transparency as possible. This means an open and
fair process for appointing individuals to the review body, public education
about the role and activities of the review process, and disclosure, to the extent
possible, of its activities and findings.
2.
RECOMMENDATIONS AND RATIONALES
In light of the above discussion and conclusions, the following are my detailed
recommendations regarding review of the RCMP’s national security activities.
2.1
Recommendation 1
Existing accountability mechanisms for the RCMP’s national security activities
should be improved by putting in place an independent, arm’s-length review and
complaints mechanism with enhanced powers.
Presently there are a variety of internal and external controls or accountability
mechanisms for the RCMP’s national security activities. In Chapter X, I discuss
the role of each of these accountability mechanisms and why, in my view, they,
either individually or taken together, do not adequately review the RCMP’s national security activities and do not achieve the objectives for review that I have
discussed in Chapter IX. Without repeating the analysis in the preceding chapters, it is useful to set out, in summary form, the main features that, in my view
are required for effective review1 of the RCMP’s national security activities.
Independence — A review mechanism for the national security activities of
the RCMP must be, and be seen to be independent. Independence and the perception of independence are critical to ensuring accountability and developing
public trust. Therefore, I recommend that the review body for the RCMP’s national security activities be independent in the judicial sense from the RCMP, the
government and other interested parties. Those appointed to the review body
must have no interest or perceived interest in matters that may be the subject of
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review. They must be impartial in the same way that judges are impartial. In addition, those appointed must be credible and have all of the skills and expertise necessary to conduct effective reviews. Importantly, their backgrounds
should engender public confidence and trust in their review activities.
Power to Provide Comprehensive Review, Both Through Self-Initiated
Review and the Investigation of Complaints — To be effective, review must be
comprehensive. Comprehensive review encompasses three elements. First, it
must encompass a comprehensive range of standards, including review for
compliance with law, policies, ministerial directives, international obligations
and standards of propriety. To be comprehensive, review must also cover
the full range of RCMP national security activities. In this regard, the current
mechanisms fall short. There are a number of review bodies, including the
Auditor General and the Canadian Human Rights Commission, that in certain circumstances review some RCMP activities. While each of these bodies makes an
important contribution to RCMP accountability, they do not individually or collectively have the jurisdiction to provide comprehensive review of the RCMP’s
national security activities. Thirdly, comprehensive review must be carried out
in a manner likely to lead to the assessment of the full range of these activities.
In other words, a jurisdiction covering all national security activities is not
enough. The form that review takes must be such that the full range of activities are actually reviewed. In this regard it is critical that review of national security activities go beyond the investigation of complaints. While a complaints
investigation power is important, because of the covert nature of so many of
the activities it will inevitably miss many of the types of activities that should
be reviewed.
Extensive Investigative Powers — In order to be effective, it is critical that
a review body have adequate powers to conduct comprehensive and effective
reviews. The CPC has been frank and unequivocal in stating that it does not
have sufficient powers to effectively review the RCMP’s national security activities. Effective review requires adequate powers to access all information relevant to its mandate, including national security information, and, with only
minimal exceptions, other confidential information from both within and outside
of the RCMP. Moreover, the review mechanism requires the power to determine
itself what information is necessary in order to conduct an effective review.
Clearly, the final say with respect to what information the review mechanism can
access cannot lie with the entity being reviewed.
Power to Conduct Integrated Reviews — The review body for the RCMP’s
national security activities should have sufficient powers to ensure that the integrated activities of the RCMP are effectively and throroughly reviewed. Given
�RECOMMENDATIONS
the importance of integrated and cooperative activities among Canada’s national
security actors, it is critical that a review mechanism include an ability to conduct reviews on an integrated basis.
2.2
Recommendation 2
The review and complaints body should be located within a restructured
Commission for Public Complaints Against the RCMP, and be renamed the
Independent Complaints and National Security Review Agency for the RCMP
(ICRA for short) to reflect its expanded role.
2.2.1
Background
2.2.1.1
Law Enforcement / Security Intelligence Operations
Over twenty years ago, Canada made a considered decision to separate the law
enforcement activities of the RCMP, a law enforcement agency, from security intelligence activities. In 1984, the government implemented the recommendations of the McDonald Commission and created CSIS, a civilian security
intelligence agency. In doing so, it provided that the RCMP would continue to
have primary responsibility for law enforcement in the national security field.
The principal reasons underlying the recommendations in the McDonald
Commission report are discussed in Chapter II. They relate to important differences in mandates, powers and political accountability between security intelligence agencies and police agencies. The rationale to which the government
responded was sound then and continues to be sound today.
Under the RCMP Act, the RCMP has a law enforcement mandate. It is responsible for investigating, preventing and prosecuting criminal activity. That
mandate is linked to criminal or other offences, including inchoate offences such
as conspiracy, counseling and attempts. As a law enforcement agency, the RCMP
has a broad range of coercive powers, including powers to detain, search, use
force and arrest. Since, in our society, such coercive powers of the state are generally restricted to agencies with a mandate linked to criminal or unlawful activity, it is important that the RCMP remain within its law enforcement mandate,
no matter what type of activity is being investigated.
CSIS, on the other hand, has a security intelligence mandate. It collects and
analyzes information for purposes of advising government and assisting it with
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the development of policy for addressing threats to the security of Canada. As
emphasized by the Royal Commission on Security (MacKenzie Commission)
in 1969 and the McDonald Commission in 1981, it is not appropriate for a body
whose role is to advise and assist government in the development of policy to
have the same coercive powers as a law enforcement agency. Most other federal agencies involved in national security activities tend to fit the security intelligence mold more than the law enforcement one. Some, such as the Financial
Transactions and Reports Analysis Centre of Canada (FINTRAC) and DFAIT,
have an explicit mandate to pass information on to the police in appropriat
cases. The one exception is the CBSA, the mandate of which includes some
law enforcement.
In the Factual Inquiry report, I indicated that it is important to maintain
the operational distinction between law enforcement and security intelligence
activities in the national security field. The distinction is fundamental and results in a principled and practical way of approaching Canada’s national security operations.
I say principled because the use of police powers should not be expanded
beyond law enforcement simply because a matter relates to national security.
The rationale for confining the use of police powers to a crime-based law enforcement mandate, whether prevention or prosecution, is as valid in the national security field as elsewhere. It is also practical to maintain the distinction
between law enforcement and security intelligence agencies because the expertise and techniques required for law enforcement are significantly different
from those used by security intelligence personnel. While there may be overlap
in the subject matter of the two types of investigation, the aims and the techniques and procedures used are different.
Thus, for operational purposes, maintaining a distinction between law enforcement and security intelligence activities is important.
2.2.1.2
Function-Based Versus Agency-Based Review
One of the threshold issues in considering a review mechanism for the RCMP’s
national security activities is whether the review body should have jurisdiction
over all institutions involved in national security activities, including the RCMP,
or whether it should be dedicated solely to the RCMP. At the extreme, the
choices are between a function-based body and an agency-based body, that is,
a body with a mandate to review all federal national security activities or functions, no matter what agency conducts them, and a review body that, as in the
case of the RCMP, is dedicated to reviewing only the activities of the RCMP, -
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including its national security functions. Between the two are countless possible
variations of models that have both agency-based and function-based aspects.
A function-based system encompassing all of the Canadian government’s
national security activities would have several advantages, mostly related to situations where the activities being reviewed are integrated, are carried out cooperatively or otherwise overlap. A broad function-based review system could
avoid accountability gaps, as a single review body would have jurisdiction over
all of the agencies involved. It could also be an effective platform from which
to make observations and report on the overall functioning of the country’s national security system, with a view to identifying emerging trends or problems.
Moreover, a function-based review body could ensure a single point for laying
complaints and provide consistent and coordinated review for several agencies
involved in national security activities.
The main advantage of an agency-based system, on the other hand, is the
capacity to develop greater expertise and acquire more experience in reviewing the activities of one agency. This is particularly advantageous when those activities differ significantly from those of other agencies involved in national
security. Also, in the case of the RCMP, a broad function-based review mechanism would have a mandate to review only one small portion of its overall activities — those related to national security. Clearly, an agency-based review
body that would look at all of the RCMP’s activities would be better positioned
to develop a sophisticated understanding of the Force.
There can also be practical difficulties in a function-based mechanism, in
terms of separating one function from the balance of operations for review purposes. For example, in the case of the RCMP, what starts out as a criminal investigation into suspected fraud or theft may turn into a criminal investigation
related to national security, and what starts as a national security criminal investigation may turn into a regular criminal investigation. As the Ottawa Police
Service submitted at the Policy Review public hearing, there is often no bright
line between national security and other forms of policing. When there is more
than one review body for an agency, it becomes necessary to draw lines for jurisdictional purposes and there is a danger that matters will fall between the
cracks and produce accountability gaps.
The national security activities of the RCMP as a law enforcement agency
are different from those of most other national security actors. In addition, their
potential impact on people’s lives is different. To repeat just one of many examples, the RCMP, unlike most other agencies, has powers to arrest, charge and
detain. There is a risk that basing a review on a national security function
alone would minimize the important distinctions between law enforcement
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and other national security activities, such as analyzing and developing security
intelligence to advise government of security threats and making security
threat assessments.
The model I propose for Canada has both agency- and function-based features. The review body for the RCMP is agency-based, but is also grounded in
the law enforcement function and would include review of the national security activities of the CBSA. The expanded mandate for SIRC and INSRCC are
clearly function-based.
2.2.1.3
Existing Arrangements in Canada and Elsewhere
There is a long tradition of independent review of law enforcement agencies in
Canada. In Chapter VI I describe the current regimes for reviewing some of the
police forces across the country. There is no experience in Canada with combining the review of law enforcement agencies with the review of other agencies. The Canadian tradition does not include this type of function-based review.
While there may be co-operation among review bodies for police forces or other
agencies, the tradition in Canada has been for dedicated review bodies to review
law enforcement agencies.
The international experience is interesting, but, in the end, it is so varied
and intertwined with the unique constitutional, cultural and historical features
of each country, that it does not point to a single solution in the Canadian context. Ultimately, the model that is best for a particular country depends on that
country’s constitutional framework, the culture, history and effectiveness of the
agencies involved in national security activities and, importantly, the practicalities that may make one model more effective than another.
Of the eight countries examined in Chapter VII, three separate the review
of police forces from that of intelligence services: Belgium (Committee P and
Committee I), Germany2 and New Zealand (Police Complaints Authority and
Inspector-General of Intelligence and Security). In the United Kingdom, the primary review bodies are specialized either in police (Independent Police
Complaints Commission / Police Ombudsman for Northern Ireland) or intelligence review (Intelligence Services Commissioner). However, the review of certain investigatory powers is functionally defined to cover all domestic, covert
investigative activities, whether carried out by the police or the security intelligence agency. Functional review in the United Kingdom is therefore limited to
particularly intrusive investigative techniques. It does not cover the exercise of
most police powers related to investigation, information sharing, arrest powers,
or use of force.
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In the United States, review jurisdiction is based entirely on the government department: the FBI is reviewed by the Inspector General of the
Department of Justice, the CIA, by the Inspector General of the CIA, the National
Security Agency, by the Inspector General of the Department of Defense, and
so on. It must be noted that the FBI has both a law enforcement mandate and
a dedicated national security branch, which is the United States’ primary domestic intelligence agency. All FBI officers have full police powers and receive
police training. Given the breadth of the FBI’s mandate, review by the Inspector
General includes both law enforcement and security intelligence activities.
The Norwegian Police Security Service has both law enforcement and security intelligence functions, as does Sweden’s security service, Såpo. The
Australian Crime Commission, reviewed by the Commonwealth Ombudsman, is
really an integrated team, with members from both intelligence and police agencies. In all three countries, the review body reviews both law enforcement
and security intelligence activities. However, as with the FBI in the United States,
this is the result of the fact that both types of activities are carried out by a single agency.
2.2.2
Rationale for Recommendation
In the sections that follow, I set out my three main reasons for recommending
that the review of the RCMP’s national security activities should be located within
the same body that reviews other RCMP activities. They are effectiveness, practicality and the capacity to deal with integrated operations. In the final section
under this recommendation, I explain why I believe this review body should be
a restructured CPC.
2.2.2.1
Effectiveness
The most important factor in recommending that a review mechanism for the
RCMP’s national security activities be located within the same body that reviews other RCMP activities is maximizing the effectiveness of review.
Effectiveness is to a large extent dependent on the experience and expertise
of the review body. I am convinced that a review body dedicated to reviewing
all of the RCMP’s law enforcement activities will have a much greater ability
to develop the expertise and experience necessary to effectively review the
Force’s national security activities. In addition, a review body dedicated to the
review of all RCMP law enforcement activities will heighten effectiveness by
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eliminating the difficulties associated with trying to separate national security
activities from the RCMP’s other activities.
Reviewing law enforcement activities is difficult and complex. It requires detailed and sophisticated expertise and knowledge of a broad range of matters.
Such expertise and knowledge are not developed quickly and, once developed,
need to be updated regularly. Experience acquired over time, including through
ongoing exposure to a broad range of law enforcement activities, is very important to maintaining the necessary level of expertise for effective review.
Proper review of the RCMP’s activities, whether in the national security
field or other fields, requires detailed knowledge of, among other things, the
Canadian Charter of Rights and Freedoms and related jurisprudence, criminal
law, criminal procedure, the laws of evidence, voluminous RCMP policies,
ministerial directives, principles relating to police independence, common law
jurisprudence and Quebec civil law relating to peace officers, law relating to
police use of force, and often complex law governing the use of law enforcement powers.
In addition, effective review requires an understanding of the criteria applied in deciding to initiate investigations and an understanding of policing
methods and techniques, including those for interviewing witnesses, interrogating suspects, conducting surveillance, obtaining and executing warrants,
using force, issuing police cautions and exercising powers of arrest.
It is also necessary for a review body for the RCMP’s national security activities to have an understanding of the command structure within the RCMP, the
ways in which information collected is analyzed and shared, and the manner in
which the RCMP relates to other law enforcement agencies. In the latter regard,
the review body needs to appreciate the ways the RCMP shares information
with foreign agencies and how it co-operates internationally, and what Canadian
law enforcement officers should and may properly do outside of Canada.
Two points regarding expertise and experience are particularly important.
First, the expertise required to review law enforcement activities in the national
security field is very different from that required to review security intelligence
activities. That should not be surprising. The two types of activities have entirely different purposes: law enforcement seeks to prevent and prosecute
crimes; security intelligence aims to collect and analyze information to guide
government policy making in relation to addressing threats to Canada’s national
security. The RCMP’s law enforcement mandate means that a review mechanism must have expertise in the above activities and powers, many of which are
not part of the mandates of security intelligence agencies (for example, the
interrogation of suspects or use of force, powers of arrest, or the power to
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perform acts that would otherwise be unlawful). Even where powers are broadly
similar (interviewing people or collecting and analyzing information), the context will be different. Most significantly, the RCMP’s activities must always be carried out within the particular discipline of its law enforcement mandate. This
means that admissible evidence must be obtained to establish that a crime has
been committed, and the product of an investigation may be used as evidence
in court. This is not the case with the activities of a security intelligence agency
such as CSIS.
That said, the subject matter of an RCMP national security investigation may
often cover the same area and may even rely on information obtained from
CSIS. Clearly, co-operation between the two agencies in the national security
field is critical. However, the need for co-operation should not mask the fundamental difference in what each does.
The second point is that, while I recognize that authority to review the
RCMP’s national security activities could be vested in a separate division of a review body that also reviews the security intelligence activities of other agencies,
and while such a division potentially could, over time, develop expertise and experience in reviewing law enforcement activities, such an approach carries risks
that are easily avoided by establishing a review body with jurisdiction over all
of the RCMP’s activities. The RCMP’s national security activities are a very small
part of the Force’s overall operations. Only about 300 officers out of 22,000 are
dedicated solely to such activities. A review body limited to reviewing the
RCMP’s national security activities would have a very narrow window from
which to gain expertise and experience in reviewing law enforcement activities
generally. I am very concerned that such a review body would constantly be
confronted with unfamiliar circumstances and issues relating to the conduct of
criminal investigations and the use of law enforcement powers. It seems clear
that a review body that examines all of the RCMP’s activities will be far better
positioned to develop the expertise and experience necessary to effectively review its national security activities. Obviously, those reviewing such activities will
need some special training on national security matters. However, the knowledge necessary to review national security matters is far more easily acquired
than that required to review law enforcement activities generally.
I am also very concerned that, if the review of the RCMP’s national security activities were separated from that of the rest of the RCMP’s operations, expertise and experience in reviewing law enforcement activities would diminish
over time. That would be the case even if those at the CPC with experience
were to be transferred to a new review body. Without ongoing exposure to all
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of the RCMP’s law enforcement activities, a review body would inevitably become less effective.
Furthermore, as mentioned above, there is often no bright line between
the RCMP’s national security and other law enforcement activities. What starts
out as a fraud or theft investigation may turn out to be a national security investigation if the act or omission being investigated was committed by or for the
benefit of a terrorist group. The Criminal Code covers both national security
and regular policing matters. It defines a terrorist offence as including not only
indictable offences that constitute terrorist activity, but also any indictable offence committed for the benefit of, at the direction of or in association with a
terrorist group.
There may also be legitimate reasons for charging a subject of a national security investigation with a variety of criminal offences that do not on their face
involve national security. The line between national security and regular criminal law enforcement matters is often a fine one and the RCMP may choose to
use the regular tools of law enforcement in some investigations that actually
concern national security. In some cases, it may be easier to prove beyond a reasonable doubt that the subject of a national security investigation committed a
fraud or a murder than to prove any of the terrorism offences set out in the
Criminal Code. Criminal Code and Security of Information Act prosecutions
may also raise complex issues concerning national security confidentiality and
disclosure to the accused.
It is vitally important that the review body be able to follow the national security trail within the RCMP wherever it may lead. A body with jurisdiction over
all RCMP law enforcement activities will be in the best position to provide effective review of all the Force’s national security activities, including those that
may not be formally designated as such.
Some have suggested that the review of the RCMP’s national security activities should be divided into self-initiated reviews by a review body and complaint investigations. According to this suggestion, the self-initiated review
function would be moved to a review body with jurisdiction over all of Canada’s
national security activities, while the complaint handling function would continue in a body dedicated to investigating and reporting on all complaints with
respect to the RCMP. This is not the best approach, in my view. There is considerable advantage to having all complaints and self-initiated reviews involving
national security activities handled by the same review body. The importance of
having the two functions within the same body was stressed repeatedly during
our consultation with review bodies in other countries, and SIRC made the same
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point. The skills and expertise developed in investigating and reporting on complaints greatly enhances the capacity to conduct effective self-initiated reviews.
I recognize that, if separate bodies handled complaints and self-initiated review, the review body could deal with some of the more significant, policy-related complaints. Even then, however, a review body that considered only some
complaints might not always be able to assess from the outset whether a particular complaint would raise important policy issues. Moreover, separating the
two functions could lead to the application of inconsistent or different standards
by different bodies, which is undesirable. I am of the view that the complaints
and self-initiated review functions should reside in the same body.
2.2.2.2
Practicality
The second reason for having a single review body for all RCMP activities is
that it is the most practical approach. A single agency avoids having to make
changes to existing institutions when not required.
All things being equal, it makes sense that I not make recommendations to
create new institutions. Start-up costs of new institutions, both financial and otherwise, can be considerable. Currently, the RCMP is subject to independent review by the Commission for Public Complaints Against the RCMP (CPC).
However, there are a number of problems with the CPC as it is now structured.
As I discuss below, I am of the view that the CPC can be restructured to make
it an effective review body. It makes practical sense to have a restructured CPC
with enhanced powers continue as the review mechanism for the RCMP’s activities, including its national security activities.
2.2.2.3
Integrated Activities
The third reason for a single review body for all RCMP activities is more in the
nature of an answer to arguments for a single review body for all of Canada’s
national security activities. Arguments in favour of the latter are not based on the
idea that such a body would be more effective in reviewing the RCMP’s national
security activities. Rather, they rest primarily on the notion that the challenge of
reviewing integrated operations can only be addressed by establishing a common review body for all national security activities. In addition, some proponents of a single national security review body appear to believe that such a
body could be used to extend independent review to federal agencies and departments involved in national security activities, but currently not subject to independent review.
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I have two responses to these arguments. First, I am satisfied that statutory
gateways and a national security coordinating committee, along with genuine cooperation among review bodies, can be effective and can address concerns
about reviewing integrated operations. I discuss the reasons for this conclusion
in recommendations 11 and 12.
Second, in Recommendation 9, I propose the expansion of independent
review to cover certain other agencies involved in national security activities. In
any event, the need for independent review of a broader range of national security actors is a separate issue and should not be allowed to detract from the
objective of recommending the most effective review mechanism for the RCMP’s
national security activities.
Concerns arising from the integrated nature of the RCMP’s national security
operations need not govern the decision about which body would provide the
most effective review for its national security activities. I am satisfied that both
the goals of providing effective review and meeting the integrated operations
challenges can be achieved by having all RCMP activities, including national security activities, reviewed by a single body and developing other means to deal
with integrated national security activities. As already mentioned, I discuss two
such means, statutory gateways and the Integrated National Security Review
Coordinating Committee, in recommendations 10 and 11.
2.2.3
A Restructured CPC
In my view, the advantages of building the new single review mechanism on
the foundation of the existing CPC are significant and the disadvantages, not
insurmountable.
There are three principal advantages to beginning with the CPC. The first
is that the CPC has extensive expertise in reviewing law enforcement activities.
I have already noted the importance of such expertise and the difficulty involved
in creating it in a body that does not have extensive exposure to law enforcement activities and the overall context of a law enforcement agency. The CPC
is in an excellent position to continue to develop expertise in the evolving world
of national security policing.
The second advantage is that the CPC’s mandate extends beyond the
RCMP’s national security activities to all of its law enforcement activities. The
risks associated with reviewing the RCMP’s national security activities in isolation, including the possibility of jurisdictional disputes and accountability gaps,
can therefore be avoided.
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The third advantage is that the CPC already exists. Creating a new agency
carries the risk of unintended consequences. I would be inclined to recommend
an entirely new review mechanism only if I concluded that the CPC is irreparably broken.
That brings me to the disadvantages of using the CPC as the foundation for
the new review mechanism. The first is that the CPC currently deals with only
one aspect of the review function, complaints. In order for review in the national
security field to be effective, it must include not only a complaints function, but
also a self-initiated systemic review capability. The CPC would therefore have
to be restructured to include such capability. I do not see any problem in this
regard, as the review and complaints functions are complementary. SIRC and the
CSE Commissioner handle both. Of course, the addition of this function to the
review body would require a name change. I suggest that it be renamed the
Independent Complaints and National Security Review Agency for the RCMP
(ICRA), to reflect its broader role.
The second disadvantage is that, as currently constituted, the CPC has insufficient powers to effectively carry out a complaints and self-initiated review
mandate in respect of the national security activities of the RCMP. This, of
course, would be addressed by providing ICRA with the mandate and powers I
discuss in recommendations 3 and 4.
The third disadvantage to basing a review mechanism on a restructured
CPC is the one that causes me the most concern. It arises from the perceptions
held by many that the RCMP and CPC have a dysfunctional relationship. Such
perceptions are the result of a number of public disagreements in recent years
between the CPC and the RCMP, including several recent court cases. Without
commenting on the merits of either side of these disputes, I note that they have
led to a lack of public confidence in the CPC that does not serve the objectives
of a review mechanism. Public confidence is crucial, particularly in the field of
national security where the requirements of secrecy place significant restraints
on transparency.
Having said this, I am confident that the relationship between the RCMP and
an independent review and complaints agency can be more constructive. What
seems to lie at the core of the recent disputes between the RCMP and the CPC
is a lack of clarity about the powers and objectives of the CPC. This is illustrated
in both the Trial Division and Federal Court of Appeal reasons in Royal
Canadian Mounted Police Public Complaints Commission v. Attorney General
of Canada.3
My recommendations include substantial enhancement of the mandate and
powers of the new review body when compared to those of the CPC.
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Furthermore, the new review body’s mandate and powers are to be clearly and
unequivocally set out. In this way, there will be no reasonable basis for disputes that can damage the relationship between the review body and the RCMP.
In any event, perfect harmony and agreement should not be expected between
an independent and effective review body and the agency being reviewed.
There should be a clear legal foundation for the rights and responsibilities of
each, but some degree of creative tension is perhaps inevitable, given their respective mandates.
On balance, it is my view that the advantages associated with using the
CPC as the foundation for a review and complaints agency are of a kind that will
be difficult to duplicate in another agency, while the disadvantages can be overcome by restructuring the CPC and ensuring that the new body has sufficient
powers to carry out its mandate.
2.3
Recommendation 3 (a)
ICRA’s mandate should include authority to conduct self-initiated reviews with respect to the RCMP’s national security activities, similar to those conducted by the
Security Intelligence Review Committee (SIRC) with respect to CSIS, for compliance with law, policies, ministerial directives and international obligations and for
standards of propriety expected in Canadian society.
In 1981, the McDonald Commission recommended that the government establish a limited self-initiated review of the RCMP’s remaining national security
activities. However, the government did not implement that proposal. When
it created the CPC in 1988, it confined the CPC’s authority to complaint
investigations.
The case for giving an independent review body the mandate to conduct
self-initiated reviews of the RCMP’s national security activities is now overwhelming. In recent years, the RCMP has had to dramatically expand the number and extent of its national security investigations. Quite properly, given
events, information sharing and integration with other domestic and foreign
agencies have also increased. Moreover, the anti-terrorism legislation enacted at
the end of 2001 has created both new terrorism offences and new investigative
powers. These changes have led to an ever greater need to go beyond a complaints-based mechanism to one that includes self-initiated review.
I recognize that the RCMP’s national security activities are those of a law enforcement agency and thus are different in many important respects from those
of CSIS. Nevertheless, the reasons for creating a self-initiated review capacity
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for the activities of CSIS apply in the main to the national security law enforcement activities of the RCMP. Common to both agencies are the need to maintain secrecy in many of the operations being reviewed, the inability of potential
complainants to lay complaints, the threat that investigative activities may pose
to individual liberties, the lack of judicial or other independent scrutiny, and the
need for public confidence and trust in the agency being reviewed.
It is worth noting that in a November 2003 report, the Auditor General addressed, among other things, the level of review that exists in relation to the national security activities undertaken by the many federal agencies engaged in
such activities. With respect to the CPC’s review of RCMP national security activities, the Auditor General concluded that, because the CPC has no audit (selfinitiated review) power, it “does not undertake reviews aimed at systematically
determining compliance with the law, nor does its mandate provide for unrestricted access to all information.”4 She recommended that the government take
steps to redress the gaps in civilian review of agencies with “intrusive powers.”
It is also useful to note the types of review used in other countries. In
Chapter VII, I describe in detail the systems for reviewing national security investigations conducted by security intelligence and law enforcement agencies in
eight countries: Australia, Belgium, Germany, New Zealand, Norway, Sweden,
the United Kingdom and the United States. The features and models vary widely,
depending on the constitutional arrangements and institutional structure and
cultures of the different countries, but all eight countries generally have independent review bodies that are primarily complaints-based for police forces and
review bodies that are complaints-based, but also have a self-initiated review capacity, for security intelligence agencies. In all the countries except Germany,
police forces involved in national security activities are subject to review by
something more than a complaints-based body.
For example, national security policing in Belgium is conducted by divisions
of the regular police, which fall under the complaint-processing and (self-initiated) review jurisdiction of a review body called “Committee P.” In the United
States, such policing is conducted largely by the FBI, which is subject to the
complaints-processing, audit, inspection (or review) and investigation jurisdiction of the Inspector General of the Department of Justice. The Department of
Homeland Security, which also engages in law enforcement activities related
to national security through its agencies, including the Transportation Security
Administration, U.S. Secret Service, U.S. Immigration and Customs Enforcement
and U.S. Customs and Border Protection, is subject to similar review by the
Inspector General of the Department of Homeland Security. Inspectors general
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have self-initiated review powers for national security law enforcement
investigations.
Police forces in England and Wales, which carry out national security policing to varying degrees, are subject to the complaint-processing jurisdiction of the
Independent Police Complaints Commission (IPCC) and the Investigatory
Powers Tribunal. In addition, certain covert activities conducted by police forces
are subject to the inspection-based jurisdiction (self-initiated review) of the
Interception of Communications Commissioner (ICC) and the Office of
Surveillance Commissioners (OSC). The police are subject to these review and
inspection powers relating to covert activities regardless of whether the investigation relates to national security or conventional law enforcement. Police forces
in Northern Ireland and Scotland are also subject to review for certain specified
covert activities. The Police Ombudsman for Northern Ireland has complaintsbased jurisdiction over the Police Service of Northern Ireland.
2.3.1
Scope of National Security Activities Subject to Review
RCMP national security activities subject to review by ICRA should include the
following:
(a) activities relating to the Security Offences Act;
(b) activities relating to the Security of Information Act;
(c) activities relating to Part II.1 of the Criminal Code5 or relating to any other
offence under the Criminal Code or other legislation, the investigation of
which may relate to national security;
(d) any other activities undertaken to respond to threats to the security of
Canada as defined in section 2 of the Security Offences Act, including activities pursuant to section 18 of the RCMP Act respecting duties of members who are peace officers;
(e) any activities carried out on an integrated basis with domestic or foreign
agencies and related to national security;
(f) any other activities undertaken by personnel units or resources within the
RCMP’s national security organizational structure; and
(g) any other matter that ICRA deems necessary to examine in order to ascertain whether it relates to the RCMP’s national security activities.
The concern here is to define national security activities for purposes of
ICRA’s self-initiated review process in a manner that is sufficiently broad to include all activities that have a national security aspect. ICRA’s mandate and
jurisdiction should make it clear that it may examine anything it deems advisable
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to determine whether it relates to national security and should be reviewed.
This includes activities relating to investigations of specified offences, including
collateral offences, examined in part because of concerns that the person may
be a threat to national security. For example, the investigation of fraud, theft or
other Criminal Code or other offences by suspected terrorists would fall within
the scope of matters to be reviewed as national security activities of the RCMP.
In addition, the definition of national security activities should include all activities of RCMP personnel assigned to units or branches within the RCMP organizational structure that are responsible for conducting national security activities.
It is clear from my review of the RCMP’s national security operations that
the nature of some RCMP investigations may change over time. As I discuss earlier, an investigation may start out as a national security investigation, but, as information is gathered, be found to have no connection to national security. The
opposite can also be true. Thus, it will be necessary to have a flexible approach
when examining whether a particular investigation falls within the review body’s
mandate and to understand that the characterization of investigations may
change as further information is obtained.
Two points are important to note concerning the characterization of investigations as national security or other investigations. The first is that, since ICRA
would have the mandate to investigate and report on all types of complaints involving RCMP activities, the importance of the distinction between national security and other activities is greatly diminished. The ability to draw lines between
national security and other activities would be of much more consequence if the
model adopted involved different review bodies for complaints relating to the
different types of activities.
That said, there are potential differences in the way ICRA would review national security and other complaints. Below, I recommend that, for investigations
into complaints about the RCMP’s national security activities, ICRA have investigative powers similar to those for public inquiries under the Inquiries Act. Such
powers are much greater than those currently held by the CPC. Of course, if no
further changes were made to its powers, ICRA would then have different powers for obtaining information depending on whether complaints related to the
RCMP’s national security or other activities. This could generate jurisdictional
disputes and even litigation about whether a complaint related to the RCMP’s national security activities or not. That would be a most undesirable situation. I
therefore suggest that the power of ICRA to obtain information be made uniform
for investigations of all complaints, whether related to national security or not.
My recommendation concerning a mandate to conduct self-initiated reviews
relates only to the RCMP’s national security activities. I am not recommending
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that authority to conduct self-initiated reviews extend to matters not involving
national security. This is not because I am opposed in principle to such reviews
in other areas, but because I have assessed the need for them only in the context of the RCMP’s national security activities. I do not consider that this difference in mandate based on the type of matters involved would have the same
undesirable consequences as would a difference in the powers available to ICRA
in investigating national security versus other complaints.
The result, however, is that the distinction between what is and what is not
a national security activity assumes some importance. To avoid problems that
might arise from the need to characterize RCMP activities, the mandate for selfinitiated reviews should be interpreted broadly so that effective review is not curtailed by jurisdictional disputes. It is essential that ICRA be able to examine all
RCMP activity and all documents under the control of the RCMP, as well as interview all regular and civilian members of the RCMP in order to determine
whether any activity is related to national security and therefore within its mandate for self-initiated review purposes.
2.3.2
Specific Review Subjects
Unlike the investigation of complaints, self-initiated reviews would focus more
on institutional or systemic practices, rather than on individual conduct or behaviour. Reviews would be directed at identifying problems of a structural nature or recurring practices that cause concern in national security investigations.
A good starting point for determining the specific types of matters to be reviewed would be to examine SIRC’s experiences with reviewing the activities of
CSIS over the past 20 years, making allowance for the RCMP’s law enforcement
mandate. Patterns of complaints could also be examined, as these may point to
systemic problems that require special attention.
Without limiting the scope of the proposed reviews, I wish to draw attention to a number of matters that arose during the Factual Inquiry that I suggest
be included in a list of what ICRA should examine from time to time:
•
Law Enforcement Mandate – ICRA should review the RCMP’s national security activities to ensure that they are properly within its law enforcement
mandate. In my Factual Inquiry report, I emphasized the importance of
confining RCMP investigations to the RCMP’s statutory mandate, which is to
investigate criminal or illegal activities for the purpose of prevention or
prosecution.
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•
•
•
•
Information Sharing – National security investigations necessarily involve
considerable information sharing. The RCMP currently has sound policies
in this regard that, for example, require an assessment of the reliability and
relevance of the information to be shared and the use of caveats to restrict
and govern the use and further dissemination of the information. I made
some recommendations for improvements to these policies in my Factual
Inquiry report. What is critical, however, is that those involved in information sharing comply with the relevant policies. In the Factual Inquiry, I
found that the RCMP repeatedly had not followed its own policies when
sharing information with American agencies about the investigation involving Maher Arar. ICRA should ensure that the RCMP’s policies are properly and routinely applied to all information sharing. The process should
include regular reviews of information-sharing protocols and agreements
with domestic and foreign agencies, organizations and governments.
Relations With Other Agencies – The RCMP must interact with other agencies, both domestic and foreign, in conducting its national security activities. In the Factual Inquiry report, I recommended that those relationships
be governed by a framework that is reduced to writing in order to avoid
misunderstandings about what is expected in co-operative efforts among
agencies. ICRA should ensure that co-operative efforts comply with the
framework arrangements and, where appropriate, should make recommendations about the need to clarify or improve such arrangements.
Training Programs – While national security investigators use regular law enforcement powers and techniques in conducting investigations, they do so
in a context unfamiliar to most RCMP officers. In my Factual Inquiry report,
I made recommendations concerning the content of training programs for
national security investigations. ICRA should examine training programs
from time to time to ensure that such programs are properly preparing investigators to address the many difficult issues that arise in the national security context.
Human Rights Issues – In today’s world, national security investigations are
largely focused on the prevention of terrorism and often involve members
of the Arab and Muslim communities. In the Factual Inquiry report, I recommended that the RCMP set down in writing its policy directing that investigations not be based on racial, ethnic or religious profiling. Moreover,
it is important that all aspects of national security investigations pay appropriate attention to the human rights and interests of those who may
be affected. In this regard, the principles of proportionality and fairness
are important. ICRA will play an important role in examining RCMP
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•
•
•
•
investigations to ensure that they conform to standards of propriety that
the Canadian public accepts and expects.
Integration – The RCMP’s national security activities are increasingly integrated with those of other federal agencies, including CSIS. ICRA will play
an important role in reviewing the propriety of the RCMP’s interactions with
other agencies. In Recommendation 11, I propose that the government legislate statutory gateways to link the independent bodies responsible for reviewing Canada’s national security activities. It is very important that these
statutory gateways operate so as to ensure integrated and coordinated review of national security activities that involve more than one federal entity. ICRA can play an important role in ensuring that the RCMP respects
both the letter and spirit of the statutory gateway requirements. As discussed in Recommendation 12, the Chair of ICRA will be a member of INSRCC and, as such, will play an important role in ensuring that integrated
operational activities are properly reviewed.
Communications With Foreign Countries When Canadians Are Detained – In
my Factual Inquiry report, I recommended a protocol governing how
Canadian officials, including members of the RCMP, should proceed in circumstances where Canadians are being detained abroad in connection with
terrorist-related investigations. Briefly, the protocol recommends that there
be a consultative, cohesive approach among Canadian entities and that
Foreign Affairs and International Trade Canada (DFAIT) take the lead in
such matters. ICRA should review RCMP activities to ensure compliance
with that approach.
Interaction With Countries With Poor Human Rights Records – During the
course of national security investigations, it will sometimes be necessary
for RCMP investigators to receive information from, or provide information
to, countries with poor human rights records. These situations raise special
concerns. In the Factual Inquiry report, I made several recommendations for
policies governing activities in this area. These recommendations were
aimed at ensuring that there is no support or condonation of torture or
other human rights abuses and that special care is taken to assess the reliability of any information the RCMP accepts from countries with poor
human rights records. ICRA should ensure that RCMP investigations conform to RCMP policies governing these types of relationships.
Issues of Public Interest – ICRA should have the ability to investigate and,
if necessary, hold public hearings on matters of public interest and controversy involving the RCMP’s national security activities that, if not examined
by the review body, might undermine public confidence in the RCMP. In
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both Belgium and Sweden, review bodies have initiated investigations of issues related to national security based on newspaper allegations, even
though no complaint has been made. I think that this would be a valuable
way for the agency to foster confidence in the RCMP. In this kind of investigation, ICRA should be able to hold hearings, issue subpoenas and use
all of the other powers it is otherwise given.
2.3.3
Review for Efficacy
Some participants in the Inquiry suggested that, in addition to reviewing for
conformity with the law and propriety, the review body for the RCMP’s national
security activities should review for efficiency and effectiveness. In other words,
it has been suggested that a review body should assess RCMP activities to determine whether the force is competent and/or has the capacity to carry out its
mandate effectively. Recent failures of intelligence relating to the decision by the
United States to go to war in Iraq, and other failures highlighted by the National
Commission on Terrorist Attacks Upon the United States (9/11 Commission)
support arguments in favour of review for efficacy of national security actors.
I note, however, that the events giving rise to the creation of the 9/11
Commission were very different from those that led to this Inquiry, which has
focused almost entirely on matters of propriety, not efficacy. As a result, I have
not examined issues related to review for efficacy in any depth and am not in
a position to make detailed recommendations about the form that such review
should take. I have some reservations about locating review for propriety and
review for efficacy in the same body, as it strikes me that the skill sets required
for each are quite different. My conclusions that the status quo is inadequate and
that there is a need for an arm’s-length, independent review body for the national security activities of the RCMP are based solely on considerations relating
to propriety. I have concluded that review of national security activities for propriety is required regardless of whether or not there is also review for efficacy.
That said, review for propriety will sometimes raise issues of efficacy, in the
sense that competence and capacity will necessarily become issues in a review.
For example, my Factual Inquiry report made clear how the lack of training of
RCMP officers in the area of national security policing procedures may have
been closely linked to the impropriety of their conduct.
A proportionality analysis relating to the propriety of certain activities may
involve judgments about whether an activity that adversely affects a person’s
rights or interests is rationally connected with legitimate security objectives and
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whether less drastic measures would be equally effective in fulfilling the RCMP’s
law enforcement and crime prevention mandate. In such cases, the review body
should have the authority to investigate and report about efficacy, including issues of competence and capacity, and about whether other equally effective
means exist for the RCMP to fulfill its mandate. Thus, while propriety should be
the primary objective of the review body, issues of efficacy, particularly in terms
of “lessons learned,” will in some cases be a necessary or useful element of
such review. ICRA should have the mandate to investigate and comment upon
such issues.
2.4
Recommendation 3 (b)
ICRA’s mandate should include authority to investigate and report on complaints
with respect to the RCMP’s national security activities made by individual complainants and by third-party groups or individuals.
ICRA should have a mandate to review a wide range of complaints pertaining
to the RCMP’s national security activities. Complaints about the conduct of RCMP
members can provide an important window into national security work.
Effective review of complaints should determine whether the Force’s national security activities comply with relevant law, policies, ministerial directives, international obligations and standards of propriety, while at the same time ensuring
that public confidence is maintained. Although review based on complaints is
not in itself sufficient to ensure effective review of the RCMP’s national security
activities, hearing and monitoring complaints are a necessary and important part
of effective review.
The body that has responsibility for self-initiated reviews should also handle the complaints process, in order to ensure integration and consistency
between the two functions. Indeed, patterns of complaints regarding particular
RCMP activities may trigger self-initiated review by the review body. One of the
aims of this type of review will be to make recommendations to address areas
that produce patterns of complaints. The complaint handling and self-initiated
review functions of the review body should be complementary and mutually
reinforcing.
2.4.1
Third-Party Complaints
Because of the secret nature of much national security policing, those directly
affected by such policing may never learn of circumstances that might form
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the basis of a complaint. Even if they become aware of grounds for a complaint, they may be reluctant to initiate one, for a variety of reasons. They may
fear that friends, employers and the public will learn that they have been involved in some way in a national security investigation. The potential stigma
caused by association with such an investigation may be severe and long-lasting. Although presumption of innocence is a fundamental legal principle, it is
not always foremost in the minds of the public. Many people may not appreciate basic distinctions between a person being the subject of an investigation
and a person being found guilty of some offence, let alone finer distinctions between being the subject of an investigation and being a person of interest to an
investigation. In addition, people affected by national security investigations
may not have sufficient trust in the police or the system for reviewing complaints against the police to be willing to bring a complaint. As the Canadian
Arab Federation and Canadian Council on American-Islamic Relations stated in
their Policy Review submissions, “[m]ost aggrieved communities do not report
complaints for a variety of reasons: lack of knowledge, confidentiality, fear of
reprisal, safe space issues and, for far too many, a social culture that discounts
the value of reporting.”6
It is therefore vitally important that groups and individuals not directly
affected by RCMP actions, including public interest organizations, be able to
make complaints with respect to the national security activities of the RCMP.
Although there may be concerns that politically motivated “busybodies” will
avail themselves of the opportunity to make third-party complaints that are little more than “fishing expeditions,” I am not aware of any evidence of such
abuses in relation to existing systems that permit complaints by third parties. I
have also been informed of a concern that the complaint system could be used,
either directly or through a third party, by persons legitimately the subject of a
criminal investigation to gather information to impede that investigation. While
this is a valid concern, the answer in my view does not lie in placing limits on
who can make a complaint. Rather, a case-by-case approach should be adopted.
As I discuss below, ICRA should have the power to dismiss complaints that are
trivial, frivolous or vexatious, or made in bad faith; the ability to refuse to confirm or deny elements of a complaint; and discretion to delay the investigation
of a complaint if immediate investigation would prejudice an ongoing criminal
investigation or prosecution.
My recommendation that third parties be allowed to make complaints with
respect to the RCMP’s national security activities does not break new ground.
The RCMP Act already grants “any member of the public . . . whether or not that
member of the public is affected by the subject-matter of the complaint”7 the
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right to make complaints against any RCMP member or any other person employed under the Act. Moreover, I note that the power of those not directly affected to make third-party complaints against the RCMP has recently been
exercised with respect to RCMP national security investigations and operations.
The Canadian Civil Liberties Association asked the CPC to investigate a complaint relating to the RCMP’s actions with respect to Maher Arar, and a third
party made a complaint in relation to Operation Thread, an investigation that
culminated in the arrest and detention of over 20 mostly Pakistani individuals in
August 2003. I also note that the Honourable Patrick LeSage, former Chief Justice
of the Ontario Superior Court of Justice, who recently conducted a review of the
Ontario police complaints system, recommended that the Ontario police complaints systems be expanded to allow complaints by third parties on the basis
of cogent evidence,8 and the Ontario government has proposed amendments to
adopt this recommendation.9
2.4.2
No Initiation of Complaints by Review Body
The RCMP Act allows the Chair of the CPC to initiate a complaint against
an RCMP member or other person employed under the Act when satisfied that
there are reasonable grounds to investigate the complaint.10 The former Chair of
the CPC, Shirley Heafey, used this power to initiate a complaint concerning the
RCMP’s actions in relation to Maher Arar. The CPC also has the power to initiate a public interest investigation without laying a formal or specific complaint.
This approach has the advantage of avoiding the appearance that it endorses
the validity of a self-initiated complaint. Given the broad review powers I recommend for ICRA, I am of the view that it is not necessary for it to have a specific complaint ability. ICRA may choose to initiate a review into a matter of
public interest. In my view, to avoid any apprehension of bias, it is preferable
for it to act pursuant to its review powers rather than by means of own-motion complaints.
2.4.3
No Evidentiary Threshold Needed for Complaints
The nature of national security policing will often mean that complainants,
whether directly affected or not, will not have full information about police conduct related to the action of which they are complaining. For example, had
Mr. Arar made a complaint against the RCMP, he would not have been in a position to know the full extent of the RCMP’s actions in relation to his case. Nor
would a third party, such as the Canadian Civil Liberties Association. Much
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national security policing involves information gathering and sharing in secret.
The role of different agencies may not be understood until extensive investigation is undertaken.
In view of these characteristics of national security policing, it would not
be appropriate to require an evidentiary threshold for complaints. Subsequent
investigation will often be necessary to flesh out the grounds for complaints.
This in part underlies my recommendation that ICRA have the authority to
initiate an investigation into specific events and hold public interest hearings
where desirable.
My recommendation that no evidentiary threshold be imposed on complaints is also not a new idea. At present, the RCMP Act does not require an evidentiary threshold for complaints against the RCMP. However, the Act provides
a means to deal with some complaints in a summary or informal manner. It contemplates both informal resolution of complaints and the dismissal of complaints
on the grounds that they are trivial, frivolous or vexatious, or were made in bad
faith. Below, I recommend that ICRA continue to have these powers.
Finally, in my view, ICRA should maintain its own complaints intake system. In Recommendation 12, I propose that INSRCC be mandated to receive
complaints with respect to national security investigations. However, I also indicate that, after assessing complaints, INSRCC should direct them to the appropriate review body. I envision that ICRA will receive complaints both directly
from the public and from INSRCC. In either case, ICRA will require an intake system to screen and review complaints.
Under Recommendation 5 below, I propose improvements to the way complaints are handled under the existing complaint process.
2.5
Recommendation 3 (c)
ICRA’s mandate should include authority to conduct joint reviews or investigations with SIRC and the CSE Commissioner into integrated national security operations involving the RCMP.
The review body for the RCMP’s national security activities should have sufficient
powers to allow effective and thorough review of any integrated activities involving the RCMP. Given the importance of integrated and co-operative activities among Canada’s national security actors, it is critical that a review
mechanism have the ability to conduct reviews on an integrated basis. There is
no mechanism with this ability at present. For example, given the relationship
between the RCMP and CSIS and the interconnectivity of their activities, it would
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be useful if the RCMP’s review body and SIRC had the power to consider joint
or co-operative reviews.
I look at the extent of the integration of the RCMP’s national security activities with those of other agencies in chapters IV and V. Integrated operations
often make eminent sense from a national security perspective, but they present a number of challenges for a review body. It is essential that a review body
for the RCMP’s national security activities have access to the information and evidence it considers necessary from agencies and individuals the RCMP co-operates with, either formally or informally, in conducting its national security
activities. It is also essential that it be able to assess all national security activities under the control and direction of the RCMP, including the activities of
Integrated National Security Enforcement Teams (INSETs) and other integrated
units. If some of these activities were to be excluded on the grounds that they
were carried out by personnel not formally or permanently members of the
RCMP, review would be incomplete.
In some circumstances, the activities of a participant from another agency
in an RCMP investigation may not be under the control and direction of the
RCMP. For example, in INSETs, the role of CSIS personnel is different from that
of police personnel, in that they do not participate directly in INSET criminal investigations. Nonetheless, the RCMP review body must be able to review their
conduct to the extent that it relates to the activities of INSETs. The same is true
of other personnel who interact with the RCMP in formally integrated units or
less structured relationships.
Because some personnel in INSETs are from provincial agencies, the issue
of constitutional jurisdiction also arises. In my view, there is no constitutional impediment to assessment by a federal review mechanism of the activities of
provincial officials operating under the direction and control of the RCMP.
National security policing is clearly an area over which the federal government
has constitutional jurisdiction. The RCMP is a federal agency and its activities are
within federal jurisdiction. Indeed, a provincial or municipal police officer could
be compelled to provide information or documents under the broad powers,
similar to the powers under the Inquiries Act, that I recommend for the RCMP’s
review body. That said, I do not find it necessary to go the next step and address the issue of whether the RCMP’s review mechanism could compel a
provincial actor to take action or impose discipline on an individual whose home
agency is provincial. The review body I propose will have the authority to make
findings and recommendations, but not to order discipline or other remedies.
Another issue related to integration that is critical to the objectives of a review body for the RCMP is the manner in which that body would interact with
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the review mechanisms for other agencies involved in the integrated activities.
Co-operative review for integrated activities is needed for three reasons: to avoid
accountability gaps or matters “falling between the cracks,” to promote consistency and coherence in the review of integrated activities by more than the one
review body, and to provide complainants with a single location for making
complaints about national security activities that may have been carried out by
a number of different agencies subject to different review regimes.
I have been told that there is currently little integration between the RCMP’s
national security activities and those of the CSE. In anticipation that this situation might change, I feel it makes sense to provide for joint reviews and investigations with the CSE Commissioner as well.
In my rationales for recommendations 11 and 12 below, I set out further details regarding review of integrated activities.
2.6
Recommendation 3 (d)
ICRA’s mandate should include authority to conduct reviews or investigations
into the national security activities of the RCMP where the Minister of Public
Safety so requests.
Ultimately, the Minister of Public Safety is responsible and accountable for
the policy direction of the RCMP and must also ensure that RCMP investigations
conform to law and standards of propriety. Under the RCMP Act, the
Commissioner is subject to the direction of the Minister.11 In accordance with this
approach to accountability, which stresses ministerial responsibility for the RCMP
and the Commissioner’s responsibility for the control and management of the
Force, I recommend that the review body submit its reports to both the
Commissioner and the Minister. Given the Minister’s ultimate responsibility
for the activities of the RCMP, it makes sense that the Minister be able to direct ICRA to conduct reviews of or investigations into the Force’s national security activities.
Under the Canadian Security Intelligence Service Act (CSIS Act), SIRC has
a mandate to take action on request by the Minister:
The Review Committee may, on request by the Minister or at any other time, furnish the Minister with a special report concerning any matter that relates to the performance of its duties and functions.12
I recommend a similar provision in respect of the review body for the
RCMP’s national security activities.
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2.7
Recommendations 3 (e) and (f)
ICRA’s mandate should include authority to:
(e) conduct reviews or investigations into the activities related to national
security of one or more government departments, agencies, employees or
contractors, where the Governor in Council so requests; and
(f) in exercising its mandate with respect to the matters in paragraphs (a) to (d)
above, make recommendations to the Minister of Public Safety, and with
respect to matters in paragraph (e), to make recommendations to the relevant Ministers.
ICRA should have the authority to investigate or review national security activities that take place wholly or in part outside the RCMP when so requested by
the Governor in Council. There could be a number of reasons for such a request.
Some government departments and agencies involved in national security activities are not subject to independent review. It may be that the government will
consider that a particular event or series of events warrants independent investigation or review and that ICRA is best suited for the task, perhaps because of
its special expertise in law enforcement matters. Power on the part of the
Governor in Council to direct that ICRA conduct an investigation or review in
such circumstances could be very useful in filling review gaps, potentially obviating the need for a public inquiry such as the one I have conducted, or ad
hoc reviews in individual cases.
In Recommendation 9, I propose that the government extend independent
review to the national security activities of certain other government entities.
However, even after this has been accomplished, there will still be some
gaps in the review of national security activities. The Governor in Council should
have the option of directing ICRA to conduct an investigation or review in such
circumstances. It may make sense as well for the government to enact another,
similar provision pursuant to which SIRC may be directed to conduct an
investigation or review of the national security activities of entities not within
its mandate.
In general, I would expect that the Governor in Council would direct ICRA
to investigate matters that would draw on its law enforcement expertise and
SIRC to investigate those that draw on its expertise with respect to security intelligence and aspects of national security not related to law enforcement.
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2.8
Recommendation 4 (a)
ICRA should have extensive investigative powers, similar to those for public inquiries under the Inquiries Act, to allow it to obtain the information and evidence
it considers necessary to carry out thorough reviews and investigations; those
powers should include the power to subpoena documents and compel testimony
from the RCMP and any federal, provincial, municipal or private-sector entity
or person.
2.8.1
Need for Extensive Powers
ICRA requires extensive investigative powers in order to fulfill its statutory mandate and engender public confidence and trust. The powers required to obtain
information can be divided into two categories: power to access all information
from within the RCMP that the review body considers necessary to fulfill its
mandate, subject only to two minor exceptions, Cabinet confidences and, in
some circumstances, solicitor-client privilege; and power to access information
from sources outside the RCMP, including other federal, provincial or municipal agencies and the private sector. In both its self-initiated review and complaint
investigation functions, ICRA must be able to “follow the trail” of information or
evidence in order to obtain a complete picture of the RCMP’s activities. Given
the integrated nature of many of the RCMP’s national security activities, the trail
will sometimes lead to information outside the RCMP. ICRA should not be
stymied by jurisdictional boundaries in its efforts to fully and thoroughly review
the RCMP’s activities.
Moreover, ICRA must be able to compel the production of documents or
testimony at any stage of an investigation or review. While compelling individuals to provide information under oath may not be a means used in many circumstances, it is nonetheless essential that the power be available. ICRA alone
should determine what is necessary or relevant for an investigation or review.
The powers for accessing information that I propose are broad. However,
the issue of these extensive powers was thoroughly addressed in the submissions made during the Policy Review and it was accepted by everyone, including the RCMP, that the review body needs to have investigative powers that
enable it to obtain the information necessary to fulfill its mandate.
In addition to the obvious advantage to having a uniform investigation system for all complaints against the RCMP, it makes sense that the review body
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investigating complaints about activities not related to national security be able
to obtain all information that is relevant and necessary to thoroughly investigate
the complaints. The rationale behind my recommendation for enhanced powers of access to information for investigating complaints related to national security activities applies equally to other types of RCMP activities. In any event,
I am concerned that it will be difficult in some cases to determine whether a
complaint relates to national security or some other matter, and that the review
body’s investigations of complaints about the RCMP’s national security activities
could be compromised and delayed by jurisdictional disputes that can be
avoided by extending its investigative powers to all complaints.
A review agency must have adequate powers to conduct thorough and effective reviews. In its submission to this Inquiry, the CPC was clear in stating that
it did not have sufficient powers to effectively review the RCMP. In general
terms, the most serious inadequacy is that it is not able to access all relevant information to carry out its mandate. Access to information is essential to effective review. The CPC has encountered difficulties in accessing information the
disclosure of which could be injurious to international relations, national security or defence, as well as information covered by various evidentiary privileges.
It has also been involved in several disputes with the RCMP about what evidence is necessary or relevant to its investigations. This has hampered or delayed
investigations. Inability to obtain all of the relevant information in the national
security context greatly diminishes the role of a review body.
The CPC moreover does not have statutory authority to obtain information
from outside the RCMP. Given the enormous increase in integrated operations
in the national security field, access to that type of information is vitally important for effective review of the RCMP’s national security activities.
The deficiencies in the CPC’s information-gathering powers are apparent
when compared to those of other review bodies in the national security field,
including the CSE Commissioner, the Privacy Commissioner and the Information
Commissioner (discussed in detail in Chapter VI).
The powers applicable to public inquiries under the Inquiries Act provide
a good model for the powers that ICRA should have. One of the primary purposes of a public inquiry is to assure the public that there will be an independent
and thorough examination of the events in question. Thoroughness is seen as
essential for restoring or maintaining public confidence. A public inquiry that is
unable to access all of the necessary information will fall short in this respect.
The same is true in relation to the review of the RCMP’s national security
activities. The public will have confidence and trust in a process only if it is
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satisfied that the process has been thorough. Broad powers to access information can also minimize the chance of disputes or even litigation between the review body and the RCMP that may delay the performance of vital review
functions and undermine public confidence in the process.
As I mentioned above, the Auditor General noted in a November 2003 report that the CPC’s mandate does not provide for unrestricted access to all information and recommended that the government take steps to redress this
shortcoming.
The need for thoroughness applies to both self-initiated review and the investigation of and reporting on complaints. I therefore envision powers for an
effective review body similar to those applicable to public inquiries under the
Inquiries Act. ICRA should have access to all information it considers necessary
to conduct a thorough review, subject only to two minor qualifications, which
I discuss below.
2.8.2
Authority to Decide What Is Necessary
ICRA must have the authority to decide what information it requires for thorough
review and to compel the RCMP and other institutions or individuals to produce
any such information in their possession when requested. Of course, ICRA may
not always know with certainty whether information is necessary (or relevant)
until it has examined it. Thus, ICRA’s requests for information should be granted
and any disputes about relevance or the use to which information may be put
should be addressed after the review body has had the opportunity to review
the information. This will help ensure that relevant information is not withheld.
It will also be necessary for those within the RCMP to co-operate and answer
any queries. Public confidence and trust will be higher if the public is satisfied
that ICRA has access to all information and personnel it deems necessary to conduct a thorough review.
A system that allows those with information requested by a review body to
withhold such information on the basis that they do not consider it relevant to
the review can lead to confrontations, extensive delays in review, unfortunate
and costly litigation, loss of public confidence and, ultimately, ineffective review. In the past, there have been disputes between the RCMP and the CPC
about what information the RCMP should produce. The RCMP has given various reasons for its resistance to producing the information. There is no advantage to revisiting those disputes here. The very fact of such disputes makes the
point: if there is to be credible independent review, the RCMP cannot be the one
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holding the key to evidence that may be necessary to the review process. I note
that, in the case of the CSE Commissioner, who has the same powers I am recommending for ICRA, there is little opportunity for the CSE to resist disclosure
of relevant information. The same should be true for the RCMP.
2.8.3
Confidential Information
The nature of national security investigations makes it inevitable that ICRA will
require access to information that must be protected to safeguard Canada’s
national security interests. Public disclosure of secret or sensitive information,
such as investigative techniques or the identity of sources, could harm Canada’s
national security and put individuals at risk. In addition, disclosure of information provided by foreign agencies on the understanding that it will not be disclosed could harm relationships with those agencies and inhibit international
co-operation.
However, within the limits that I set out below, ICRA must have access to
all relevant information and should not be refused information on the basis that
it is secret or sensitive. The concomitant obligation is for ICRA to be subject to
stringent non-disclosure requirements.
Full access to all information has worked well in the cases of SIRC and the
CSE Commissioner. According to the information provided to me, neither of
those review bodies has breached security obligations, and there has been no
suggestion that international co-operation has been diminished because of their
access to foreign-source information.
This Inquiry is another example of how a review body can protect the confidentiality of information. Although Commission staff had little previous experience in handling classified or sensitive information, we were able to receive
and process an enormous amount of information subject to national security
confidentiality concerns without breaching confidences. There is no reason a
properly structured review body for the RCMP could not provide an absolute assurance of security of confidential and sensitive information.
2.8.4
Information From Outside the RCMP
As I note throughout this Report, the RCMP’s national security activities are
highly integrated with other federal, provincial and municipal agencies. The nature of integration ranges from involvement in units such as INSETs, where personnel from many agencies work together on national security activities, to
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relationships that are less structured and exist, for example, for the purpose of
information sharing.
Given the RCMP’s level of integration and co-operation with other agencies,
an effective review mechanism for its national security activities will require authority to go beyond the personnel and material resources under the control
and direction of the Force. While the focus of the review mechanism should be
the RCMP’s activities, the review body must be able to follow the trail and access information from all of the institutions or individuals with whom the RCMP
interacted in conducting its national security activities.
The Factual Inquiry provides a good example of the point I am making. My
mandate directed me to investigate and report on the actions of Canadian
officials as they related to Maher Arar. This included the actions of the RCMP
and its officers. In order to properly investigate the RCMP’s actions, it was
essential that I have access to information and personnel from other federal
agencies, including CSIS, Foreign Affairs and International Trade Canada
(DFAIT), the Canada Border Services Agency (CBSA), and other provincial and
municipal police forces. Given the integration and co-operation among these entities, I would not have been able to assess the RCMP’s activities properly and
thoroughly without information from the other sources. That information from
outside the RCMP provided me with an understanding of the circumstances in
which the RCMP had acted and, in several instances, shed direct light on the
RCMP’s actions.
In making these comments, I am not suggesting that the RCMP review body
should assess the conduct of other agencies as the Factual Inquiry did. The review body should have the power to access information and personnel from
other agencies solely for the purpose of assessing the conduct of the RCMP, including the adequacy of the procedures and understandings that govern the
RCMP’s necessary interaction with other agencies.
At the same time, information received from other agencies may in some
cases reveal a need for a coordinated review involving another federal agency
to evaluate the national security activities of both the RCMP and the other
agency. Indeed, providing the review body for the RCMP’s national security activities with access to information from other agencies with which the RCMP
conducts integrated operations would be a major step in addressing some of the
review problems that arise as a result of integrated operational activities. The
RCMP review body would be able to assess the degree of integrated activity and
the need for coordinated review with the review bodies for other agencies.
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I note that the power to obtain information beyond that in the possession
or control of the body being reviewed is a common feature of the international
review bodies we have examined.
2.8.5
Exceptions to Access to Information
There should be two exceptions to ICRA’s full access to information: Cabinet
confidences as I describe them below and, in limited circumstances, information
subject to solicitor-client privilege.
The reasons for excepting Cabinet confidences are well established. As
Chief Justice McLachlin stated in Babcock:
Those charged with the heavy responsibility of making government decisions must
be free to discuss all aspects of the problems that come before them and to express
all manner of views, without fear that what they read, say or act on will later be subject to public scrutiny. If Cabinet members’ statements were subject to disclosure,
Cabinet members might censor their words, consciously or unconsciously. They
might shy away from stating unpopular positions, or from making comments that
might be considered politically incorrect.
. . . . The process of democratic governance works best when Cabinet members charged with government policy and decision-making are free to express themselves around the Cabinet table unreservedly.13
In order to withhold Cabinet confidences under the Canada Evidence Act,
the Clerk of the Privy Council must determine whether information falls within
the statutory definition provided in subsections 39(1) and (2) of the Act and
must then consider whether the information in question should be protected,
taking account of the competing interests in public disclosure and retaining confidentiality. The government may voluntarily disclose Cabinet confidences, but
Cabinet confidence privilege may not in any ordinary sense be waived.14
The types of documents over which Cabinet confidence privilege may be
claimed are defined by law. They include memoranda to Cabinet, discussion
papers presenting background information, records of the decisions or deliberations of Cabinet, records of discussions between ministers relating to government decisions or policy, records created to brief ministers or that are the subject
of communications between ministers, and draft legislation.15
ICRA should not, in my view, have the power to compel disclosure of
records of discussions at Cabinet meetings or between ministers, nor should it
be able to require the production of final memoranda delivered to Cabinet.
ICRA will examine the activities and decisions of the RCMP. It would be
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inappropriate for it to comment on the wisdom or propriety of decisions or deliberations of Canada’s elected representatives. In any event, in most circumstances, information subject to Cabinet confidence privilege would not be
particularly helpful for reviewing the RCMP’s national security activities. Because
of police independence, it is unlikely that the operational details of a national
security investigation — those that a review body would want to review —
would be included in material covered by Cabinet confidence. Cabinet confidence privilege should not prevent ICRA from accessing certain types of documents and information used as the basis for recommendations to Cabinet or
Cabinet deliberations, such as documents or information used to create memoranda to Cabinet or Cabinet briefing documents; background material incorporated into briefing documents or discussion papers used during Cabinet
deliberations; and documents or information discussed by ministers (but not the
record, substance or outcome of the discussions).
ICRA will have access to ministerial directives that outline policies and procedures for national security investigations. It will moreover have a legitimate interest in assessing the accuracy of information the RCMP provides to the Minister
for eventual discussion in Cabinet, since such information is part of the national
security activities being reviewed. However, it will not have a legitimate interest with respect to the actual debate in Cabinet, as it will not and should not
have the mandate to review national security decisions made by Cabinet.
I note that, in its 2004–2005 Annual Report, SIRC criticized the use of
Cabinet confidence privilege in relation to the listing of terrorist groups under
section 83.05 of the Criminal Code. It stated that it could not perform a complete
review of the role of CSIS in the listing process, as it could not access the Security
Intelligence Reports prepared by CSIS for Cabinet regarding organizations suggested for listing. The RCMP prepares Criminal Intelligence Reports to assist the
Minister in making recommendations to Cabinet about the listing of individuals
under section 83.05. It may be useful for the review body in respect of the
RCMP’s national security activities to have the ability to review the RCMP’s reports to the Minister. In the rare instances where ICRA determines that access
to documents actually submitted to Cabinet for deliberation is necessary to complete its investigation, the RCMP should be required to provide full records of
the information submitted to the Minister for possible discussion in Cabinet.
These records should not be designated Cabinet confidences.
I wish to emphasize that claims of Cabinet confidentiality may not be made
merely to thwart review or gain advantage. The certificate claiming Cabinet confidence privilege may be scrutinized to ensure that the government representative has properly considered whether a document ought to be protected from
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disclosure on this basis. Evidence may be presented on the question of whether
the certificate was properly issued and government witnesses may be cross-examined on the information produced.16
The question of solicitor-client privilege is also somewhat complex. In my
view, ICRA should have access to information covered by solicitor-client privilege if the communication in question took place as part of the decision-making process or series of events being investigated or reviewed. Accessing
solicitor-client advice provided in this context will help ICRA make a thorough
and accurate assessment of the RCMP’s activities. This is of particular importance
in the national security context, as the prior consent of an attorney general is required to lay charges for terrorism offences or offences under the Security of
Information Act, as well as to exercise the new preventive arrest and investigative hearing powers. It is therefore important that ICRA have access to the legal
advice given the RCMP about the exercise of such powers, not to second-guess
or evaluate that advice, but to determine the propriety of the RCMP’s actions in
seeking and complying with the advice received. Legal advice plays such an
important role in national security investigations that a review body unable to
examine the legal advice received by the RCMP would have only a partial and,
at times, distorted view of the Force’s national security activities.
I caution, however, that ICRA should not have access to information subject to solicitor-client privilege that relates to any disputes concerning the exercise of the review body’s powers or other proceedings intended to assess the
RCMP’s activities or the activities of individual officers or employees. In other
words, ICRA should not have access to advice given to the RCMP, other institutions or individuals in connection with their individual interests as they relate
to responding to a legal proceeding or to an investigation or review being conducted by ICRA itself. It is essential that the solicitor-client privilege apply in
such circumstances. My recommendations regarding ICRA’s power to access information from the RCMP are designed in part to limit disputes between the
RCMP and ICRA. It is in respect of those hopefully very rare disputes that the
RCMP will retain a legitimate right to claim solicitor-client privilege.
There is one final issue regarding limitations on access to information on
which I wish to comment. It has been suggested to me that the review body
should not have access to information that would be covered by police informer
privilege, which protects the identity of those who come forward with information regarding alleged criminal activity unless the innocence of an accused is
at stake. It is designed to ensure that informers can come forward without suffering reprisal. In most circumstances, information covered by this privilege,
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such as the identity of a source, will not be relevant to a review. On the other
hand, I can envisage very rare circumstances where such information might be
relevant because, for example, the police may have obtained information from
an unreliable informer. In such cases, it is important for ICRA to have access to
the human source information while at the same time protecting the informer’s
identity from public exposure. I note that SIRC and the CSE Commissioner, as
well as a number of international review bodies have access to human source
information and identity in exceptional circumstances. These bodies may and do
exercise their discretion not to request source information unless it is necessary
for the purposes of review, but they are entitled to disclosure as a matter of law.
While it would not, in my view, be prudent to recognize police informer
privilege as a limitation on ICRA’s powers of access to information, it should be
incumbent upon ICRA to exercise judgment about whether the information is
relevant and, therefore, whether it is necessary to obtain access to it, given the
sensitive nature of such information. Practices such as consistent use of code
names for human sources will generally allow review bodies to review relevant
issues without requiring access to the names of informers. Indeed, in documents
examined in the Factual Inquiry, human source names had generally been replaced with consistent code names. My review of the relevant information was
not impaired by this. In any event, it should never be necessary for ICRA to disclose the identity of a source in any of its reporting. ICRA must take every step
necessary to protect the identity of sources.
2.9
Recommendation 4 (b)
ICRA should have the power to stay an investigation or review because it will interfere with an ongoing criminal investigation or prosecution.
Normally, ICRA will examine law enforcement activities after they have taken
place. Because of the retrospective nature of ICRA’s mandate, concerns about
interference with police independence are significantly reduced. ICRA will not
control or direct the operations of the RCMP. Nonetheless, the nature of national security policing suggests that many files may be kept open for extended
periods and ICRA may have a legitimate interest in examining and commenting
on law enforcement decisions or activities made by the RCMP in ongoing investigations. I note that many review bodies in other countries have the power
to conduct investigations in parallel with criminal investigations. These include
the Independent Police Complaints Commission in the United Kingdom, the
Police Ombudsman for Northern Ireland, the Commonwealth Ombudsman in
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Australia, and Committee P in Belgium. In Canada, one need only think of the
Air India investigation to recognize that some national security investigations
may remain open for long periods of time.
Conceptually, I see no problem with investigation or review of ongoing
files by ICRA. However, ICRA should respect the principle of police independence that allows the police to make law enforcement decisions in an independent manner. It should also ensure that it does not disrupt or unduly interfere
with criminal investigations and prosecutions. A review body has the potential
to do this in a number of ways. For example, where a review body has powers
of inquiry whereby it may compel testimony, issues may arise regarding fairness
to individuals involved in any subsequent criminal or regulatory prosecutions.
These include issues relating to the right to remain silent and the right to a fair
trial under section 11(d) of the Charter. In addition, as I point out in Chapter IX,
ICRA itself could become subject to disclosure obligations in a criminal prosecution. The Crown’s obligations under Stinchcombe could extend to material in
the hands of a review body. Disclosure obligations could include the products
of the review body’s own investigations, such as interview notes, witness statements, documents from other sources that were not in the possession of the
RCMP or the Crown, and the review body’s analysis. Potential disclosure obligations could have an impact on the criminal justice process. In addition, the review body could be placed in the chain of evidence. Specifically, if physical
evidence relevant to a criminal proceeding is examined by a reviewer, such examination may have to be explained when the evidence is introduced in court.
I do not raise these potential effects to suggest that reviews should not take
place during ongoing criminal investigations or prosecutions. As I suggest in
Chapter IX, many potential disclosure problems can be managed by allowing the
review body to provide copies of material that may fall under disclosure requirements to the Attorney General of Canada, who will be in a position to either make the required disclosure or assert any relevant privilege, including one
relating to national security confidentiality. I note only that a review may have
repercussions in respect of the criminal justice system and ICRA will need to
eliminate or minimize unnecessary and undesirable impacts. One of the tools
that should be available to it is the power to stay an investigation of a complaint or a self-initiated review.
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2.10
Recommendation 4 (c)
ICRA should have the power to conduct public education programs and provide
information concerning the review body’s role and activities.
A public education function for ICRA is important in two main respects. First,
public education should play an important role in engendering public trust and
confidence in both ICRA and the RCMP. Given the necessarily secret world of
national security activities, ICRA will act as a surrogate for the public in ensuring that the RCMP is accountable for its actions. This will only work if there is
public trust in ICRA, and such trust can only be established if the public understands how the body works. Thus, it will be important for ICRA to educate the
public about its processes and procedures. To some extent, this can be done in
the reports it releases. Public education activities such as seminars and conferences may also be used.
I caution, however, that ICRA must remain sensitive to its critical function
as an independent and unbiased body. The public education function should not
be used as a platform to campaign for change within the RCMP. In its quasi-judicial role of reviewing complaints and even in its reports on the product of its
self-initiated reviews, ICRA should generally allow any criticisms and recommendations to speak for themselves.
The second important role of a public education function is to foster better public understanding of and more comfort with the complaints process. In
the course of this Inquiry, I heard on numerous occasions about reluctance to
make complaints and even fear of doing so, particularly among new Canadians.
I propose that ICRA engage in public education to publicize the complaints
process and make it more readily accessible. Again, I caution that this public education must be neutral. ICRA may not use it, or be perceived to be using it, to
“troll for business.”
Moreover, public outreach should be a two way street, used by ICRA not
only to educate the interested public about its activities, but also to learn about
the public’s concerns relating to its activities and those of the RCMP.
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2.11
Recommendation 4 (d)
ICRA should have the power to engage in or to commission research on matters
affecting the review body.
One of the features of national security activities that has emerged most clearly
from this Inquiry is their ever-changing nature. As seen in chapters II through V,
both the nature of the threats to Canada and the government’s response to those
threats are perpetually evolving. There is no reason to believe that this will not
continue in the future and that the requirements for an effective review and
complaints mechanism will not continue to change accordingly. New issues will
arise concerning potential harm to Canadians from national security activities
and new approaches will have to be developed to ensure that the RCMP is accountable for its actions.
If ICRA is to be effective, it will need to keep abreast of these changes and
respond proactively to new challenges for effective review. It will be assisted in
this regard by a research function. In its supplementary submissions to the
Inquiry, the CPC pointed out that it had conducted research and gained expertise in regard to many matters involving the law affecting the RCMP, as well
as the RCMP’s policies, training and procedures.
Similarly, I have benefited enormously from the Inquiry’s research into
the approaches to review and oversight taken in other countries. In some
cases, issues that are new to Canada have already been dealt with successfully elsewhere.
The importance of a research capacity will only increase with the recommended self-initiated reviews of the RCMP’s national security activities. Research
into the complex and specialized laws and procedures affecting national security will be essential to effectively use the new review powers.
The review body should also be open to receiving representations from
the public concerning its operation and mandate, as well as areas that would
benefit from research.
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2.12
Recommendations 5 (a) and (b)
ICRA’s complaints process should incorporate the following features:
(a) in the first instance, ability on the part of ICRA to refer a complaint to the
RCMP for investigation or to investigate the complaint itself, if deemed appropriate;
(b) ability on the part of the complainant to request that ICRA review the complaint if the complainant is not satisfied with the RCMP’s investigation and
disposition of it.
I recommend that complaints be investigated by the RCMP at first instance, subject to ICRA’s discretion to perform the initial investigation itself where it considers it necessary or in the public interest. This is similar to what occurs under
the existing CPC complaint investigation model. I recognize, however, that the
particular context of national security policing, including the centralized nature
of such policing within the RCMP, and the need to maintain national security
confidentiality may cause ICRA to exercise its discretion to investigate complaints
itself more frequently than would be the case for other types of investigations.
At times, it may also be more efficient in the national security context for ICRA
to investigate a complaint from the outset.
It is common practice in most parts of Canada and elsewhere to have police forces conduct the initial investigation of public complaints, even when
there is an independent civilian review body responsible for the complaints
process. There are sound reasons for this practice. Complaints frequently involve misunderstandings between members of the public and the police, and
quick resolution is often in the public interest. Moreover, complaints often
involve matters of discipline, which are within the management prerogatives of
the individual police forces. I do not recommend that ICRA be given the power
to impose discipline. Although independent monitoring of the handling of complaints is appropriate, police management will most often be in a better position to impose discipline on officers.
The distinctions between review and oversight should be borne in mind.
The fact of not having the power to issue directions or impose discipline on
police officers will help the review body to achieve critical distance from the
matters being reviewed. Once the review body makes its findings and recommendations, the RCMP will be required to justify its response to them and its decision to either discipline or not discipline individual officers.
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The current process for handling complaints against the RCMP is quite sophisticated. It has a number of layers and structures that encourage discussion
between complainants, the RCMP and the CPC. Initially, this process relies more
on consensual resolution than authoritative decision making. The RCMP Act requires the Commissioner of the RCMP to consider whether a complaint can be
disposed of informally, with the consent of the complainant. Where the complaint is not disposed of in this manner, the Commissioner must provide the
complainant and affected members of the RCMP with interim reports and a final
report setting out the results of the RCMP’s own investigation of the complaint
and the action that has or will be taken to resolve the complaint.17
A complainant who is not satisfied with the resolution of the complaint
has the option of referring it to the CPC. If the Chair of the CPC is not satisfied
with how the RCMP resolved the complaint, the Chair has several options, including requesting that the Commissioner of the RCMP conduct further investigation, having the CPC investigate further, instituting a hearing into the
complaint, and preparing a report with findings and recommendations and sending it to the Minister and the Commissioner of the RCMP.18 The Chair of the CPC
also has the authority, where he or she considers it advisable in the public interest, to investigate or institute a hearing into a complaint, regardless of whether
or not the complaint has been investigated, reported on or otherwise dealt with
by the Force.19
In cases where the CPC sets out findings and recommendations in a report, the Commissioner of the RCMP is required to review the complaint and notify the Minister and Chair of the CPC of further action that will be taken or
the reasons for not taking further action. Based on this response, the Chair of
the CPC then provides a final report to the complainant, the Minister and
the Commissioner.20
Although this structure is somewhat complex, I am satisfied that it provides a sound and flexible framework for the investigation and resolution of
complaints. It allows the RCMP to handle the initial investigation of a complaint,
but also enables the CPC to take action when it deems it necessary. It thus provides a system of checks and balances between the RCMP and the CPC, along
with a flexible array of options in recognition that one process will not be appropriate for all complaints. The CPC appears to be satisfied that it has adequate options under the existing system, as it recommended in its Policy Review
submissions that “the existing system be maintained such that all complaints are
investigated by the RCMP at first instance, bearing in mind the CPC Chair’s existing ability to perform the initial investigation where she considers it necessary
in the public interest.”21 I also note that the existing process has considerable
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force, in that the Commissioner is required to consider the CPC’s findings and
recommendations and then justify the decision to follow or depart from those
findings and recommendations.
When asked to review a complaint, the chair of ICRA should have the option of dismissing the complaint, asking the RCMP to reinvestigate the complaint
or reconsider its disposition, investigate the complaint itself, order a hearing into
the complaint, or make its own report with findings and recommendations, to
be sent to the Commissioner and Minister.
2.13
Recommendation 5 (c)
ICRA’s complaints process should incorporate an ability on the part of ICRA to dismiss a complaint at any stage of an investigation as trivial, frivolous or vexatious,
or made in bad faith.
I am not recommending that there be a threshold for receiving complaints or
processing them through different stages of an investigation or review process.
In my view, a more flexible approach is desirable, especially since a complainant
will often not know the full extent of RCMP involvement in a national security
investigation. However, it is essential that ICRA be able to screen out complaints
without merit at any stage.
Periodically, ICRA should assess investigations of complaints to determine
whether any complaints are frivolous or vexatious. Where it is apparent there is
no need for investigation, the investigation should be discontinued and the
complaint, dismissed. It is in the interest of no one, including the RCMP and the
complainant, to have the investigation of a complaint continue past this point.
I note that, in his report concerning the police complaints system in Ontario,
the Honourable Patrick LeSage recommended that a new independent civilian
review body “review complaints to determine whether they should be pursued
further and screen out those that do not reveal a reasonable basis for the complaint, those that may be more suitably addressed through another process or
those that should otherwise not be subject to further action.”22 There is obvious
merit to such a screening mechanism. My one concern relates to the fact that decisions about reasonable basis should be based on sufficient information, but the
nature of the RCMP’s national security activities means that such information
may not be available until after significant investigation by ICRA. I do not propose to provide the detail of the process that should be followed when consideration is being given to dismissing a complaint because it is frivolous or without
merit. I leave that to those responsible for implementing these recommendations.
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2.14
Recommendation 5 (d)
ICRA’s complaints process should incorporate the establishment of a program
providing opportunities for the use of mediation and informal complaint resolution, except where the complainant does not have the information about the
RCMP activities that are relevant to the complaint.
I recommend that there continue to be a process for the informal resolution of
complaints. I also recommend that ICRA have the discretion to delay or bypass
the use of such process where the circumstances of a national security investigation require it.
At present, the RCMP Act specifically contemplates the informal resolution
of complaints with the agreement of the complainant.23 The CPC has undertaken an alternative dispute initiative with a view to reducing the backlog of
complaints. In its Annual Report for 2004–2005, it reported that alternative dispute resolution was attempted with respect to 502 cases, and 471 cases were successfully resolved.24 Although I do not wish to diminish the importance or utility
of a voluntary and consensual process of alternative dispute resolution with respect to the wide range of complaints made against the RCMP, I do express a
note of caution about the use of such processes in complaints relating to national
security activities. My concern relates to the fact that, in the national security
context, complainants often may not have full information about police actions
relating to them at the time they make their complaints. In such circumstances,
it may be appropriate to delay alternative dispute resolution until after the
complainant has the advantage of an investigation into the police activities.
Alternative dispute resolution is a voluntary process that involves those
who have an interest in reaching an agreement. It is important that complainants
be fully informed about their treatment by the police before they agree to
a settlement.
Further, because of national security confidentiality, a complainant may
never be given all of the details of the relevant actions of the RCMP. Thus, depending on the nature of the information withheld, informal resolution may not
be appropriate at any stage of a complaint investigation. Given the objective of
ensuring RCMP accountability, where ICRA is aware of relevant information
withheld from the complainant, it should have the discretion to take a complaint investigation to conclusion without resort to alternative dispute resolution initiatives.
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2.15
Recommendations 5 (e) and (f)
ICRA’s complaints process should incorporate:
(e) opportunity for the Commissioner of the RCMP and affected members of the
RCMP to make representations to ICRA and, where a hearing is commenced,
to present evidence and be heard personally or through counsel;
(f) opportunity for the complainant to make representations to ICRA and to
present evidence and be heard personally or through counsel at a hearing.
It is important that the parties to a complaint have an opportunity to participate
in the hearing of a complaint to the extent possible. The parties to a complaint
should include the individual or group making the complaint, the RCMP members and employees who are the subject of the complaint, and the Commissioner
of the RCMP. There will be circumstances, however, where the complainant’s
right to participate will of necessity be abrogated.
The existing system appropriately provides that complainants be notified
of important decisions made with respect to their complaints. As I mention
above, the Commissioner of the RCMP is required to inform the complainant of
the results of the investigation and of any action that will be taken. In addition,
the Commissioner is required to notify the complainant in writing where a decision is made not to investigate a complaint on the grounds that it should be
dealt with by another federal mechanism; that it is trivial, frivolous or vexatious,
or was made in bad faith; or that investigation is not necessary or reasonably
practicable.25 Further, the CPC is required to notify the complainant if it is satisfied with the Commissioner’s disposition of a complaint, and to provide the
complainant with a copy of its final report, including findings and recommendations, if it decides to conduct its own inquiries into a complaint.26
Where a hearing is held with respect to a complaint against the RCMP, the
parties are given notice of the hearing, and they and any other person with a
substantial and direct interest in the complaint have a right to be “afforded a full
and ample opportunity, in person or by counsel, to cross-examine witnesses
and to make representations in the hearing.”27 This represents a stronger set of
procedural rights to participate than under the CSIS Act, which provides that the
complainant, the deputy head and the director “shall be given an opportunity
to make representations to the Review Committee, to present evidence and to
be heard personally or by counsel, but no one is entitled as of right to be present during, to have access to or to comment on representations made to the
Review Committee by any other person.”28
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Generally speaking, the provisions in the RCMP Act relating to hearings are
preferable to those in the CSIS Act because of their recognition of a right of the
complainant and other parties to cross-examine those who provide evidence.
However, the provisions in the CSIS Act are based on recognition that the right
of cross-examination cannot always be absolute in the national security context.
In some cases, complainants are not allowed to participate because of national
security confidentiality concerns. Below, I recommend that ICRA have the authority to appoint an independent, security-cleared counsel to assist with hearings when complainants are not able to participate.
2.16
Recommendation 5 (g)
ICRA’s complaints process should incorporate open and transparent hearings of
a complaint, to the extent possible, but authority for ICRA to conduct all or part
of a hearing in private when it deems it necessary to protect national security
confidentiality, ongoing police investigations or the identity and safety of sources.
Hearings into complaints should be open and transparent to the extent possible. Proceedings are improved by openness and adversarial cross-examination.
Complainants not given the opportunity to cross-examine a person giving evidence may understandably feel that there has not been a fair hearing. Public
confidence may also be eroded by so-called “secret hearings.” Nonetheless, ICRA
should have the authority to conduct all or part of a hearing in private when this
is necessary to protect national security confidentiality, ongoing police investigations, or the identity and safety of sources.
As I discuss above, under the existing RCMP complaints process, most complaints are initially investigated by the RCMP. As with most police investigations,
such investigations should be confidential. I note that the CSIS Act is more explicit in this regard, providing that “[e]very investigation of a complaint . . . by
the Review Committee shall be conducted in private.”29
In my view, investigations into complaints about the RCMP’s national security activities, whether by the RCMP or the review body, should be conducted
in private. This will work to protect both national security confidentiality and the
privacy interests of the complainant. However, as I indicate below, complainants
should generally be informed of the results of an investigation and be free to
make such results public.
Although initial investigations of complaints should be conducted in private,
hearings into complaints are a different matter. Such hearings are infrequent, as
they are usually held only when there is a special public interest to a complaint.
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Be that as it may, the general rule that hearings should be held in public should
apply to such hearings, subject to specific and proportionate restrictions as required to protect national security confidentiality, ongoing investigations or proceedings, or the identity and safety of sources.
At present, hearings into complaints against RCMP officers are held in public. However, the CPC does have discretion to hold the hearing in private if the
members of the CPC presiding at the hearing are of the opinion that information will be disclosed that “could reasonably be expected to be injurious to the
defence of Canada or any state allied or associated with Canada or the detection, prevention or suppression of subversive or hostile activities,” “could reasonably be expected to be injurious to law enforcement,” or is information
“respecting a person’s financial or personal affairs where that person’s interest
or security outweighs the public’s interest in the information.”30
The above provisions of the Act should be revised and updated to conform
more closely with both the requirements concerning national security confidentiality under the Canada Evidence Act and recent rulings on the importance
of transparency in legal proceedings.31 This will give those holding hearings
the advantage of the considerable jurisprudence that has developed around
these issues.
2.17
Recommendation 5 (h)
ICRA’s complaints process should incorporate discretion by ICRA to appoint
security-cleared counsel independent of the RCMP and the government to test
the need for confidentiality in regard to certain information and to test the information that may not be disclosed to the complainant or the public.
Investigation of many complaints regarding national security investigations will
require consideration of information that cannot be disclosed to the public or the
complainant. In the event of a hearing, it will be necessary to exclude the complainant and his or her counsel for any portion that involves evidence that must
be kept secret. Closed hearings raise three potential problems: the complainant
who has a direct interest in the hearing is not able to participate and may understandably question the adequacy and fairness of the process; closed hearings
may undermine the public trust and confidence in the process and outcome; and
members of ICRA will not have the benefit of having evidence tested in an adversarial proceeding.
One mechanism sometimes used to address these problems is the appointment of an independent counsel with the necessary security clearance to
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participate in the closed hearing and perform, at least partially, the role that
would have been played by the complainant or other affected party excluded
from all or a portion of the hearing. Although models for the use of independent counsel vary, an independent counsel typically does two things: tests the
need for confidentiality of information and for a closed hearing in regard to all
or some of the evidence, and tests the evidence called from the perspective of
the affected parties who are excluded. Although such participation by independent counsel is not a complete substitute for the involvement of excluded
parties, it provides a significant benefit to the process and is a useful compromise that can allow cross-examination and adversarial argument and inspire
public confidence.
In the Factual Inquiry report, I commented on the important role that had
been played by Commission counsel during the in camera hearings when Maher
Arar and his counsel had been excluded, and also described the role played by
Ronald Atkey and Gordon Cameron, the amici curiae, who had made submissions with respect to the government’s claims regarding national security confidentiality. Together, Commission counsel and Messrs. Atkey and Cameron
carried out the function of independent counsel. Commission counsel met with
Mr. Arar and his counsel to seek their suggestions and views on the conduct of
in camera hearings. I emphasize that Commission counsel were able to consult
in this fashion even after reviewing confidential material, without disclosing such
information to those without security clearance.
In the United Kingdom, there is a well-established program for appointing
independent counsel, called special advocates, in a variety of proceedings in
which evidence must be kept confidential. Although the proceedings covered
by the special advocate process do not include police complaints, the experience in the United Kingdom is still instructive. The role of special advocate was
first introduced in the United Kingdom by the Special Immigration Appeals
Commission Act 1997 (SIAC Act), which established the Special Immigration
Appeals Commission (SIAC) to hear appeals by individuals against various immigration orders involving such matters as deportation, detention and refusal of
admission. The SIAC Act and accompanying instruments provide for the
appointment by the government of a special advocate to represent the appellant’s interests where the government wishes to exclude the appellant and his
or her legal representative from certain proceedings on the basis of the sensitivity of the information to be adduced. The Act followed a 1996 ruling32 by the
European Court of Human Rights that the United Kingdom’s former procedure,
which excluded the appellant and did not allow for sufficient testing of the
�RECOMMENDATIONS
evidence, breached the Convention for the Protection of Human Rights and
Fundamental Freedoms.33
Today, special advocates are used in numerous proceedings in the United
Kingdom. They receive general instructions and support from the government
and may consult with the affected parties before they receive confidential material. However, once they receive such material, they are prohibited from communicating with the affected parties without SIAC’s consent, although they may
still receive unsolicited information from those parties.34
In the “closed” portion of proceedings, special advocates’ duties and powers in representing the interests of appellants and other relevant individuals in
the proceedings are twofold:
•
•
to test the claims made by the Home Secretary in support of non-disclosure
of material (for example, to ascertain whether any possible or real harm
could arise from disclosure, or whether the material in question is already
in the public domain); and
to represent the affected parties’ interests in relation to those parts of the
hearings held in camera. This entails making the best case possible
from all the available evidence, both “open” and “closed” — but without
informed instructions from the appellants and without the ability to call
witnesses.
The use of special advocates in the United Kingdom has been subject to
some criticism, including criticism of the role of the government in selecting advocates, the advocates’ expertise and resources, restrictions on their ability to call
evidence, and restrictions on their ability to communicate with the affected
parties after they have received confidential information. All of these criticisms
deserve consideration if the model is adapted to the Canadian context.
Nevertheless, I am convinced that independent counsel can play an important role in ensuring both adversarial challenge to claims of national security confidentiality and an appropriate testing of the evidence in closed hearings.
The experience in the Factual Inquiry supports this conclusion and also suggests that, with caution and care, independent counsel can still communicate
with an affected party after being exposed to material covered by national security confidentiality. Properly supported and resourced independent counsel
can play a valuable role in relation to hearings of complaints about the national
security activities of the RCMP.
ICRA should have the discretion to appoint independent counsel in those
cases where it considers it to be a benefit. In making this recommendation, I recognize that ICRA may have its own counsel present during a hearing to present
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evidence and, in such cases, that counsel may be able to fulfill the role of independent counsel in a satisfactory manner. Ultimately, the goal must be to provide a process that fosters confidence on the part of complainants and the public
and that assists ICRA by ensuring that national security confidentiality claims
and evidence called at hearings are properly tested.
2.18
Recommendation 5 (i)
ICRA’s complaints process should incorporate the ability for ICRA to seek the
opinions or comments of other accountability bodies, such as the Canadian
Human Rights Commission, the Privacy Commissioner of Canada and the
Information Commissioner of Canada.
As already mentioned, the RCMP is subject to review by several bodies, including the Canadian Human Rights Commission and the Privacy Commissioner.
The jurisdiction of these two bodies in particular will overlap with that of ICRA.
In some cases, it is in the public interest for review bodies to co-operate with
each other and share their particular expertise. ICRA should not hesitate to
seek outside opinions from other review bodies with special expertise that may
be relevant to a complaint. Moreover, consistent with the need to allow the
affected parties to participate as much as possible and the need to ensure that
the process is as transparent as possible, ICRA should disclose any such assistance to the parties to the complaint and allow them to comment on the outside
opinions provided.
ICRA should also have the power to retain independent experts to assist it
in its work.
2.19
Recommendation 6
ICRA should be structured so that complaints and reviews related to the RCMP’s
national security activities are addressed only by specified members.
Appointments of such members should be aimed at inspiring public confidence
and trust in their judgment and experience. Appointees should be highly-regarded
individuals with a stature similar to SIRC appointees.
The CPC as currently structured has the potential for 29 members. Typically,
however, the government has made far fewer appointments. The large size
of the CPC is designed to provide for provincial representation, because in all
but two provinces (Ontario and Quebec), the RCMP provides law enforcement services.
�RECOMMENDATIONS
A commission of 29 members would be extremely unwieldy and even impractical. However, the size and composition of the component of the review
body that would deal with RCMP activities other than national security activities
raise issues that are beyond my mandate and that I have not examined. Thus,
my recommendation with respect to the composition of the RCMP’s review body
pertains only to those members who would have responsibility for reviewing national security activities and hearing complaints related to such activities.
Complaints and reviews related to the RCMP’s national security activities
should be addressed by specified members of ICRA. In my view, three to five
members would be appropriate in this respect.
In making appointments, the credibility of ICRA is crucial. I recommend
that appointees be highly-regarded individuals whose judgements would be
broadly accepted. Individuals should have the stature of SIRC appointees. In
addition, it is important that the Governor in Council consider individuals with
knowledge and experience in the areas of policing, national security, human
rights and freedoms, public law and multicultural communities, as well as a
demonstrated commitment to public service. Taken collectively, the appointees
should be of such a stature that the public will have confidence that they can
serve as surrogate reviewers of those national security activities that cannot be
disclosed to the public. This is a high threshold. However, it is essential that the
government make appointments that foster confidence and trust in ICRA. In my
view, there is merit in having the government consult with political party leaders before making appointments to ICRA, as it does for SIRC. In addition, I note
that the Minister of Public Safety and the Minister of Justice have jointly established a Cross-Cultural Roundtable on Security to advise them with respect to national security issues that may emerge in a diverse and pluralistic society. To
build confidence in ICRA, the government might wish to engage in a broad consultation about potential appointees with bodies such as the Roundtable.
It will obviously be necessary for the specified members to have the necessary security clearances to access all of the necessary information to effectively review the RCMP’s national security activities.
Finally, if the government makes appointments to respond to the need for
provincial and territorial representation on the review body for the RCMP, I do
not think that it is necessary for those appointees to form part of the specified
group responsible for reviewing the RCMP’s national security activities. Matters
relating to national security fall within the federal domain. Therefore, in my
view, the rationale for provincial and territorial representation does not apply to
the “national security” appointees.
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2.20
Recommendation 7
ICRA should prepare the following reports to the Minister of Public Safety (the
Minister) and the Commissioner of the RCMP:
(a) Reports arising from self-initiated reviews and investigations of complaints,
which should include non-binding findings and recommendations.
(b) Annual reports on its operations to the Minister, who should lay an edited
version of the report, omitting national security information, before each
House of Parliament.
All of the above reports may include confidential information (including information subject to national security confidentiality) and should also include an edited version that ICRA proposes for public release.
ICRA should make reports arising from self-initiated reviews to the Minister and
the Commissioner of the RCMP. The Minister is the appropriate government official to receive ICRA’s reports, as he or she is responsible for the overall direction of the RCMP and is politically accountable for the propriety of the RCMP’s
activities. The Commissioner is also an appropriate recipient, given his or her
management responsibility for the Force.
Such reports should include the results of the reviews conducted, as well
as any recommendations for improvements. I would also expect that they would
include the review body’s strategy for conducting self-initiated reviews. SIRC’s
annual reports may serve as a useful model in this regard. ICRA’s reports regarding self-initiated reviews should set out in detail the activities reviewed, the
nature of potential difficulties, and its process and recommendations. It may be
that some of the information contained in those reports will need to be kept confidential. In such cases, ICRA should indicate in its reports what portions are subject to confidentiality requirements.
With respect to investigations or hearings into complaints, I recommend
the continuation of the current procedure, whereby the Commissioner makes an
initial report about the complaint, subject to review by the review body, then the
review body has the option of asking the RCMP to conduct further investigation,
conducting further investigation itself, or commencing a hearing. Reports by
ICRA should be non-binding, as is now the case with CPC reports, and the
Commissioner should continue to be required to respond to those reports. In
most cases, I would expect the Commissioner to agree with recommendations
�RECOMMENDATIONS
made by ICRA. If, however, the Commissioner disagrees, then the Commissioner
should be required to provide reasons to the Minister and ICRA.
At the present time, complaint reports are generally not made public by
the CPC, except where the CPC determines that it is in the public interest to do
so, subject to privacy concerns. However, complaint reports are subject to release under access to information legislation. I am of the view that complaint reports serve a public interest and public confidence function and should be made
public, after editing for privacy and national security confidentiality concerns.
Once it has given the Attorney General ten days to respond with respect to national security confidentiality issues under the Canada Evidence Act, ICRA
should be able to publish complaint reports that have been edited to remove information subject to security confidentiality requirements and personal information (unless the subject of the personal information consents to release of
that information). Publication of complaint reports should increase public trust
and confidence in both ICRA and the RCMP.
2.20.1
Recommendation Powers
Several participants in the Policy Review suggested that the review and complaints body should have the power to make binding orders, such as orders for
compensation, correction of files, and declarations that a complainant is not the
subject of a national security investigation. In my view, giving the review body
such power is not a good idea, as there is a risk of undermining the
Commissioner’s responsibility for the direction and control of the Force. It is
clearly in the public interest that the complaints process be accepted within the
RCMP. Giving ICRA the power to issue binding orders could provoke unnecessary resistance and opposition within the RCMP to the review and complaint
process and could understandably thrust ICRA and the RCMP into an undesirable confrontational mode. Moreover, binding orders might ultimately impede
ministerial accountability for the Force.
ICRA’s power to issue non-binding reports should not be minimized. The
fact of issuing a report, even one that is not binding, is a serious matter that
will command attention from the head of the RCMP, the Commissioner. In addition, the fact that the Minister receives the non-binding report should affirm
the importance of ministerial responsibility for the RCMP and add to the report’s significance.
I note that the CPC, which has a long history of making recommendations,
was not supportive of binding orders in its Policy Review submissions. It com-
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mented as follows on the difference between the ability to offer recommendations and the making of binding orders:
This represents the line of demarcation between review and oversight. An oversight mechanism that is capable of ordering the overseen body to do, or refrain
from doing, something interferes with that body and undermines its accountability.
By contrast, independence is preserved where the overseen body retains the ultimate right to decide if and how to act. Thus, the existence of the CPC as a recommendation-making body, even with enhanced powers, poses no threat to police
independence.35
The complainant should generally be informed of both ICRA’s recommendations and the Commissioner’s reasons for accepting or diverging from them,
where it is possible to do so without undermining national security confidentiality, interfering with ongoing police investigations or compromising sources
and investigative methods. However, ICRA should be able to refuse to confirm
or deny the existence of a complaint or any elements of a complaint where to
do so would itself would result in a risk in any of these respects. The complainant has a clear interest in the outcome of a complaint and should be entitled to be informed of that outcome, subject to this exception.
A number of participants in the Policy Review indicated that the RCMP review body should have the power to recommend an award of compensation in
cases involving national security. It was suggested that, in the absence of such
a power, complainants may have nothing to gain by making a complaint and potentially something to lose in terms of time, adverse publicity or cost.
I am not inclined to recommend that ICRA be given this power. The expertise that I envision the review body will require does not include expertise
for assessing damages or compensation. In my view, this proposal strays too far
from the objectives of national security review identified above. Furthermore,
doing so would create an anomalous situation, as only those making national
security complaints would be potentially entitled to compensation. I think it best
to maintain the status quo in this regard. Redress may be sought in the civil
courts or from the Canadian Human Rights Commission, where appropriate.
2.20.2
Annual Reports
The RCMP Act36 requires that the Chair of the CPC prepare and submit annual
reports to the Minister outlining the activities of the CPC and making any recommendations. It also requires that the Minister cause a copy of the annual report to be laid before each House of Parliament. This reporting arrangement
�RECOMMENDATIONS
appropriately places responsibility on the responsible minister and ensures that
the legislature and the public are in an informed position to ask questions of that
minister. Although the Act does not make provision for the Commissioner to receive a copy of the report, it would be advisable to have such a requirement embodied in the law in order to foster dialogue between ICRA and the
Commissioner and ensure that the Commissioner is in a position to respond in
an informed manner to any questions the Minister may have in relation to ICRA’s
reports and recommendations.
2.20.3
Transparency of Reports
Reports by ICRA will have to be edited to ensure national security confidentiality. The CSIS Act provides that SIRC is to consult with the Director of CSIS
when preparing reports, to ensure respect for secrecy obligations.37 Without
question, such consultation is to be encouraged, and ICRA should similarly be
required to consult with the Commissioner of the RCMP. At the same time, I am
of the view that a more formal process is also required. This would include delivering an edited copy of the report to the Attorney General of Canada at the
same time the report is submitted to the Minister of Public Safety and the
Commissioner of the RCMP. Delivery of the edited report would constitute notice under section 38.01 of the Canada Evidence Act concerning the disclosure
of sensitive or potentially injurious information, as defined in that act. The
Attorney General would then have ten days38 to inform ICRA and the Minister
and Commissioner about his or her decision to allow or oppose disclosure of
the report proposed by ICRA for public release.
I would expect that most, if not all, disputes about what can be released
to the public would be resolved without litigation. Litigation is inevitably costly
and lengthy and may undermine public confidence in the review body. One
could well imagine that the public would lose confidence in a review body that
was unable to comply with its statutory obligations to issue annual reports to the
Minister (to be laid before Parliament) because of a dispute in Federal Court
over claims of national security confidentiality. It is to be hoped that, in all cases,
ICRA and the government will be able to agree to disclose as much information
as is possible without jeopardizing ongoing investigations, sources and methods.
Any temptation to make overly broad claims of national security confidentiality to prevent the release of information about embarrassing incidents should
be resisted.
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2.21
Recommendation 8
ICRA should have an adequate budget to fulfill its mandate in relation to the
RCMP’s national security activities, including for purposes of self-initiated review.
The above recommendations amount to a significant enhancement of the CPC.
I have recommended a substantial increase in the review body’s powers to obtain a wide range of information from the RCMP and have also recommended
that it be given broad authority to conduct self-initiated reviews of the RCMP’s
national security activities. Implementation of these recommendations will require a transformation of the CPC from a body largely concerned with monitoring complaints to one with special responsibility for monitoring the RCMP’s
national security activities even in the absence of any complaint.
It will be important that ICRA members be given the training and expertise
to fulfill the new mandate effectively. This may involve enhancing their national
security and review expertise. In the short term, assistance may be required from
people with experience in the review of national security activities at SIRC, the
Office of the CSE Commissioner and the Office of the Inspector General of CSIS,
for example. Secondments may even be required. I hasten to add that ICRA
must develop its own unique expertise with respect to the review of national security policing, which is and should remain distinct from the review of security
intelligence, given the RCMP’s law enforcement and crime prevention mandate.
I would expect that ICRA’s budget would be increased to account for its
new responsibilities, should these recommendations be accepted. Even if all my
recommendations were embraced in legislative reforms, they could be defeated
by inadequate funding. Care should also be taken to ensure that additional
resources are dedicated to the new responsibilities of ICRA and not diverted to
other no doubt pressing needs within the CPC.
2.22
Recommendation 9
There should be independent review, including complaint investigation and selfinitiated review, for the national security activities of the Canada Border Services
Agency, Citizenship and Immigration Canada, Transport Canada, the Financial
Transactions and Reports Analysis Centre of Canada and Foreign Affairs and
International Trade Canada.
�RECOMMENDATIONS
2.22.1
Introduction
This recommendation flows from the mandate and the work of this Inquiry. My
mandate directs that I make recommendations for an independent, arm’s-length
review mechanism for the RCMP’s national security activities. It also directs that
I make recommendations as to how that mechanism should interact with existing review mechanisms. My mandate is concerned with the relationship between agencies that review national security activities and, implicitly, with issues
relating to the review of the national security activities of other entities when
those activities are integrated39 with those of the RCMP.
The importance of interaction among those reviewing the national security
activities of the various federal agencies involved in the field is clear. It is apparent both from my research in the Policy Review and from the evidence I
heard in the Factual Inquiry that integration of operations is a central feature of
both the RCMP’s approach to its national security mandate and the federal government’s approach in general. In recent years, the government has increased
emphasis on pursuing an integrated, broad and comprehensive national security policy. I have no doubt that integration of national security activities among
the various federal entities involved is essential. The result, however, is that, increasingly, adequate review of the national security activities of one agency requires review of all the entities involved in the activities being reviewed.
The difficulty in this regard flows from the fact that many federal entities involved in national security activities have little or no independent review of the
kind that exists for CSIS or the CSE, or the one that I am proposing for the
RCMP. There is no federal ombudsman or review body that specializes in comprehensive review of the government’s often secret national security activities.
The review that is carried out is less extensive and very different in form. My
concern is that, given the different types and levels of review, some independent and some not, some external and some not, there could be serious accountability gaps and incoherent or inconsistent results in the review of
integrated activities. There is significant advantage to having the same or similar types of review for national security activities that are integrated, but conducted by different agencies.
I recognize that there are some independent review mechanisms within the
federal arena that apply to all federal entities: the Canadian Human Rights
Commission, the Privacy Commissioner, the Auditor General and the Information
Commissioner. However, none have the broad mandate necessary to effectively
and thoroughly review the national security activities of federal entities for
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compliance with laws, policies and standards of propriety. These review mechanisms are focused on specific subject matters and do not provide the broad or
overall accountability for national security activities that I consider necessary for
the RCMP and the other five agencies and departments in question here.
If the interactions between ICRA and the review or accountability mechanisms for other national security entities are to be effective, it would be greatly
beneficial to have the other entities reviewed by an independent review agency
with powers similar to those of the review agency for the RCMP.
Recommendation 11 concerns the enactment of statutory gateways among review agencies with respect to integrated national security activities. Such gateways are an effective and necessary means to review integrated activities.
However, in cases where there is no independent review of an entity involved
in national security activities, there is a risk that statutory gateways could be
bridges to nowhere. The absence of independent review leaves open the potential for gaps in determining where accountability lies for integrated national
security activities. In addition, different types of review mechanisms are more
likely to apply inconsistent standards and obtain inconsistent results in relation
to the same activities, including integrated activities involving the RCMP. Thus,
to make recommendations for the effective review of RCMP national security activities that are integrated with the activities of other federal entities, it is very important to look at the review mechanisms for those other entities.
The need for effective independent review of the national security activities of federal entities other than those currently subject to independent review
became a central issue in the Policy Review process. With the assistance of
Policy Review legal counsel and the government, I did a survey of the national
security activities presently carried out by over twenty separate federal agencies
and departments. In Chapter V of this Report, I describe in some detail the
mandates of those entities, their national security activities, and the amount of
integration with the RCMP.
Throughout the Inquiry, there was a good deal of support for the extension
of independent review to the national security activities of all federal national
security actors not currently subject to such review. Many of the parties to the
Inquiry suggested that I should recommend the creation of a “super agency” to
conduct such review. In addition, during the public roundtables convened for
this Inquiry, experts from Canada and abroad spoke of the need for independent review of the national security activities of a broad range of operational entities, not just the traditional law enforcement and security intelligence agencies
currently subject to such review.40
�RECOMMENDATIONS
Before final submissions were made in the Policy Review, the Inquiry
sought comments on a range of options for addressing issues arising from the
fact that many different federal entities are involved in the area of national security and the need for integrated or coordinated review. One of the options put
forward for discussion, the “super agency,” would extend independent review
to all federal entities involved in national security activities. There was considerable discussion about the “super agency” model at the ensuing public hearings. No one, including the government, suggested that my recommendations
should not address the issue of extending independent review to federal entities involved in national security activities other than the RCMP, if I considered
it necessary to do so.
As a result of the Policy Review process and my observations during the
Factual Inquiry, I have reached four conclusions with respect to the extension
of independent review:
(i)
The government should extend independent review to the national security activities of the CBSA, CIC, Transport Canada, FINTRAC and DFAIT.
(ii) ICRA is the most appropriate body to review the CBSA, given the latter’s important law enforcement mandate.
(iii) SIRC is the most appropriate body to review the national security activities
of the other four entities.
(iv) In five years’ time, the government should appoint an independent person
to conduct a review of the effectiveness of the review of the federal government’s national security activities and to determine whether there are
other federal government agencies or departments that, by virtue of their
national security mandate, should also be subject to independent review.
2.22.2
Need for Independent Review
In general terms, I have two reasons for concluding that the government should
extend independent review to the national security activities of the five entities
mentioned above: the nature of their national security activities, which raise
many of the same concerns that give rise to the need for independent review of
the national security activities of the RCMP, CSIS and the CSE; and the degree
of integration of the national security activities of each of the five entities with
those of the other federal actors subject to independent review, including
the RCMP.
Independent review is required to provide effective review of integrated
activities, including integrated activities involving the RCMP. Without the
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ability of an independent review body to make findings and recommendations
about the five entities, there will be clear accountability gaps in the national security framework.
I provide a brief description of the national security activities of each of the
five entities below. Greater detail is provided in Chapter V.
2.22.3
Canada Border Services Agency (CBSA)
The Canada Border Services Agency (CBSA) was created in December 2003. It
has a mandate to manage the movement of goods and people into Canada and
movement of goods out of Canada at all ports of entry. The RCMP is responsible for enforcing Canadian laws with respect to the flow of goods and people
across Canada’s borders between ports of entry. The role of the two agencies is
thus highly complementary, as evidenced by the participation of both in
Integrated Border Enforcement Teams (IBETs).41 Similarly, the activities of the
CBSA and CIC with respect to immigration issues are integrated with activities
of both CSIS and the RCMP.
The branch of the CBSA that is most relevant to national security is
the Enforcement Branch, which houses the CBSA’s intelligence capability. It includes the Threat Analysis and Assessment Directorate, National Security
Directorate and Border Intelligence Directorate. The Enforcement Branch also
deals with immigration screening, fraudulent travel documents, investigations,
detention, removals, counter-terrorism, counter-proliferation, strategic exports
and contraband.
CIC and the CBSA share responsibility for administering Canadian immigration laws, which govern the movement of people into Canada and removal
of non-citizens from Canada. Generally, the CBSA focuses on the security
of Canada’s borders and on threats and risks to the country. It prevents entry
by people not legally allowed into Canada (inadmissible persons), collects
intelligence, and detects, arrests, detains and removes people who are in
Canada illegally.
The CBSA also enforces customs laws, which regulate the goods and currency that may enter Canada. This responsibility includes reporting certain crossborder financial transactions to FINTRAC and/or the RCMP. In enforcing customs
laws, CBSA officers have the power to search individuals and baggage and seize
certain goods, including currency. In addition, the CBSA has responsibility for
enforcing restrictions on the export of strategic goods (goods that could be used
to make sophisticated weaponry, etc.).
�RECOMMENDATIONS
CBSA officers staff all points of entry into Canada, at which they screen
people and goods and conduct interviews and secondary examinations that may
involve issues of national security.
When performing their enforcement duties under customs and immigration
legislation, CBSA officers generally have the same powers as police officers, including powers of arrest, detention, search and seizure. Under the Customs Act,
CBSA officers may also take breath and blood samples. Under immigration laws,
in defined circumstances, CBSA officers may issue arrest warrants and may detain and arrest without warrant. The CBSA has legal responsibility for immigration detention facilities, including the conditions of detention therein, even
though Correctional Service Canada staffs the facilities.
The CBSA is also highly integrated into Canada’s national security landscape. For instance, it works closely with CIC, the RCMP, CSIS and other
Canadian and international agencies in its screening functions at points of entry.
CBSA Intelligence is responsible for placing and maintaining “lookouts,” electronic file records that flag or identify particular travellers or vehicles according
to risk indicators or intelligence. Lookouts may relate to either customs or immigration issues, and they contain personal information. The information upon
which lookouts are based is generally provided to the CBSA by other agencies,
usually CSIS, the RCMP, the Department of National Defence (DND), the CSE or
American law enforcement authorities. The CBSA participates in several multiagency initiatives related to national security, including IBETs, INSETs and the
Integrated Threat Assessment Centre (ITAC). The RCMP and the CBSA share responsibility for gathering criminal intelligence to assist investigations relating to
cross-border national security issues. The CBSA screens travellers entering
Canada for compliance with immigration and customs laws, and it maintains
databases to assist in enforcement. It runs the National Risk Assessment Centre
(NRAC), which receives and analyzes passenger information from airlines to
identify individuals who pose security threats. This information may include any
information in the air carrier’s possession, such as frequent flyer history, emergency contact details, credit card billing information, addresses, email accounts
and information about special health needs. NRAC shares Advance Passenger
Information (API), including terrorism and serious crime-related lookouts, with
the U.S. National Targeting Center. NRAC is the focal point for receiving terrorist watch-list information from the United States. It also receives and analyzes advance commercial information for risk and co-operates closely with U.S.
authorities on cargo screening.
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The CBSA plays a significant role in the security certificate process. It evaluates classified national security information, which may not be available to the
person who is the subject of the certificate or to that person’s counsel, and
makes recommendations to the Minister of Citizenship and Immigration regarding the individual’s participation in activities that would result in inadmissibility on grounds of national security or other grounds set out in the
Immigration and Refugee Protection Act. The Minister considers these recommendations before signing the security certificate.
All of the reasons for recommending independent review of RCMP national
security activities apply to the national security activities of the CBSA as well. As
noted above, within the limits of its mandate, the CBSA often operates in a manner similar to that of a police force. There is a significant potential for the CBSA’s
activities to affect individual rights, dignity and well-being, and much of the national security activity undertaken is not disclosed to the public.
2.22.4
Citizenship and Immigration Canada (CIC)
Together with the CBSA, Citizenship and Immigration Canada (CIC) has responsibility for managing immigration and entry to Canada for non-citizens. It
is involved in two principal types of national security activities: screening temporary visa, immigration and citizenship applicants and refugee claimants; and
conducting pre-removal risk assessments and writing danger opinions, including in regard to persons subject to security certificates.
CIC, the CBSA, CSIS and the RCMP work closely together in the immigration and refugee screening process. If the CBSA is concerned that an individual
may not be admissible to Canada, it places an electronic lookout in the immigration database shared by the CBSA and CIC. CIC officials who encounter a person regarding whom a lookout has been issued will gather more information
about the person and transmit that information for further investigation either to
CSIS, if there are concerns about threats to the security of Canada, or to the
RCMP, in the case of concerns relating to serious or organized criminality or
war crimes. If there are concerns, the results of the RCMP and CSIS investigations are reported, there may be CBSA involvement, and CIC makes the final decision with respect to admissibility.
CIC officials may interview non-citizens jointly with the RCMP and/or
CSIS and receive advice and information from the CBSA, CSIS and the RCMP.
Even where no suspicions about a foreign national arise, CIC is involved in
interviewing individuals, gathering personal information and transmitting
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that information to the RCMP and CSIS as part of routine criminality and security screening.
CIC officials also make decisions as to whether or not foreign nationals
should be detained pending a determination of their admissibility to Canada.
In addition, CIC personnel are responsible for conducting pre-removal risk
assessments for non-citizens ordered deported for reasons of national security
or involvement in organized crime, war crimes or crimes against humanity, including persons subject to security certificates. As a result, CIC officials make decisions about whether individuals who pose serious threats to the security of
Canada ought to be deported on the basis that such threats to Canada outweigh
the risks they may face upon removal. Pre-removal risk assessments must be
found to be reasonable by a Federal Court judge. Inadmissible persons are given
the opportunity to make submissions, but may not have full access to information used by the CIC official to determine the threat posed to Canada.
CIC may share intelligence and personal information with the CBSA, CSIS,
the RCMP, DFAIT and DND within Canada. It may also share information and intelligence with foreign governments and agencies. For example, it may share information with U.S. Customs and Border Protection authorities, who may in turn
share the information with the FBI, the CIA and the U.S. Department of Defense.
In the national security context, there is significant interaction between CIC
officials and the RCMP and CSIS. Indeed, CIC and the CBSA are building a common immigration database that will allow them to electronically transmit personal information, such as security or criminality screening information, directly
to the RCMP and CSIS. RCMP immigration units will also have direct access to
this database.
As with the CBSA, the national security activities of CIC require independent review because they can have a significant impact on individuals, and they
lack transparency. While there is opportunity for judicial scrutiny of final decisions, this occurs on a case-by-case basis and under restricted conditions owing
to both legislative provisions and secrecy concerns. There is no review of CIC’s
national security activities other than limited review by the Immigration and
Refugee Board or the Federal Court in specific circumstances, and little opportunity for independent assessment of systemic issues.
2.22.5
Transport Canada
Transport Canada is responsible for safeguarding Canada’s transportation system,
which includes transportation by air, rail, road and water. It sets security standards for airports, surface transport, marine vessels, ports and marine facilities.
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The department has an intelligence branch that regularly receives intelligence
and transportation security information from CSIS, the CSE, DND, CIC, the CBSA,
the RCMP, ITAC, the Canadian Coast Guard and other agencies. It analyzes information to identify threats to Canada’s transportation infrastructure and may
inform federal, provincial, municipal and private-sector transportation providers
of credible national transport security threats.
Transport Canada also conducts security clearances for airport employees
who require access to restricted or sensitive areas. It is in the process of developing a system of clearances for port and rail workers, as well as a background
check program for truckers who transport dangerous goods across the CanadaU.S. border. The security clearance process may involve obtaining information
related to national security from CSIS and the RCMP. Denial of a security clearance may mean termination or denial of employment.
The department also has an important marine security role, in the performance of which it shares information and co-operates closely with the CBSA,
DND, the Coast Guard and the RCMP.
Transport Canada is also working in conjunction with Public Safety and
Emergency Preparedness Canada to develop a Canadian no-fly list,42 which will
include the names of individuals the Minister of Transport believes pose “an immediate threat to aviation security.” The development of this list will involve
the exchange of information with a number of agencies, including the RCMP,
CSIS and the CBSA.
For the purposes of transportation security, Transport Canada may request
any information on airline passengers that is in the possession of the carrier, including personal information. The department may share this information with
certain federal and, in some cases, foreign entities. It is also studying the feasibility of an air passenger risk assessment system. Further, legislation has been
passed, though not proclaimed in force, that would allow significant sharing of
airline passenger information by Transport Canada with CSIS and the RCMP.
In summary, Transport Canada is significantly involved in the collection,
analysis and dissemination of information related to Canada’s national security.
Much of its work in this area takes place out of the public eye. In addition, its
intelligence activities and activities related to national security are substantially
integrated with those of other federal entities, particularly the RCMP and CSIS,
as well as DND for maritime security matters.
Transport Canada’s activities have the potential to affect individual rights,
dignity and well-being to a significant extent. This is particularly so in the case
of the security clearances it provides and the proposed creation of a no-fly list
and passenger risk assessment program. Although the department has stated
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that it will create internal reconsideration mechanisms, none of these activities
are currently subject to independent scrutiny.
2.22.6
Financial Transactions and Reports Analysis Centre of Canada
(FINTRAC)
The Financial Transactions and Reports Analysis Centre (FINTRAC) collects, analyzes and discloses information on prescribed and suspicious financial transactions in Canada. Its main function is to support law enforcement and security
intelligence investigations into terrorist financing and money laundering.
FINTRAC receives information from three main sources: Canadian federal
government departments and agencies such as the CBSA, CSIS and the RCMP,
foreign intelligence units, and private-sector reporting. Most of the information
comes from private-sector reports.
In general, financial institutions are required to report on withdrawals or
transfers involving more than $10,000, suspicious transactions, and property
owned or controlled by or on behalf of a terrorist group included in the
Criminal Code terrorist group listing. The CBSA is required to report on any
cross-border movements of $10,000 or more in cash and monetary instruments.
FINTRAC analyzes data in order to identify patterns that suggest terrorist financing or money laundering activities. Where it has reasonable grounds to suspect that information is relevant to an investigation or prosecution of terrorist
financing or money laundering activities, it must disclose that information to the
RCMP or another police force. Where it has reasonable grounds to suspect that
such information would be relevant to threats to the security of Canada, it must
disclose it to CSIS. FINTRAC has information-sharing agreements with financial
intelligence units in 30 foreign countries and may disclose information to those
units for intelligence purposes relating to investigating money laundering, terrorist financing or substantially similar offences.
Presently, FINTRAC is permitted to disclose only certain designated information unless a judge orders further disclosure. It is required to keep records
of its disclosures.
FINTRAC’s activities have the potential to significantly affect the lives of individuals. Much of the information it deals with is highly confidential. To the extent that suspected threats to national security or criminal activity are identified
and information passed on to the RCMP, CSIS or a foreign agency, there could
be further impacts on individual rights and interests. When creating FINTRAC,
the government recognized the significant nature of these potential impacts and
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put in place a number of restrictions on when, to whom and how FINTRAC
may disclose information.
The sensitive nature of the information that FINTRAC deals with has, for
good reason, resulted in an agency whose activities lack transparency. FINTRAC
works in co-operation with other national security actors, such as the RCMP,
CSIS and the CBSA. In my view, FINTRAC is a prime candidate for independent review.
2.22.7
Foreign Affairs and International Trade Canada (DFAIT)
Foreign Affairs and International Trade Canada (DFAIT) is responsible for the
conduct of Canada’s international relations. Among other things, it provides
diplomatic and consular assistance to Canadians in foreign countries. It has
responsibility for Canada’s participation in and coordination with the antiterrorism efforts of international organizations such as the United Nations and
NATO. DFAIT plays the lead role in the listing of terrorist individuals, groups and
organizations under the United Nations Suppression of Terrorism Regulations
and United Nations Afghanistan Regulations.43 The Security and Intelligence
Bureau’s Foreign Intelligence Division (ISI) provides intelligence to support
operational and policy decision making and handles incidents abroad involving
Canadian citizens.
DFAIT plays a significant role in Canada’s national security operations. The
department receives and analyzes intelligence relating to Canada’s national security and disseminates it to other federal intelligence partners, principally CSIS,
the CSE, DND, the RCMP and PCO and also, occasionally, others, including the
CBSA, CIC and Transport Canada. The Factual Inquiry provided excellent insight into DFAIT’s operations in the national security milieu. The department
was involved with the RCMP and CSIS in making decisions about a visit to Syria
by CSIS officials to meet with officials of the Syrian Military Intelligence (SMI),
the body that had imprisoned Maher Arar. It was also involved in receiving and
distributing the summary of a statement that Mr. Arar had given the Syrian
officials. Foreign Affairs was moreover consulted by the RCMP regarding a decision to provide Syrian officials with questions for Abdullah Almalki, and it
was centrally involved in Canada’s efforts to obtain Mr. Arar’s release from
prison in Syria. It met and attempted to coordinate approaches with both the
RCMP and CSIS.
The RCMP and DFAIT have secondment arrangements and significant information exchanges, which I discuss in Chapter V.
�RECOMMENDATIONS
Implementation of my recommendations in the Factual Inquiry report
would mean that DFAIT would play a lead role for Canada in addressing the situation of Canadians detained abroad in connection with terrorism and related
matters. In that role, DFAIT would necessarily interact with Canadian investigative agencies in relation to their national security investigations. I note that other
Canadian citizens detained in Syria in terrorism-related cases, such as Abdullah
Almalki and Ahmad El Maati, have also complained of the involvement of
Canadian officials abroad.
If DFAIT takes the lead any time a Canadian is detained abroad for a terrorism-related offence and its actions affect citizens or permanent residents, I am
of the view that the actions of DFAIT employees should be subject to independent review. It should be borne in mind that the actions of Canadian representatives abroad are particularly difficult to review through Canadian courts,
even though they are clearly subject to the Canadian Charter of Rights and
Freedoms.44 In making this recommendation for review of the actions of DFAIT
employees and officials relating to national security, I recognize that the boundaries of review will have to be defined clearly, since some aspects of Crown
prerogative should not be the subject of review.
At present, DFAIT’s national security activities are subject to only limited independent review. Most of the concerns arguing for independent review of the
RCMP’s national security activities also apply to DFAIT’s national security activities. Many of those activities have a significant impact upon individual rights and
freedoms. As illustrated in the Factual Inquiry, many are not known publicly, and
individuals affected may, in the ordinary course, never learn of the action taken.
Moreover, DFAIT national security activities are highly integrated with those of
the RCMP and other federal entities.
2.22.8
Rationale for Independent Review
It may be useful here to take a closer look at the two main reasons for my
recommendation of independent review for these five departments and
agencies: the nature of their national security activities and the degree of integration with other federal entities involved in national security activities.
2.22.8.1
Nature of Entities’ National Security Activities
As is clear from the brief descriptions above, the nature of the national security
activities of the five departments and agencies raises many of the same
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concerns that give rise to the need for independent review of the national security activities of the RCMP, CSIS and the CSE.
Those concerns may be loosely grouped under three headings: potential for
serious impact upon the lives of individuals, lack of transparency, and likelihood that they will not otherwise be subject to independent assessment.
Impact on Lives of Individuals
The potential to seriously affect the lives of individuals is shared by all of the
departments and agencies described above. The police powers of the CBSA
allow it to use intrusive methods, such as arrest, detention, search or seizure that
are very much like those used by the RCMP. While the other entities do not
have police powers, they have other powers that can harm individuals. These
include powers to refuse entry into Canada or to deport from Canada on national
security grounds (CIC and the CBSA), powers to restrict access to modes of
transportation and employment on national security grounds (Transport Canada
and the CBSA), powers relating to the treatment of Canadians by foreign governments in cases of national security (DFAIT) and powers to intrusively compel the disclosure of intimate financial information and provide such information
to law enforcement, security and immigration authorities on grounds of national
security (FINTRAC). These entities also all have the power that flows from the
receipt and sharing of information about individuals in the context of national
security. The collection, analysis, retention and dissemination of information can
intrude in significant ways on privacy and other rights. For instance, the stigma
suffered by an individual who is linked inappropriately or improperly to terrorism may be enormous. When that information is shared with agencies such as
the RCMP, the CBSA or CSIS, it can have further intrusive impacts.
I have identified three particular features of RCMP national security activities that are of concern in terms of potential impact on individuals: informationsharing practices, interaction with other countries and the possibility of racial,
ethnic and religious profiling. The five departments and agencies under discussion here share those features. They are important partners with the RCMP and
other domestic and international actors in the information-sharing process
related to national security. Consequently, concerns respecting the need to ensure that information is reliable, precise and accurate and that sharing is conducted in accordance with rules and policies so as not to impinge unfairly on
the rights of individuals also apply to each of the five entities. Moreover, all of
them may receive information from other countries, particularly the United
States, and all have the power to provide information directly to agencies in
�RECOMMENDATIONS
other countries and/or international organizations, depending on the statutory
mandate. The risks associated with the possibility of discriminatory profiling
identified in connection with RCMP national security activities arise primarily as
a result of the nature of the current primary threats to national security. As such,
they are not restricted to the RCMP and apply to other national security actors
as well.
Lack of Transparency
Another critical factor underlying my recommendation for independent review
of RCMP national security activities, the lack of transparency that accompanies
those activities, is also shared by the other five agencies and departments.
National security activities generally are characterized by requirements of secrecy, and secrecy means that public scrutiny of activities is seriously curtailed.
It also means that individuals may never be made aware of the impact of an action on their lives. Review thus cannot rely upon the laying of complaints.
Lack of Independent Assessment
While all of the departments and agencies in question have internal policies and
audit branches and are subject to ministerial direction and control, there is no
comprehensive independent review of their national security activities.
Similarly, there is little judicial scrutiny of many of the decisions they make.
While some of their activities are reviewed by the courts in criminal, immigration/refugee or administrative contexts, the courts cannot be expected to provide an assessment of the broad range of national security activities that impact
upon individual rights or interests, including dignity, reputation and well-being.
Judicial scrutiny generally only provides for a relatively narrow review of issues,
restricted by the scope of activities raised in the particular case before the court.
The courts are not ideally suited to provide broad systemic reviews of the activities of an organization. Courts are also constrained by the requirements of secrecy inherent in national security activities, which place significant restraints
on the normal adversarial process.
There are also constraints on the other forms of independent review to
which these agencies and departments are subject. Currently, such review, if it
exists at all, is limited to review by entities such as the Office of the Auditor
General and the Privacy Commissioner, whose role is not to provide reviews of
national security activities for all aspects of lawfulness or propriety. While the
Privacy Commissioner and Canadian Human Rights Commission may review for
lawfulness, they do so within a very restricted statutory mandate.
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2.22.8.2
Integrated Activity
The second reason I recommend that the national security activities of the CBSA,
CIC, Transport Canada, FINTRAC and DFAIT be subject to independent review
is that those activities are integrated to a considerable extent with those of the
RCMP and CSIS. Including them in a regime of independent review will promote
effective review of integrated activities by avoiding accountability gaps and inconsistent review standards and outcomes for the same integrated activities. In
recommendations 1, 2, 11 and 12, I discuss the importance of integrated review
of integrated operations. I will not repeat that discussion here, other than to
point out that the reasons that underlie my recommendation for integrated review of the RCMP’s national security activities apply in the main to the five entities in question in this recommendation. The amount of integrated activity of
each is now sufficiently large for there to be a benefit to putting in place review
mechanisms that facilitate integrated review. In my view, that can best be accomplished by subjecting each of the five entities to the same type of review
mechanism as is currently available for CSIS and the CSE and as will be available for the RCMP if my recommendations are adopted.
It is precisely because the CBSA, CIC, Transport Canada, FINTRAC and
DFAIT have the power to significantly affect the lives and rights of individuals,
because their national security activities are not transparent, and because their
activities are integrated with both CSIS and the RCMP, that the question of accountability is so important. Unless an independent, national security review
body has the ability to make findings and recommendations about these agencies, the goals of national security review will be compromised. These are the
five federal entities other than CSIS, the RCMP and the CSE whose national security activities have the greatest potential to intrude on the lives of individuals
and that, accordingly, require the greatest degree of accountability.
SIRC and the CSE Commissioner were created as independent review agencies for CSIS and the CSE because of the same types of concerns. In her
November 2003 report that I have described previously, the Auditor General addressed this issue in the following recommendation:
The government should assess the level of review and reporting to Parliament for
security and intelligence agencies to ensure that agencies exercising intrusive powers are subject to levels of external review and disclosure proportionate to the level
of intrusion.”45
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The Privy Council Office’s response to the recommendation read in part as
follows:
Any consideration of review mechanisms and reporting requirements must adequately consider the very important and, in some cases, fundamental differences in
mandates and operations of departments and agencies.”46
I have considered the mandates and operations of these departments and
agencies and, for the reasons set out above, am satisfied that independent review is warranted in each case.
The Government of Canada is aware of the expanding nature of its national
security activities and the need for review mechanisms to evolve to match. In
its 2004 National Security Policy, the government recognized the general principle that “[a]s the legal authorities and activities of our security and intelligence
agencies evolve to respond to the current and future security environment, it
is vitally important that we ensure that review mechanisms keep pace.”47
The government further indicated that it “will monitor progress in relation
to enhanced intelligence collection and assessment as well as development and
implementation of expanded review mechanisms relating to national security.”48
The growth and integration of intelligence and information collection,
assessment and dissemination by the five agencies and departments identified
lead me to recommend their inclusion in an expanded national security review framework.
2.23
Recommendation 10
ICRA should review the national security activities of the Canada Border Services
Agency, and the Security Intelligence Review Committee should review the national security activities of the other four entities.
2.23.1
Expanded SIRC
Having concluded that there is a need for an independent review mechanism
for the national security activities of the five entities identified, I now turn to the
issue of what bodies should perform such review. I have come to the conclusion that the national security activities of CIC, Transport Canada, FINTRAC and
DFAIT should be reviewed by SIRC.
Limiting the number of independent review mechanisms for federal entities
engaged in national security is a sensible approach. There is benefit
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in restricting the number of organizations involved in the review of national security activities, given the sensitive nature of the information and activities, the
special obligations that attach to review of such activities, and the necessity of
retaining the confidence of foreign information-sharing partners. Moreover, it
does not make sense and is not necessary to have a separate review agency
for every operational entity. Such a situation would be unwieldy and could render the provisions for integrated or coordinated review unworkable. In addition, the national security activities of these other agencies and departments
are relatively limited. A separate review mechanism for each would not be costeffective.
SIRC is an established review agency with significant experience in the review of national security activities. It commands respect within the national security field. There is significant advantage to building upon its expertise and
success rather than establishing a new review agency or agencies for other operational entities in the national security field.
When consideration was being given to where to locate the review mechanism for the national security activities of the RCMP, a number of participants
in the Policy Review process suggested SIRC. The latter’s experience and reputation made it a serious option. However, I chose not to recommend SIRC for
review of the RCMP for reasons that centered around the RCMP’s role as a law
enforcement agency. I concluded that there is a real danger in blurring the important distinctions highlighted by the McDonald Commission between a law enforcement and a security intelligence agency, and that combined review could
contribute to such blurring. My recommendation is also based on the critical
need for law enforcement experience and expertise on the part of those reviewing law enforcement activities in the area of national security. These same
considerations do not apply to CIC, FINTRAC or DFAIT for the obvious reason
that they are not law enforcement agencies. And while Transport Canada has
some enforcement functions in relation to transport safety and security, I am
satisfied that its national security intelligence function is not oriented toward
law enforcement.
The second reason for recommending that SIRC review the national security activities of these four entities is that, while there are important distinctions
between the mandate and activities of CSIS on the one hand, and the national
security activities of the four entities on the other, there are also important similarities. The national security activities of all four entities involve the collection,
analysis, retention and dissemination of information and intelligence, including
personal information, to varying extents. All four entities are involved in the collection of information, which is then analyzed or processed. Although CIC has
�RECOMMENDATIONS
no independent intelligence analysis capability, it collects intelligence and raw
information and receives intelligence analysis from other entities, such as the
RCMP, the CBSA and CSIS. All four entities retain such information and intelligence and all are involved in the dissemination of such information to both domestic and foreign recipients. These functions are all similar to those that SIRC
examines in connection with CSIS.
I am not downplaying the considerable differences in mandate among
the entities. The review mechanism will have to take the different roles and
mandates into account and apply different standards to assess conduct.
However, my conclusion is that SIRC’s expertise provides an excellent foundation on which to build an effective review mechanism for these bodies. SIRC will
have to develop expertise with respect to their mandates and specific national
security activities.
Concern was raised both by SIRC and other participants in this Policy
Review that combining review of more than one national security actor within
the same review body creates a risk of cross-contamination, in the sense that the
“need to know” principle may be violated, wittingly or unwittingly, when information from one actor is taken and shared with another through the review
body itself. This is also a risk at the operational level.
I think it is important to bear in mind that SIRC is well aware of the importance of placing safeguards upon information to ensure that it is communicated only to those who have a need to know in the course of an activity. As I
cautioned in the Factual Inquiry report, we are moving into a world where “need
to know” and “need to share” with respect to national security and intelligence
information cannot simply be invoked. The relevance of information to any particular activity and the purpose of sharing or restricting information must be the
overarching considerations. As the operational agencies work out limits in this
regard, so, too, can the review bodies. I expect that SIRC will set up the appropriate “firewalls” — that it will have separate investigative staff to deal with
the different departments and, in the case of integrated activities, will be mindful of the information coming from one organization or another. It will have the
unique ability, however, to review trends and practices amongst a variety of security intelligence actors. In my view, such review can only strengthen the quality of the federal national security actors. The adverse consequences of potential
cross-contamination might be greater if one review body were to examine both
law enforcement and security intelligence activities, given the different legal and
constitutional standards that apply to matters such as obtaining private information and warrants. My recommendations lessen this risk by confining review
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of law enforcement agencies to ICRA and review of security intelligence bodies
to SIRC.
There is a legitimate concern that expanding SIRC’s mandate as I recommend might interfere with SIRC’s capacity to effectively review the activities
of CSIS. Below, I recommend that a review be conducted in five years’ time.
That review should specifically address how SIRC is managing its increased responsibilities. It will provide an opportunity to examine SIRC’s capacity to handle the expanded mandate recommended in this Report and also determine
whether that expanded mandate is affecting its ability to conduct the effective
review of CSIS.
2.23.2
Review of CBSA
As I noted above, in certain situations CBSA officers have powers similar to those
of a police officer, including the power to detain, arrest and search individuals.
A CBSA immigration officer may issue an arrest warrant for a permanent resident
or a foreigner if the officer suspects the person poses a threat to the public or
is in Canada illegally. Foreign nationals other than refugees may also be arrested
and detained by CBSA officers without a warrant, on the same grounds. At border posts, CBSA officers may detain foreigners and permanent residents for further questioning if they suspect that an individual poses a national security risk.
There are also search and seizure powers in the customs area.
Since the CBSA has some law enforcement powers, the question arises as
to whether SIRC is the appropriate body to review its national security activities.
Above, I conclude that one of the compelling reasons for the need for a review
body for the RCMP other than SIRC is the need for that body to have specialized expertise in reviewing law enforcement activities. Thus, there is an argument that the national security activities of the CBSA would also be most
effectively reviewed by a review body with special expertise in reviewing law
enforcement activities. The separate review body for the RCMP immediately
comes to mind.
I note that, in the United Kingdom, the Independent Police Complaints
Commission was recently given jurisdiction to investigate complaints in respect
of the law enforcement activities of agencies other than the police, including the
UK Customs service, and jurisdiction over immigration enforcement activities is
expected to follow shortly.
There are differences between the CBSA and the RCMP, however. The
CBSA is not a police force and not all of its officers have police powers. Unlike
�RECOMMENDATIONS
the RCMP, it carries out some activities related to national security that do not
involve law enforcement. Further, the CBSA collects both criminal and security
intelligence. It has an extensive intelligence network, shares information and intelligence with American and other foreign agencies under a variety of agreements, and releases information to other parts of the federal government for
national security purposes. In contrast, all of the RCMP’s national security activities are conducted in furtherance of its law enforcement mandate to prevent,
investigate and prosecute crime.
The CBSA consequently does not fit neatly under the mandate of SIRC or
that of the review body for the RCMP. Nevertheless, I think it makes sense
that independent review of the CBSA be carried out by one or the other of
those bodies.
It would be difficult to separate the CBSA’s law enforcement activities related to national security from those that are not. For example, an investigation
of tobacco smuggling can turn into a terrorism investigation if the proceeds are
directed to a terrorist group. In any event, having two review bodies for the national security operations of the CBSA would be unduly complicated and cumbersome. As I indicate above, there is significant advantage to limiting the
number of independent review bodies in the national security field and building upon existing institutions.
On balance, I am of the view that responsibility for reviewing the CBSA
should fall to ICRA, in view of its law enforcement expertise, but statutory gateways should be established to allow ICRA to exchange information, refer investigations, conduct joint investigations and coordinate the preparation of
reports with SIRC when reviewing activities that involve security intelligence.
Although the fit is not perfect, in the end, ICRA appears to be the better suited
of the two review agencies, given the CBSA’s law enforcement mandate, combined with its coercive powers.
2.23.3
Resources
One of the advantages, from a resource standpoint, to using SIRC and ICRA to
review the five bodies is that the infrastructure is already in place. The new resource requirements will be incremental and, I think it is fair to say, far less than
if new review bodies were to be established. The government should ensure that
SIRC and the review body for the RCMP have the resources necessary to perform the mandates I recommend.
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2.23.4
Amendment to SIRC Powers
Currently, SIRC does not have the extensive investigative powers that are held
by the CSE Commissioner or that I recommend for the review body for the
RCMP. It does not have the authority to subpoena documents or compel testimony from entities or persons outside CSIS. I recommend that it be given those
powers, for the same reasons I recommend they be given to ICRA. Considering
the degree of integration of the activities that SIRC would review, it is essential
that SIRC’s powers be expanded to enable it to obtain information outside CSIS
or outside other entities it may have a mandate to review.
2.23.5
Other Issues
I have not examined all the details involved in expanding SIRC’s mandate to encompass other federal entities. The comments I make above are therefore general in nature. However, my examination of the need for a review of the national
security activities of other federal entities has brought to light several issues that
will have to be addressed. The following are my comments in that regard.
2.23.5.1
Identifying National Security Activities
None of the other five departments and agencies regarding for which I recommend independent review are dedicated solely to conducting national security
investigations. Indeed, in most cases, national security activities form a relatively
small part of the overall mandate and workload. In order for SIRC or ICRA to
conduct reviews of their national security activities, it will be necessary to consider, on an entity-by-entity basis, how best to determine what activities fall
within the realm of national security. In some cases, the internal organizational
structure, relevant databases or specific functions may make the dividing lines
clear. Whatever the case, however, the review body must have access to all of
the information necessary to make an informed decision about what needs to
be reviewed and what falls outside its mandate.
2.23.5.2
CSE Commissioner
I am not recommending that SIRC’s mandate be expanded to include the CSE,
as I understand that the Office of the CSE Commissioner functions very well
and I see no reason to interfere with that operation. That said, I recommend
�RECOMMENDATIONS
below that the government establish statutory gateways and a coordinating committee to ensure that there is effective, independent review of integrated national security operations involving the CSE.
2.23.5.3
Department of National Defence
The Department of National Defence (DND) and the Canadian Forces (CF) are
key federal intelligence gatherers. While much of their security intelligence capability involves foreign intelligence, they have a domestic intelligence capability, particularly in relation to marine security. In addition, the Canadian Forces’
signals intelligence capability is closely integrated with the CSE. DND/CF representatives have been attached as liaisons to IBETs and INSETs. DND/CF also
may provide armed assistance or intelligence assistance within Canada. For example, DND/CF personnel and assets were deployed for the 2002 G-8 Summit
in Kananaskis, Alberta. I make no recommendations with respect to review of
DND intelligence activities, for a number of reasons. I have heard evidence and
conducted research on the national security role of a number of civilian agencies and departments, including the differences between civilian security intelligence and police criminal intelligence. I have not considered the nature of
military intelligence. The distinction between military intelligence activities and
civilian activities would have required extensive study outside my mandate. I
note that there are two accountability bodies in relation to DND/CF: the
Ombudsman for the Department of National Defence and Canadian Forces and
the Military Police Complaints Commission. I recommend that the government
consider issues of integration and information sharing between military and civilian federal agencies and, in particular, whether a statutory gateway to the two
existing military review bodies would be desirable.
2.23.5.4
Other Federal Agencies and Departments
In Chapter V, I discuss all the federal departments and agencies that are in some
way involved in national security activities. The involvement of the remaining
entities does not at this time appear to be of such a nature as to warrant independent review. The review I recommend be conducted in five years’ time
should include consideration of whether other federal entities involved in national security activities should be subject to independent review.
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2.23.5.5
Other Countries
Some of the eight countries examined in Chapter VII have review models
that are function-based, as SIRC would have with its expanded mandate.
Norway has perhaps the purest form of a function-based review model.
The United Kingdom also makes use of function-based review for certain specified activities.
Officials in the various countries were very co-operative in providing information and suggestions to Commission staff with respect to the design of a
review body for national security activities. I raise this point to suggest that those
considering issues related to the expansion of the SIRC mandate would benefit
from speaking directly to officials in countries where similar issues of integration and accountability have arisen.
2.24
Recommendation 11
The government should establish statutory gateways among the national security
review bodies, including ICRA, in order to provide for the exchange of information, referral of investigations, conduct of joint investigations and coordination in
the preparation of reports.
The RCMP’s national security activities are increasingly integrated with those of
other agencies. Some are federal entities engaged in the national security field
and some, provincial or municipal police forces. In this recommendation, I address the need for integrated or co-operative review49 between ICRA and the review bodies for other federal entities.
2.24.1
Integrated Activities
Since 9/11, the RCMP has significantly increased its integrated activity with other
federal entities involved in the national security field. For example, Integrated
National Security Enforcement Teams (INSETs) include representatives of agencies such as the CBSA, CIC and the Canada Revenue Agency. In Chapter V of
this Report and in recommendations 9 and 10, I discuss the national security
landscape, emphasizing the links between a variety of federal national security
actors and both the RCMP and CSIS.
The events of 9/11 underlined the importance of integrated operations between the RCMP and CSIS. The two agencies engage in extensive co-operation
and integration of their national security activities, and I expect that integrated
�RECOMMENDATIONS
activity between them will increase in the future. Indeed, in the Factual Inquiry
report, I recommended that the two agencies explore ways to promote further
co-operation.
As I point out under Recommendation 9, the subject matter of the Factual
Inquiry report provides an example of the nature of integrated national security
operations among four federal agencies: the RCMP, CSIS, Canada Customs
(now the CBSA) and DFAIT. Shortly after 9/11, CSIS transferred prime responsibility for a number of its national security investigations to the RCMP. One of
those investigations was the one in which Maher Arar eventually became a person of interest. From time to time, CSIS provided the RCMP investigators with
further information. For its part, the RCMP kept CSIS fully informed about
the progress of its investigation by sharing its daily situation reports describing
all of the investigative steps taken. For a time, a CSIS official was assigned to
Project A-O Canada, the RCMP unit that conducted the investigation that involved Mr. Arar.
The RCMP investigation in question also involved considerable interaction
with Canada Customs. A Canada Customs intelligence officer was assigned to
Project A-O Canada. At the request of the RCMP, Canada Customs posted border lookouts for Maher Arar and Dr. Monia Mazigh, his wife. Canada Customs
conducted two secondary examinations of Mr. Arar and forwarded the information obtained from them to the RCMP. Some of that information was provided to American authorities when Mr. Arar was detained in New York.
During the time Mr. Arar was imprisoned in Syria, the RCMP had frequent
contact with DFAIT officials, particularly those in the Foreign Intelligence
Division, or ISI. DFAIT provided the RCMP with the bout de papier that Canada’s
ambassador to Syria had received from Syrian Military Intelligence setting out a
summary of a statement that Mr. Arar had made to Syrian officials. As it turned
out, the statement had been made under torture.
Moreover, officials from the RCMP, CSIS and DFAIT discussed the advisability of CSIS officials travelling to Syria to meet with Syrian Military Intelligence
during Mr. Arar’s detention. DFAIT and RCMP officials also discussed the advisability of sending questions to Syria to be posed to Abdullah Almalki, who
had been linked to Mr. Arar in the RCMP investigation and was detained in Syria
at the same time as Mr. Arar. In the end, Canada’s ambassador to Syria arranged
for delivery of those questions to the Syrians. In addition, DFAIT provided some
reports of its consular visits with Mr. Arar to the RCMP and CSIS. Further, there
were extensive discussions among officials of DFAIT, the RCMP and CSIS about
DFAIT’s efforts to obtain Mr. Arar’s release from Syrian custody. In brief, there
was an enormous amount of interaction between the RCMP and DFAIT
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concerning Mr. Arar’s case. Their activities were integrated and, for review purposes, needed to be considered together.
At present, there is no body empowered to conduct a comprehensive review of integrated national security activities. Integrated review of integrated activities is essential, and statutory gateways linking review bodies are an important
means of achieving effective review.
2.24.2
Need for Integrated Review
It is essential that there be institutional co-operation among review bodies where
there is institutional co-operation among the bodies being reviewed, for four
specific reasons: to avoid gaps in accountability, to attempt to avoid reaching inconsistent or differing conclusions about the co-operative activities, to provide
a unified intake system for national security complaints, and to avoid the burden on agencies of duplicative review.
When different review bodies investigate the same or overlapping activities
separately, there is a potential for gaps in findings regarding which operational
agency or individual is accountable for what may be found to be illegal or improper actions. In an extreme case, a review body might conclude that ultimate
responsibility for a problem lies with an agency outside its mandate rather than
with the agency it reviews. As a result, all agencies involved in a flawed activity could avoid accountability. Less drastically, there is a risk that officials in an
agency under review would point to others outside that agency as being responsible for impugned activities. Moreover, where there is no integrated or coordinated review, the potential exists for officials to structure operations so as
to avoid review by their home review body.
In addition, when different review bodies review integrated or coordinated
activities separately, there is a risk that inconsistent or differing conclusions
about those same activities will be reached. Separate review bodies may receive
different evidence or information about the activities, for a variety of reasons. For
example, witnesses may give different versions of events, or the review bodies
may not obtain all of the same documents. Whatever the reasons, separate factual investigations into the same events may produce different factual conclusions about what occurred — obviously an unsatisfactory outcome.
Further, there is a risk that review bodies acting separately may apply inconsistent standards to the same activities. While the mandates of the agencies
being reviewed may be different and, thus, standards may in some circumstances
differ, those standards are unlikely to be inconsistent with one another.
�RECOMMENDATIONS
However, separate reviews create the potential for inconsistent application of
standards to the same activity.
The need for coordinated review was made abundantly clear by the Factual
Inquiry. Neither SIRC nor the CPC, the independent review bodies for CSIS
and the RCMP respectively, were able to adequately review the full breadth of
the actions of Canadian officials with respect to Mr. Arar, and there are no formal links for coordinating reviews between SIRC and the CPC. Thus, while the
two bodies had jurisdiction to conduct reviews, there were no provisions or
practices to prevent gaps in accountability for the integrated activities of CSIS
and the RCMP or to attempt to prevent different or inconsistent conclusions by
the two bodies about the same activities. The practice has been for the two review bodies to conduct independent reviews, even where there is overlap in the
activities under examination. In the Factual Inquiry, there was the additional
problem that neither SIRC nor the CPC had jurisdiction over Canada Customs or
DFAIT, entities with considerable involvement in some aspects of the activities
being reviewed.
Another problem in the Arar case was that neither SIRC nor the CPC had
the power to compel the production of documents or testimony from agencies
or individuals outside the agency being reviewed. The jurisdiction of each review body stops with the activities and employees of the agency it reviews.
Although SIRC and the CPC may read one another’s reports or at least the public portion of such reports after completion of a review, the potential for accountability gaps and inconsistent results is obvious. Coordination of
independent reviews is fundamental where coordinated activities are involved.
Not surprisingly, many countries that have independent review mechanisms
for different entities involved in the same activities have enacted provisions to
address the potential for accountability gaps and inconsistent reviews. These
provisions are frequently referred to as “statutory gateways.”
Belgium has two parliamentary review committees. Committee P is responsible for reviewing all of Belgium’s police agencies, and Committee I, for
reviewing the country’s two security intelligence agencies. Each of these committees is required by its governing statute to exchange information with the
other regarding its activities, to submit its reports and conclusions to the other,
to hold joint meetings where complementary information can be exchanged,
and to discharge its mandate jointly with the other committee in certain circumstances. These provisions have led the two committees to carry out several
joint investigations, including one on police and intelligence coordination and
another on terrorism coordination among police and intelligence agencies. In interviews with Policy Review legal counsel, both committees spoke favourably
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about the potential benefits of such co-operation. Indeed, as Committee P stated,
institutional co-operation among review bodies is vital where there is institutional co-operation among the bodies being reviewed. Otherwise, there is too
great a risk of escape from scrutiny by one body or the other.
In England and Wales, the Independent Police Complaints Commission
(IPCC) has jurisdiction over all local police forces, as well as specialized police
forces with national scope, including those that deal with national security investigations and Her Majesty’s Revenue and Customs enforcement activities. Its
jurisdiction will soon be extended to cover immigration enforcement activities
as well. The IPCC’s jurisdiction includes police forces that have activities that are
integrated with several other agencies.
The IPCC’s jurisdiction overlaps with that of a number of other public authorities, including authorities responsible for access to information and human
rights matters, as well as several commissions and ombudsmen. England and
Wales have provided for statutory gateways to address overlapping jurisdictions,
the potential for duplication and the diminished observation and accountability
that can result when multiple review bodies have “silo” vision. Statutory gateways allow information sharing between public bodies, among other things,
and the Department for Constitutional Affairs has published guidance on the
applicable laws and protocols that various bodies may establish. A statutory
gateway was recently created to allow for information exchange and co-operation between the IPCC and the Parliamentary Ombudsman, which both have review jurisdiction over certain aspects of the new Revenue and Customs
Department. The gateway allows the two bodies to disclose information to each
other for purposes of the exercise of their respective mandates and to “jointly
investigate” certain matters. Where an impugned matter or course of conduct
has involved more than police forces, the IPCC has sometimes engaged in joint
investigations with other accountability bodies.
Clearly, providing for integrated review of integrated national security activities goes a long way towards eliminating any potential “accountability gaps”
and ensuring a consistent review process and concordant outcomes. However,
there is a further reason for integrating the review of national security activities:
to avoid the need for complainants to make multiple complaints. This is
extremely important. Complainants should not be required to go to more than
one review body to file a complaint about national security activities simply
because those activities were conducted by more than one agency and those
agencies are subject to the jurisdiction of separate review bodies. I come back
to this issue of the need for a unified complaint intake system under
Recommendation 12.
�RECOMMENDATIONS
Integrated review can also avoid the burden of duplicative reviews, which
may occur when different review agencies conduct investigations into the same
or related matters at different times, thus requiring agencies to respond to demands for information two or more times. Duplicative review may occur unintentionally or as a response to inconsistent findings by different review agencies.
Integrated review should allow the important work of review to be done only
once in a cost-effective manner that produces a thorough report which is based
on investigations of all relevant national security actors.
2.24.3
Statutory Gateways – General
As the name suggests, the gateways that I recommend should be established by
statute. Providing for the mechanisms by which integrated review may take
place in statutes emphasizes the importance of using such mechanisms. It should
also eliminate or greatly reduce any jurisdictional arguments about whether an
investigation falls within the statutory mandate of a particular review body.
I recommend that the statutory gateways apply to the three independent review bodies for federal entities engaged in national security activities: ICRA, the
expanded SIRC and the CSE Commissioner. These review bodies have similar
mandates, to review the activities of entities within their jurisdiction for conformity to law and standards of propriety; they would have similar powers if the
recommendations in this Report are implemented; and they can be expected to
conduct investigations and review processes in similar fashion. I am therefore
satisfied that it would be feasible and practical to provide for a significant level
of integration of review among them where the activities of the underlying agencies being reviewed are integrated.
Despite the relative lack of integration between the RCMP’s national
security activities and those of the CSE at present, I am of the view that it
still makes sense to include the CSE Commissioner within the statutory gateway regime. I make this recommendation because of the similarity between
the CSE Commissioner’s review functions and those of the other review agencies, and because in the future there may be some cases of integrated activities.
Moreover, I note that the CSE has a statutory mandate to provide technical and
operational assistance to the RCMP and CSIS. In addition, as I point out
under Recommendation 12, I envision an important role for the CSE
Commissioner in a newly established integrated national security coordinating
committee with responsibility for ensuring that the statutory gateway regime
is functioning properly.
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I do not recommend that the statutory gateways be extended beyond the
three independent review bodies I mention above. The mandates of other federal review mechanisms, such as the Canadian Human Rights Commission,
Privacy Commissioner, Information Commissioner and Auditor General, are significantly different from those of the three independent bodies to which I refer.
While the jurisdictions of other bodies may overlap in some cases, the fundamental purpose of those other review bodies is either so much narrower or so
different from the mandates of ICRA, SIRC and the CSE Commissioner that the
type of integrated review that I propose flow from the statutory gateways would
be impractical in their respect.
Moreover, if the statutory gateways I propose operate as intended, the resulting integrated review should avoid accountability gaps and inconsistent outcomes for matters falling within the mandates of the review bodies. Given the
breadth of those review mandates, I do not see a need to establish formalized
statutory gateways to the other review mechanisms mentioned above. It would
do nothing to further these objectives.
That said, in Recommendation 5 (i), I propose that ICRA have the power
to exchange information with and seek advice and assistance from other review and accountability bodies. I think that SIRC and the CSE Commissioner
should have the same power, so that there can be informal co-operation with
other review mechanisms as warranted. Moreover, the three review bodies
under the gateway regime should develop the capacity to identify complaints
that should be directed to one of these other agencies and make the necessary
referrals. I repeat, however, that the statutory gateways should not be extended
to other review or accountability bodies, at least not initially. It may be that, as
matters evolve and experience is gained in the independent review of integrated national security activities, it will make sense to formalize gateways with
the other review agencies. That is an issue that the review in five years’ time
should address.
I recognize that there are some federal entities involved in integrated
national security activities that will not, for the time being, fall within the mandate of one of the three review bodies subject to statutory gateways. In
Recommendation 10, I propose that ICRA be mandated to conduct independent review of the CBSA and that the mandate of SIRC be expanded to encompass four entities beyond CSIS. In the future, the government should consider
whether to add other federal agencies to SIRC’s review jurisdiction and whether
the creation of additional statutory gateways is necessary. One of the primary
factors in these future decisions should be the degree of integration between
�RECOMMENDATIONS
agencies that already fall within SIRC’s mandate and other government agencies
or departments. The same might also be said of ICRA.
Finally, I note that the statutory gateways will require the exchange of information, some of which will be subject to national security confidentiality. It
will be necessary to ensure that those receiving information have the required
security clearances and that proper systems are in place in the recipient review
bodies to maintain security of information. However, I do not envision that
maintaining security of information should be a particular problem. By their
very nature, the three review bodies subject to the statutory gateways recommended above will be required to have proper processes for maintaining confidentiality of information. Moreover, dissemination of confidential information
within a review body can be limited to that information that is necessary and relevant to the review being undertaken.
2.24.4
Statutory Gateways – Specific Goals
I recommend that the statutory gateways be designed to achieve four goals: exchange of information, referral of investigations, joint investigations and coordination in the preparation of reports. I propose that they be permissive,
conferring the authority to carry out the designated function.
2.24.4.1
Exchange of Information
Exchanging information about integrated operations is an important first step for
integrated review. The three review bodies should be authorized to exchange
all information, to enable the others to fully fulfill their mandates. Information
should be provided both in response to requests from another review body and
on the initiative of the review body providing the information. For example, if
ICRA becomes aware that activities being investigated were conducted in an integrated or co-operative fashion with another entity subject to review by SIRC,
it should determine whether there is a potential need for review of the integrated activities. If there is, ICRA should contact SIRC and provide it with the relevant information.
The underlying premise for the exchange of information should be that information available to one review body should be available to another insofar
as it is connected to integrated or co-operative activities or to the mandate of the
recipient body. There should be no jurisdictional barriers to the flow of information that needs to be shared to prevent gaps in accountability and avoid inconsistent outcomes when integrated activities are reviewed. Having said that,
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I stress that only information that is necessary and relevant to a review should
be exchanged.
2.24.4.2
Referral of Investigations
Given the level of integration of national security activities, there will be times
when a complaint is made to a review body that, on examination, turns out to
be the wrong body. In such circumstances, the review body should be authorized, at any stage of an investigation, to transfer the investigation, together with
its investigative product, to the appropriate body and to provide whatever assistance is necessary to avoid duplication of investigative efforts and enable the
other body to continue the investigation as expeditiously as possible.
In some instances, the referring review body may continue with all or part
of its own investigation or, as I indicate in the next section, the two bodies may
decide to conduct a joint investigation.
The three review bodies under the statutory gateway regime should have
the capacity to identify complaints that fall outside their collective mandates,
along with the appropriate review/accountability mechanism. It is important
that, when appropriate, they refer complaints to other accountability bodies not
under the regime, such as the Canadian Human Rights Commission, the Privacy
Commissioner, the Ombudsman for the Department of National Defence and
Canadian Forces, the Military Police Complaints Commissioner, or the Office of
the Correctional Investigator (the ombudsman for federal corrections), for matters involving conditions of immigration detention. Referral of complaints to the
proper body is a relatively simple matter and clearly in the public interest, so that
complainants are not left on their own to sort out the maze of federal accountability mechanisms.
2.24.4.3
Joint Investigations
The authority to conduct joint investigations of integrated operational activities
is vital to successful integrated review. It is not practical to set out here all of the
possible ways that joint investigations might be conducted. When a joint investigation is being considered, those responsible within the review bodies should
prepare an investigation plan, clearly delineating which body is responsible for
which aspects of the investigation and what investigative steps must be taken.
The objective should always be to provide the most effective review of the integrated activities, so as to avoid accountability gaps and conclusions or recommendations based on different factual determinations. A joint investigation
�RECOMMENDATIONS
should be aimed at ascertaining all of the facts relating to integrated activities in
order that each review body can make the assessment required by its mandate
on a commonly understood factual basis.
In addition, joint investigations should be directed at avoiding duplication
of investigative effort. It makes little sense, for example, to have SIRC and ICRA
each conduct separate investigations into a factual situation relating to integrated
CSIS and RCMP activities.
Decisions relating to personnel and resources for joint investigations
are best approached on a case-by-case basis. Relevant factors will include
the level of involvement of an underlying agency and the expertise and available resources of the respective review bodies. As discussed under
Recommendation 12, any disputes about joint investigations will be referred to
a coordinating committee, the Integrated National Security Review Coordinating
Committee (INSRCC), for resolution.
Developing joint investigation plans undoubtedly will require a good deal
of co-operation between review bodies and a conscious effort to avoid jurisdictional disputes. I would hope that, over time, the review bodies would jointly
develop expertise in working co-operatively, so that the prospect of joint investigations would not be viewed as a threat to jurisdictional interests.
A successful joint investigation should result in a common understanding
about the facts relating to the integrated activities. It should also produce coordinated recommendations about how the agencies subject to review should respond to the findings.
Some investigations, particularly those involving complaints, may require
hearings in which the agency being investigated and the complainant are entitled to participate. Clearly, joint hearings will be more challenging than joint investigations. Although I do not envision that there will be many cases where
joint hearings are required, I would not exclude the possibility. If a joint hearing
makes sense, it should be held. I am satisfied that, with co-operation between
review bodies, a process can be established to coordinate such hearings. By
way of example, I point to the practice of the Ontario and Quebec securities
commissions of holding joint hearings on occasion. Although the two commissions were established under separate provincial statutory schemes, they have
been able to co-operate and conduct effective joint hearings. If two provincial
bodies can achieve that level of co-operation, one would expect that federal review agencies would also be able to do so.
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The outcome of a joint hearing should be the same as the outcome of a
joint investigation: a common factual basis upon which each of the review bodies can make its own assessment and prepare its own report in accordance with
its mandate.
2.24.4.4
Coordination in the Preparation of Reports
Statutory gateways do not alter or intrude upon the exercise of each review
body’s responsibility for preparing and submitting reports as described in its
constituting legislation. However, for purposes of producing such reports, when
more than one review body has investigated or reviewed integrated activities,
there is significant advantage to consultation among the review bodies to discuss assessments on the basis of the commonly understood underlying facts.
While each review body must reach its own conclusions, prior consultation can
minimize the potential for gaps in accountability for the integrated activities and
for inconsistent conclusions.
I envision that, in some cases, the conclusions of more than one review
agency could be included in consolidated reports, which would then be provided to the appropriate minister(s).
While statutory gateways cannot ensure that there will be no accountability gaps or inconsistent conclusions, I think that, if they are properly applied, the
potential for such undesirable results can be significantly reduced.
�RECOMMENDATIONS
2.25
Recommendation 12
The government should establish a committee, to be known as the Integrated
National Security Review Coordinating Committee, comprising the chairs of ICRA
and the Security Intelligence Review Committee, the Communications Security
Establishment Commissioner and an outside person to act as Committee chair.
INSRCC would have the following mandate:
•
•
•
•
•
•
to ensure that the statutory gateways among the independent review bodies
operate effectively;
to take steps to avoid duplicative reviews;
to provide a centralized intake mechanism for complaints regarding the national security activities of federal entities;
to report on accountability issues relating to practices and trends in the area
of national security in Canada, including the effects of those practices and
trends on human rights and freedoms;
to conduct public information programs with respect to its mandate, especially the complaint intake aspect; and
to initiate discussion for co-operative review with independent review bodies for provincial and municipal police forces involved in national security
activities.
2.25.1
Operation of Statutory Gateways
The statutory gateways that I propose are permissive. Their success in meeting
their objectives will depend almost entirely on co-operation among the three review bodies.
Because co-operation is so important to the success of integrated review, I
think it would be prudent for a coordinating committee — which would include
among its members the chairs of ICRA and SIRC and the CSE Commissioner —
to provide a formal and effective mechanism for coordination of review of integrated activities. I envision that this aspect of INSRCC’s mandate need be nothing more than a formalized process of consultation and co-operation. Indeed, if
this function of INSRCC proves unnecessary because the required co-operation
will take place in any event, then that will be an excellent outcome. If the
review bodies are able to address all of the issues required to achieve effective
integrated review of integrated activities, there will be no need for INSRCC to
take any action in terms of overseeing the effectiveness of statutory gateways.
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INSRCC will need to take action in relation to its oversight of statutory gateways only when the review bodies, at the operational level, are not functioning
as intended.
To fulfill this part of its mandate, INSRCC should be informed on a regular
basis by the chairs of ICRA and SIRC and the CSE Commissioner about reviews
or investigations involving integrated activities, parallel reviews that may be
taking place with respect to the same activities, and cases being reviewed pursuant to statutory gateways. In particular, INSRCC should be informed of any difficulties or disagreements with respect to integrated review. It should determine
whether reviews of integrated activities are being conducted in ways that will
avoid the potential for accountability gaps and inconsistent outcomes, and
whether any additional steps should be taken in order to achieve the objectives
of integrated review.
In those instances where INSRCC determines that different or additional
steps should be taken to provide effective integrated review, it should issue an
investigation plan setting out the responsibilities of the review bodies involved
and the investigative steps it considers appropriate. An investigation plan could
involve some or all of the co-operative actions contemplated by the statutory
gateways. INSRCC’s authority in this regard would not undermine the independence of the review bodies, as INSRCC itself will be independent and at
arm’s length from government.
I expect that, in most, if not all cases, INSRCC members would be able to
agree on the most effective and appropriate course of action for integrated review. In those cases where members of INSRCC are unable to reach a consensus regarding a course of action, INSRCC should determine the course to be
followed for integrated review by majority vote, with the independent chair casting an additional deciding vote where necessary.
Some have suggested that giving a coordinating committee the authority to
direct investigation plans would result in an atmosphere of confrontation among
the review bodies. I find this suggestion rather surprising and disappointing.
The Canadian public should be able to expect that those responsible for the independent review bodies in respect of Canada’s national security activities could
reach agreement on the most effective approach for integrated review. All of the
review bodies should have the same objectives: to ensure that integrated reviews are effective, there are no gaps in accountability and review outcomes are
consistent, and to avoid duplicative review. I have more optimism about the capacity of review bodies to cooperate fully than those who put forward this rather
pessimistic outlook.
�RECOMMENDATIONS
Finally, I recommend that INSRRC be authorized to direct the underlying review bodies to conduct an integrated investigation or review upon request of the
Minister of Public Safety, Minister of National Defence or Attorney General, or
upon direction by Order in Council. I envision that this power will be used only
rarely, but it could be useful in dealing with another case similar to Mr. Arar’s,
involving pressing issues and multiple national security agencies.
2.25.2
Avoiding Duplication
INSRCC’s mandate should include responsibility for preventing duplication of review of the same activities, which is a waste of time and resources. Potential for
duplicative review looms large when the operational activities of two agencies
with separate review bodies are not coordinated or integrated.
INSRCC should be able to perform this aspect of its mandate with little difficulty. On receipt of the information from the ICRA and SIRC chairs and the CSE
Commissioner, INSRCC should identify situations with a potential for duplication
and, in a co-operative manner if possible, develop an investigation plan to avoid
the problem. Again, where agreement cannot be reached, the committee should
proceed by majority vote. The review bodies involved would then be required
to implement the investigation plan as directed.
INSRCC could also provide a forum for coordinating review among its members and other federal review agencies such as the Privacy Commissioner,
Information Commissioner, Canadian Human Rights Commission and Auditor
General. Although not represented on INSRCC, those other review agencies
could be encouraged to inform INSRCC of plans to conduct reviews of national
security activities, thereby enabling INSRCC to inform the relevant independent
review agency of ongoing or planned reviews or of the possibility of pooling resources and information. Such a coordinating role could be helpful both to avoid
wasteful duplication and thus conserve limited review resources and to ensure
that no one federal agency with national security responsibilities is overwhelmed
and overburdened with multiple reviews conducted by different review agencies at any one point in time.
INSRCC’s mandate with respect to avoiding duplication need not be onerous. Nevertheless, as integrated operations in the national security field increase,
so, too, will the need to avoid duplication in review.
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2.25.3
Centralized Complaint Intake
INSRCC should establish a complaint intake system with the capacity to receive
complaints related to the national security activities of any federal entity. When
it receives a complaint, INSRCC should assess it to determine which review or
accountability agency has jurisdiction to address it and then direct the complaint
to the appropriate agency. Here, I envision that complaints would be directed
not only to the review bodies represented by INSRCC (ICRA, SIRC or the CSE
Commissioner), but also to any other review body or accountability mechanism
within the federal government.
In order to fulfill this role, INSRCC will have to set up a process for receiving and triaging complaints. It will need the capacity to review the substance of
a complaint, identify the entities that might be involved in the activities complained of, and assess what review or accountability mechanism has jurisdiction
to address the matter.
I am satisfied that there is a compelling need for a unified processing function for complaints relating to national security activities within the federal government. Throughout this Report, I speak frequently of the large increase in
national security activities undertaken by federal entities and in integration
among those entities. The result of that increase is that it has become more and
more difficult for individuals with complaints to know where to lodge them.
The problem is compounded by the fact that so many national security activities are cloaked in secrecy.
Thus, for example, when an individual becomes aware that a government
entity has collected and stored information about him or her that is inaccurate,
the individual may have no idea what entities were involved in the information
collection or dissemination process, or where to complain. Potential complainants should not have to go from one review body or accountability mechanism to another until they find the right one. Being turned away and told to
try somewhere else creates frustrations, impedes effective review, and can undermine public confidence in the review process. At the Policy Review hearings,
a number of intervenors made persuasive submissions concerning the desirability of having a single agency able to receive all complaints relating to national
security activities.
It makes abundant sense for the government to establish a single agency to
take complaints, sort them out and direct them to the bodies with jurisdiction
to address them. As I point out above, some complaints may involve entities not
within the jurisdiction of the review bodies represented by the INSRCC.
�RECOMMENDATIONS
However, INSRCC, constituted as I propose, is a sensible choice for handling the
complaint-receiving function, regardless of the entity to which a complaint relates. In many cases, the agency or department that is the subject of a complaint
will be readily identified. Moreover, many complaints will probably be channeled to one or more of the three review bodies represented by INSRCC, as
they are responsible for the review of the most significant actors in the national
security field.
In addition, the combined expertise of the ICRA and SIRC chairs and the
CSE Commissioner in assessing complaints and conducting investigations
should be invaluable in guiding the complaints intake function. If one accepts
the notion that there is a significant public interest in having a unified
complaints-receiving mechanism for all federal entities, it seems to me that INSRCC is ideal for carrying out that task. The triaging undertaken by INSRCC
should also assist it in identifying both accountability trends and gaps in the dynamic national security environment.
I do not envision that establishing a unified complaints intake process
within INSRCC will remove the need for separate complaint intake systems
within each of the three review bodies represented by INSRCC. I propose that
those bodies continue to receive complaints from the public as well as those referred to them by INSRCC and to handle them in much the same way they have
in the past. When INSRCC receives a complaint and determines that integrated
review is necessary, it may direct the manner in which the integrated review is
to be conducted when it refers the complaint to the appropriate review body.
INSRCC’s complaint processing function will involve creating an infrastructure with appropriate capacity to fulfill this aspect of INSRCC’s mandate. The
government should ensure that INSRCC has adequate resources in this regard.
2.25.4
Reports on Accountability Issues
The complexity of Canada’s national security activities has grown enormously
in recent years. The ways in which national security activities may run afoul of
the law or standards of propriety have also increased, as have the potential impacts on individual rights and freedoms.
Canada has an important interest in monitoring the way national security activities are evolving and in keeping abreast of practices or trends that create accountability problems. The independent agencies responsible for reviewing the
national security activities of the major federal participants in the national security field are ideally situated to observe the types of practices or trends that warrant consideration by the government. Most of what the review bodies learn
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will be contained in reports on reviews and complaint investigations. However,
the advantage of INSRCC is that its members will have the opportunity to examine both the reports of the three review bodies and the information derived
from its own complaints processing function in a coordinated and cohesive way.
As a result, INSRCC will be in an excellent and perhaps unique position within
the Canadian national security milieu to report to government about practices
and trends that warrant observation and comment. In short, INSRCC will be able
to see the “big picture” with respect to independent review of the government’s
national security activities. I recognize that a committee of parliamentarians on
national security or a legislative committee, should one be created, would also
have the capacity to see the “big picture” with respect to the government’s
national security activities, but I note that it might be concerned more with the
efficacy of these activities than their propriety. INSRCC, like its constituent independent review agencies, will be primarily concerned with issues relating to
propriety and accountability, as opposed to efficacy.
I suggest that INSRCC be authorized to receive submissions from the public and to consult with other agencies within and outside government as it deems
appropriate in furtherance of its mandate to report on accountability and the effects of national security practices on human rights and freedoms. I also suggest
that INSRCC prepare a report on matters relating to this part of its mandate on
an annual basis. The report should be submitted to the Minister of Public Safety,
Minister of Defence and other ministers of agencies subject to review by SIRC,
and should be tabled in Parliament within 15 sitting days, as is done for the annual reports of SIRC, the CPC and the CSE Commissioner.
2.25.5
Public Information Role
INSRCC should also conduct a public information program to inform Canadians
about its mandate. In particular, it should ensure that the public is informed of
its complaint intake function and responsibility to report on accountability issues
in respect of Canada’s national security practices and trends.
An effective public information program will greatly assist INSRCC in carrying out these important responsibilities.
2.25.6
Provincial and Municipal Police Forces
The evidence in this Inquiry indicates that provincial and municipal police forces
are becoming increasingly involved in law enforcement investigations relating
to national security. Integration of national security activities is important and
�RECOMMENDATIONS
should continue. However, it is essential that integrated operations take place
within a clearly established framework in order that there be a common understanding of the roles and responsibilities of those involved.
The Canadian Association of Chiefs of Police has endorsed the concept of
an overarching federal statute to provide a framework for integrated policing
across Canada. This strikes me as a good idea. However, I have not looked at
that issue sufficiently to make a specific recommendation.
That said, when there are integrated activities among federal entities and
provincial or municipal police forces in the national security area, there is merit
in ensuring co-operative independent review of those activities. I am referring
here to consultation and coordination of activities between the independent
review bodies for the federal entities and their provincial or municipal counterparts, to the extent appropriate. Since provisions for independent review may
vary depending on the provincial and municipal police force, arrangements
would have to be tailored to different situations.
There are two points worth keeping in mind here. First, the RCMP is not
the only federal body to conduct integrated activities relating to national security with provincial and municipal police forces. INSETs and IBETs are good examples of bodies in which provincial and municipal police officers operate on
an integrated basis with federal agencies other than the RCMP. For that reason,
the need for co-operative review extends beyond the review body that I propose
for the RCMP.
Second, given its coordinating role, INSRCC is ideally placed to initiate discussions between independent federal review agencies and independent provincial review agencies for coordination of review of integrated activities when
warranted. INSRCC represents three key independent review bodies and, as
such, should have the expertise to initiate and lead the necessary discussions.
If arrangements are to be formalized, then the respective governments — federal, provincial or municipal — will need to be involved.
Finally, I would suggest that the initiative to develop a co-operative
approach to independent review involve the Canadian Association of Chiefs
of Police. This organization has obviously given a great deal of thought to issues arising from integrated policing and would make a valuable contribution
to the discussions.
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2.25.7
Composition
I propose that INSRCC initially have four members: the chairs of ICRA and SIRC,
the CSE Commissioner and an outside person to act as an independent committee chair. I do not see the need for a larger committee at this stage.
The chair of INSRCC should be someone who has expertise in the national
security field and who would not only be, but also be perceived to be, independent of government and of the agencies involved in national security activities. The position of chair would be part-time. In the event of votes, the chair
would have an additional deciding vote.
It may be that, as experience is gained, there will be an advantage to adding
another member. It has been suggested that there should be a member to represent all of the other federal review or accountability bodies. It has also been
suggested that the Privacy Commissioner would be a particular asset to INSRCC,
as so many of the national security activities that may be the subject of
complaints relate to the collection, storage and dissemination of personal information. There is merit to this suggestion. However, for the time being, it should
be sufficient to ensure that INSRCC has the capacity to consult with and seek the
advice of others (such as the Privacy Commissioner) who have special expertise in matters that might fall within its mandate.
2.25.8
Staffing
INSRCC will be required to hire qualified staff to fulfill its mandate. However, I
do not envision a large bureaucracy or infrastructure. The committee will not be
conducting reviews. It will consider the need for and adequacy of integrated reviews by the three independent review bodies and will serve as a clearing house
and coordinating mechanism for complaints. Nevertheless, the process for handling complaints and perhaps making reports on accountability issues relating
to Canada’s national security activities will require staff with appropriate expertise and adequate resources. I expect that, in some cases, staff could be seconded to INSRCC from ICRA, SIRC, the CSE Commissioner and other federal
review agencies, thereby providing INSRCC with the benefits of existing expertise, while at the same time broadening the experience of those seconded to
the committee.
�RECOMMENDATIONS
2.25.9
Reporting
In my view, INSRCC should report to a responsible minister, as the review bodies do. The reason is that all elements of the security and intelligence landscape
need to be accountable to the executive rather than the legislative branch of
government. The latter can review reports, but cannot act on recommendations.
In the event of improper national security activities, the responsible minister is
in the best position to take corrective action. Ultimately, it is the executive
branch, in the form of responsible ministers, that is responsible for the propriety of the actions of the operating agencies being reviewed.
INSRCC should report to the ministers with responsibility for the independent review agencies represented on it: the Minister of Public Safety for the
RCMP and SIRC review bodies, and the Minister of National Defence for the
CSE Commissioner. It should also report as appropriate to the minister(s) responsible for the agencies whose activities are being reviewed in a given report.
2.25.10
Arguments Against INSRCC
The concept of INSRCC was put forward as an option during the Policy Review
hearing process. Several of the parties made submissions opposing the idea,
some strongly. The parties against INSRCC can be divided into two broad categories: those who do not think it is necessary, and those who would prefer a
super agency that would conduct reviews of the national security activities of all
federal entities in the field. I have already made the case for the necessity of
INSRCC. Below, I address the arguments in favour of a super agency.
2.25.10.1
Super Agency
Many from outside government have submitted that setting up a body such as
INSRCC does not go far enough in addressing accountability concerns that arise
from integrated national security activities. They advocate the creation of a super
agency, which would review all of the national security activities of federal entities. Some have suggested that the super agency would apply only to the “main
players,” but that the RCMP would be one of those players.
The single most important factor underlying these submissions is the need
to extend independent review to government agencies not now included within
the mandate of existing review bodies. A secondary concern is the need to
avoid problems with accountability gaps and inconsistent reviews of integrated
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operational activities. It has also been argued that a super agency would provide a convenient single intake point for all complaints related to national security and an excellent observation point for discerning problems or trends in
the accountability mechanisms for Canada’s national security activities.
I am satisfied that the model I propose addresses all of these concerns. In
addition, it avoids what, by any measure, would be the huge and potentially unwieldy step of creating a massive new review body. A super agency also runs
the risk of blurring the important differences in the roles of the numerous national security actors — in particular, the distinctions between national security
intelligence gathering and law enforcement.
Finally, Recommendation 13 concerns an independent review of the recommendations in this area in five years’ time. The national security landscape
in Canada is growing and changing. If it is determined that changes are needed
to achieve the objectives of the super agency, then those changes may be
adopted at that time.
2.26
Recommendation 13
In five years’ time, the government should appoint an independent person to reexamine the framework for independent review recommended in this Report, in
order to determine whether the objectives set out are being achieved and to make
recommendations to ensure that the review of national security activities keeps
pace with changing circumstances and requirements.
2.26.1
Need for Review
I recommend an independent review after five years for two reasons. The first
is that the proposed models for integrated review adopt a novel approach in
Canada for the review of national security activities and may require modification based on experience with them. The second is that Canada’s national security activities are evolving at a rapid pace and changes may be required to
keep up with changing circumstances.
The proposals for integrated review in this Report attempt to make use of
existing institutions to the extent possible and minimize the creation of new
complex structures. I expect that, with appropriate effort and support, the models I propose will ensure an appropriate level of review for Canada’s national
security activities. However, the problems that these proposals are designed to
address are complex and will be difficult to overcome. In particular, the success
�RECOMMENDATIONS
of ICRA, the approach to reviewing integrated activities, the expanded SIRC, the
statutory gateways and the role of INSRCC will be dependent to a considerable
extent on co-operation among the review bodies involved. At this time, one can
not be certain that the required co-operation will occur. Therefore, after some
time has elapsed, it will be important to assess whether the structures proposed
in this Report are functioning as intended.
The second reason for a review after five years is the fact that Canada’s national security activities are evolving quickly. It is fair to assume that, over a period of five years, there will be an increase in the number of Canadian agencies
involved in national security activities and in the level of integrated activities
among those agencies. Sharing of national security information with other agencies, particularly internationally, is also likely to be stepped up. Further, those
responsible for protecting Canada’s national security may face new threats
not presently contemplated and some federal entities may become involved in
the national security field in new ways. In five years’ time, additional agencies
or persons may have been assigned to coordinate the government’s national
security activities and a national security committee of parliamentarians may
have been established.
It is essential that Canada’s review mechanisms for national security activities keep pace with the evolution of the activities being reviewed, in order that
the objectives of review that I discuss in this Report may be achieved.
In its 2004 National Security Policy, the Government of Canada captured this
idea when it said, “as legal authorities and activities of our security and intelligence agencies evolve to respond to the current and future security environment, it is vitally important that we ensure review mechanisms keep pace.”50
2.26.2
Review Process
The review at the end of five years should be conducted by a person independent of the agencies to be reviewed, the review bodies, and government.
The review bodies and agencies being reviewed could be perceived as having
an interest in the outcome of the review. They might have different views about
how integrated review has proceeded and what should be done in future, particularly if there have been difficulties. Similarly, the government, which is responsible for providing direction to the agencies being reviewed and for
receiving and acting upon recommendations of the review bodies, may be seen
to have an interest in one approach or another. Given the great importance of
public confidence and trust in the effective review of national security activities,
it would be prudent to appoint an independent person to conduct the review.
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I do not envision the review in five years’ time being a public inquiry. That
is not necessary. The research done for this Inquiry and Report should provide
a platform for conducting the review. It should not need to be repeated. The review could simply build on the work done to date.
The person responsible for the review should have the scope to adopt
the process he or she considers appropriate. The reviewer will require proper
security clearance, to be able to examine the necessary information in order
to determine how effectively review models have been able to address integrated activities.
Finally, without being prescriptive, I envision that the review in five years’
time would assess and report on each of the following matters:
(a) the effectiveness of the RCMP review body in reviewing the RCMP’s national security activities;
(b) the effectiveness of the expanded SIRC in reviewing the national security
activities included within its mandate;
(c) whether SIRC’s expanded mandate is interfering with the effective review
of CSIS;
(d) whether INSRCC is fulfilling its mandate;
(e) the efficacy of the statutory gateways in carrying out their intended objectives and the possibility that the gateways should be extended to other federal accountability mechanisms; and
(f) whether there are other federal entities engaged in national security activities that require independent review.
The reviewer should make recommendations to the Governor in Council for
modifications to the review system as he or she deems necessary, and a copy
of the reviewer’s report should be made public and tabled in Parliament.
�RECOMMENDATIONS
3.
SUMMARY LIST OF RECOMMENDATIONS ARISING FROM
POLICY REVIEW
Recommendation 1
Existing accountability mechanisms for the RCMP’s national security activities
should be improved by putting in place an independent, arm’s-length review
and complaints mechanism with enhanced powers.
Recommendation 2
The review and complaints body should be located within a restructured
Commission for Public Complaints Against the RCMP, and be renamed the
Independent Complaints and National Security Review Agency for the RCMP
(ICRA for short) to reflect its expanded role.
Recommendation 3
ICRA’s mandate should include authority to:
(a) conduct self-initiated reviews with respect to the RCMP’s national security
activities, similar to those conducted by the Security Intelligence Review
Committee (SIRC) with respect to CSIS, for compliance with law, policies,
ministerial directives and international obligations and for standards of propriety expected in Canadian society;
(b) investigate and report on complaints with respect to the RCMP’s national
security activities made by individual complainants and by third-party
groups or individuals;
(c) conduct joint reviews or investigations with SIRC and the CSE Commissioner
into integrated national security operations involving the RCMP;
(d) conduct reviews or investigations into the national security activities of the
RCMP where the Minister of Public Safety so requests;
(e) conduct reviews or investigations into the activities related to national security of one or more government departments, agencies, employees or
contractors, where the Governor in Council so requests; and
(f) in exercising its mandate with respect to the matters in paragraphs (a) to (d)
above, make recommendations to the Minister of Public Safety, and with respect to matters in paragraph (e), to make recommendations to the relevant
Ministers.
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Recommendation 4
ICRA should have the following powers:
(a) extensive investigative powers, similar to those for public inquiries under
the Inquiries Act, to allow it to obtain the information and evidence it considers necessary to carry out thorough reviews and investigations; those
powers should include the power to subpoena documents and compel testimony from the RCMP and any federal, provincial, municipal or private-sector entity or person;
(b) power to stay an investigation or review because it will interfere with an ongoing criminal investigation or prosecution;
(c) power to conduct public education programs and provide information concerning the review body’s role and activities; and
(d) power to engage in or to commission research on matters affecting the review body.
Recommendation 5
ICRA’s complaints process should incorporate the following features:
(a) in the first instance, ability on the part of ICRA to refer a complaint to the
RCMP for investigation or to investigate the complaint itself, if deemed appropriate;
(b) ability on the part of the complainant to request that ICRA review the complaint if the complainant is not satisfied with the RCMP’s investigation and
disposition of it;
(c) ability on the part of ICRA to dismiss a complaint at any stage of an investigation as trivial, frivolous or vexatious, or made in bad faith;
(d) establishment of a program providing opportunities for the use of mediation and informal complaint resolution, except where the complainant does
not have the information about the RCMP activities that are relevant to the
complaint;
(e) with respect to complaints, opportunity for the Commissioner of the RCMP
and affected members of the RCMP to make representations to ICRA and,
where a hearing is commenced, to present evidence and be heard personally or through counsel;
(f) opportunity for the complainant to make representations to ICRA and to
present evidence and be heard personally or through counsel at a hearing;
�RECOMMENDATIONS
(g) open and transparent hearings of a complaint, to the extent possible, but
authority for ICRA to conduct all or part of a hearing in private when it
deems it necessary to protect national security confidentiality, ongoing police investigations or the identity and safety of sources;
(h) for purposes of hearings of complaints, discretion by ICRA to appoint
security-cleared counsel independent of the RCMP and the government to
test the need for confidentiality in regard to certain information and to test
the information that may not be disclosed to the complainant or the public;
(i) ability for ICRA to seek the opinions or comments of other accountability
bodies, such as the Canadian Human Rights Commission, the Privacy
Commissioner of Canada and the Information Commissioner of Canada.
Recommendation 6
ICRA should be structured so that complaints and reviews related to the RCMP’s
national security activities are addressed only by specified members.
Appointments of such members should be aimed at inspiring public confidence
and trust in their judgment and experience. Appointees should be highly-regarded individuals with a stature similar to SIRC appointees.
Recommendation 7
CRA should prepare the following reports to the Minister of Public Safety (the
Minister) and the Commissioner of the RCMP:
(a) Reports arising from self-initiated reviews and investigations of complaints,
which should include non-binding findings and recommendations.
(b) Annual reports on its operations to the Minister, who should lay an edited
version of the report, omitting national security information, before each
House of Parliament.
All of the above reports may include confidential information (including
information subject to national security confidentiality) and should also include
an edited version that ICRA proposes for public release.
Recommendation 8
ICRA should have an adequate budget to fulfill its mandate in relation to
the RCMP’s national security activities, including for purposes of selfinitiated review.
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Recommendation 9
There should be independent review, including complaint investigation and selfinitiated review, for the national security activities of the Canada Border Services
Agency, Citizenship and Immigration Canada, Transport Canada, the Financial
Transactions and Reports Analysis Centre of Canada and Foreign Affairs and
International Trade Canada.
Recommendation 10
ICRA should review the national security activities of the Canada Border Services
Agency, and the Security Intelligence Review Committee should review the national security activities of the other four entities.
Recommendation 11
The government should establish statutory gateways among the national security review bodies, including ICRA, in order to provide for the exchange of information, referral of investigations, conduct of joint investigations and
coordination in the preparation of reports.
Recommendation 12
The government should establish a committee, to be known as the Integrated
National Security Review Coordinating Committee, or INSRCC, comprising the
chairs of ICRA and the Security Intelligence Review Committee, the
Communications Security Establishment Commissioner and an outside person to
act as Committee chair. INSRCC would have the following mandate:
•
•
•
•
•
•
to ensure that the statutory gateways among the independent review bodies operate effectively;
to take steps to avoid duplicative reviews;
to provide a centralized intake mechanism for complaints regarding the national security activities of federal entities;
to report on accountability issues relating to practices and trends in the area
of national security in Canada, including the effects of those practices and
trends on human rights and freedoms;
to conduct public information programs with respect to its mandate, especially the complaint intake aspect; and
to initiate discussion for co-operative review with independent review bodies for provincial and municipal police forces involved in national security
activities.
�RECOMMENDATIONS
Recommendation 13
In five years’ time, the government should appoint an independent person to reexamine the framework for independent review recommended in this Report,
in order to determine whether the objectives set out are being achieved and to
make recommendations to ensure that the review of national security activities
keeps pace with changing circumstances and requirements.
Notes
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
In this chapter, unless I state otherwise, I use the term “review” broadly to encompass both
self-initiated review and complaint investigation functions.
Germany has an intelligence review committee in parliament, but no body that reviews the
police.
[2004] F.C.J. No. 1029, aff’d [2005] F.C.J. No. 1011.
Report of the Auditor General of Canada to the House of Commons (Ottawa: Minister of Public
Works and Government Services Canada, 2003), para.10.161 [Auditor General’s 2003 report].
R.S.C. 1985, c. C-46 (as am. by the Anti-terrorism Act, S.C. 2001, c. 41).
“Policy Review Submissions,” Canadian Arab Federation and Canadian Council on AmericanIslamic Relations (Written submission, Arar Commission Policy Review Public Submissions),
February 21, 2005, p. 26.
R.S.C. 1985, c. R-10, s. 45.35(1).
Hon. Patrick J. LeSage, Report on the Police Complaints System in Ontario, April 22, 2005,
online, Ontario Ministry of the Attorney General, http://www.attorneygeneral.jus.gov.on.ca/
english/about/pubs/LeSage/en-fullreport.pdf (accessed August 14, 2006) [LeSage].
Bill 103, Independent Police Review Act, 2nd Sess., 38th Leg., Ontario, 2006, s. 58(1).
R.S.C. 1985, c. R-10, s. 45.37.
Ibid., s. 5(1).
R.S.C. 1985, c. C-23, s. 54.
Babcock v. Canada (Attorney General), [2002] 3 S.C.R. 3 at para. 18 (internal citation omitted).
Ibid. at paras. 22, 32.
Canada Evidence Act, R.S.C. 1985, c. C-5, s. 39(2).
Babcock v. Canada (Attorney General), [2002] 3 S.C.R. 3 at paras. 22, 25, 36, 39, 41, 42.
RCMP Act, ss. 45.36, 45.39, 45.4.
Ibid., ss. 45.41, 45.42.
Ibid., s. 45.43.
Ibid., s. 45.46.
“Submissions of the Commission for Public Complaints Against the RCMP Regarding the Policy
Review of the Commission of Inquiry into the Actions of Canadian Officials in Relation to
Maher Arar” (Written submission, Arar Commission Policy Review Public Submissions),
February 21, 2005, p. 49.
LeSage (see note 16), p. 66.
RCMP Act, s. 45.36
607
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24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
Canada, Commission for Public Complaints Against the RCMP, Review 2004/2005 – Annual
Report (Ottawa: Minister of Public Works and Government Services, 2005), pp. 29–31 (Chair:
Shirley Heafey).
RCMP Act, s. 45.36(6).
Ibid., ss. 44.42(2), 45.46(3).
Ibid., ss. 45.45(2), 45.45(5).
CSIS Act, s. 48(2).
Ibid., s. 48(1).
RCMP Act, s. 45.45 (11).
See, e.g., Toronto Star Newspapers Ltd. v. Ontario, [2005] 2 S.C.R. 188; Vancouver Sun (Re),
[2004] 2 S.C.R. 332; Sierra Club of Canada v. Canada (Minister of Finance), [2002] 2 S.C.R. 522;
R. v. Mentuck, [2001] 3 S.C.R. 442; Canadian Broadcasting Corp. v. New Brunswick (Attorney
General), [1996] 3 S.C.R. 480; Ottawa Citizen Group Inc. v. Canada (Attorney General) 2005,
75 O.R. (3d) 590 (Ont. C.A.) and 2005, 75 O.R. (3d) 607 (Ont. C.A.).
Chahal v. United Kingdom (1996), 23 EHRR 413.
U.K., H.C., Constitutional Affairs Committee, The operation of the Special Immigration Appeals
Commission (SIAC) and the use of Special Advocates: Seventh Report of Session 2004–05, vol. 1
(London: Her Majesty’s Stationery Office, 2005) [CAC Report]. Specifically, the European Court
found that the procedure breached article 5, para. 4 of the Convention, which provides that
“[e]veryone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and
his release ordered if the detention is not lawful.”
CAC Report (see note 33), p. 22.
“Submissions of the Commission for Public Complaints Against the RCMP Regarding the Policy
Review of the Commission of Inquiry into the Actions of Canadian Officials in Relation to
Maher Arar” (Written submission, Arar Commission Policy Review Public Submissions),
February 21, 2005, p. 47.
RCMP Act, s. 45.34
CSIS Act, s. 55.
Under s. 38.03(3) of the Canada Evidence Act.
In this section, I use the term integration in a broad sense to cover coordinated operations and
co-operation between agencies.
See transcript of Roundtable of International Experts on Review and Oversight, Arar
Commission Policy Review (May 20, 2005), online, http://www.stenotran.com/
commission/maherarar/2005-05-20%20International%20Roundtable.pdf;
Transcript
of
Roundtable of Canadian Experts on Review and Oversight, Arar Commission Policy Review
(June 10, 2005), online, http://www.stenotran.com/commission/maherarar/2005-06-10%20
Canadian%20Roundtable.pdf (both accessed Aug. 14, 2006). These transcripts are also available on the CD that accompanies this Report.
See discussion in Chapter V.
Under the “Passenger Protect” program, which emerged from the Public Safety Act, 2002,
S.C. 2004, c. 15.
S.O.R./2001-360 and S.O.R./99-444, discussed in Chapter V.
R. v. Cook, [1998] 2 S.C.R. 597.
Auditor General’s 2003 report (see note 4), para.10.162.
Ibid., p. 41.
�RECOMMENDATIONS
47
48
49
50
Canada, Privy Council Office, Securing an Open Society: Canada’s National Security Policy
(Ottawa: Privy Council Office, 2004), p. 19, online, http://www.pco-bcp.gc.ca/docs/
Publications/NatSecurnat/natsecurnat_e.pdf (accessed Aug. 9, 2006) [Securing an Open
Society].
Ibid., p. 20.
For simplicity, I use the term “integrated review” rather than “integrated or co-operative review.” Although I recognize that some of the procedures I recommend are arguably more in
the nature of co-operation than integration, I do not think it is necessary to distinguish between
the two.
Securing an Open Society, p. 19.
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�XII
Policy Review Process
1.
INTRODUCTION
The Policy Review mandate requires me to make recommendations “. . . on an
independent, arm’s-length review mechanism for the activities of the Royal
Canadian Mounted Police with respect to national security based on (i) an examination of models, both domestic and international, for that review mechanism, and (ii) an assessment of how the review mechanism would interact with
existing review mechanisms. . ..”
At the outset, I determined that I would benefit from a research-based, consultative process for this mandate. Clearly, the process required for the Policy
Review was different from that necessary for the Factual Inquiry, the part of
my mandate relating to what happened to Mr. Arar. For the Policy Review, it
made sense to proceed in a much more informal and consultative manner. It was
necessary to obtain information and submissions from a broad range of sources,
including the institutions that would be affected by my recommendations, individuals with expertise in the area of national security, and public interest groups.
2.
GUIDING PRINCIPLES
In establishing the process for the Policy Review, I used four guiding principles
and a variety of procedural mechanisms in order to gather as much information
as possible and to involve all of those who were interested in participating in
the process.
The four guiding principles were: openness/accessibility, thoroughness,
fairness and expedition.
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2.1
OPENNESS/ACCESSIBILITY
This is a public inquiry and it was essential that the proceedings be as transparent and open to the public as possible. With that in mind, my counsel and I
developed a process that at each stage kept the public fully informed and involved. We did this by publishing background and consultation papers and by
maintaining regular communications with the various parties who expressed an
interest in participating in the process. We made extensive use of our website
and e-mail correspondence.
In addition to keeping the public informed, we also invited public participation throughout the process. We regularly invited comment on our research
and on our background and consultation papers, and received many helpful
observations and submissions.
In the end, I am satisfied that the Policy Review process was fully transparent and open to the public and that all of those agencies, institutions and individuals who wished to participate in the process were given an opportunity
to do so.
2.2
THOROUGHNESS
There were a number of challenging questions that were integrally linked to the
Policy Review mandate. These questions required extensive information-gathering and analysis in order to thoroughly address the mandate and to make considered recommendations to the Government.
These questions included the following:
1.
2.
3.
4.
5.
6.
7.
What are the RCMP’s national security activities?
What are the characteristics of the RCMP’s national security activities that
could lead to a conclusion that they require a review mechanism?
What is a review mechanism, and how does it differ, if at all, from an oversight or other accountability mechanism?
What review, oversight and/or other accountability mechanisms currently
apply to the RCMP’s national security activities, and how adequately do
they achieve their objectives?
With whom and to what extent are the RCMP’s national security activities
integrated?
What impact could the integration of the RCMP’s activities have on the conception and design of a review mechanism?
How are other police forces in Canada reviewed?
�POLICY REVIEW PROCESS
8.
9.
How are security intelligence agencies in Canada reviewed?
How are police forces and security intelligence agencies in other countries
reviewed?
10. What can we learn from these domestic and international review models?
Certain of these questions derived directly from the Government’s direction that I base my recommendations in part on an examination of domestic
and international review models. This examination was necessarily wide-ranging, as Canadian and foreign jurisdictions offer many different review models
and features.
The Government also directed that I base my recommendations on an assessment of how a review mechanism for the RCMP’s national security activities
would interact with existing mechanisms. Given the integration of the RCMP’s
national security activities with those of other federal and provincial actors, and
the number of review and other accountability mechanisms in the federal and
provincial spheres in Canada, this direction necessarily entailed extensive information gathering.
Certain of these questions also reflected the fact that the RCMP’s national
security activities are policing activities that have some features in common with
security intelligence activities, but that also have features that are unique to a law
enforcement agency. It was therefore important that I not only learn about these
activities in detail, but also that I consider the applicability of review mechanisms for both law enforcement and security intelligence agencies.
2.3
FAIRNESS
The principle of fairness is inextricably linked to the principle of openness and
accessibility. I wanted to ensure that any individual or organization that wished
to contribute to the Policy Review had a meaningful opportunity to do so. I
therefore permitted written submissions in any format,1 and I extended submission deadlines, both formally and informally. By “informally,” I mean that I did
not reject any submissions because they were received beyond a deadline.
Indeed, I gave careful consideration to all submissions.
I also endeavoured to keep the public informed of the material information
and issues that I was considering, not only to solicit comments, but also in the
interest of fairness to the public. The “public” I refer to includes a number of organizations that could be affected by my recommendations. I considered it important that these organizations had a full opportunity to present any information
or viewpoints as they saw fit.
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Finally, I provided everyone involved with opportunities to respond to the
comments and submissions of others.
2.4
EXPEDITION
To be effective, a public inquiry must be expeditious. Expedition in the conduct
of a public inquiry makes it more likely that members of the public will be engaged by the process and that they will feel confident that the issues are being
appropriately addressed. Since public inquiries typically involve pressing and
substantial public-policy questions, the public is also better served by an inquiry
that proceeds in a timely manner.
With this principle in mind, I decided to proceed with the Factual Inquiry
and the Policy Review simultaneously. I established two distinct processes,
largely with separate staff. I made this decision to proceed concurrently with
both parts of the Inquiry for another reason as well. The substantive scope of
the issues in the Policy Review differed from the Factual Inquiry’s examination
of a specific set of events. The Policy Review was a broad-ranging inquiry into
the objectives of designing a review mechanism, the characteristics of national
security policing by the RCMP, the interaction between Canadian accountability actors, the implications of Canada’s constitutional division of powers, and
many other subjects. There was no compelling reason, in my view, to delay information gathering and consideration of these substantial issues until I had
completed my Factual Inquiry. While portions of the evidence in the Factual
Inquiry were relevant to my Policy Review mandate, I viewed that an ongoing
Policy Review process could take account of this evidence while it continued
gathering information. Indeed, as the Factual Inquiry proceeded, it became clear
to me that any information that was relevant to the Policy Review was being
heard in public, and could therefore inform the public’s contributions. In the
end, the Factual Inquiry’s evidentiary proceedings ended before the Policy
Review’s final hearings and final reply submissions. I am confident that there was
ample opportunity for consideration in the Policy Review of any relevant Factual
Inquiry evidence.
�POLICY REVIEW PROCESS
3.
PROCESS
3.1
APPOINTMENT OF ADVISORY PANEL
Early in the Policy Review process, I appointed an Advisory Panel of leading academics and former practitioners in the fields of law enforcement, security intelligence and government policy. In selecting members of the Panel, I tried to
ensure that they would represent a diversity of expertise and perspective to help
me in fulfilling my Policy Review mandate.
I met with the Advisory Panel regularly. I consulted them on the planning
and content of all Policy Review publications, and on my continuing analysis of
the questions posed by the Policy Review mandate. My counsel and I also drew
on their expertise to carry out and assess the results of our extensive information gathering, the Expert Roundtables and the public hearings (all described
below). Near the end of the Policy Review process, my counsel and I also held
a two-day workshop with the Advisory Panel to gather their observations and
views on the direction that my recommendations should take.
The thoughtful contributions of the Advisory Panel informed both my procedural and substantive decision making in the Policy Review. I am deeply appreciative of their expert assistance, and of the time and effort that they
dedicated to the Policy Review.
The Advisory Panel consisted of the following individuals:
Monique Bégin was Minister of Health and Welfare between 1977 and 1984.
Prior to that she served as Minister of Revenue, and in that capacity she dealt
with the issue of money laundering in Canada. A sociologist by training, Ms.
Bégin was from 1990 to 1997 Dean of the Faculty of Health Sciences at the
University of Ottawa. She also served as co-Chair of the Ontario Royal
Commission on Education from 1993 to 1994. Currently she is Professor
Emeritus, and visiting professor at the University of Ottawa School of
Management. She is an officer of the Order of Canada.
Alphonse Breau was Assistant Commissioner in the Royal Canadian
Mounted Police. During his distinguished career, which spanned 38 years, Mr.
Breau served as commanding officer in “C” Division of the Force in Québec
(1988 to 1994), focusing on organized crime, drugs, customs and excise, and
criminal intelligence. From 1995 until 1997, Mr. Breau was Chief Investigator for
the International Criminal Tribunal for Rwanda.
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Kent Roach teaches law and criminology at the University of Toronto. A
graduate of Yale University and the University of Toronto, Professor Roach’s
teaching and research include the criminal process, the Charter, Aboriginal
rights, the role of the courts, anti-terrorism and the legal profession. He is the
author of September 11: Consequences for Canada published in 2003, as well as
co-editor of The Security of Freedom: Essays on Canada’s Anti-terrorism Bill,
published in 2001.
Martin Rudner is a professor at The Norman Paterson School of
International Affairs, Carleton University, Ottawa, and Director of its Canadian
Centre of Intelligence and Security Studies. A graduate of McGill, Oxford and
Jerusalem universities, Professor Rudner’s current research interests include intelligence studies and international terrorism. He has served as a consultant and
advisor to several government departments and agencies. Among his many
scholarly publications is his article, “Challenge and Response: Canada’s
Intelligence Community in the War on Terrorism.”2
Reg Whitaker is Distinguished Research Professor Emeritus at York
University, where he taught political science from 1984 to 2001. He is currently
Adjunct Professor of Political Science at the University of Victoria. He received
a PhD in political economy from the University of Toronto and has since received several academic honours, including an Isaac Walton Killam Research
Fellowship. He has authored several books, most recently Canada and the Cold
War, published in 2003, and The End of Privacy: How Total Surveillance is becoming a Reality, published in 1999. He has authored several scholarly articles
on issues of security and intelligence, and he is often called upon to comment
on public affairs for the media.
3.2
INFORMATION GATHERING AND PUBLIC CONSULTATIONS
3.2.1
Initial Information Gathering and Publications
With the assistance of my Advisory Panel and counsel, I identified the many
questions that my Policy Review mandate posed, and the areas in which I would
need to gather information and seek public input.
In June 2004, the Commission published a List of Issues and an Outline for
a Consultation Paper, in order to initiate a public discussion about the Policy
Review. We solicited public comment on these documents, and published
amended versions based on those comments, which are included in the CD that
accompanies this Report; they are also available on the Commission’s website,
�POLICY REVIEW PROCESS
www.ararcommission.ca, which I understand the Government will maintain for
several years after the release of this Report.
Our first major step was the publication of a Consultation Paper in October
2004 to promote and assist public discussion. The Consultation Paper summarized the principal issues and relevant information in the Policy Review, and
was based on much more detailed information and analysis provided in eight
Background Papers. It also set out a number of options for review of the RCMP’s
national security activities, which included possibilities ranging from the status
quo, to an enhanced Commission for Public Complaints Against the RCMP or
Security Intelligence Review Committee (SIRC), to a SIRC-style agency for all
federal national security activities.
The Background Papers on which the Consultation Paper was based were
published in December 2004, and are available on the Commission’s website.
Those papers canvassed a broad array of topics, including the RCMP’s national
security activities, domestic and international review models for law enforcement and security intelligence, theories of accountability and police independence, and national security and human rights and freedoms. The papers were
based on research and on extensive direct information gathering with a number
of Canadian departments, agencies and groups, which I have listed in Appendix
A. The information gathering included meetings, written questions and answers,
and document requests.
This information gathering continued throughout the duration of the Policy
Review. It informed my deliberations and my public consultations, periodically
leading to the publication of further documents, discussed below.
I wish to thank the representatives of all of the agencies and organizations
with whom the Policy Review conducted its information gathering. Some of
these agencies, including the RCMP, CPC, CSIS, SIRC and the Office of the CSE
Commissioner, met with my counsel and members of the Advisory Panel several times, and provided many documents and written answers to our questions.
Their efforts were of great assistance to this Inquiry.
The initial Consultation Paper of October 2004 was republished, with
amendments, in December 2004. The Consultation Paper is included on the CD
which accompanies this Report; it is also available on the Commission’s website.
3.2.2
Public Input
In response to my call for comments on the Consultation Paper and Background
Papers, I received numerous written submissions from various government agencies and institutions and the public throughout the winter and spring of 2005.
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Some of these submissions addressed discrete Policy Review issues; others included comprehensive proposals for a review mechanism; and others concentrated on communicating valuable operational information or matters of principle
to me. I also received several supplementary and reply submissions through the
end of 2005, often in response to detailed questions that I posed to the public.
These questions were set out in several Policy Review documents published in
2005; they are included on the accompanying CD and are also available on the
Commission’s website.
I thank each of the Policy Review participants who made these submissions. These individuals and organizations are listed in Appendix B.
3.3
FURTHER INFORMATION GATHERING AND PUBLICATIONS
3.3.1
Integrated Nature of the RCMP’s National Security Activities
Commission counsel held several meetings with the RCMP, including the Force’s
integrated teams, to advance our understanding of the integrated nature of their
national security operations. We also held a number of meetings with other national security actors whose activities are integrated with those of the RCMP.
These agencies included CSIS, the CBSA, FINTRAC, ITAC, Transport Canada,
CIC, DFAIT and the municipal police forces.
On June 14, 2005, the Commission published a Supplementary Background
Paper on the RCMP and National Security Activities. This paper is available on
the Commission’s website.
We also expanded our information gathering to other federal national security actors, whether or not their activities were formally or substantially integrated with those of the RCMP. This was in part a consequence of some written
submissions that advocated a review agency with jurisdiction over all federal
national security actors. While in the end I did not opt for this model for reasons that I set out in my Recommendations Chapter, it was important that I carry
out necessary information gathering in order to canvass all possible alternatives.
The results of that research are set out in Chapter V of the Report.
3.3.2
International Models
My mandate specifically directed me to examine international models for the
review of national security activities. Information gathering and consultation
with international review bodies were an important element of my process. I
�POLICY REVIEW PROCESS
selected eight countries with liberal democratic traditions, including three
with which Canada shares Westminster parliamentary institutions: Australia,
New Zealand and the United Kingdom. The other countries were Belgium,
Germany, Norway, Sweden and the United States. All had institutional arrangements or experience with review and oversight of law enforcement and security intelligence activities that I thought could be instructive. These countries
had also variously instituted new security and counter-terrorism measures in the
wake of the events of September 11, 2001; new measures to address domestic
and foreign integration of national security activities; and/or new review and
oversight measures.
In these eight countries, I examined the principal review and oversight bodies of both the law enforcement and security intelligence agencies. It was important to survey, at least initially, mechanisms that carried out review of either
police forces or security intelligence agencies;3 and mechanisms that carried out
review functions, irrespective of the vocabulary — review, oversight or other
term — commonly used to describe those agencies.4
Once we had identified the principal review and oversight mechanisms in
these eight countries, we gathered information by consulting governing statutes;
annual and other reports and publications; the agencies’ websites and links; related government publications and literature such as proposed bills and formal
government responses to reports; and academic, media and other publications.
This process allowed me to identify and study in detail the features of these review and oversight agencies, including their respective jurisdiction, mandate,
functions, powers, limitations, composition and appointment process. To better
understand these institutions, and to assess the instructiveness or potential applicability of their features, I also studied to varying degrees the respective constitutional, governmental, historical, policing and security intelligence milieus,
including any recent developments in counter-terrorism powers and new accountability mechanisms.
After publishing this information in the December 2004 Background Paper
on International Models, I identified certain foreign review agencies that warranted more detailed examination. These were largely review agencies that appeared to be at arm’s length from government, and that had jurisdiction over
police forces engaged in national security activities. In some cases, this supplementary research also touched on agencies that review intelligence services, either because the agencies have jurisdiction over both intelligence and police
forces, or because there were statutory features that merited further examination.
My counsel met with selected agencies and individuals, either in person or
by telephone. Detailed questions were sent to the agencies in advance to
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facilitate the meetings. In many cases, the agencies provided detailed responses
and also answered many follow-up questions. A list of these agencies and persons can be found in Appendix C.
The information gathered from these meetings was summarized in a
“Supplementary Background Paper: International Models,” which was published
in May 2005. This paper is available on the Commission’s website.
I wish to thank the representatives of the foreign agencies who assisted us.
These individuals gave generously of their time. Their contributions to the Policy
Review and to the Canadian public interest were valuable, and I am grateful for
their assistance.
3.3.3
Invitations for Comment from Provincial/Municipal Actors
Since the RCMP’s national security activities are integrated with certain provincial and municipal police forces, recommendations for a review mechanism
could impact members of these police forces, as well as the review bodies for
these forces. I therefore invited comments from the chiefs of police for numerous provincial and municipal police forces, each of the review bodies for these
forces, and the provincial and territorial attorneys general.
In general, these institutions declined to participate and/or preferred to
await any governmental consultations that may follow my recommendations.
However, the Canadian Association of Chiefs of Police, the Ontario Provincial
Police and the Ottawa Police Service actively participated in the Policy Review;
the Toronto Police Service provided assistance with information gathering; and
numerous provincial review bodies assisted during our research for the
Consultation Paper and Background Papers.
3.3.4
Review of Certain Factual Inquiry Evidence
Portions of the Factual Inquiry evidence were relevant to the Policy Review
mandate, because they helped illustrate certain features of the RCMP’s national
security activities. I therefore discussed relevant parts of the Factual Inquiry evidence with members of the Advisory Panel. The public was invited to comment on the relevance of the public Factual Inquiry evidence to the Policy
Review. In formulating my recommendations for the Policy Review, I had regard
to the Factual Inquiry evidence when I considered it helpful.
�POLICY REVIEW PROCESS
3.3.5
Roundtables
I convened two separate Roundtables of Experts on Review and Oversight, one
that involved Canadian experts, and the other, international experts. For balance, I included in each of these roundtables one or more individuals with operational expertise. While the questions that each roundtable addressed were
similar, the Canadian roundtable focused more on Canada-specific issues. The
issues for the roundtables were set out in Background Papers that were published in advance of each roundtable. Copies of these papers are available on
the accompanying CD and on the Commission’s website.
These roundtables were open to the public, and were simulcast and
recorded by the Cable Public Affairs Channel (CPAC). Each roundtable lasted
one day. The public had an opportunity to pose questions to the roundtable participants during each of the morning and afternoon sessions. The transcripts
from the roundtables are included on the accompanying CD and on the
Commission’s website.
I wish to express my thanks to the individuals who participated in these
roundtables. I have set out a list of these individuals in Appendix D.
3.4
PUBLIC HEARINGS AND FINAL PUBLIC CONSULTATIONS
In November 2005, I convened four days of public hearings for the Policy
Review. The persons who appeared at these hearings were individuals and organizations who had made written submissions. The public hearings provided
an opportunity to these individuals and organizations to discuss their submissions with me directly, and to canvass, where applicable, the relative merits of
their proposals for review mechanisms. Some of these participants did not advocate models, but appeared either to ensure that relevant information was presented or to answer any questions that I had.
These hearings were held in public and were simulcast and recorded by
CPAC. The transcripts are available on the accompanying CD and on the
Commission’s website. I am grateful to those who participated in these hearings, which have added considerably to my consideration of the various review models.
I am also grateful to all those who provided written comments and replies
in December 2005, in response to two final publications by the Policy Review:
“Further Questions for Public Consultation,” published in October 2005; and
“Integrated National Security Review Committee: Further Option for Public
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Comment,” published in November 2005. These individuals and groups are listed
in Appendix B.
4.
BUDGET
The final figure for the expenditure of the Inquiry is not yet available. However,
I expect that the total amount spent for the Factual Inquiry and the Policy
Review will be approximately 16 million dollars, which figure includes the
amount provided to intervenors, including Mr. Arar, of approximately 1 million
dollars. It is not practical to allocate between the Factual Inquiry and the
Policy Review.
5.
EXPERT ADVICE
Throughout the Policy Review, I sometimes required expert advice on specific
issues. In general I tried to rely on the Advisory Panel members for this advice, but from time to time it was necessary to seek outside advice and other
contributions from other experts. For example, I was assisted in research and
drafting of the Background Papers by Professor Martin Friedland of the Faculty
of Law, University of Toronto. I also spoke to Reid Morden, the former Director
of CSIS, about certain national security confidentiality issues and to Harry Swain,
a former deputy minister in the federal government, about certain specific
“machinery of government” issues.
6.
APPRECIATION
The Policy Review process was a very collaborative process and it benefited
from the contributions of many organizations and individuals who gave their
time willingly and generously. First, I would like to thank the members of my
Advisory Panel: the honourable Monique Bégin, Alphonse Breau, Kent Roach,
Martin Rudner and Reg Whitaker. I am deeply appreciative of their many contributions to the Policy Review process.
I was also greatly assisted by my counsel, Ronald Foerster, Freya Kristjanson
and Andrea Wright, whom I commend for their first-rate work. Their contributions to the Commission’s information gathering and publications, as well as to
my deliberations, were outstanding.
I was also ably assisted at various stages by junior counsel, Sanjay Patil and
Erin Shaw, by counsel Adela Mall and by a graduate student, Shawna Godbold.
I wish to thank them for the important role that they played in the process.
�POLICY REVIEW PROCESS
Paul Cavalluzzo, lead counsel in the Factual Inquiry, provided helpful insights and suggestions throughout the Policy Review.
I would also like to express my appreciation to those involved with the administration of the Inquiry: Nicole Viau, Director, Finance and Administration,
Céline Lalonde, Deputy Director, and Francine Bastien, Media Relations. The
Policy Review also benefited from the administrative assistance of Gisèle Malette,
Isabelle Dumas, Françoise Roy-Lalonde, Mary O’Farrell and Lise Scharf.
As he did for the Factual Inquiry, Gilles Desjardins performed his duties as
Records Manager with care and efficiency.
Finally, I would like to recognize the skills and dedication of the following people: Guylaine Beauchamp (translator); Miriam Bloom of Expression
Communications (publication designer); Brian Cameron of gordongroup
marketing + communications (lead English editor); Carole Chamberlin of PWGSC
(English editor); Jane Chapman (English editor); Pierre Cremer (translator);
Tyler Gibbs of eSCAPE Marketing Solutions (Webmaster); Mélanie Lefebvre of
PWGSC (fact checker); Alphonse Morissette (lead French editor); Judith Richer
of gordongroup marketing + communications (English editor); Marie Rodrigue
(translator and French editor); and Jean-Pierre Thouin of the University of
Ottawa’s Centre for Translation and Legal Documentation (translator). All of
these people worked on difficult material under tight time constraints, and I
thank them.
Notes
1
2
3
4
Electronic or hardcopy, letter or bound format
Canadian Foreign Policy, Vol. 11, No. 2 (Winter, 2004).
As I mentioned in the Guiding Principles section above, it was important that I consider a review mechanism for both law enforcement and security intelligence agencies, given the fact
that the RCMP’s national security activities have characteristics in common with both. To do
otherwise would have unduly limited the scope of my examination and its potential findings.
The words “review” and “oversight” are used disparately, both domestically and abroad, including in translation, to describe the mandate of bodies with an accountability role over law
enforcement and intelligence agencies. We did not wish to limit the scope of the examination
of international models by virtue of the vocabulary used to describe particular accountability
functions. We chose models for examination based on an initial identification of features, such
as jurisdiction, audit power, etc. For convenience, I generally refer to these mechanisms
throughout this Report as “review” agencies or models.
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��APPENDICES
APPENDIX A
Canadian Departments, Agencies and Groups With Which the Arar
Commission Policy Review Conducted Direct Information Gathering
British Columbia Office of the Complaint Commissioner
Canada Border Services Agency
Canada Revenue Agency
Canadian Air Transport Security Authority
Canadian Human Rights Commission
Canadian Security Intelligence Service
Citizenship and Immigration Canada
Commission for Public Complaints Against the RCMP
Communications Security Establishment
Foreign Affairs Canada and International Trade Canada (DFAIT)
Department of National Defence, Intelligence
Financial Transactions and Reports Analysis Centre
Information Commissioner of Canada
Inspector General, Canadian Security Intelligence Service
Integrated Threat Assessment Centre
Department of Justice Canada
Military Police
Military Police Complaints Commission of Canada
Office of the Communications Security Establishment Commissioner
Ontario Civilian Commission on Police Services
Ontario Provincial Police
Privacy Commissioner of Canada
Privy Council Office
Public Safety and Emergency Preparedness Canada
Quebec Police Ethics Commissioner (Commissaire à la déontologie policière)
Roberta Jamieson, former Ombudsman of Ontario
Royal Canadian Mounted Police, including:
• Criminal Intelligence Directorate
• Integrated Immigration Enforcement Team, “O” (Toronto) Division
• Integrated Border Enforcement Team, Windsor Division
• Integrated National Security Enforcement Team, “O” (Toronto) Division
• National Operations Centre
• National Security Intelligence Branch
• National Security Operations Branch
Security Intelligence Review Committee
Toronto Police Service
Transport Canada
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APPENDIX B
Individuals and Organizations Who Made Submissions to the
Policy Review:
Amnesty International Canada
Andrew Koczerzuk
British Columbia Civil Liberties Association
C.C. Kitteringham
Canadian Arab Federation and Canadian Council on American-Islamic Relations
Canadian Association of Chiefs of Police
Canadian Association of University Teachers
Canadian Bar Association
Canadian Civil Liberties Association
Canadian Security Intelligence Service
Clayton Ruby
Commission for Public Complaints Against the RCMP
Communications Security Establishment Commissioner
International Civil Liberties Monitoring Group
Jiarong Tsang
L.D. Cross
Maher Arar
Ontario Provincial Police
Ottawa Police Service
Privacy Commissioner of Canada
RCMP External Review Committee
Rémi Hyppia
Royal Canadian Mounted Police
Scott Burbidge
Security Intelligence Review Committee
The Redress Trust, the Association for the Prevention of Torture, and the World
Organization Against Torture
Signatories to Joint Intervenors’ Submmission:
Amnesty International Canada, the British Columbia Civil Liberties Association,
Canadian Arab Federation, Canadian Islamic Congress, Canadian Labour
Congress, Council of Canadians, Council on American-Islamic Relations
(Canada), International Coalition Against Torture, International Civil Liberties
Monitoring Group, Law Union of Ontario, Minority Advocacy Rights Council,
Muslim Canadian Congress, Muslim Community Council of Ottawa-Gatineau,
National Council on Canada-Arab Relations, Polaris Institute, The Redress Trust,
Association for the Prevention of Torture, World Organisation against Torture
(OMCT).
�APPENDICES
APPENDIX C
Foreign Review/Oversight Bodies, As Well As Other Persons With
Whom the Commission Conducted Direct Information Gathering
Country
Institution
Australia
Australia
Belgium
Commonwealth Ombudsman
Inspector-General of Intelligence and Security
Permanent Committee for the Control of Intelligence
Services (Committee I)
Standing Police Monitoring Committee (Committee P)
G-10 Commission
Parliamentary Control Panel
Inspector-General of Intelligence and Security
Police Complaints Authority
Parliamentary Intelligence Oversight Committee
(EOS Committee)
Parliamentary Ombudsmen’s Office
Records Board
Independent Police Complaints Commission
Interception of Communications Commissioner
Investigatory Powers Tribunal
Her Majesty’s Inspectorate of Constabulary
Office of the Surveillance Commissioners
Police Ombudsman for Northern Ireland
Belgium
Germany
Germany
New Zealand
New Zealand
Norway
Sweden
Sweden
United Kingdom
United Kingdom
United Kingdom
United Kingdom
United Kingdom
United Kingdom
(Northern Ireland)
United States
Office of the Inspector General, Department of Justice
United States
Office of the Inspector General, Central Intelligence
Agency
United States
Office of the Inspector General, Department of Homeland
Security
Others:
Iain Cameron, Professor in Public International Law, University of Uppsala,
Sweden
Laurence Lustgarten, Professor of Law, Southampton University, and
Commissioner, Independent Police Complaints Commission, England and Wales
Fredrik Sejersted, Attorney at Law, Office of the Attorney General (Civil Affairs),
Norway
627
�628
A NEW REVIEW MECHANISM FOR THE RCMP’S
NATIONAL SECURITY ACTIVITIES
APPENDIX D
Roundtable of International Experts on Review and Oversight,
May 20, 2005
Hans Born, Senior Fellow, Geneva Centre for the Democratic Control of Armed
Forces, Switzerland
Iain Cameron, Professor in Public International Law, University of Uppsala,
Sweden
Marina Caparini, Senior Fellow, Geneva Centre for the Democratic Control of
Armed Forces, Switzerland
Peter Gill, Professor in Politics and Security, Liverpool John Moores University,
U.K.
Ian Leigh, Professor of Law, Durham University, U.K.
Nuala O’Loan, Police Ombudsman for Northern Ireland, U.K.
Roundtable of Canadian Experts on Review and Oversight,
June 10, 2005
Warren Allmand, consultant in international human rights
Reem Bahdi, Assistant Professor, University of Windsor Faculty of Law
Gwen Boniface, Commissioner, Ontario Provincial Police
Alan Borovoy, General Counsel, Canadian Civil Liberties Association
Stuart Farson, Professor of Political Science, Simon Fraser University
Norman Inkster, Partner, Gowlings Consulting Inc.
Dirk Ryneveld, British Columbia Police Complaints Commissioner
Wesley Wark, Professor, University of Toronto’s Munk Centre for International
Studies
�APPENDICES
APPENDIX E
Policy Review Publications*
List of Issues for Public Consultation (June 17, 2004)
Outline of Consultation Paper (June 17, 2004)
Consultation Paper (October 5, 2004; amended December 14, 2004)
Background Papers to the Consultation Paper (December 10, 2004):
• The RCMP and National Security
• Statutory Framework for the Activities of the RCMP with Respect to
National Security
• National Security and Rights and Freedoms
• Accountability and Transparency
• Police Independence
• Domestic Models of Review of Police Forces
• Accountability of Security Intelligence in Canada
• International Models of Review and Oversight of Police Forces and Security
Intelligence Agencies
Supplementary Background Papers:
• International Models of Review of National Security Activities: A
Supplementary Paper to the Commission’s Background Paper on
International Models (May 2005)
Roundtable Background Papers:
• Questions for Panel Members: A Background Paper to the Commission’s
Roundtable of International Experts on Review and Oversight (May 19,
2005)
• Questions for Panel Members: A Background Paper to the Commission’s
Roundtable of Canadian Experts on Review and Oversight (June 2005)
Further Questions for Public Consultation (October 17, 2005)
Integrated National Security Review Committee: Further Option for Public
Comment (November 25, 2005)
*
Some of these publications are available on the accompanying CD (see Appendix F for list),
and all are available on the Commission’s website, www.ararcommission.ca.
629
�630
A NEW REVIEW MECHANISM FOR THE RCMP’S
NATIONAL SECURITY ACTIVITIES
APPENDIX F
Policy Review Documents on Accompanying CD
Notices and Information
December 19, 2005 – List of Submissions received as of December 19, 2005
August 19, 2005 – Notice re Funding for October 11-14 Policy Review Public
Hearings
May 30, 2005 – Notice re Roundtable of International Experts on Review and
Oversight and Roundtable of Canadian Experts on Review and Oversight
May 5, 2005 – Notice re Commissioner O’Connor’s Examination of International
Review Models
December 14, 2004 – Call for Submissions
October 5, 2004 – Publication of Consultation Paper.
Roundtables
Roundtable of International Experts on Review and Oversight, May 20, 2005:
• Notice re Roundtable
• Programme
• Biographical Information of Experts
• Background Paper to the International Roundtable
• Original Transcript
Roundtable of Canadian Experts on Review and Oversight, June 10, 2005:
• Notice re Roundtables
• Programme
• Biographical Information of Experts
• Background Paper to the Canadian Roundtable
• Original Transcript
Public Hearings
Schedule of Appearances, November 15-18, 2005
Transcripts of the Public Hearings
Process
Process description
Documents
November 25, 2005 – Integrated National Security Review Committee: Further
Option for Public Comment
October 17, 2005 – Further Questions for Public Consultation
December 14, 2004 – Amendments to the Consultation Paper
October 5, 2004 – Consultation Paper
June 17, 2004 – Outline of Consultation Paper
June 17, 2004 – List of Issues for Public Consultation
���
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Title
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Commissions of inquiry
Dublin Core
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Title
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Report of the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar (2006)
Subject
The topic of the resource
Commissions of inquiry
Description
An account of the resource
Reports of the commission of inquiry into the role of Canadian officials in the US rendition and Syrian maltreatment and torture of Maher Arar. Policy report focuses on changes to RCMP national security investigations and a wholescale overhaul of Canada's system of national security review.
Source
A related resource from which the described resource is derived
Archives at Library and Archives Canada <a href="http://epe.lac-bac.gc.ca/100/206/301/pco-bcp/commissions/maher_arar/07-09-13/www.ararcommission.ca/eng/26.htm">here</a>.
Date
A point or period of time associated with an event in the lifecycle of the resource
2006
Accountability
CSIS
Foreign cooperation
GAC
information-sharing
Maltreatment
Operations
RCMP
Rendition
Review
Torture
-
https://d1y502jg6fpugt.cloudfront.net/28811/archive/files/f57f1c69481bfe027ee6182eff226527.pdf?Expires=1712793600&Signature=BFSGJQ8FcekGz8jZ3Ic2ly%7ESTL8-BVcl9KVkm%7ElhVmtdUNg5o0zdUEQfJwxJoMHI8t2mlFAtQ3Qn9qILc5wlARuPTCXw7hfqts7uHNYCJF59RREOZkkJcktNM9ERNdBA7rgRnH0hKSLefb0XTFgdySHCQOiytjZk4IXX0coQAW3-eUjsOUsZvXDCxqjlsO8RsaXJJwOpF5aVsO442BKIvXSyFr%7EsXVYY9E2yIgA5HuRMBt8xdR4XmisFQE48OeLha8upy0CLyQF2o6OHuRNB9pz1OutWvrjGdNqyvLYp-bIxOUbRHtD4NqtQoMv121a44q4t05LxsYV6S5O3boAPBg__&Key-Pair-Id=K6UGZS9ZTDSZM
034bbfd570f7e844cd51aaced4b546ff
PDF Text
Text
Internal Inquiry
into the Actions
of Canadian Officials
in Relation to
Abdullah Almalki,
Ahmad Abou-Elmaati
and
Muayyed Nureddin
The Honourable Frank Iacobucci, q.c.
Commissioner
�©
Her Majesty the Queen in Right of Canada,
represented by the Minister of Public Works
and Goverment Services, 2008
Cat. No: CP32-90/2008E
ISBN 978-0-660-19831-6
Available through your local bookseller or through
Publishing and Depository Services
Public Works and Government Services Canada
Ottawa, Ontario
K1A 0S5
Telephone: (613) 941-5995
Orders only: 1 800 635-7943
Fax: (613) 954-5779 or 1 800 565-7757
Internet : http://publications.gc.ca
Printed by: Gilmore Print Group
Design: Miriam Bloom, Expression Communications Inc.
Ce document est également publié en français sous le titre Enquête interne sur les actions
des responsables canadiens relativement à Abdullah Almalki, Ahmad Abou‑Elmaati et
Muayyed Nureddin
www.iacobucciinquiry.ca
���Commissioner’s Statement
In the Executive Summary that follows, I provide a précis of my report, including a brief review of the nature of my mandate, the process that I followed, and
my findings. Before I do so, I believe it worth while to pause to reflect on the
fundamental importance of the values implicated by the mandate of this Inquiry.
At its core, this Inquiry involves the appropriate response of our democracy in
Canada to the pernicious phenomenon of terrorism, and ensuring that, in protecting the security of our country, we respect the human rights and freedoms
that so many have fought to achieve.
This respect for rights and freedoms is a constraint on a democracy that terrorists do not share. Indeed by their very actions they repudiate these rights and
freedoms. For the terrorist, the end justifies the means. A democracy, however,
must justify the means to any end—including, in this case, its response to terrorism. Canada must choose means to deal with terrorism that are governed by the
rule of law and respect for our cherished values of freedom and due process. This
is a balance that is easy to describe but difficult to attain. However, difficulty of
achievement cannot be an excuse for not trying to achieve that equilibrium.
It seems inevitable, in the struggle against terrorism, that mistakes of various kinds will be made. This is unfortunate: mistakes can carry serious consequences not only for individuals affected but also for our institutions and our
collective faith in our institutions. But we should be very grateful to the many
men and women who as Canadian officials must daily confront the challenges
discussed in this report, and exercise their best judgement to try to attain the
delicate balance that both protects our democracy and preserves and enhances
our fundamental freedoms.
This Inquiry is about the actions of Canadian officials relating to three
Canadian citizens who were detained and mistreated abroad. Conducting the
Inquiry has reinforced my conviction that we can and must continue to do
everything possible to protect our country, and to do so with genuine respect
for the fundamental rights and freedoms of Canadian citizens.
��Contents
EXECUTIVE SUMMARY
29
1 INTRODUCTION
41
2 THE INQUIRY PROCESS
51
3 BACKGROUND and Context
63
4 ACTIONS OF CANADIAN OFFICIALS IN RELATION TO
AHMAD ABOU-ELMAATI
109
5 ACTIONS OF CANADIAN OFFICIALS IN RELATION TO
ABDULLAH ALMALKI
193
6 ACTIONS OF CANADIAN OFFICIALS IN RELATION TO
MUAYYED NUREDDIN
253
7 AHMAD Abou-ELMAATI’S Experience IN SYRIA
AND EGYPT
269
8 ABDULLAH ALMALKI’S Experience IN SYRIA
297
9 MUAYYED NUREDDIN’S Experience IN SYRIA
323
10 TESTS FOR ASSESSING THE ACTIONS OF CANADIAN
OFFICIALS
333
11 FINDINGS REGARDING THE ACTIONS OF CANADIAN
OFFICIALS IN RELATION TO AHMAD ABOU-ELMAATI
345
12 FINDINGS REGARDING THE ACTIONS OF CANADIAN
OFFICIALS IN RELATION TO ABDULLAH ALMALKI
397
13 FINDINGS REGARDING THE ACTIONS OF CANADIAN
OFFICIALS IN RELATION TO MUAYYED NUREDDIN
437
Appendices
457
��Detailed Contents
EXECUTIVE SUMMARY
Nature and purpose of the Inquiry
Inquiry process
The government institutions
Context of the actions in question
Tests applied in making my findings
Ahmad Abou-Elmaati
Abdullah Almalki
Muayyed Nureddin
29
1 INTRODUCTION
The Inquiry
My mandate
Nature and purpose of the Inquiry
41
29
30
34
34
35
35
37
38
41
41
42
The Inquiry was an inquisitorial and not an adversarial proceeding 43
This was not an inquiry into the conduct of Mr. Almalki,
Mr. Elmaati and Mr. Nureddin
43
The Inquiry was required to be internal and presumptively private 44
Appearances of Counsel
Acknowledgments
2 THE INQUIRY PROCESS
Counsel and advisors
Participation and funding
Interpretation of the Terms of Reference
Document collection and review
Requests to the United States, Syria, Egypt and Malaysia
Interviews
Adoption of testimony and findings from the Arar Inquiry
Public hearings
Preparation of draft factual narratives
46
47
51
51
51
52
53
55
56
56
57
58
�10
Internal Inquiry
National security review process
Section 13 notices
Final written submissions
Application for disclosure and public hearing
Medical reports
3 BACKGROUND and Context
Overview of CSIS, the RCMP and DFAIT
59
61
61
62
62
63
63
Introduction
63
Mandate and functions of CSIS
63
Organization of CSIS
65
Section 12 and targeting
65
Judicial control of CSIS’ investigations
67
Relationships with foreign intelligence organizations
68
The role of security liaison officers
69
Disclosure of information and the use of caveats
69
Mandate and functions of the RCMP
71
General mandate
71
Mandate with respect to national security
71
RCMP’s relationship with CSIS
72
Organization of the RCMP and its national security activities
72
NSIB
74
NSOB
75
Threat Assessment Branch
76
NSISs and INSETs
77
CROPS
77
Relationships with foreign countries and police agencies
78
Operational Manual
78
Ministerial directives
78
Role of the liaison officer
80
RCMP policies about information sharing
81
Content of shared information
81
Control of shared information
82
Caveats in the post-9/11 period
83
Human rights considerations
84
�Contents
Mandate and functions of DFAIT
85
Security and Intelligence Bureau
85
Consular Affairs Bureau
86
The CAMANT system
87
The role of the ambassador
87
Consular services for Canadians detained abroad
88
Training to detect signs of torture and abuse
90
Dual nationality and consular protection
91
Confidentiality of consular information and the PrivacyAct
92
CSIS and RCMP investigations in the post-9/11 environment
93
Push for cooperation in the face of a possible “second wave”
93
Transfer of investigations from CSIS to the RCMP
94
Creation of Projects A-O and O Canada
96
Project O Canada
96
Project A-O Canada
96
Composition of Project A-O Canada
97
Training and experience of Project A-O Canada members
98
Project A-O Canada reporting structure
98
The practice of sharing travel itineraries
99
Syria’s and Egypt’s human rights records
100
Introduction
100
Syria’s human rights record
100
U.S. State Department and Amnesty International reports
100
Human Rights Watch and SHRC reports
100
DFAIT’s assessment
101
CSIS’ assessment
102
RCMP’s assessment
103
Egypt’s human rights record
104
U.S. State Department and Amnesty International reports
104
DFAIT’s assessment
106
CSIS’ assessment
107
RCMP’s assessment
107
11
�12
Internal Inquiry
4 ACTIONS OF CANADIAN OFFICIALS IN RELATION TO
AHMAD ABOU-ELMAATI
Canadian officials’ interest in Mr. Elmaati
109
109
CSIS’ initial interest in Mr. Elmaati
109
Mr. Elmaati detained at U.S. border
109
CSIS’ September 11, 2001 interview
110
CSIS sharing of information
111
RCMP’s initial interest in Mr. Elmaati
112
RCMP sharing of information
112
Border lookouts and watch lists
114
Canada Customs lookouts
114
U.S. border lookouts
115
FBI watch list
115
Media reporting regarding “Kuwaiti man”
Mr. Elmaati travels to Syria
116
117
Allegations against Mr. Elmaati’s brother Amr
117
RCMP alerts Canadian authorities about Mr. Elmaati’s planned
departure
117
RCMP shares Mr. Elmaati’s itinerary with U.S. authorities
118
Information shared without express caveats
119
Syrian authorities not informed
119
Mr. Elmaati monitored from Toronto to Vienna
120
Mr. Elmaati detained in Syria
121
DFAIT learns of detention
121
DFAIT opens a CAMANT file for Mr. Elmaati
121
CSIS learns of detention
122
RCMP learns of detention
122
RCMP interviews Mr. Elmaati’s aunt
123
Suggestion that RCMP “complicit” in Mr. Elmaati’s detention
124
Mr. Elmaati’s alleged confession
CSIS assessment of alleged confession
Consideration whether information derived from torture
RCMP assessment of alleged confession
Consideration whether information derived from torture
Mr. Elmaati’s description of the alleged confession
126
126
127
127
129
129
�Contents
CSIS attempts to clarify information
130
CSIS learns that alleged confession shared with multiple foreign
countries
130
DFAIT consular officials not informed of alleged confession
130
Sharing of information with DFAIT ISI
130
Consular Affairs Bureau unaware of interrogation
131
CSIS sends questions to be put to Mr. Elmaati
DFAIT not consulted about sending of questions
132
132
Consular Services in Syria
133
Diplomatic note to Syria
133
Diplomatic note to Egypt
133
Ambassador Pillarella discusses Mr. Elmaati with Deputy
Minister Haddad
134
Syrian Ministry of Foreign Affairs confirms detention
135
Consular attempts to obtain response to diplomatic notes
136
Regular contact with Mr. Elmaati’s family
136
RCMP attempts to interview Mr. Elmaati in Syria
RCMP search warrants and January 2002 searches
RCMP requests warrants
136
138
138
The possibility that the alleged confession was obtained by torture 139
Validity of the warrants
140
Execution of the searches
140
RCMP shares results of the searches
140
Mr. Elmaati’s will
141
CSIS sends another round of questions
Mr. Elmaati’s transfer to Egypt
142
142
Interview with Badr Elmaati
143
DFAIT learns of Mr. Elmaati’s transfer
143
RCMP learns of Mr. Elmaati’s transfer
144
RCMP informs CSIS of Mr. Elmaati’s transfer and possible
interview
144
CSIS attempts to confirm the transfer
145
DFAIT confirms Mr. Elmaati was transferred
145
Official confirmation from Egyptian authorities
146
RCMP attempts to interview Mr. Elmaati in Egypt
146
13
�14
Internal Inquiry
Efforts through a foreign agency
146
Efforts through its liaison officer in Rome
148
RCMP and DFAIT meet with SyMI
149
Presentation to the Americans
150
DFAIT attempts to gain consular access
Concerns about Mr. Elmaati’s treatment in Egypt
151
ISI memorandum suggests possibility of torture
152
RCMP concerned about “extreme treatment”
153
152
Canadian officials’ knowledge of Egypt’s human rights record 155
DFAIT officials’ knowledge of Egypt’s human rights record
155
CSIS’ knowledge of Egypt’s human rights record
156
RCMP’s knowledge of Egypt’s human rights record
157
Mr. Elmaati’s first consular visit and allegation of torture in
Syria
157
DFAIT shares report of the first consular visit with CSIS and RCMP 159
DFAIT’s reaction to allegation of torture
159
CSIS’ reaction to allegation of torture
159
RCMP meetings in response to allegation of torture
160
Inter-agency meeting in response to torture claim
162
Joint meeting to discuss the RCMP’s plans for an interview
163
DFAIT aware of potential for interview by the RCMP
163
Ambassador Pillarella attempts to assist the RCMP
Consular Activities in Egypt
164
164
Training to detect signs of torture and abuse
164
Requests for consular access alone
165
Second consular visit
167
Third consular visit
168
Consular Affairs Bureau provides DFAIT ISI with access to
CAMANT notes
169
Providing CSIS with access to consular information
170
Providing the RCMP with access to consular information
171
Consular Affairs Bureau changes practice on sharing consular
information
172
Fourth consular visit
172
DFAIT informs RCMP of Mr. Elmaati’s release and re-arrest
173
�Contents
Meetings with Badr Elmaati
Mr. Elmaati’s continued detention in Egypt
Egypt provides a reason for detention
Further consular services in Egypt
174
174
174
175
Fifth consular visit
175
Sixth consular visit
176
Consular efforts to arrange family visits
177
April 2003 action memorandum
177
Egyptian Ministry of Foreign Affairs provides justification for
Mr. Elmaati’s detention
177
RCMP refuses to consent to sharing of Mr. Elmaati’s will
RCMP’s continued efforts to obtain access to Mr. Elmaati
Service’s characterization of Mr. Elmaati
Consular Services in late 2003
178
178
180
181
Seven month gap between consular visits
181
Seventh consular visit
181
DFAIT seeks local legal advice
183
Eighth and final consular visit
183
RCMP Requests Assistance from DFAIT
184
Request for Intervention by Egyptian Ambassador to Canada
184
Request for assistance from Canadian Ambassador to Egypt
185
DFAIT drafts letter to Egyptian Foreign Minister
185
DFAIT concerns about possible mixed messages
185
Mr. Elmaati released from detention
187
CSIS and the RCMP learn of Mr. Elmaati’s release
187
Attempts to obtain access to Mr. Elmaati through DFAIT
188
Mr. Elmaati meets with Embassy officials
189
Embassy did not disclose Mr. Elmaati’s information
190
CSIS obtains information about Mr. Elmaati’s release
190
Request for detention and questioning
190
Mr. Elmaati’s request for security escort from DFAIT
190
Mr. Elmaati’s return to Canada
192
15
�16
Internal Inquiry
5 ACTIONS OF CANADIAN OFFICIALS IN RELATION TO
ABDULLAH ALMALKI
Canadian officials’ interest in Mr. Almalki
193
193
CSIS
193
RCMP
194
Project A-O Canada
195
Investigative tools used by Project A-O Canada
195
Canada Customs lookouts
195
U.S. Customs lookouts
196
Mr. Almalki goes to Malaysia
196
November 27 departure
196
RCMP searches for Mr. Almalki
197
Luggage search
198
Events during Mr. Almalki’s stay in Malaysia
198
Information sharing
199
Possible extradition to Syria
199
Border interview by Malaysian authorities
201
January 2002 searches and interviews
201
FBI / Project A-O Canada meeting in February 2002
201
Sharing of the Supertext database
202
Mr. Almalki detained in Syria
203
Mr. Almalki leaves Malaysia
203
CSIS learns that Mr. Almalki is detained in Syria
203
RCMP learns of Mr. Almalki’s detention
203
DFAIT learns of Mr. Almalki’s detention
204
Discussions regarding criminal investigation of Mr. Almalki
206
RCMP / FBI meetings regarding an FBI criminal investigation
206
RCMP / CSIS meetings regarding criminal charges
207
Role of Malaysia in Mr. Almalki’s detention/interrogation
in Syria
Mr. Almalki’s torture allegation / Impact of Mr. Elmaati’s
torture allegation
208
208
CSIS’ view
209
DFAIT’s view
210
RCMP’s view
212
�Contents
Consular actions
213
First steps
213
Diplomatic notes
213
Ambassador Pillarella meets with Deputy Minister Haddad and
General Khalil
214
Relationship between Ambassador Pillarella and General Khalil
215
DFAIT makes contact with Mr. Almalki’s family
215
Mr. Martel’s meetings with Colonel Saleh
216
Consular visits to Mr. Arar and Mr. Elmaati
217
Intensity of consular activities
217
RCMP’s meeting with Michael Edelson
CSIS’ trip to Syria
218
218
Purpose of the trip
218
Meeting with the Syrian authorities
219
Debriefing DFAIT
220
Mr. Almalki’s interrogation in November and December 2002
220
Questions for Mr. Almalki
221
Interview or questions
221
Consulting with DFAIT about gaining access and sharing
information
222
July 29 meeting
222
August 6 DFAIT memorandum
223
September 10 meeting
223
September 10 fax to Staff Sergeant Fiorido
224
October 10 memorandum
226
October 21 discussion between Inspector Cabana and
Mr. Gould
226
October 30 memorandum and draft letter
227
Questions sent
228
Decision to send the questions
228
Content of the questions
230
Questions translated
231
Questions sent to Staff Sergeant Fiorido
231
Cover letter to General Khalil
232
Delivery of questions to Ambassador Pillarella
233
17
�18
Internal Inquiry
Mr. Almalki’s interrogation in mid-January 2002
234
No reply from the SyMI
234
No further questions or sharing of information
235
Possibility of mixed messages
235
Consular actions following Mr. Arar’s press conference
235
Minister Graham’s meeting with Ambassador Arnous
235
November 6 meeting with Mr. Almalki’s family
236
DFAIT’s efforts to meet with Syrian officials
237
Senator De Bané’s meeting with Syrian officials
238
RCMP letter to Mr. Edelson
Mr. Almalki’s possible release
239
240
Ambassador Davis’ conversation with Mr. Haddad
240
CSIS communications regarding Mr. Almalki’s release
240
Possible interview of Mr. Almalki in January 2004
241
Consultation with DFAIT
241
Purpose of the interview
242
Possibility that the interview would affect Mr. Almalki’s release
242
Interview never took place
243
Plans for Daniel McTeague’s visit to Syria
Mr. Almalki’s release from detention
243
244
Pre-release meetings between Canadian and Syrian officials
244
Mr. Almalki released
245
Lunch with Mr. Martel
246
Mr. McTeague’s meeting with Syrian officials
246
Information to CSIS
246
Post-release interrogation of Mr. Almalki
247
Mr. Almalki’s court hearing and exit from Syria
247
DFAIT’s efforts to secure Ambassador’s attendance at
Almalki’s trial
247
Mr. Almalki’s trial
248
DFAIT sends Syria a diplomatic note regarding Mr. Almalki’s
military service
248
Embassy’s final contact with Mr. Almalki
249
Mr. Almalki returns to Canada
249
Canadian officials learn of Mr. Almalki’s return to Canada
249
�Contents
Sharing of consular information
6 ACTIONS OF CANADIAN OFFICIALS IN RELATION TO
MUAYYED NUREDDIN
Canadian officials’ interest in Mr. Nureddin
250
253
253
CSIS
253
RCMP
254
RCMP’s requests for more information
254
Sharing information about Mr. Nureddin’s September 2003
travel plans
Mr. Nureddin’s departure for Iraq; interviews and searches at
the airport
Sharing the itinerary
255
255
256
CSIS shares Mr. Nureddin’s full itinerary
256
Decision not to send the itinerary to Syria
257
Decision to send the itinerary to a U.S. agency
257
RCMP shares Mr. Nureddin’s travel information
258
Foreign agency refuses permission to share information with
Syria
Foreign agency advises Syria of Mr. Nureddin’s travel plans
and asks Syria to question him
Mr. Nureddin detained in Syria
258
259
259
DFAIT learns of the detention
259
CSIS learns of the detention
260
RCMP learns of the detention
260
Consular actions
Possible release / CSIS’ inquiries of Syria
RCMP Briefing Notes regarding Mr. Nureddin
Mr. Nureddin’s release and return to Canada
260
261
262
262
Mr. Nureddin released to Mr. Martel
262
Mr. Nureddin recounts his experience in detention
263
Mr. Nureddin’s medical examination
264
Concerns about publicity
264
Mr. Nureddin returns home
265
Sharing of consular information with CSIS
RCMP briefing note regarding Mr. Nureddin’s release
265
266
19
�20
Internal Inquiry
Post-release interviews of Mr. Nureddin
Sharing of DFAIT email message regarding Mr. Nureddin
7 AHMAD Abou-ELMAATI’S Experience IN SYRIA
AND EGYPT
Arrival in Damascus and detention at the airport
Transfer to Far Falestin
Arrival at Far Falestin
267
267
269
269
270
270
Cell number 5
271
Interrogation and treatment on the first day
271
Interrogation and treatment over the next 48 hours
273
Drafting the alleged confession
274
Remaining time in Syria
275
Prison conditions at Far Falestin
276
Transfer to Egypt
Arrival in Egypt
General Intelligence headquarters in Abdeen
277
278
278
Interrogations on the first day at Abdeen
279
Subsequent interrogations at Abdeen
280
Prison conditions at Abdeen
281
Markaz Amen El Dawla (State Security headquarters) in
Nasr City
282
Prison Conditions in Nasr City
282
Interrogations in Nasr City
283
Lazogley State Security branch
Tora Prison
284
Consular visits at Tora prison
287
Abu Zaabal prison in Cairo
Court-ordered “release”
Intermittent transfers to Nasr City for interrogation
286
289
289
290
Interrogation in November/December 2002
291
Interrogation and mistreatment in March 2003
291
Interrogation in October 2003
292
Further consular visits
Ministerial release
Departure from Egypt
293
294
295
�Contents
8 ABDULLAH ALMALKI’S Experience IN SYRIA
Decision to travel to Syria
Arrival in Damascus and detention at the airport
Transfer to Far Falestin
Interrogation and treatment on the first day
Interrogation on the second day
Interrogation and treatment on the third day
Late May and June: less interrogation, less mistreatment
Interrogation and treatment in July
Interview by the Malaysians
Interrogation in early October
Interrogation in November and December
Interrogations in January, February and March
Life at Far Falestin
Family visits to Far Falestin
Transfer to the Far’ ‘al-Tahqia al-‘Askari branch
Transfer to Sednaya branch
Family visits to Sednaya
Release of Mr. Almalki
Post-release interrogation
Departure from Syria
297
9 MUAYYED NUREDDIN’S Experience IN SYRIA
Decision to travel to Syria
Arrival at the Syrian border
General Security Department in Al Qamishli
Transfer to Far Falestin
Cell number 8
First interrogation
Subsequent interrogations in December 2003
Other incidents in prison
Interrogations in January 2004
Release from prison
Departure from Syria
323
297
298
299
299
301
302
303
304
306
307
307
309
310
313
315
316
318
319
321
322
323
323
324
324
325
326
328
329
330
330
331
21
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Internal Inquiry
10 TESTS FOR ASSESSING THE ACTIONS OF CANADIAN
OFFICIALS
Introduction
Determining whether detention or mistreatment resulted,
directly or indirectly, from the actions of Canadian officials
Determining whether the actions were “deficient in the
circumstances”
Summary
333
333
334
340
342
11 FINDINGS REGARDING THE ACTIONS OF CANADIAN
OFFICIALS IN RELATION TO AHMAD ABOU-ELMAATI
345
Overview
345
Did the detention of Mr. Elmaati result directly or indirectly
from actions of Canadian officials and, if so, were those actions
deficient in the circumstances?
347
Did the detention of Mr. Elmaati in Syria result directly or
indirectly from actions of Canadian officials?
347
Were these actions of Canadian officials deficient?
349
RCMP’s description of Mr. Elmaati as an “imminent threat”
349
CSIS’ labelling of Mr. Elmaati
351
RCMP’s sharing of Mr. Elmaati’s travel itinerary
353
Did the detention of Mr. Elmaati in Egypt result directly or
indirectly from actions of Canadian officials?
357
Did any mistreatment of Mr. Elmaati result directly or indirectly
from actions of Canadian officials and, if so, were those actions
deficient in the circumstances?
358
Was Mr. Elmaati mistreated in Syria and Egypt?
Actions of Canadian officials in relation to Mr. Elmaati’s
mistreatment in Syria
358
360
Failure of Canadian officials to advise DFAIT Consular Affairs
Division of Mr. Elmaati’s detention and interrogation in Syria
360
Did any mistreatment result directly or indirectly from this
omission?
361
Was this omission a deficiency?
362
CSIS’ sending of questions to be asked of Mr. Elmaati in Syria
363
Did any mistreatment result directly or indirectly from the
sending of the questions?
364
Was sending the questions deficient in the circumstances?
365
�Contents
Actions of Canadian officials in relation to Mr. Elmaati’s
mistreatment in Egypt
Sharing by CSIS in May 2003 of statements of concern about
Mr. Elmaati
367
368
Did any mistreatment result directly or indirectly from sending
this statement of concern?
368
Was sending this statement of concern deficient?
RCMP’s requests to interview Mr. Elmaati in Egypt
369
370
Did any mistreatment result directly or indirectly from the
RCMP’s requests to interview Mr. Elmaati in Egypt?
372
Were the RCMP’s actions deficient?
372
RCMP’s sharing of information with foreign agencies
Inaccurate or imprecise labels
374
374
Sharing of the RCMP Supertext database with U.S. authorities 375
Did any mistreatment result from the sharing of the database?
376
Was the sharing of the database deficient?
377
RCMP’s failure to advise the RCMP Commissioner of the allegations
that Mr. Elmaati was mistreated in Syria and Egypt
377
Did any mistreatment result, directly or indirectly, from the
RCMP’s failure to advise the RCMP Commissioner of the
allegations that Mr. Elmaati was mistreated in Syria and Egypt? 378
Comments on the RCMP’s failure to advise the RCMP
Commissioner of the allegations that Mr. Elmaati was mistreated
in Syria and Egypt
378
RCMP’s reliance on Mr. Elmaati’s alleged confession in Syria to
obtain search warrants
379
Did any mistreatment result, directly or indirectly, from the
RCMP’s reliance on Mr. Elmaati’s alleged confession to obtain
search warrants?
379
Comments on the RCMP’s reliance on Mr. Elmaati’s alleged
confession to obtain search warrants
379
Were there deficiencies in the actions of Canadian officials to
provide consular services to Mr. Elmaati?
380
Did DFAIT act promptly and effectively after learning Mr. Elmaati
was detained in Syria?
382
Did DFAIT act promptly and effectively after learning Mr. Elmaati
had been transferred to Egypt?
384
Did DFAIT make consular visits sufficiently frequently?
386
23
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Internal Inquiry
Were consular officials adequately trained to assess whether
Mr. Elmaati was being mistreated?
387
Should the consular officials have asked for private visits with
Mr. Elmaati?
388
Failure to advise the Minister that Mr. Elmaati might have been
tortured in Syria and Egypt
389
Should DFAIT officials have repeatedly asked Mr. Elmaati if he
would be willing to meet with CSIS and the RCMP?
390
Was sharing consular information with CSIS and the RCMP
deficient?
392
The consent exception
393
The public interest exception
393
The benefit to the individual exception
393
The law enforcement exception
394
12 FINDINGS REGARDING THE ACTIONS OF CANADIAN
OFFICIALS IN RELATION TO ABDULLAH ALMALKI
397
Overview
397
Did the detention of Mr. Almalki result directly or indirectly
from actions of Canadian officials and, if so, were those actions
deficient in the circumstances?
399
Did the detention of Mr. Almalki result directly or indirectly from
actions of Canadian officials?
399
Comments on the actions of Canadian officials during the period
leading up to Mr. Almalki’s detention in Syria
399
The RCMP’s description of Mr. Almalki as an “imminent threat” 400
The RCMP’s description of Mr. Almalki as an “Islamic extremist” 02
4
Sharing of the RCMP’s Supertext database with U.S. agencies
403
Other information sharing
405
Did any mistreatment of Mr. Almalki result directly or indirectly
from actions of Canadian officials and, if so, were those actions
deficient in the circumstances?
405
Was Mr. Almalki mistreated in Syria?
405
Role of Canadian officials
408
Sharing of the RCMP’s Supertext database with U.S. authorities 408
Did any mistreatment result directly or indirectly from the
sharing of the database?
408
Was the sharing of the database deficient in the circumstances? 410
�Contents
July 4 meeting between the Ambassador, the RCMP liaison
officer and General Khalil of the SyMI
410
Did any mistreatment result directly or indirectly from the
July 4 meeting?
410
RCMP’s questions for Mr. Almalki
410
Did any mistreatment result directly or indirectly from the
sending of questions?
411
Was sending questions deficient in the circumstances?
411
CSIS’ trip to Syria
415
Did any mistreatment result directly or indirectly from CSIS’
trip to Syria?
415
Comments on CSIS’ trip to Syria
416
CSIS’ request for an interview
417
Did any mistreatment result directly or indirectly from CSIS’
request for an interview?
417
Comments on CSIS’ request for an interview
418
CSIS’ inquiries of the SyMI
419
Did any mistreatment result directly or indirectly from CSIS’
inquiries of the SyMI?
419
Comments on CSIS’ inquiries of the SyMI
419
Reports from Canada
420
Were there any deficiencies in the actions of Canadian officials
to provide consular services to Mr. Almalki?
421
Failure to act promptly after learning of detention
422
Failure to promptly advise the Consular Affairs Bureau
422
Failure to promptly ascertain location and obtain consular
access
424
Failure to make effective representations to Syria—August 2002
to November 2003
424
Diplomatic notes
425
Meetings with Syrian officials
425
Intensity of consular efforts in Elmaati and Arar cases
426
Explanations for the failure to make effective representations 426
Family visits
430
The submission that “more would have made no difference”
430
Effective representations—November 2003 to March 2004
431
25
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Internal Inquiry
Failure to sufficiently consider the possibility of mistreatment
432
DFAIT officials’ knowledge of Syria’s human rights record
432
Conclusions about likelihood of torture in specific cases
432
The impact of Mr. Elmaati’s torture allegation
433
Raising possibility of mistreatment
434
Improper disclosure of confidential consular information
434
13 FINDINGS REGARDING THE ACTIONS OF CANADIAN
OFFICIALS IN RELATION TO MUAYYED NUREDDIN
437
Overview
437
Did the detention of Mr. Nureddin result directly or indirectly
from the actions of Canadian officials and, if so, were those
actions deficient?
438
Did the detention of Mr. Nureddin in Syria result directly or
indirectly from the actions of Canadian officials?
439
Were these actions of Canadian officials deficient?
441
Sharing information about suspected involvement in terrorist
activities
441
Sharing of Mr. Nureddin’s travel itinerary and travel information 43
4
CSIS’ response upon learning that a foreign agency planned
to advise Syria that Mr. Nureddin was on his way there
444
Did any mistreatment of Mr. Nureddin result directly or indirectly
from the actions of Canadian officials and, if so, were those
actions deficient?
446
Was Mr. Nureddin mistreated in Syria?
446
Did any mistreatment of Mr. Nureddin result from the actions of
Canadian officials?
448
Sharing of information prior to Mr. Nureddin’s detention
449
Did any mistreatment result, directly or indirectly, from sharing
this information?
449
Was sharing this information deficient?
449
CSIS’ failure to advise DFAIT that Mr. Nureddin was at risk of being
detained and mistreated
449
Did any mistreatment result, directly or indirectly, from CSIS’
failure to advise DFAIT that Mr. Nureddin was at risk of being
detained and mistreated?
450
Comments on CSIS’ failure to advise DFAIT that Mr. Nureddin
was at risk of being detained and mistreated
450
�Contents
CSIS’ December 22 communication to Syria
451
Did any mistreatment result, directly or indirectly, from CSIS’
December 22 communication to Syria?
451
Comments on CSIS’ December 22 communication to Syria
452
CSIS’ early January 2004 inquiries
453
Did any mistreatment result, directly or indirectly, from CSIS’
early January 2004 inquiries?
453
Comments on CSIS’ early January 2004 inquiries
453
Were there any deficiencies in the actions of Canadian officials
to provide consular services to Mr. Nureddin?
453
Initial response
454
Follow-up
454
Coordination of Canadian response
454
appendices
457
27
��EXECUTIVE SUMMARY
Nature and purpose of the Inquiry
1. By Order in Council dated December 11, 2006, I was appointed under
Part I of the Inquiries Act to conduct an internal inquiry into the actions of
Canadian officials in relation to Abdullah Almalki, Ahmad Abou-Elmaati and
Muayyed Nureddin. The Order in Council set out the Terms of Reference by
which the Inquiry was to be governed. The Terms of Reference directed me
to determine:
(1) whether the detention of Abdullah Almalki, Ahmad Abou-Elmaati and
Muayyed Nureddin in Syria or Egypt resulted, directly or indirectly,
from actions of Canadian officials, particularly in relation to the sharing
of information with foreign countries and, if so, whether those actions
were deficient in the circumstances;
(2) whether there were deficiencies in the actions taken by Canadian officials to provide consular services to Abdullah Almalki, Ahmad AbouElmaati and Muayyed Nureddin while they were detained in Syria or
Egypt; and
(3) whether any mistreatment of Abdullah Almalki, Ahmad Abou-Elmaati
and Muayyed Nureddin in Syria or Egypt resulted, directly or indirectly,
from actions of Canadian officials, particularly in relation to the sharing
of information with foreign countries and, if so, whether those actions
were deficient in the circumstances.
The Terms of Reference also directed me to prepare and submit to the
Governor in Council both a confidential report and a separate report suitable
for disclosure to the public, one that would not disclose information properly
subject to national security confidentiality.
2. Three points concerning the nature and purpose of the Inquiry deserve
special emphasis.
(1) The Inquiry was an investigative and inquisitorial proceeding and not a
judicial or adversarial one. Many of the features of an adversarial proceeding therefore did not apply. My counsel and I have nonetheless attempted to be as fair and as respectful as possible to all those involved.
�30
Internal Inquiry
(2) The subject matter of the Inquiry was the actions of Canadian officials,
not the conduct of Mr. Amalki, Mr. Elmaati and Mr. Nureddin. They
were not charged with anything, were not on trial, and had no case
to meet. In setting out the factual background to my findings, I have
necessarily made references to certain allegations about these three
individuals. However, making determinations concerning these allegations was not within my mandate, and nothing in this report should be
taken as an indication that those allegations are founded.
(3) The Inquiry was required to be internal and presumptively private.
The Terms of Reference were very specific in describing the Inquiry as
an “internal inquiry” and in requiring that I take all steps necessary to
ensure that the Inquiry was conducted in private, except to the extent
that I determined that, to ensure the effective conduct of the Inquiry,
specific portions should be conducted in public.
3. The requirement that the Inquiry be conducted in private originated in the
comments of Justice O’Connor in the Report of the Commission of Inquiry into
the Actions of Canadian Officials in Relation to Maher Arar. Justice O’Connor
recommended that the cases of Mr. Almalki, Mr. Elmaati and Mr. Nureddin be
reviewed, but in a manner more appropriate than a full scale public inquiry,
which, when national security issues are involved, can be complicated, unduly
protracted and expensive.
Inquiry process
4. There was no template for pursuing an inquiry of this kind. Within the
framework of the Terms of Reference, I adopted a process that enabled me to
carry out a private but thorough investigation that allowed for all Inquiry participants to have input into the fact-finding process. This process, described in
detail in Chapter 2, The Inquiry Process, resulted, in my view, in an investigation into the actions of Canadian officials with respect to Mr. Almalki, Mr. Elmaati
and Mr. Nureddin that was thorough, efficient and fair.
5. The process included the following elements.
• Participation and funding. Following a public hearing in March 2007 in
Ottawa, I granted Participant status to the three individuals and three government organizations, and granted Intervenor status to six organizations
and one coalition of two organizations, and recommended that funding be
provided to the individuals and to a number of the Intervenors. Funding
was provided in accordance with my recommendations.
�EXECUTIVE SUMMARY
• Interpretation of the Terms of Reference. I received submissions
from the Participants and Intervenors on how certain aspects of the
Inquiry’s Terms of Reference should be interpreted. Following a public
hearing in April 2007 in Ottawa, I ruled, among other things, that the
words “any mistreatment” as used in the Terms of Reference are to
be interpreted broadly, to include any treatment that is arbitrary or
discriminatory or resulted in physical or psychological harm. I also
concluded that it was appropriate for the Inquiry to ascertain whether
any mistreatment suffered by the three individuals amounted to
torture.
• Rules of Procedure and Practice. Based in part on the submissions I
heard at the April 2007 hearing, I adopted General Rules of Procedure
and Practice to guide the Inquiry.
• Document production. Early on, my counsel sent to the Attorney
General of Canada a comprehensive request for production of relevant
documents. The Attorney General of Canada produced some 40,000
documents in response to this request and a series of follow-up requests.
The Attorney General provided documents without redactions, with the
exception of certain documents subject to privilege or immunity and
information that might disclose the name of a foreign human source.
This facilitated the expeditious review of the documents. Other
Inquiry Participants and Intervenors also provided certain documents.
Mr. Almalki, Mr. Elmaati and Mr. Nureddin each provided the Inquiry
with certain medical records.
• Requests to other countries. Inquiry counsel sent letters to the
appropriate authorities in the United States, Syria, Egypt and Malaysia,
requesting that they participate in the Inquiry’s activities. Regrettably,
authorities in the United States, Egypt and Malaysia did not respond to
the Inquiry’s initial or follow-up requests. Although Syria responded in
late August 2008 by requesting further information about Mr. Almalki,
Mr. Elmaati and Mr. Nureddin—which information was provided—I
have not received from Syrian authorities any concrete indication
that the information and cooperation requested by the Inquiry will
be forthcoming and I therefore determined that I should proceed to
complete my report.
• Interviews. In light of the internal and private nature of the Inquiry,
I determined that obtaining viva voce evidence through in camera
interviews instead of more formal hearings would be the most practical
means to obtain information in an efficient and timely manner. Inquiry
31
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Internal Inquiry
•
•
•
•
•
counsel interviewed 44 witnesses under oath or affirmation. Having
reviewed the transcripts of these interviews, I then conducted
further interviews of many of these witnesses. Inquiry counsel and
I also conducted detailed interviews of Mr. Almalki, Mr. Elmaati
and Mr. Nureddin under affirmation about their alleged torture and
mistreatment in Syria and in Mr. Elmaati’s case, Egypt.
Meetings with Inquiry Participants and Intervenors. During the
interview process, in an effort to ensure appropriate participation of the
Participants and Intervenors and their counsel in the workings of the
Inquiry, my counsel had a series of meetings with the Participants and
their counsel and, separately, with the Intervenors and their counsel,
to discuss questions to be asked of witnesses and to share testimony
provided by witnesses that could be disclosed without jeopardizing
national security confidentiality.
Evidence and findings from the Arar Inquiry. Where appropriate,
the Inquiry made use of evidence and findings from the Arar Inquiry.
This was consistent with the Terms of Reference, which authorized me,
as I considered appropriate, to accept as conclusive or give weight to
the findings of other examinations that may have been conducted into
the actions of Canadian officials in relation to Mr. Elmaati, Mr. Almalki
and Mr. Nureddin.
Public hearings. In addition to public hearings on participation
and funding and interpretation of the Terms of Reference, I held a
public hearing in Ottawa in January 2008 to receive submissions on
the standards that I should apply in assessing the conduct of Canadian
officials. Like the submissions I received on other matters, I found the
submissions on standards very helpful.
Draft factual narratives. I directed Inquiry counsel to prepare draft
factual narratives for my review, based on documents, interviews and
other information. I also directed that Inquiry counsel make these draft
narratives available for review by counsel for Inquiry Participants and
Intervenors on a confidential basis. Counsel for Inquiry Participants and
Intervenors provided detailed comments and suggestions concerning the
draft factual narratives both orally, in discussions with Inquiry counsel,
and in writing. Inquiry counsel took these comments and suggestions
into account in finalizing the narratives for my consideration.
Section 13 notices. In accordance with section 13 of the Inquiries
Act, I directed Inquiry counsel to send notices of potential findings of
misconduct to institutions of the Government of Canada. The individual
�EXECUTIVE SUMMARY
officials whose actions were material to my mandate were employed
with these institutions, and were acting within the chain of command
established by them. I found no evidence that any of these officials
were seeking to do anything other than carry out conscientiously the
duties and responsibilities of the institutions of which they were a part.
My findings (which are set out in Chapters 11, 12 and 13) are therefore
directed to these institutions. It is neither necessary nor appropriate
that I make findings concerning the actions of any individual Canadian
official, and I have not done so.
• Final submissions. To assist me further in making my findings, I
invited counsel for the Participants and Intervenors, based on the
draft factual narratives that they had reviewed, to provide me with
final written submissions and reply submissions. These submissions
were of great assistance to me. Except for the portion of the Attorney
General’s submissions based on information protected by national
security confidentiality, these submissions are available on the
Inquiry’s website.
• National security confidentiality review. In preparing a version
of the report suitable for public disclosure, Inquiry counsel and I
considered the constraints imposed by the Terms of Reference (which
required that I must take all steps necessary to prevent the disclosure
of information subject to national security confidentiality), section 38
of the Canada Evidence Act (which prohibits disclosure of information
that would be injurious to international relations, national defence or
national security), and the factors identified by Mr. Justice Simon Noël
in Canada (Attorney General) v. Canada (Commission of Inquiry
into the Actions of Canadian Officials in Relation to Maher Arar).�
With these factors in mind, I engaged in the national security review
process with a view to providing the public with as complete as
possible an account of the actions of Canadian officials and my findings
in respect of those actions. With one exception, I am satisfied that the
information contained in the confidential version of my report, but
omitted from the public version, is properly subject to national security
confidentiality. The information that forms the exception is, in my view,
directly relevant to my mandate and should be disclosed to the public.
However, the responsible Minister is of the opinion that disclosure
of this information would be injurious to national security, national
defence, and/or international relations. If it is ultimately determined
2007 FC 766, [2007] F.C.J. No. 1081.
�
33
�34
Internal Inquiry
that further information can be publicly disclosed, I intend to take the
necessary steps to supplement the public version of my report.
• Medical reports. Inquiry counsel, together with counsel for Mr. Almalki,
Mr. Elmaati and Mr. Nureddin, arranged for each of the men to meet
with Dr. Judith Pilowsky, a psychologist, and with Dr. Rosemary Meier,
a psychiatrist. Both Dr. Pilowsky and Dr. Meier have experience in
dealing with victims of torture. Both were asked to provide reports of
their assessments to the Inquiry. Counsel for the Attorney General was
afforded an opportunity to comment on their reports.
The government institutions
6. Actions carried out on behalf of three institutions of the Government
of Canada—CSIS, the RCMP and DFAIT—are the focus of the Terms
of Reference.
7. CSIS is Canada’s civilian security intelligence agency, charged with the role
of advising government on threats to Canada’s security. CSIS collects and analyzes information and intelligence, and provides the Government of Canada with
intelligence reports about activities that may threaten the security of Canada.
8. The RCMP is Canada’s national police force, charged with primary responsibility over national security law enforcement, including the prevention and
investigation of terrorism offences as defined in section 2 of the Criminal Code
or arising out of conduct that constitutes a threat to the security of Canada.
9. DFAIT is mandated to oversee the external affairs of Canada, including the
management of Canadian embassies, high commissions and consulates, all of
which provide assistance to Canadians in foreign countries. When a Canadian
citizen has been arrested and detained abroad, DFAIT mandates its consular
officers to investigate the circumstances of the detention and to seek access to
the detainee.
Context of the actions in question
10. The actions that I reviewed took place in the period 2001 to 2004. This
period forms part of what is sometimes referred to as “the post-9/11 environment.” This period imposed unprecedented and intense demands on Canadian
officials. There was intense pressure on intelligence and law enforcement
agencies, including CSIS and the RCMP, to cooperate and share information
with foreign agencies, particularly those of the United States. There were new
challenges for Canadian consular officials in foreign states who, for the first
�EXECUTIVE SUMMARY
time, were seeking access to Canadian dual nationals detained by Middle Eastern
security services on terrorism-related grounds.
11. The context also included information, some publicly available, concerning the human rights records of Syria, where all three of Mr. Almalki, Mr. Elmaati
and Mr. Nureddin were detained, and of Egypt, where Mr. Elmaati was also
detained. This information included reports that torture and mistreatment of
detainees were common and persistent in both countries.
Tests applied in making my findings
12. In determining whether the detention or mistreatment of the three men
resulted, directly or indirectly, from actions of Canadian officials, I have asked
whether, on a consideration of all of the evidence and the rational inferences
to be drawn from it, the actions can be said to have likely contributed to the
detention or mistreatment of the individual concerned. In view of the purpose
of this Inquiry, I do not consider it either necessary or appropriate that I weigh
the role played by the actions of Canadian officials relative to other factors.
13. In considering whether the actions of Canadian officials that likely contributed to the detention or mistreatment of one of the three men were deficient in
the circumstances, or whether the provision of consular services was deficient
in the circumstances, I have applied the ordinary meaning of the term “deficiency,” that of conduct falling short of a norm. In the context of this Inquiry,
any of the following types of actions can constitute a deficiency:
(1) failing to meet a standard or norm that existed at the time;
(2) failing to establish a standard or norm when there should have been
one; or
(3) maintaining a standard or norm that was itself deficient.
Ahmad Abou-Elmaati
14. Mr. Elmaati, a dual Canadian-Egyptian citizen, travelled to Syria from Canada
in November 2001 to be married. When he arrived at the airport in Damascus,
he was immediately taken into Syrian custody and transferred to Far Falestin
detention centre, where he remained for over two months. In January 2002,
Mr. Elmaati was transferred from Syria to Egypt, where he spent another 24
months in detention. While in detention in Syria and Egypt, Mr. Elmaati was
held in degrading and inhumane conditions, interrogated and mistreated.
15. During his two months in Syrian detention, Mr. Elmaati did not receive
consular visits from the Canadian Embassy in Damascus. During his two years
35
�36
Internal Inquiry
in Egyptian detention, Mr. Elmaati received eight consular visits from Canadian
Embassy officials in Cairo and was visited periodically by his family. Mr. Elmaati
returned to Canada in March 2004.
16. Chapter 4 of this report, the Actions of Canadian officials in rela‑
tion to Ahmad Abou-Elmaati, is a summary of information obtained by the
Inquiry, largely from interviews of Canadian officials and review of relevant documents, regarding the actions of Canadian officials with respect to Mr. Elmaati.
Chapter 7 of this report, Mr. Elmaati’s experience in Syria and Egypt, is a
summary of Mr. Elmaati’s description of what he experienced and how he was
treated while in detention in Syria and Egypt.
17. Detention. I do not find that Mr. Elmaati’s detention in Syria resulted
directly from any action of Canadian officials. However, I do conclude that the
combination of three instances of sharing of information by Canadian officials
in the period leading up to Mr. Elmaati’s detention likely contributed to his
detention, so that the detention in Syria can be said to have resulted indirectly
from these actions. For the reasons set out in Chapter 11, I also conclude
that these actions were deficient in the circumstances. I do not find that
Mr. Elmaati’s detention in Egypt resulted, directly or indirectly, from any actions
of Canadian officials.
18. Mistreatment. Based on a careful review of the evidence available to me,
including the thorough interview of Mr. Elmaati conducted by me and my counsel and the publicly available information about Syria’s and Egypt’s human rights
records, I conclude that, while in Syrian and Egyptian detention, Mr. Elmaati
suffered mistreatment amounting to torture as that term is defined in the United
Nations Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (“UN Convention Against Torture”).
19. I do not conclude that any mistreatment resulted directly from any action
of Canadian officials. However, I find that mistreatment resulted indirectly
from several actions of Canadian officials. These actions include the failure of
Canadian officials to advise DFAIT’s Consular Affairs Bureau of Mr. Elmaati’s
detention and interrogation in Syria and CSIS’ sending of questions to a foreign
agency to be put to Mr. Elmaati while in Syrian detention. These actions likely
contributed to mistreatment of Mr. Elmaati in Syria. I find that they were deficient in the circumstances. CSIS’ statement of concern about Mr. Elmaati and
his activities if released in a communication to the Egyptian authorities, the
RCMP’s attempts to interview Mr. Elmaati in Egypt and the RCMP’s sharing of
information all likely contributed to mistreatment of Mr. Elmaati in Egypt. I find
that these actions were deficient in the circumstances.
�EXECUTIVE SUMMARY
20. Consular Services. I conclude that there were a number of deficiencies
in the actions of Canadian officials to provide consular services to Mr. Elmaati.
First, DFAIT failed to act sufficiently promptly and robustly in its initial efforts to
locate and obtain access to Mr. Elmaati after learning that he had been detained
in Syria and then again after learning that he had been transferred to Egypt.
Second, while consular visits were in general provided regularly to Mr. Elmaati
while he was detained in Egypt, during a portion of this period DFAIT failed to
provide visits sufficiently frequently. Third, consular officials were not given
sufficient training to assess whether Mr. Elmaati was being mistreated, and were
not directed to ask for private visits. Fourth, DFAIT should have informed the
Minister of Foreign Affairs about Mr. Elmaati’s allegation of torture. Finally,
DFAIT consular officials should not have repeatedly asked Mr. Elmaati whether
he would be willing to meet with CSIS and the RCMP and should not have disclosed information collected in the course of providing consular assistance to
Mr. Elmaati to other Canadian officials.
Abdullah Almalki
21. Abdullah Almalki, a dual Canadian-Syrian citizen, travelled to Syria from
Malaysia in May 2002. Mr. Almalki told the Inquiry that the purpose of this trip
was to visit his ill grandmother. When he arrived at the airport, he was immediately taken into Syrian custody, where he remained for 22 months. While in
Syrian detention, Mr. Almalki was held in degrading and inhumane conditions,
interrogated and mistreated. Though he was visited periodically by family
and friends, Mr. Almalki did not receive any consular visits during his detention. Mr. Almalki left Syria at the end of July 2004 and returned to Canada in
August 2004.
22. Chapter 5 of this report, the Actions of Canadian officials in relation to
Abdullah Almalki, is a summary of information obtained by the Inquiry, largely
from interviews of Canadian officials and review of relevant documents, regarding the actions of Canadian officials with respect to Mr. Almalki. Chapter 8
of this report, Mr. Almalki’s experience in Syria is a summary of Mr. Almalki’s
description of what he experienced and how he was treated while in detention
in Syria.
23. Detention. I do not find that Mr. Almalki’s detention in Syria resulted
directly from any action of Canadian officials. I find myself unable to determine,
on the record available to me, whether or not the actions of Canadian officials
likely contributed to, and therefore resulted indirectly in, Mr. Almalki’s detention in Syria. While it is possible that information shared by Canadian officials
37
�38
Internal Inquiry
might have contributed in some way to the decision by the Syrian authorities
to detain him, in my judgment that possibility does not meet the threshold of
likelihood required for me to infer an indirect link. However, certain actions
of Canadian officials in the period leading up to Mr. Almalki’s detention raised
concerns for me. These concerns are discussed in detail in Chapter 12.
24. Mistreatment. Based on a careful review of the evidence available to
me, including the thorough interview of Mr. Almalki conducted by me and my
counsel and the publicly available information about Syria’s human rights record
and the medical reports, I conclude that, while in Syrian detention, Mr. Almalki
suffered mistreatment amounting to torture as defined in the UN Convention
Against Torture.
25. I do not conclude that any mistreatment resulted directly from any action
of Canadian officials. However, I find that mistreatment suffered by Mr. Almalki
in Syria resulted indirectly from two actions of Canadian officials: (1) in April
2002, the RCMP shared its Supertext database, which contained a considerable amount of information regarding Mr. Almalki, with U.S. agencies; and
(2) in January 2003, the RCMP sent Syrian officials questions to be posed to
Mr. Almalki while in Syrian detention. I find that these actions were deficient
in the circumstances.
26. Consular services. I conclude that the actions of Canadian officials to
provide consular services to Mr. Almalki in Syria were deficient in four respects.
First, DFAIT failed to act sufficiently promptly after learning that Mr. Almalki
was in custody in Syria. Second, DFAIT failed to make effective representations
to obtain consular access to Mr. Almalki during the period from August 2002
to November 2003. Third, DFAIT officials failed to consider sufficiently the
possibility that Mr. Almalki might be mistreated in Syrian custody. Fourth, in
one instance DFAIT improperly disclosed to CSIS information that officials had
collected in the course of providing consular assistance to Mr. Almalki.
Muayyed Nureddin
27. Muayyed Nureddin, a dual Canadian-Iraqi citizen, travelled to Syria in
December 2003 on his way home to Toronto from Iraq, where he had been
visiting for approximately two months. When he arrived at the border, he was
immediately taken into Syrian custody, where he remained for 33 days. While
in Syrian detention, Mr. Nureddin was held in degrading and inhumane conditions, interrogated and mistreated. During the 33 days that Mr. Nureddin was
detained, he did not receive any consular visits from the Canadian Embassy.
Mr. Nureddin returned to Canada in January 2004.
�EXECUTIVE SUMMARY
28. Chapter 6 of this report, the Actions of Canadian officials in relation to
Muayyed Nureddin, is a summary of information obtained by the Inquiry, largely
from interviews of Canadian officials and review of relevant documents, regarding the actions of Canadian officials with respect to Mr. Nureddin. Chapter 9 of
this report, Mr. Nureddin’s experience in Syria is a summary of Mr. Nureddin’s
description of what he experienced and how he was treated while in detention
in Syria
29. Detention. I do not find that Mr. Nureddin’s detention in Syria resulted
directly from any action of Canadian officials. However, I conclude that the following actions of Canadian officials in the period leading up to Mr. Nureddin’s
detention likely contributed to his detention, so that the detention can be
said to have resulted indirectly from these actions: (1) CSIS and the RCMP
shared with several foreign agencies, including U.S. agencies, information
about Mr. Nureddin’s suspected involvement in terrorist activities; and (2) in
September 2003, CSIS shared with a U.S. agency Mr. Nureddin’s travel itinerary,
which indicated that he would be returning to Canada via Damascus in midDecember 2003. I also conclude that CSIS’ decision to share the travel itinerary
was not deficient in the circumstances, though the sharing of information about
Mr. Nureddin’s activities was deficient in certain respects.
30. Mistreatment. Based on a careful review of the evidence available to
me, including the thorough interview of Mr. Nureddin conducted by me and
my counsel and the publicly available information about Syria’s human rights
record, I conclude that, while in Syrian detention, Mr. Nureddin suffered mistreatment amounting to torture within the meaning of the UN Convention
Against Torture.
31. I do not find that any mistreatment resulted directly from any action of
Canadian officials. However, I find that the same sharing of information that
likely contributed to Mr. Nureddin’s detention also likely contributed to mistreatment of Mr. Nureddin there.
32. Consular services. I conclude that the provision of consular services
to Mr. Nureddin during his 33-day detention in Syria was not deficient in the
circumstances. DFAIT responded promptly after learning of Mr. Nureddin’s
detention and, following its initial contact with Syrian officials, DFAIT continued
to follow up with efforts to secure consular access to Mr. Nureddin.
39
��1
INTRODUCTION
The Inquiry
1. By Order in Council dated December 11, 2006, I was appointed under Part I
of the Inquiries Act to conduct an internal inquiry into the actions of Canadian
officials in relation to Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed
Nureddin (the “Inquiry”). The conduct of the Inquiry is governed by Terms of
Reference set out in the Order in Council. A copy of the Order in Council is
Appendix A to this report.
My mandate
2. The Terms of Reference directed me to determine the following:
(i) whether the detention of Abdullah Almalki, Ahmad Abou-Elmaati and
Muayyed Nureddin in Syria or Egypt resulted, directly or indirectly,
from actions of Canadian officials, particularly in relation to the sharing
of information with foreign countries and, if so, whether those actions
were deficient in the circumstances;
(ii) whether there were deficiencies in the actions taken by Canadian officials to provide consular services to Abdullah Almalki, Ahmad AbouElmaati and Muayyed Nureddin while they were detained in Syria or
Egypt; and
(iii) whether any mistreatment of Abdullah Almalki, Ahmad Abou-Elmaati
and Muayyed Nureddin in Syria or Egypt resulted, directly or indirectly,
from actions of Canadian officials, particularly in relation to the sharing
of information with foreign countries and, if so, whether those actions
were deficient in the circumstances.
�42
Internal Inquiry
3. The Terms of Reference directed me to submit to the Governor in Council
both a confidential report setting out my determinations and, simultaneously,
a separate report suitable for disclosure to the public, one that would not disclose information that, if it were disclosed to the public, would be injurious
to international relations, national defence, national security or the conduct of
any investigation or proceeding. The date for submission of my reports was
initially set as January 31, 2008. At my request, to ensure that I had adequate
time to complete the Inquiry and prepare my reports, this date was extended
twice, first to September 2, 2008 and then to October 20, 2008.
4. The Terms of Reference also directed me, while adopting any procedures
and methods that I considered expedient for the proper conduct of the Inquiry,
to take all steps necessary to ensure that the Inquiry was conducted in private.
Despite this general requirement, I was authorized to conduct specific portions
of the Inquiry in public if I was satisfied that it was essential to do so to ensure
the effective conduct of the Inquiry.
5. I was, in addition, directed to conduct the Inquiry in a manner that
would ensure that there was no disclosure to persons or bodies other than
the Government of Canada of information the disclosure of which would be
injurious to international relations, national defence, national security, or the
conduct of any investigation or proceeding. My mandate included the direction that I follow established security procedures, including the requirements
of the Government Security Policy, in the handling of information at all stages
of the Inquiry.
Nature and purpose of the Inquiry
6. In the chapter that follows I will describe in some detail certain other
aspects of the Terms of Reference and the process that I followed in the conduct
of the Inquiry. Before I do so I wish to emphasize three points concerning the
nature and purpose of the Inquiry. This is important both to ensure a proper
understanding of what the Inquiry was about and what it was not about, and
to ensure fairness as much as possible for the individuals involved in the events
and actions that I was called upon to review.
7. The three points are the following: (1) the Inquiry was an inquisitorial and
not an adversarial proceeding; (2) the Inquiry was an inquiry into the actions of
Canadian officials, not an inquiry into the conduct of Mr. Almalki, Mr. Elmaati
and Mr. Nureddin; and (3) the Inquiry was required to be internal and presumptively private. I will address these three points in turn.
�Introduction
The Inquiry was an inquisitorial and not an adversarial proceeding
8. As I stated in my Ruling of April 2, 2007� and repeated in my Ruling of
May 31, 2007,� the Inquiry was an investigative and inquisitorial proceeding, not
a judicial or adversarial one: “There is no one charged, no one is on trial, and
no one has a case to meet.” The Inquiry concerned the conduct of Canadian
officials as it related to the detention, alleged mistreatment, and provision of
consular services to three individuals. As a consequence of the investigative
nature of the Inquiry, many of the features of criminal or other adversarial proceedings did not apply in this context.
9. This is not to say the Inquiry has taken place without safeguards or protections for those affected by it. While assiduously pursuing the mandate of
the Inquiry, my counsel and I have attempted to be as fair and respectful as
possible to all involved. Our efforts in this regard are described below and in
the next chapter. In accordance with the dictum of Chief Justice McLachlin in
Charkaoui v. Canada (Citizenship and Immigration),� I “took charge of the
gathering of evidence in an independent and impartial way.”
This was not an inquiry into the conduct of Mr. Almalki, Mr. Elmaati and
Mr. Nureddin
10. Following on the observation that the Inquiry was investigative and not
adversarial, I cannot emphasize enough that the subject matter of the Inquiry
was the actions of Canadian officials, not the conduct of Mr. Amalki, Mr. Elmaati
and Mr. Nureddin. They are not charged with anything, are not on trial, and
have no case to meet. They have certainly not been convicted of any crime.
11. In setting out the factual background to my findings, I have necessarily
made references to certain allegations about these three individuals. However,
nothing that I state in this report should be taken as an indication that those
allegations are founded. Making determinations concerning these allegations
is plainly and simply not within my Terms of Reference.
12. I recognize that the mere fact of being named in allegations, especially
allegations that are repeated publicly, can affect the reputations of those named
and their families. That is regrettable, but unfortunately, largely unavoidable in
view of the matters that I have been mandated to examine. But I reiterate that
Mr. Amalki, Mr. Elmaati and Mr. Nureddin are not charged with and have not
�
�
�
Appendix B (Ruling on Participation and Funding, April 2, 2007), p. 3.
Appendix C (Ruling on Terms of Reference and Procedure, May 31, 2007), p. 12.
[2007] 1 S.C.R. 350 at para. 50.
43
�44
Internal Inquiry
been convicted of any offence. Both the law and fundamental fairness dictate
that they be presumed innocent of any wrongdoing.
13. Not only was it not within my Terms of Reference to inquire into the
conduct of Mr. Amalki, Mr. Elmaati and Mr. Nureddin, it was also not within
my Terms of Reference to inquire into or express any opinion on whether any
of the three men was properly the subject of investigation by Canadian officials
in the first place. My mandate as I understood it was to inquire into the actions
of Canadian officials that might have been connected to the detention or mistreatment of the three men, and to the provision of consular services to them.
While I appreciate that an argument could be made that none of these actions
would have taken place if the men had not been the subject of investigation, I
am confident that the Terms of Reference were not intended to authorize me
to investigate the propriety of the initial decision to investigate the three men.
If it had been intended that I carry out that task, I would have expected a clear
expression of that intention. I therefore express no opinion on this question.
The Inquiry was required to be internal and presumptively private
14. The Terms of Reference were very specific in describing the Inquiry as an
“internal inquiry” and in requiring that I take all steps necessary to ensure that
the Inquiry was conducted in private, except to the extent that I was “satisfied
that it is essential to ensure the effective conduct of the Inquiry” to conduct
specific portions in public.
15. I will discuss in more detail in the next chapter how I interpreted these
provisions of the Terms of Reference, after I received submissions concerning
them. But from the outset they meant that this was in many respects not a “typical” public inquiry, if there is indeed such a thing. Nor was it intended to be.
16. As I explained in my opening remarks at the first public hearing in the
Inquiry, to deal with applications for participation and funding,� this Inquiry
originated in the comments of Associate Chief Justice Dennis O’Connor in the
Report of the Commission of Inquiry into the Actions of Canadian Officials
in Relation to Maher Arar (the “Arar Inquiry”) that the cases of Mr. Almalki,
Mr. Elmaati and Mr. Nureddin “raise troubling questions,” and in his recommendation that their cases be reviewed. However, Justice O’Connor did not recommend that the review take the form of a traditional public inquiry. He stated:
My experience in this Inquiry indicates that conducting a public inquiry in cases
such as these can be a tortuous, time-consuming and expensive exercise….
�
Opening Statement of Commissioner, online, www.iacobucciinquiry.ca/en/hearings/
index.htm (accessed October 3, 2008).
�Introduction
[T]here are more appropriate ways than a full-scale public inquiry to investigate
and report on cases where national security confidentiality must play such a
prominent role.�
17. The Terms of Reference referred to, and sought to implement, Justice
O’Connor’s recommendation. No participant in the Inquiry, or anyone else for
that matter, challenged the provisions of the Terms of Reference that called for
the Inquiry to be internal and presumptively private.
18. There was no template for pursuing an inquiry of this kind. Within the
framework of the Terms of Reference, I sought to adopt a process that would
enable me to carry out a private but thorough investigation, accompanied by
measures aimed at allowing all Inquiry participants to have input into the factfinding process. I directed my counsel to make every practicable effort to keep
counsel for participants in the Inquiry informed and to seek their input as the
Inquiry proceeded, and to consider at every stage the advisability of pursuing
portions of the Inquiry in public. I am satisfied that they did so.
19. My counsel took the following initiatives, among others, to involve counsel
for Participants and Intervenors, and the Participants and Intervenors themselves, in the workings of the Inquiry. I joined my counsel at a number of the
meetings described below.
• First, my counsel had various meetings with the Participants and their
counsel and, separately, with the Intervenors and their counsel, to discuss
questions to be asked of witnesses and to share testimony provided by
witnesses that could be disclosed without jeopardizing national security
confidentiality.
• Second, my counsel had numerous meetings and discussions with
counsel for the Participants and at least one with the Participants
themselves to establish a process that allowed me to conduct detailed
interviews of Mr. Almalki, Mr. Elmaati and Mr. Nureddin about their
alleged torture and mistreatment in a manner that adequately protected
their interests. These discussions were particularly protracted and
time-consuming, but resulted in agreement on a process that I consider
sufficiently robust to enable me to make the important determination
of whether the individuals were subjected to mistreatment amounting
to torture.
• Third, as discussed in the next chapter, my counsel shared with counsel
for Participants and Intervenors on a confidential basis detailed draft
�
Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Report
of the Events Relating to Maher Arar: Analysis and Recommendations (Ottawa: Public Works
and Government Services Canada, 2006), p. 267.
45
�46
Internal Inquiry
factual narratives prepared by Inquiry counsel (without information
subject to national security confidentiality) in order to give them a
further opportunity to have input into the Inquiry process. Counsel
for Inquiry Participants and Intervenors provided detailed comments
concerning the draft factual narratives both orally and in writing. This is
the only instance of which I am aware in which counsel for Participants
and Intervenors in an inquiry have been given an opportunity to review
and comment on portions of a draft inquiry report before it is released
to the public.
20. As I will describe in the next chapter, three public hearings were held on
matters central to the Inquiry — on applications for participation and funding,
Inquiry procedures and the interpretation of the Terms of Reference, and the
standards that I should apply in evaluating the actions of Canadian officials. In
preparing my public report, I have kept uppermost in my mind the desirability
of informing the public as fully as possible, consistent with the requirement to
maintain national security confidentiality.
Appearances of Counsel
Inquiry Counsel
John B. Laskin, Lead Counsel
John Terry, Co-Lead Counsel
Daniel Jutras, Special Counsel
Danielle Barot, Senior Counsel
Simon Richard, Counsel
Jennifer Conroy, Counsel
Tessa Kroeker, Counsel
Annik Wills, Counsel
Sarah Huggins, Counsel
Counsel for Abdullah Almalki
Paul Copeland�
Jasminka Kalajdzic
Counsel for Ahmad Abou-Elmaati
Barbara Jackman
Hadayt Nazami
Counsel for Muayyed Nureddin
John Norris�
Breese Davies
�
�
Mr. Copeland withdrew as counsel for Mr. Almalki effective June 4, 2008.
Mr. Norris withdrew as counsel for Mr. Nureddin effective June 9, 2008.
�Introduction
Counsel for the Attorney General of Canada
Michael Peirce
Alain Préfontaine
Gregory Tzemenakis
Roger Flaim
Yannick Landry
Counsel for the Ontario Provincial Police
Michele Smith
Darrell Kloeze
Counsel for the Ottawa Police Service
Vincent Westwick
Counsel for Amnesty International Canadian Section (English Branch)
Alex Neve
Counsel for Human Rights Watch
Robert A. Centa
Brydie C. M. Bethell
Counsel for the Canadian Council on American Islamic Relations (CAIR-CAN) and the
Canadian Muslim Civil Liberties Association (CMCLA)
Faisal Kutty
Akbar Sayed Mohamed
Counsel for the British Columbia Civil Liberties Association (BCCLA)�
Shirley Heafey
Paul Champ�
Counsel for the International Civil Liberties Monitoring Group (ICMLG)
Warren Allmand
Counsel for the Canadian Arab Federation
James Kafieh
Counsel for the Canadian Coalition for Democracies
David B. Harris
Acknowledgments
21. The Inquiry was faced with many challenges and proved to be complicated
for all who were associated with it. Inquiries that involve questions of national
security are inherently difficult because of the need to respect confidentiality
yet at the same time provide a process that is fair and independent.
�
�
The BCCLA withdrew from participation in the Inquiry effective December 11, 2007.
Mr. Champ replaced Ms. Heafey as counsel for the BCCLA effective October 3, 2007.
47
�48
Internal Inquiry
22. In reviewing the work of all those involved and the path leading to this
point, I wish to acknowledge the efforts and dedication of the many people
who have made substantial contributions to the completion of the Inquiry.
23. I begin with my Inquiry Lead Counsel, John B. Laskin, and Co-Lead Counsel,
John Terry. Their efforts, judgment, and commitment were superb and their
contributions to every phase of the Inquiry were outstanding. No inquiry
could be better served by its counsel. Worthy of special mention are the tireless efforts and impressive skills of Jennifer Conroy, Sarah Huggins, and Tessa
Kroeker whose long hours of work in secure but hardly elegant premises was
exemplary. I wish also to recognize a number of lawyers whose labours were
most important and helpful: Danielle Barot, Simon Richard, and Annik Wills.
Their professionalism in the performance of their tasks was impressive. Of great
help to the Inquiry in many facets of its work was Special Counsel, Professor
Daniel Jutras of the Faculty of Law of McGill University, who made major contributions on a variety of legal and non-legal issues.
24. I also wish to acknowledge the talents, wisdom and commitment of Nicole
Viau-Cheney, Director, Finance and Administration, whose supervision and
handling of the administrative issues facing the Inquiry was invaluable. Thanks
are also due to the office staff Mary Ann Allen, Lise Scharf, Gilles Desjardins,
Gisèle Malette and Éric Fournier for their support and help.
25. I also wish to record my gratitude to a group of assistants at Torys who
were of enormous help to the Inquiry: Sharon Fitchett, Terri Palmateer and
Ruth Anne Flear. I also am indebted to the law firm of Torys LLP, particularly
Managing Partner Les Viner, and Chief Operating Officer Alan Pearson, for their
support and co-operation.
26. I should also recognize the Privy Council Office for its help and advice
on security, information technology, finance and other matters. With respect
to media relations, I thank Francine Bastien for her talents and expertise and
advice on communications matters and related activities.
27. I am also most grateful to a talented group of special advisors: Professor
Peter Burns, of the University of British Columbia, the former Chair of the
United Nations Committee against Torture, who provided advice concerning
matters relating to mistreatment and possible torture; Paul Heinbecker, former
Canadian Ambassador and Permanent Representative to the United Nations
and former Ambassador to Germany, who is the Director of the Laurier Centre
for Global Relations, and Distinguished Fellow, International Relations, at the
independent research Centre for International Governance Innovation, and who
�Introduction
provided advice on certain DFAIT-related and national security confidentiality matters; Ray Protti, a former Director of CSIS, who advised the Inquiry on
national security confidentiality issues; and Dr. Lisa Ramshaw of the Centre for
Addiction and Mental Health in Toronto, a forensic psychiatrist who provided
advice concerning certain medical information that the Inquiry obtained relating
to Mr. Almalki, Mr. Elmaati and Mr. Nureddin.
28. In the final preparation of this Report, I wish to acknowledge the assistance of editors Brian Cameron for the English version and Alphonse Morrisette
for the French version. I also express my sincere thanks to the translators,
Pierre Cremer and Danielle Bérubé.
29. Lastly, I wish to acknowledge all the counsel who represented the
Participants and Intervenors.
30. I wish to mention especially the Government of Canada lawyers, including
Alain Préfontaine, Gregory Tzemenakis, Roger Flaim and Yannick Landry, and led
by Michael Peirce, the main contact person for the Attorney General of Canada,
who worked ably with my Counsel in dealing with many issues between the
Government and the Inquiry that had to be addressed and resolved.
31. The lawyers for the three individuals, Barbara Jackman, Hadayt Nazami,
Paul Copeland, Jasminka Kalajdzic, John Norris and Breese Davies, deserve
special recognition as do the lawyers for the other Participants and Intervenors,
Michele Smith, Darrell Kloeze, Vincent Westwick, Alex Neve, Robert A. Centa,
Brydie C. M. Bethell, Faisal Kutty, Akbar Sayed Mohamed, Shirley Heafey, Paul
Champ, Warren Allmand, James Kafieh, and David B. Harris. Despite the difficult assignments these counsel had, their submissions, suggestions, and views
on many issues were most helpful to me, particularly in view of the constraints
arising from the confidential nature of the Inquiry.
32. Without hesitation, I can say that counsel for all Inquiry Participants and
Intervenors represented their clients most effectively, and acted professionally
and responsibly throughout.
49
��2
THE INQUIRY PROCESS
Counsel and advisors
1. As authorized by the Terms of Reference, in addition to retaining counsel,
I engaged the services of advisors to assist me in the conduct of the Inquiry.
The special advisors that I engaged were Professor Peter Burns of the University
of British Columbia, the former Chair of the United Nations Committee against
Torture, who provided advice concerning matters relating to mistreatment
and possible torture; Paul Heinbecker, former Canadian Ambassador and
Permanent Representative to the United Nations and former Ambassador to
Germany, who is the Director of the Laurier Centre for Global Relations, and
Distinguished Fellow, International Relations, at the independent research
Centre for International Governance Innovation, and who provided advice on
certain DFAIT- and national security-related matters; Raymond Protti, a former
Director of the Canadian Security Intelligence Service, who provided advice on
certain national security-related matters; and Dr. Lisa Ramshaw of the Centre for
Addiction and Mental Health in Toronto, a forensic psychiatrist who provided
advice concerning certain medical information that the Inquiry obtained relating
to Mr. Almalki, Mr. Elmaati and Mr. Nureddin.
Participation and funding
2. The Terms of Reference authorized me to make decisions regarding who
should participate in the Inquiry and to recommend to the Clerk of the Privy
Council that funding be provided to those participants who would otherwise
be unable to participate in the activities of the Inquiry.
3. I made decisions about participation and recommendations for funding following a public hearing held on March 21, 2007 in Ottawa. In advance of this
�52
Internal Inquiry
hearing, and to guide persons seeking to participate in the Inquiry’s activities, I
adopted and published on the Inquiry’s website, www.iacobucciinquiry.ca,
Rules of Procedure and Practice Respecting Participation and Funding
(“Participation Rules”). Rules 6 and 7 of the Participation Rules set out two
levels of participation: persons who could demonstrate that they had a substantial and direct interest in the subject matter of the Inquiry (“Participants”),
and persons who could demonstrate that they had a genuine concern about
the subject matter of the Inquiry and a particular perspective or expertise that
might assist me in making factual findings (“Intervenors”).
4. I received 16 applications from individuals and organizations seeking to
participate in the work of the Inquiry. Nine of these applications were from
persons seeking Participant status and seven were from organizations seeking
Intervenor status. Several of these applications also included a request for funding of counsel and office space and for reimbursement of certain expenses (such
as travel and accommodation expenses).
5. In a ruling dated April 2, 2007 (a copy of which is Appendix B to this
report), I granted Participant status to three individuals and three government
organizations, and granted Intervenor status to six organizations� and one coalition of two organizations. I subsequently made recommendations for additional
funding in light of experience as the Inquiry proceeded.
Interpretation of the Terms of Reference
6. Participants and Intervenors were invited to provide submissions on how
certain aspects of the Inquiry’s Terms of Reference should be interpreted, and
to comment on a set of Draft Rules of Practice and Procedure prepared with
a view to exercising my authority under the Terms of Reference to adopt the
procedures and methods that I considered expedient for the proper conduct
of the Inquiry.
7. With respect to the interpretation of the Terms of Reference, I asked for
submissions on:
• the meaning of the term “mistreatment;”
• whether the Terms of Reference mandated me to determine whether,
and the extent to which, Mr. Elmaati, Mr. Almalki and Mr. Nureddin
were tortured in Syria and (in Mr. Elmaati’s case) Egypt;
• who should be entitled to attend hearings conducted in private;
One of the six organizations granted Intervenor status, the British Columbia Civil Liberties
Association, withdrew from the Inquiry on December 11, 2007.
�
�THE INQUIRY PROCESS
• what steps I should take to ensure that those excluded from private
hearings could participate in the Inquiry’s process; and
• what considerations I should take into account in determining when to
conduct portions of the Inquiry in public.
8. I received submissions on these issues at a public hearing held on April 17,
2007 in Ottawa. A copy of my ruling on the issues, dated May 31, 2007, is
Appendix C to this report.
9. As set out in my ruling, I found with respect to the first issue that the
words “any mistreatment” as used in the Terms of Reference are to be interpreted broadly, to include any treatment that is arbitrary or discriminatory or
resulted in physical or psychological harm. With respect to the second issue,
I concluded that it was appropriate for the Inquiry to ascertain whether any
mistreatment suffered by the three individuals amounted to torture. I found
that, on a common sense reading of the Terms of Reference, the nature and
extent of any mistreatment, and whether that mistreatment amounted to torture, might at a minimum be relevant to whether there were deficiencies in
the actions of government officials, or whether their actions were “deficient
in the circumstances.” I also expressed the view that, from the standpoint
of the public interest, it is important to ascertain whether these individuals
suffered mistreatment amounting to torture. Canada is a party to the United
Nations Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment. Torture is prohibited under both international
law and the domestic laws of most countries, including the Criminal Code of
Canada. As I stated in my ruling, the Canadian public has an interest in knowing not just whether mistreatment occurred but also whether that mistreatment
amounted to torture.
10. Based in part on the submissions made at the April 17 hearing, and my consideration of the other issues that I asked Participants and Intervenors to address,
the Draft Rules were revised and became the General Rules of Procedure and
Practice (“General Rules”). A copy is Appendix D to this report.
Document collection and review
11. Rule 15 of the General Rules requested Participants and Intervenors
to provide to the Inquiry all relevant documents in their possession,
power or control, but also provided for the production of documents as I
considered appropriate.
53
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Internal Inquiry
12. Given the nature of this Inquiry, it was apparent from the outset that I
would have to rely to a substantial extent on documents and information that
would be provided by counsel for the Attorney General of Canada on behalf
of institutions including the Department of Foreign Affairs and International
Trade (DFAIT), the Canadian Security Intelligence Service (CSIS), and the Royal
Canadian Mounted Police (RCMP). On March 6, 2007, the Inquiry sent a document request to the Attorney General, requesting production of all documents
related to the three matters set out in the Terms of Reference in the possession,
custody or control of the Government of Canada, all reports or other documents
containing the findings of other examinations that might have been conducted
into the actions of Canadian officials in relation to Mr. Elmaati, Mr. Almalki and
Mr. Nureddin, and the formal record of the Arar Inquiry. A copy of the request
is Appendix E to this report.
13. The Attorney General of Canada produced some 40,000 documents. These
comprised both the Government’s initial production in response to the Inquiry’s
request and additional documents provided subsequently, many in response to
further requests arising from the Inquiry’s document review and interviews.
The Attorney General provided documents without redactions, with the exception of certain documents subject to privilege or immunity and information
that might disclose the name of a foreign human source. This facilitated the
expeditious review of the documents.
14. The Attorney General’s document production was governed by a Protocol
for the Protection of Privileged and Immune Information (the “Protocol”)
executed by counsel for the Attorney General and the Inquiry. A copy of the
Protocol is Appendix F to this report. In the Protocol it was agreed that, to
facilitate the work of the Inquiry, the Attorney General would produce documents that in some cases had not been reviewed for any applicable privilege or
immunity. The Inquiry agreed that it would take steps to protect these documents, including by not disclosing the documents without the prior written
consent of the Attorney General.
15. At my request, the Attorney General has provided me with a certificate
of production of documents, confirming that the Attorney General directed
the government and its agents, servants, contractors, agencies, boards, commissions and Crown corporations that might reasonably be expected to have
documents relevant to the Terms of Reference to conduct a diligent search
for the documents related to Mr. Almalki, Mr. Elmaati and Mr. Nureddin and
the actions of Canadian officials as set out in the document request; that he
established a system to ensure that the document requests were acted upon
�THE INQUIRY PROCESS
appropriately; and that he is fully satisfied that all documents requested in the
document request have been produced to the Inquiry. A copy of the certificate
is Appendix G to this report. My findings are based on the premise that I have
been provided with all relevant documentation and information from Canadian
government officials.
16. Other Participants and several Intervenors also provided the Inquiry with
documents, all of which the Inquiry reviewed. Among the documents produced
by Mr. Almalki, Mr. Elmaati and Mr. Nureddin were medical records that the
men obtained from medical professionals who have examined and evaluated
them in the years following their return to Canada.
Requests to the United States, Syria, Egypt and Malaysia
17. At an early stage in the Inquiry, Inquiry counsel sent letters to the appropriate authorities in the United States, Syria, Egypt and Malaysia, requesting that
they participate in the Inquiry’s activities by providing relevant documentation
and information (including any reports or communications from Canadian officials), facilitating interviews by Inquiry staff with officials with relevant information, and, if necessary, facilitating the attendance of these officials as witnesses.
The letters stated that the Inquiry was prepared to travel to the countries for
the purpose of conducting interviews. The letters also described steps that
the Inquiry would take to protect any sensitive information. Inquiry counsel
sent follow-up letters to the appropriate authorities in the four countries in
December 2007.
18. Regrettably, authorities in the United States, Egypt and Malaysia did not
respond to the Inquiry’s initial or follow-up requests. Syria responded in late
August 2008, through its Ministry of Foreign Affairs, by requesting further
information about Mr. Almalki, Mr. Elmaati and Mr. Nureddin. With the cooperation of the three individuals and their counsel, the requested information
was provided to the Syrian Ministry of Foreign Affairs in mid-September 2008.
However, I have not received from Syrian authorities any concrete indication
that the information and cooperation requested by the Inquiry will be forthcoming. In the absence of any indication of this kind, and in view of the time it took
for Syria to respond, I determined that I should proceed to complete my report.
No Inquiry Participant submitted that I should seek an extension of my report
deadline to await whatever information Syria might decide to make available.
55
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Internal Inquiry
Interviews
19. Rule 18 of the General Rules provided that Inquiry counsel could interview any person who might have information or documents relevant to the
mandate of the Inquiry.
20. In light of the internal and private nature of the Inquiry, I determined that
obtaining oral evidence through in camera interviews instead of more formal
hearings would be the most practical means to obtain information in an efficient
and timely manner.
21. Between June 2007 and August 2008, Inquiry counsel interviewed 44
witnesses under oath or affirmation. These witnesses included individuals
associated with CSIS, the RCMP and DFAIT. Inquiry counsel also interviewed
Mr. Elmaati’s aunt. All of the interviews were conducted in camera. A list of
the interviews conducted by Inquiry counsel is Appendix H to this report.
22. I reviewed the transcripts of the interviews of all of the 44 witnesses
interviewed by Inquiry counsel, and conducted further interviews of many of
these witnesses. In my view the interview process served the Inquiry well. The
private interview format encouraged candour on the part of those interviewed.
Taken together with the other elements of the Inquiry’s procedures, the interviews contributed in my view to an information-gathering and fact-finding
process that was practical, efficient and fair.
23. In December 2007, Inquiry counsel and I conducted detailed interviews
of Mr. Almalki, Mr. Elmaati and Mr. Nureddin under affirmation about their
alleged torture and mistreatment in Syria and in Mr. Elmaati’s case, Egypt.
Professor Burns assisted with the conduct of the interviews and provided
expertise on the issue of torture. At the request of Mr. Almalki, Mr. Elmaati
and Mr. Nureddin, the transcripts of these interviews were kept confidential
and provided only to one agreed-upon representative of each of the Attorney
General, the RCMP, DFAIT and CSIS. Summaries of the interviews are found at
Chapters 7, 8 and 9.
Adoption of testimony and findings from the Arar Inquiry
24. Where possible, the Inquiry made use of evidence and findings from
the Arar Inquiry. This was consistent with the Terms of Reference, which
authorized me, as I considered appropriate, to accept as conclusive or give
weight to the findings of other examinations that may have been conducted
into the actions of Canadian officials in relation to Mr. Elmaati, Mr. Almalki
and Mr. Nureddin.
�THE INQUIRY PROCESS
25. The Inquiry used evidence from the Arar Inquiry to supplement the evidence collected in the Inquiry’s document collection and interview process.
At the interviews conducted by Inquiry counsel, witnesses who had testified
before the Arar Inquiry were presented with a list of relevant excerpts from
their Arar Inquiry testimony and asked to either adopt the excerpts or advise
the Inquiry of any modifications. In addition, throughout the Inquiry, Inquiry
counsel and I had access to all of the exhibits filed at the Arar Inquiry.
26. As will be apparent from the chapters of this report setting out my findings,
I have also adopted some of Justice O’Connor’s findings on issues material to
this Inquiry, including general matters such as Syria’s human rights record, CSIS’
arrangements with foreign intelligence agencies, the RCMP’s Project O Canada
and Project A-O Canada investigations, and the transfer of certain national security investigations from CSIS to the RCMP, and on some matters specific to the
cases of Mr. Elmaati, Mr. Almalki and Mr. Nureddin. I determined that there
would be no advantage in revisiting Justice O’Connor’s careful and well-documented findings on these matters.
27. However, in making my findings concerning the treatment of Mr. Almalki,
Mr. Elmaati and Mr. Nureddin in Syria and (in the case of Mr. Elmaati) in Egypt,
I have not relied, as I have done with respect to other matters, on evidence and
findings from the Arar Inquiry or on the approach that it took to the matter. I
have conducted an independent investigation of the allegations of mistreatment
and torture of the three men. I have proceeded in this way for two reasons.
The first is the fundamental importance of my findings on mistreatment and
torture, both for the individuals and for others who may in any way be affected
by these findings. The second is Mr. Justice O’Connor’s observation that he did
not fully review the cases of the three men and his recommendation that their
cases be examined through an independent process.
Public hearings
28. In addition to the public hearings on participation and funding (held on
March 21, 2007) and the interpretation of the Terms of Reference (held on
April 17, 2007), the Inquiry held a public hearing to receive submissions on
standards of conduct.
29. In November 2007, I issued a notice of hearing and amended notice of
hearing on standards of conduct requesting submissions on the standards that
I should apply in assessing the conduct of Canadian officials relating to sharing
information with foreign authorities, questioning Canadian citizens detained in
foreign states, provision of consular services to Canadian citizens detained in
57
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Internal Inquiry
foreign states, disclosure of information obtained by consular officials, and the
role of consular officials in national security or law enforcement matters. A
copy of the Amended Notice of Hearing is Appendix I to this report. I received
nine written submissions and two reply submissions on standards of conduct.
On January 8 and 9, 2008, I heard oral submissions on these issues at a public
hearing in Ottawa. A number of supplementary submissions were provided following the hearing at my request. I found these written and oral submissions
very helpful in framing the issues that I had to consider.
Preparation of draft factual narratives
30. Rule 22 of the General Rules authorized Inquiry counsel to prepare draft
factual narratives for my consideration based on documents, interviews and the
findings of other examinations that may have been conducted into the actions
of Canadian officials in relation to Mr. Almalki, Mr. Elmaati or Mr. Nureddin
in order to facilitate the expeditious conduct of the Inquiry. In accordance
with this Rule, Inquiry counsel prepared detailed draft factual narratives for
my review.
31. In a ruling dated November 6, 2007, a copy of which is attached as
Appendix J, I directed that the draft factual narratives prepared by Inquiry
counsel would be provided to counsel for Inquiry Participants and Intervenors
on a confidential basis. The purpose of this step was to provide Participants and
Intervenors with a further opportunity to make an effective contribution to the
Inquiry’s process, and to help ensure that my understanding of the relevant facts
would be accurate and complete. A version of the draft factual narratives, which
did not include information subject to national security confidentiality claims,
was provided to counsel for Inquiry Participants and Intervenors. Counsel for
Inquiry Participants and Intervenors were invited to make comments on and
suggestions for changes in the factual narratives.
32. Counsel for the Attorney General was provided with two versions of the
draft factual narratives: a confidential version and a public version. It was necessary to proceed in this way so that the national security review process (as
described below) could take place at the same time as the review of the draft
factual narratives.
33. My ruling directed that counsel for Inquiry Participants and Intervenors,
but not their clients, could review the draft factual narratives on a confidential
basis. Counsel for Inquiry Participants and Intervenors were, however, permitted to consult with their clients in preparing any comments and suggestions for
the draft factual narratives. Counsel for Inquiry Participants and Intervenors
�THE INQUIRY PROCESS
sought reconsideration of my ruling on this issue, and requested disclosure of
the draft factual narratives to their clients. I was not persuaded at that time to
change my decision to limit access to the factual narratives to counsel.
34. Over the course of several weeks, counsel for Inquiry Participants and
Intervenors provided detailed comments and suggestions concerning the draft
factual narratives both orally, in discussions with Inquiry counsel, and in writing. Inquiry counsel took these comments and suggestions into account in
finalizing the narratives for my consideration. I accepted the factual narratives
as finalized; they are reproduced as Chapters 4, 5 and 6 of my report.
National security review process
35. As stated above in paragraphs 3 to 5 of chapter 1, the Terms of Reference
directed me to take all steps necessary to prevent the disclosure of information subject to national security confidentiality in my final report. Information
subject to national security confidentiality includes information the disclosure
of which would be injurious to international relations, national defence or
national security.
36. The language used in the Terms of Reference directing that I prevent disclosure of information that, if disclosed, would “be injurious to international
relations, national defence or national security” is similar to language in section 38 of the Canada Evidence Act, which prohibits disclosure of this type
of information. I was guided by the recent decision by Mr. Justice Simon Noël
in Canada (Attorney General) v. Canada (Commission of Inquiry into the
Actions of Canadian Officials in Relation to Maher Arar)� in determining
what type of information could be disclosed publicly. While I benefited from
guidance provided by the national security review process in the Arar Inquiry,
I undertook my own, independent national security review and was not limited
by any prior decisions.
37. The Terms of Reference set out the process for dealing with information
that was subject to national security concerns. Paragraph (k) directed that the
determination of whether certain information should not be disclosed was to
be made either by me or by the Minister responsible for the department or government institution in which the information was produced or first received.
Paragraph (l) directed that if I disagreed with a determination of the Minister, I
could notify the Attorney General, and that this notice would constitute notice
under section 38.01 of the Canada Evidence Act.
2007 FC 766, [2007] F.C.J. No. 1081.
�
59
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Internal Inquiry
38. The confidential version of the draft factual narratives (which with certain
revisions now forms part of my confidential report) was prepared without any
restrictions concerning national security confidentiality; it provides a comprehensive account of the factual background to my determinations. In preparing
a version of the draft factual narratives suitable for public disclosure, Inquiry
counsel considered the constraints imposed by the Terms of Reference, section 38 of the Canada Evidence Act and the factors listed by Justice Noël in
his judgment.
39. During the national security review process, Inquiry counsel and I consulted with two special advisors to the Inquiry, Raymond Protti, a former
Director of CSIS, and Paul Heinbecker, a former Ambassador and Permanent
Representative to the United Nations and former Ambassador to Germany, to
assist with disclosure decisions. Taking into account the applicable constraints
and the discussions with the special advisors, Inquiry counsel proposed to counsel for the Attorney General language for inclusion in the public version of the
draft factual narratives (and ultimately the public version of my report). At my
urging, Inquiry counsel proposed retaining as much information as possible,
so that I could be in a position to provide to the public as complete as possible
an account of the actions of Canadian officials and the setting in which they
took place.
40. Many discussions occurred between Inquiry counsel and counsel for the
Attorney General, on behalf of the responsible Ministers, to address and resolve
national security confidentiality claims. After these extensive discussions, I am
satisfied that, with one exception, the information contained in the confidential
version of my report but omitted from the public version is properly subject to
national security confidentiality.
41. In preparing the public version of my report, I chose not to use the technique of indicating where information has been omitted through black-outs or
ellipsis marks. In my view, doing so would have impaired the intelligibility and
coherence of the public report, particularly since, in many instances, the best
solution to a national security confidentiality concern was to summarize the
information or convey its essence in a different way, rather than omit specific
words or phrases. The text of the public report includes approximately 20%
fewer words than the text of the confidential report (excluding footnotes).
42. There remains certain information that bears directly on my mandate
that I believe can and should be included in the public version of my report.
However, the responsible Minister is of the opinion that disclosure of this
information would be injurious to national security, national defence, and/or
�THE INQUIRY PROCESS
international relations. If it is ultimately determined that further information can
be publicly disclosed, I intend to take the necessary steps to supplement the
public version of my report.
Section 13 notices
43. Section 13 of the Inquiries Act states that no report may be made against
any person until reasonable notice has been given to the person of the charge
of misconduct alleged against him and the person has been allowed full opportunity to be heard in person or by counsel.
44. The “actions of Canadian officials” that are the focus of the Terms of
Reference are with only very limited exceptions actions of officials who are or
were employed by three institutions of the Government of Canada — DFAIT,
CSIS and the RCMP. These officials were acting on behalf of, and within the
chain of command established by, these institutions in acting in the manner they
did. While, as I will explain in setting out my findings, I consider that some of
the actions of some of these officials did not meet the standards to be expected
of them, I saw no evidence that any of these officials were on a frolic of their
own, or seeking to do anything other than carry out conscientiously the duties
and responsibilities of the institution of which they were a part.
45. In these circumstances, and taking into account the refusal of the United
States, Syria, Egypt and Malaysia to provide information to the Inquiry that
would have shed further light on the actions of Canadian officials and their consequences, I concluded that it would be fair and appropriate to direct notices
under section 13 to institutions of the Government of Canada rather than to
any individual official. In my view these institutions bear responsibility for any
actions of Canadian officials that I find to have been deficient.
Final written submissions
46. To provide me with further assistance in making my findings, I invited
counsel for the Participants and Intervenors to make final written submissions,
based on the draft factual narratives. They were also given the opportunity to
file reply submissions (other than reply to the portion of submissions of counsel
for the Attorney General based on information contained only in the confidential
version of the narratives.) I found these submissions very helpful. Except for
the portion of the Attorney General’s submissions to which I have just referred,
they will be made available on the Inquiry’s website simultaneously with or
shortly after the release of the public version of my report.
61
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Internal Inquiry
47. Following the filing of the written submissions, counsel for Mr. Almalki,
Mr. Elmaati and Mr. Nureddin, together with counsel for all but one of the
Intervenors, brought a motion requesting that I convene a further public hearing
to receive oral final submissions on the following issues: DFAIT, Embassy and
consular conduct; the Canadian government’s practice and policy on torture;
information sharing with foreign regimes; appropriate use of labels in national
security investigations; and the appropriate “standard of proof” that I should
apply in making findings of deficient conduct.
48. I denied the motion for a number of reasons. First, in my view the issues
set out in the motion had already been thoroughly canvassed by Participants and
Intervenors in the written and oral submissions made at or in connection with
the public hearings on the interpretation of the Inquiry’s Terms of Reference
and on standards of conduct, as well as in their final written submissions.
Second, I had found all of those earlier submissions to be of considerable help,
and doubted that further oral submissions would add much of significance.
Third, I considered it in the best interests of the Inquiry and all those affected
by it to pursue its completion without taking the additional time that hearing
oral submissions would inevitably entail, given that such submissions would not
add very much of value to what I had already read and heard.
Application for disclosure and public hearing
49. On September 26, 2008, counsel for Mr. Almalki, Mr. Elmaati and
Mr. Nureddin brought an application requesting an opportunity to review and
comment on the most current draft of the factual narratives, and to discuss the
narratives and the final written submissions of all participants with their clients.
They also sought an oral hearing to make submissions on the interpretation of
subparagraph (a)(ii) of the Terms of Reference. My ruling on these matters is
Appendix K to this report.
Medical reports
50. As one of the final steps in the Inquiry’s fact-gathering process, Inquiry
counsel arranged with counsel for Mr. Almalki, Mr. Elmaati and Mr. Nureddin for
each of the men to meet with Dr. Judith Pilowsky, a psychologist, and with Dr.
Rosemary Meier, a psychiatrist, and for Dr. Pilowsky and Dr. Meier to provide
reports. Both Dr. Pilowsky and Dr. Meier have experience in dealing with victims of torture. Counsel for the Attorney General was afforded an opportunity
to comment on their reports.
�3
BACKGROUND and Context
Overview of CSIS, the RCMP and DFAIT
Introduction
1. This section provides an overview of the organization and roles
of CSIS, the RCMP and DFAIT, particularly with respect to Canada’s
national security activities and the provision of consular services to
Canadians detained abroad, as they were at the time of the events examined by this Inquiry. The purpose is to describe the organizational contexts for the actions of Canadian officials in relation to the three men who
are the subjects of this Inquiry. In what follows, I summarize the mandate
and functions of each organization, and any policies and legislation
relating to national security and consular affairs at the relevant time. I note
that there have been some significant policy and organization changes
since that time.
2. For CSIS and the RCMP, I review the relationships between the organizations and foreign agencies, including the exchange of information with foreign agencies. I also discuss some aspects of the post-9/11 environment in
which CSIS and the RCMP were conducting their investigations. In the case
of DFAIT, I review the provision of consular services to Canadian citizens
detained abroad, and in particular, the provision of these services to Canadians holding dual nationality.
Mandate and functions of CSIS
3. CSIS (or “the Service”) is Canada’s civilian security intelligence
agency. The Director of CSIS, under the direction of the Minister of Public
�64
Internal Inquiry
Safety and Emergency Preparedness, has control and direction over CSIS and
all matters connected with CSIS.�
4. CSIS’ primary role is to advise government on threats to Canada’s security. CSIS collects and analyzes information and intelligence, and provides
the Government of Canada with intelligence reports about activities that
may threaten the security of Canada.� The information comes from many
sources, including:
•
•
•
•
members of the public;
foreign governments and their agencies;
human sources;
interception of telecommunications and electronic surveillance of
targeted persons or places;
• other government national security actors; and
• open sources, including newspapers, periodicals, academic journals,
foreign and domestic broadcasts, official documents and other published
materials.�
5. At the relevant time, CSIS had six priority areas with respect to investigating
and reporting on threats to Canada’s security:
•
•
•
•
•
•
terrorism (primarily religious extremism);
proliferation of weapons of mass destruction;
espionage and foreign-influenced activities;
transnational criminal activity;
information security threats; and
security screening and assessments (of federal government employees,
immigrants, visa applicants and refugees, for example).�
6. According to CSIS Public Reports for 2001, 2002, 2003 and 2004-2005, the
Service’s highest priority was to safeguard the Canadian public against terrorist threats.� At the Arar Inquiry, former Director of CSIS Ward Elcock testified
Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, A New
Review Mechanism for the RCMP’s National Security Activities (Ottawa: Public Works and
Government Services Canada, 2006), p. 129 [Arar Inquiry, New Review Mechanism], citing
Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23, section 6(1) [CSIS Act].
�
Canadian Security Intelligence Service, Public Report 2004-2005, p. 9, online, www.csis-scrs.
gc.ca/pblctns/nnlrprt/2004/rprt2004-eng.asp (accessed July 3, 2008).
�
Arar Inquiry, New Review Mechanism, pp. 129-130.
�
Arar Inquiry, New Review Mechanism, p. 130. A detailed description of these six priority areas
can be found in the same report, pp. 131-136.
�
Canadian Security Intelligence Service, Public Report 2004-2005, 2003 Public Report, 2002
Public Report and 2001 Public Report, online, www.csis-scrs.gc.ca/pblctns/nnlrprt/index-eng.
asp (accessed July 3, 2008).
�
�BACKGROUND and Context
that, at that time, roughly two-thirds of CSIS’ resources were directed towards
counter-terrorism investigations.
Organization of CSIS
7. CSIS is headed by the Director, who reports directly to the Minister of
Public Safety and Emergency Preparedness. The Director is assisted by one
deputy director (the Deputy Director Operations) and four assistant directors
(Assistant Director Human Resources, Assistant Director Secretariat, Assistant
Director Administration and Finance, and Assistant Director Legal Services).
The Director and his or her deputy and assistant directors work out of CSIS
headquarters in Ottawa.
8. Investigating and reporting on threats to the security of Canada is the responsibility of the Operations directorate, under the direction of the Deputy
Director Operations. The Operations directorate is further divided into four
areas: Operations, Intelligence, Corporate and Regions.� Each of the Operations,
Intelligence and Corporate divisions is led by an Assistant Director, who is assisted by three to four director generals. These assistant directors and director
generals and their staff work out of CSIS headquarters in Ottawa. The Regions
division consists of regional offices, each led by a director general. There are
six regional offices: Atlantic Region, Quebec Region, Ottawa Region, Toronto
Region, Prairie Region and B.C. Region.�
9. Investigating and reporting on the threats posed by terrorist activity was,
during the relevant period, primarily the domain of the Counter Terrorism division of the Operations branch, under the direction of the Director General of
Counter Terrorism. Counter Terrorism was divided into several areas, including
Sunni Islamic Terrorism, which was led by several chiefs and deputy chiefs and
further divided into several units, each led by a unit head.
Section 12 and targeting
10. Section 12 of the CSIS Act mandates CSIS to collect, analyze and retain
information and intelligence regarding activities that, on reasonable grounds,
may be suspected of posing a threat to the security of Canada. The CSIS Act
defines a “threat to the security of Canada” as:
(a) espionage or sabotage that is against Canada or is detrimental to the
interests of Canada or activities directed toward or in support of such
espionage or sabotage;
At the time of writing, there was no longer a Corporate division.
Canadian Security Intelligence Service, “Our Organization,” online, www.csis.gc.ca/bts/rgnztneng.asp (accessed July 8, 2008).
�
�
65
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Internal Inquiry
(b) foreign-influenced activities within or relating to Canada that are detrimental to the interests of Canada and are clandestine or deceptive or
involve a threat to any person;
(c) activities within or relating to Canada directed toward or in support of
the threat or use of acts of serious violence against persons or property
for the purpose of achieving a political, religious or ideological objective within Canada or a foreign state; and
(d) activities directed toward undermining by covert unlawful acts, or
directed toward or intended ultimately to lead to the destruction or
overthrow by violence of, the constitutionally established system of
government in Canada.�
Lawful advocacy, protest or dissent, unless carried on in conjunction
with any of the above activities, is not considered a “threat to the security
of Canada.”�
11. In order to initiate and engage in the collection of information or intelligence about a person, group, organization, issue or event under section 12 of
the CSIS Act, CSIS policy requires that targeting approval be obtained from the
appropriate authority. During the time period relevant to this Inquiry, there
were three levels of targeting approval—level 1, level 2 and level 3.10 A higher
targeting approval level allowed for more intrusive investigative techniques but
had to be approved by a higher authority.11
12. A level 1 targeting approval could be granted by a CSIS supervisor or manager and allowed for the use of minimally intrusive investigative techniques.12
A level 2 targeting approval could only be granted by a CSIS regional or branch
director general and allowed for the use of moderately intrusive techniques.13
A level 3 targeting approval, which allowed for the use of the most intrusive
�
�
10
11
12
13
CSIS Act, section 2.
CSIS Act, section 2.
Security Intelligence Review Committee Report 2003-2004, pp. 14-15 [SIRC Report 20032004]. SIRC Reports are online at: www.sirc-csars.gc.ca/annran/index-eng.htm (accessed
July 3, 2008).
SIRC Report 2003-2004, p. 15.
SIRC Report 2003-2004, p. 14. Minimally intrusive investigative techniques include reporting
of open information and querying of records held by foreign police, security or intelligence
organizations.
SIRC Report 2003-2004, p. 15. Moderately intrusive investigative techniques include all
investigative techniques provided by a level 1 targeting approval, and some physical surveillance
and interviews of the target.
�BACKGROUND and Context
techniques available,14 had to be sought from the Target Approval and Review
Committee (TARC).15
13. At the relevant time, the members of TARC included CSIS’ Director (who
was the chairperson of TARC), several senior Service staff, CSIS’ General Counsel
and a representative of the Deputy Minister of Public Safety and Emergency
Preparedness Canada.16
14. Targeting approvals are granted for a limited duration, but may be renewed
or terminated by the appropriate authority at any time prior to expiry.
15. The targeting approval process was, at the relevant time, governed by
several general principles, including the following:
• the rule of law must be observed;
• the investigative means must be proportional to the gravity and
imminence of the threat;
• the need to use intrusive investigative techniques must be weighed
against possible damage to civil liberties or to fundamental societal
institutions; and
• the least intrusive investigative methods must be used first, except in
emergency situations or where less intrusive investigative techniques
would not be proportionate to the gravity and imminence of
the threat.
Judicial control of CSIS’ investigations
16. In order to use certain intrusive investigative techniques, the Service must
obtain a warrant from a Federal Court judge. Section 21 of the CSIS Act provides
that a judge, on the application of the CSIS Director or a CSIS employee designated by the Minister, may issue a warrant authorizing the Service to intercept
any communication or obtain any information, record, document or thing (from
a target’s home or office, for example).17 Before issuing any warrant, the judge
must be satisfied:
• on reasonable grounds that a warrant is required to enable the Service to
investigate a threat to the security of Canada; and
14
15
16
17
SIRC Report 2003-2004, p.15. The most intrusive techniques available include all techniques
provided by level 1 and level 2 targeting approval, and as outlined in section 21 of the CSIS
Act, including warrant powers such as telephone intercepts.
SIRC Report 2003-2004, p. 14.
SIRC Report 2003-2004, p.14.
CSIS Act, section 21.
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• that other investigative techniques have been tried and have failed
or that other investigative techniques are unlikely to succeed, that
the matter is so urgent that it would be impractical to carry out the
investigation using only other investigative procedures, or that without
a warrant it is likely that information regarding the threat to the security
of Canada would not be obtained.18
17. The duration of any warrant issued under section 21 must not exceed one
year, except in the case of a warrant to enable the investigation of a threat to
the security of Canada within the meaning of section 2(d) of the CSIS Act, the
duration of which must not exceed 60 days.19
Relationships with foreign intelligence organizations
18. Section 17 of the CSIS Act provides that the Service may, with the approval
of the Minister of Public Safety and Emergency Preparedness after consultation
with the Minister of Foreign Affairs, enter into an arrangement or otherwise
cooperate with an institution of the government of a foreign state. Unless a section 17 arrangement is in place, CSIS is not permitted to pass classified information to foreign agencies. It may, however, accept unsolicited information.20
19. The Ministerial Direction for CSIS Operations allows CSIS, with ministerial
approval, to enter into an arrangement for cooperation with a foreign security
or intelligence organization. Arrangements may be established and maintained
as long as they meet the following criteria:
• arrangements must remain compatible with Canada’s foreign policy objectives toward the country or international organization in question (the
Minister of Foreign Affairs must be consulted);
• arrangements are to be established as required to protect
Canada’s security;
• the human rights record of the country or agency is to be assessed and
the assessment weighed in any decision to enter into a cooperative
relationship; and
• arrangements must respect the applicable laws of Canada.21
18
19
20
21
CSIS Act, sections 21(2)(a), (b), and 21(3).
CSIS Act, section 21(5). Threat to the security of Canada is defined in section 2(d) as “activities
directed toward undermining by covert unlawful acts, or directed toward or intended ultimately
to lead to the destruction or overthrow by violence of, the constitutionally established system
of government in Canada.”
SIRC Report 2003-2004, p. 21.
SIRC Report 2003-2004, p. 23. Since the relevant time, changes have been made to the wording
of this ministerial direction.
�BACKGROUND and Context
The role of security liaison officers
20. The Service’s section 17 relationships are maintained by security liaison
officers. The locations of the security liaison officers’ posts are classified except
for Paris, Washington and London.22
21. Security liaison officers have four main functions. First, security liaison
officers are responsible for maintaining and developing channels of communication for the purpose of exchanging information under approved arrangements,
and seeking and proposing new arrangements that will benefit the Service.
Second, security liaison officers manage the Immigrant Screening Program.
They conduct security screening interviews and security inquiries and provide
recommendations concerning the admissibility of persons wishing to immigrate
to Canada. Third, security liaison officers provide CSIS headquarters with
reports on any events or developments related to Canadian security interests.
Fourth, security liaison officers provide assistance to Canada’s foreign missions;
for example, they provide security-related advice to the head of mission.23
Disclosure of information and the use of caveats
22. The fundamental principle of intelligence services and intelligence investigations is the control of information. According to Jack Hooper, former
Assistant Director of Operations and Deputy Director of Operations for the
Service, CSIS must control where its information is going and what uses can
be made of it. In order to control its information, the Service attaches caveats
when it discloses information to others.
23. CSIS policy OPS-603, “Disclosure of Operational Information and
Intelligence—Caveats,” provides that the appropriate caveat must be added to
all information or intelligence disclosed in written or print form to any person,
agency or department outside the Service.
24. Caveat 1 relates to information and intelligence subject to the Access to
Information Act and the Privacy Act and, according to policy, should appear
on all letters, telex messages and attached memoranda sent to Canadian departments/agencies or organizations. It provides:
This document constitutes a record which may be subject to mandatory exemption under the Access to Information Act or the Privacy Act. The information
or intelligence may also be protected by the provisions of section 37(1) of the
Canada Evidence Act. The information or intelligence must not be disclosed
22
23
SIRC Report 2003-2004, p. 31.
SIRC Report 2004-2005, pp. 31 and 33.
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Internal Inquiry
or used as evidence without prior consultation with the Canadian Security
Intelligence Service.
25. Caveat 2 relates to the reclassification and further dissemination of information and intelligence. It is to be used if the information or intelligence contained
in the document is obtained through normal investigative means. According
to OPS-603, this caveat should be used for disclosures to foreign agencies and
organizations. It provides:
This document is the property of the Canadian Security Intelligence Service. It is
loaned to your agency/department in confidence, for internal use only. If you are
subject to public access to information laws which do not allow you to protect this
information from disclosure, notify CSIS immediately and return the document.
26. Caveat 3 is to be used if the information or intelligence in the document is
collected from sensitive or human or technical sources or other sensitive investigative techniques. According to OPS-603, this caveat instructs that no action
may be taken that would jeopardize the Service’s sources or techniques on the
basis of the information or intelligence that has been provided. It provides:
This document is the property of the Canadian Security Intelligence Service. It is
loaned to your agency/department in confidence. The information or intelligence
contained in this document emanates from sensitive sources and no action may be
taken on the basis of this information or intelligence which may jeopardize those
sources. It must not be reclassified or disseminated, in whole or in part, without
the consent of the originator.
27. Caveat 4 is related to security information and intelligence that is being
disclosed to Canadian law enforcement agencies. This caveat must be used
in all documents that contain privileged information (which includes information described in section 37 of the Canada Evidence Act, information relating
to solicitor-client privilege and information that could jeopardize confidential
sources). Caveat 4 provides:
Because disclosure of this document would be injurious to national security, the
Canadian Security Intelligence Service objects to its disclosure before a court, person or body with jurisdiction to compel the production. The Service reserves its
right to certify [in] the above instances, pursuant to section 37(1) of the Canada
Evidence Act, that the information or intelligence contained in this document
should not be disclosed on the grounds of national security.
28. In late 2003, the Service started to use, in addition to the caveats discussed
above, a caveat aimed at ensuring that the information it provided to a foreign
agency would not be used to violate an individual’s human rights. According to
�BACKGROUND and Context
a CSIS official, an initial version of this caveat was first used in an earlier case,
and was used again in the case of Mr. Nureddin. Since then, the Service has
formalized the caveat, which now states;
Our Service recognizes the sovereign right of your government to undertake reasonable measures under the law to ensure your public safety. Should you deem
some form of legal action against the individual is warranted, our Service trusts
that the individual will be fairly treated within the accepted norms of international
conventions, accorded due process under law and afforded access to Canadian
diplomatic personnel if requested.
Furthermore, should you be in possession of any information that originated
from our Service regarding the individual we ask that this information not be used to
support the detention or prosecution of the individual without prior formal consultation with our Service.
Mandate and functions of the RCMP
General mandate
29. The Royal Canadian Mounted Police Act establishes the RCMP (or “the
Force”) as Canada’s national police force.24 The Force’s website describes its
mandate as follows:
We prevent and investigate crime, maintain order, enforce laws on matters as
diverse as health and the protection of government revenues, contribute to national
security, ensure the safety of state officials, visiting dignitaries and foreign missions, and provide vital operational support services to other police and law
enforcement agencies.25
Mandate with respect to national security
30. By section 6(1) of the Security Offences Act, the RCMP has primary responsibility over national security law enforcement. This includes responsibility for
preventing and investigating offences that arise out of conduct constituting a
threat to the security of Canada.26 The definition of “threat to the security of
Canada” is the same as the definition set out in the CSIS Act (see paragraph 10
above), and includes sabotage, espionage, foreign-influenced activities, clandestine activities, threat or use of serious violence and undermining by covert
unlawful acts.27
24
25
26
27
Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10, section 3 [RCMP Act].
RCMP, “Programs and Services,” online, www.rcmp-grc.ca/prog_serv/index_e.htm (accessed
July 3, 2008).
Security Offences Act, R.S.C. 1985, c. S-7, section 6 [Security Offences Act].
Security Offences Act, section 2(a).
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Internal Inquiry
31. As part of its national security mandate, the RCMP is also responsible for
preventing and investigating terrorism offences as defined in section 2 of the
Criminal Code. These include various terrorism-related crimes introduced in
2001 by the federal Anti-terrorism Act (often referred to as Bill C-36), such as
providing or collecting property intending that it be used or knowing that it
will be used to carry out terrorist activity,28 using or possessing property for
terrorist purposes,29 participating in or contributing to the activity of a terrorist
group30 and facilitating terrorist activity.31
RCMP’s relationship with CSIS
32. The RCMP and CSIS use similar investigative techniques to acquire information on the activities of individuals and groups, but use this information
for different purposes. CSIS collects security intelligence for the purpose of
advising the Canadian government about threats to the security of Canada. The
RCMP gathers criminal intelligence in support of an investigation, with the goal
of preventing and deterring criminal acts or arresting or laying charges against
persons who have committed criminal acts.32
33. The relationship between CSIS and the RCMP is governed by a Memorandum
of Understanding (MOU). It provides that the RCMP will rely on CSIS for
intelligence relevant to national security offences, and requires CSIS to provide the RCMP with information and intelligence that may assist the RCMP in
fulfilling its national security-related responsibilities. In turn, the RCMP is to
provide CSIS with information relevant to the CSIS mandate. The MOU directs
CSIS and the RCMP to consult with each other about the conduct of national
security investigations.33
Organization of the RCMP and its national security activities
34. The RCMP is managed and controlled by the RCMP Commissioner, who
is subject to the direction of the Minister of Public Safety and Emergency
Preparedness.34 During the time period relevant to this Inquiry, Giuliano
Zaccardelli was the RCMP Commissioner. The Commissioner is assisted by
several deputy commissioners: one for each RCMP region or division (Atlantic,
28
30
31
32
29
33
34
Criminal Code, R.S.C. 1985, c. C-46, section 83.02 [Criminal Code].
Criminal Code., section 83.04.
Criminal Code., section 83.18(1).
Criminal Code, section 83.19.
Arar Inquiry, New Review Mechanism, p. 44. A detailed discussion of the RCMP’s approach
to the collection of criminal intelligence can be found in the same report, pp. 42-44.
Arar Inquiry, New Review Mechanism, p. 139. There is now a revised RCMP-CSIS Memorandum
of Understanding in place.
RCMP Act, section 5(1).
�BACKGROUND and Context
Central, North-West and Pacific) and one each for Operations, Strategic Direction
and Corporate Management.35 The Deputy Commissioner, Operations was, at
the relevant time, responsible for the RCMP’s national security mandate.36
35. The RCMP is headquartered in Ottawa and divided into 15 geographical
divisions, each managed by a commanding officer. Each division is alphabetically designated. For example, RCMP “A” Division has jurisdiction in the Ottawa
area and RCMP “O” Division has jurisdiction in the Toronto area.37
36. Activities related to the RCMP’s national security mandate were, at the
relevant time, coordinated by the Criminal Intelligence Directorate (CID) at the
RCMP’s national headquarters in Ottawa. The CID is mandated to provide a
national program for the management of criminal information and intelligence,
with a view to detecting and preventing crime having an organized, national
security dimension. The Assistant Commissioner, CID, who reports to the RCMP
Deputy Commissioner, Operations, was, at the relevant time, responsible for the
overall operation, administration and coordination of all the components of CID.
At the relevant time, Richard Proulx was the Assistant Commissioner, CID.
37. In 2003, the RCMP created the position of Director General, National
Security, reporting to the Assistant Commissioner of CID. At that time, the
National Security Directorate had three branches: the National Security
Intelligence Branch (NSIB), National Security Operations Branch (NSOB) and
Threat Assessment Branch, each of which is described in some detail below.38
38. Also in 2003, and in consultation with the RCMP, a ministerial direction
regarding the conduct and control of national security investigations was issued
by the Solicitor General of Canada (the Minister who then had direction over
the Force). The Ministerial Direction—National Security Responsibility and
Accountability (November 2003) requires that the national security activities
of the RCMP be under the control of the Commissioner, subject to direction by
the Minister, and that national security investigations be “centrally coordinated
at RCMP national headquarters.” Deputy Commissioner Loeppky testified at the
Arar Inquiry that this ministerial direction was a response to the concern that
the coordination of high risk and highly sensitive investigations should be conducted at headquarters to ensure that there was more of a “hands-on approach”
and that the RCMP was addressing the right threats. In his interview for this
Inquiry, former Commissioner Zaccardelli stated that the ministerial direction
37
35
36
38
Arar Inquiry, New Review Mechanism, p. 84.
Arar Inquiry, New Review Mechanism, p. 85.
RCMP, “Organization of the RCMP,” online, www.rcmp.ca/about/organi_e.htm (accessed
July 3, 2008).
Arar Inquiry, New Review Mechanism, p. 85.
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was issued in response to the increased workload for the RCMP on national security matters after 9/11. He also stated that the directive was intended to address
some of the key issues arising in this area, including the Minister’s expectations
of the RCMP and the RCMP’s role in national security investigations.
39. The direction also directs the Commissioner to keep the Minister apprised
of all national security investigations that may give rise to controversy.39 In
his interview, former Commissioner Zaccardelli stated that he was briefed by
his deputies on the investigations of Mr. Almalki, Mr. Elmaati and Mr. Nureddin
and that he, in turn, would brief the Minister in accordance with this ministerial
direction. Former Commissioner Zaccardelli stated that although there was no
specific direction as to when or about what matters he should be briefed by his
deputies, his deputies were accountable and responsible for ensuring that he
was briefed in a timely manner on matters that he had to know for “the sake of
knowing” or on matters as to which he had to provide direction.
40. Former Commissioner Zaccardelli also stated that he briefed the Minister
on the investigations of Mr. Almalki, Mr. Elmaati and Mr. Nureddin, but that
in order to maintain the Force’s independence, the briefings did not include
operational matters or details of the investigation. When asked specifically if the
Minister was briefed on the issue of torture, former Commissioner Zaccardelli
stated he was never apprised of any concerns about torture and that as a result,
the Minister was never briefed on the issue. When asked whether he would
have discussed with the Minister the issue of torture if it had been brought to
his attention, he said that he was not ready to speculate on what he would do
in a hypothetical situation.
41. Most of the investigative work on national security matters is carried out at
the divisional level (for example in “A” Division or “O” Division) by Integrated
National Security Enforcement Teams (INSETs) or National Security Investigation
Sections (NSISs).40 INSETs and NSISs are discussed in more detail below.
NSIB
42. The NSIB is responsible for the assessment, coordination, monitoring and
direction of all national security investigations and intelligence at the national
and international levels. Its primary role is to collect and analyze intelligence
in relation to the RCMP’s national security mandate. It is also responsible for
identifying potential strategic approaches to national security investigations and
producing tactical analytical products, intelligence products that make the case
39
40
Arar Inquiry, New Review Mechanism, p. 89.
Arar Inquiry, New Review Mechanism, p. 85.
�BACKGROUND and Context
for the commencement of criminal investigations. On occasion, the NSIB will
ask INSETs or NSISs to assist with preparing tactical analytical products.41
43. The NSIB is involved in the day-to-day flow of national security information
both within the RCMP and between the RCMP and other government departments or domestic and foreign intelligence agencies. The NSIB is the primary
point of contact for intelligence agencies that have information to provide to
the RCMP or that wish to request information from the RCMP. Liaison with
other police agencies is generally the responsibility of the NSOB.42
44. There are several sections and groups that come within the responsibility of the NSIB, including the Anti-terrorist Financing Group (ATFG). The
ATFG supports counter-terrorism strategies, financial intelligence gathering and
financial investigations. It also monitors financial operations from a national
perspective and implements counter-terrorism financing strategies, activities,
procedures, policies and standards.43
45. The NSIB is led by the Superintendent, NSIB, a position held by Wayne
Pilgrim during the relevant period.
NSOB
46. The NSOB coordinates national security investigations throughout the
country. It is also responsible for ensuring compliance with RCMP policies
(including policies relating to national security investigations); preparing subject
profiles, case briefs and briefing notes for senior management; and assisting the
Commissioner in his responsibility for informing the Minister of high-profile
national security investigations that may give rise to controversy.44
47. The NSOB is responsible for providing headquarters’ approval for the
national security investigations undertaken by INSETs and NSISs (which are
discussed below) and for coordinating these investigations. A NSOB “reviewer”
is assigned to each investigation file and is responsible for coordinating the
flow of information between headquarters and the field officers assigned to
the matter, finding specialized resources within the RCMP to support the file,
interacting with domestic and foreign police agencies and with CSIS and RCMP
liaison officers abroad and ensuring compliance with RCMP policies and procedures. The NSOB is also responsible for oversight of information sharing with
43
44
41
42
Arar Inquiry, New Review Mechanism, p. 96.
Arar Inquiry, New Review Mechanism, p. 97.
Arar Inquiry, New Review Mechanism, p. 98.
Arar Inquiry, New Review Mechanism, p. 98.
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Internal Inquiry
domestic agencies and provides approval for information exchanges between
RCMP liaison officers and foreign police agencies.45
Threat Assessment Branch
48. The Threat Assessment Branch is responsible for collecting, assessing and
analyzing information about potential threats to Canadian institutions, in support of the RCMP’s protective policing operations.46 These protective policing
operations involve protection of the Prime Minister, the Governor General,
Ministers of the Crown, Supreme Court judges, visiting dignitaries, internationally protected persons under the Criminal Code, and federal government facilities such as the Parliament Buildings.
49. The Threat Assessment Branch collects and analyzes information about
possible threats, and then presents this information and analysis in threat assessment reports, which are distributed within the RCMP and to other branches
of government. Some threat assessment reports provide an overall assessment
of the threat environment at a point in time, while others focus on a specific
threat to an individual, event or facility.
50. The Threat Assessment Branch uses four threat levels—imminent, high,
medium and low—to describe the significance of a reported threat. The threat
level is set at “imminent” when:
intelligence or information has identified an individual or group in or outside
Canada, with the stated intent to commit, in the immediate future, an act of serious
violence against a specific person or property in Canada.
The threat level is set at “high” when:
intelligence or information indicates the presence in Canada of an individual or
group with the stated intent to commit acts of serious violence against persons
or property within Canada. While no specific target has been identified, intelligence or information confirms the individual or group possesses the capability and
intends to carry out the threat. An attack could occur anywhere in Canada.
The threat level is set at “medium” when:
intelligence or information has identified the presence in Canada of an individual or group with the capability and stated intent to commit acts of serious
45
46
Arar Inquiry, New Review Mechanism, pp. 98-99.
Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Report
of the Events Relating to Maher Arar: Factual Background, Volume II (Ottawa: Public
Works and Government Services Canada, 2006) , p. 509 [Arar Inquiry, Factual Background,
Vol. II].
�BACKGROUND and Context
violence. Historically, the capability to carry out these acts has been demonstrated, however, there is no intelligence or information that indicate[s] such an
act is forthcoming.
The threat level is set at “low” when:
intelligence or information has identified an individual or group within Canada,
capable of performing acts of serious violence against persons or property, but
which to date has confined its activities to countries outside of Canada.
NSISs and INSETs
51. The majority of the investigative work on national security matters is done
at the divisional level in INSETs and NSISs.47 INSETs, which were introduced
after 9/11, are integrated teams comprised of both RCMP officers and personnel
from provincial and municipal police forces and non-police agencies. There are
four INSETs, one in each of Vancouver, Toronto, Ottawa and Montreal.48 RCMP
divisions without an INSET have an NSIS, which carries out the same functions
as an INSET, but is comprised entirely of RCMP personnel.49
52. The work of both INSETs and NSISs is coordinated by national headquarters. They both report to the NSOB, through the Division Criminal
Operations Branch.50
CROPS
53. The activities of each RCMP division are managed by Criminal Operations
(CROPS), which is the operational nerve centre of each division. CROPS,
under the direction of the CROPS officer, is responsible for directing and coordinating the activities of the division’s various units (for example, commercial
crime, drugs, customs and excise, national security and criminal intelligence)
in accordance with the mandate of the division. This includes responsibility
for allocating the division’s budget to the various units. The CROPS officer
is assisted by an assistant CROPS officer, who takes a hands-on approach to
overseeing the division’s units.51 From September 2001 until January 2003, the
CROPS Officer for “A” Division was Antoine Couture. Garry Clement was “A”
Division’s Assistant CROPS Officer until 2002.
49
50
51
47
48
Arar Inquiry, New Review Mechanism, p. 102.
Arar Inquiry, New Review Mechanism, p.102.
Arar Inquiry, New Review Mechanism, p.102.
Arar Inquiry, New Review Mechanism, p. 85.
Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Report
of the Events Relating to Maher Arar: Factual Background, Volume I (Ottawa: Public Works
and Government Services Canada, 2006) , p. 120 [Arar Inquiry, Factual Background, Vol. I].
77
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Internal Inquiry
54. Each unit within a division is headed by an officer in charge, who is responsible for the day-to-day management of the unit. The officer in charge of a unit
that conducts investigations (some units do not conduct investigations) reports
to CROPS through the assistant CROPS officer.52
Relationships with foreign countries and police agencies
55. Like CSIS, the RCMP shares national security information and intelligence
with foreign government agencies. It shares extensively with foreign law
enforcement agencies, particularly in the United States, and occasionally with
foreign security intelligence agencies.53 Unlike the CSIS Act, the RCMP Act and
the Security Offences Act are silent on relationships between the RCMP and
foreign governments or government agencies. Instead, rules and policies about
establishing relationships and sharing information with other agencies are set
out in RCMP policy documents, including the RCMP Operational Manual (“the
RCMP Manual”) and various ministerial directives.
Operational Manual
56. The RCMP Manual, in the chapter on Information Sources, provides for
the exchange of security and criminal intelligence between the RCMP and
“approved foreign authorities” under the direction of the RCMP’s International
Liaison Branch. The term “approved foreign authorities” is not defined. The
RCMP Manual also states that DFAIT formalizes agreements between the RCMP
and foreign police, security or intelligence agencies.
57. The RCMP Manual also sets out guidelines for RCMP officials who travel
abroad for investigational purposes. Among these is a guideline about interviewing or contacting Canadians in custody in a foreign country. It provides
that Canadians detained abroad should not be contacted or interviewed unless:
(1) the interview was requested through a Canadian government representative
or consent to the interview is given in writing; and (2) the interview has been
approved by the head of the foreign post.
Ministerial directives
58. Several ministerial directives provide guidance regarding the RCMP’s relationships with foreign agencies in the national security context.
59. The Ministerial Directive on RCMP Agreements (April 2002) deals with
agreements (which includes arrangements and understandings) entered into
52
53
Arar Inquiry, Factual Background, Vol. I, p. 120.
Arar Inquiry, New Review Mechanism, p. 121.
�BACKGROUND and Context
by the RCMP to provide or receive services, information, assets, or assistance
to or from other domestic governments, agencies and departments, foreign
governments and international organizations. The directive sets out several
principles governing these agreements, including: (1) all agreements must be
supported by legal advice; (2) agreements with a foreign entity must be supported by advice from DFAIT; and (3) where DFAIT advises that it would not be
in the best interests of Canada’s foreign policy either to enter into a proposed
agreement or to let an existing agreement continue, the RCMP Commissioner
must bring the matter to the attention of the Solicitor General.54
60. The Ministerial Direction—National Security Related Arrangements and
Cooperation (November 2003) permits the RCMP, with the Minister’s approval,
to enter into written or oral arrangements, or otherwise cooperate, with foreign security or intelligence organizations for the purpose of carrying out its
national security mandate. These arrangements are managed by the RCMP
Commissioner, who must direct a periodic evaluation or audit of each arrangement and report annually to the Minister on the status of all arrangements.
While the Ministerial Direction permits the RCMP to enter into arrangements
with foreign agencies, the RCMP did not have formalized agreements with Syria
or Egypt during the time period relevant to this Inquiry.
61. This Ministerial Direction—National Security Related Arrangements and
Cooperation also states that arrangements may be established and maintained
only as long as they remain compatible with Canada’s foreign policy towards the
country or international organization in question, including consideration of that
country or organization’s respect for democratic or human rights, as determined
through ongoing consultations with DFAIT. According to former Commissioner
Zaccardelli, the Ministerial Direction simply formalized the considerations that
were already taken into account by the RCMP before entering an arrangement
with a foreign organization. Prior to and after the introduction of this Ministerial
Direction, he expected that RCMP members would inform themselves and use
good judgment in deciding whether human rights issues were a consideration.
If the RCMP member required more information on human rights prior to entering into an agreement, he or she could consult internally within the division or
with the Policy Centre. The RCMP member could also consult with the other
government department or agencies including the Department of Justice, DFAIT
and CSIS.
62. The Ministerial Direction also states that, with respect to matters related
to threats to the security of Canada (as defined in the CSIS Act), CSIS is the lead
54
Arar Inquiry, New Review Mechanism, p. 89
79
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Internal Inquiry
agency for liaison and cooperation with foreign security or intelligence agencies, and the RCMP must inform CSIS whenever it exchanges information with
these agencies. 55
63. The Ministerial Direction—National Security Related Arrangements and
Cooperation does not apply to foreign law enforcement agencies or organizations, and there are no similar requirements with respect to arrangements with
foreign law enforcement agencies. In his report, Justice O’Connor noted that,
at the time of the Arar Inquiry, the RCMP’s relationships with other police agencies were governed by common understandings and protocols. He also noted
that, according to the RCMP, negotiating and maintaining “written agreements
with all agencies that provide or receive information internationally and domestically would effectively bring investigations and international cooperation to a
halt.” Justice O’Connor acknowledged a recent effort by the RCMP to develop
a generic Memorandum of Understanding to codify guiding principles and
expectations for information and intelligence sharing with other domestic and
foreign police agencies, but stated that the RCMP did not intend this template to
replace case-by-case information sharing among police agencies in accordance
with accepted principles.56
Role of the liaison officer
64. Relationships between the RCMP and foreign governments and government agencies are maintained by RCMP foreign liaison officers posted abroad.
The role of liaison officers is set out in the Memorandum of Understanding
between DFAIT and the RCMP (“DFAIT-RCMP MOU”), which provides that the
liaison officer is responsible for maintaining relationships with foreign criminal
police agencies and related institutions to provide support and assistance to
Canadian law enforcement agencies in the prevention and detection of offences
under Canadian federal laws. In the national security context, information and
intelligence exchanged with a foreign police agency flows through the liaison
officer responsible for the area in which the foreign agency is located. This
exchange is generally accomplished without coordination with CSIS. If the
information is relevant to CSIS’ mandate, the RCMP must seek the foreign police
agency’s permission before sharing it with CSIS.57
65. The DFAIT-RCMP MOU requires the relevant head of mission—the
Ambassador in the case of Syria and Egypt—to ensure that the liaison officer is
57
55
56
Arar Inquiry, New Review Mechanism, p. 113
Arar Inquiry, New Review Mechanism, p. 113.
Arar Inquiry, New Review Mechanism, pp. 194-195.
�BACKGROUND and Context
kept fully informed of Canadian assessments of political, economic, and social
developments in the country concerned.
66. During the relevant period, the liaison officer stationed in Rome was accredited to and responsible for both Syria and Egypt. Inspector Stephen Covey
occupied the post from 1999 until July 2002, when he was replaced by Staff
Sergeant Dennis Fiorido.
RCMP policies about information sharing
67. The RCMP has developed various policies regarding sharing information
with domestic and foreign agencies. These policies direct that the content of
the information be screened for relevance, reliability and personal information
before it is shared. The policies also direct that caveats be attached to certain
sensitive information so that the RCMP can exercise some control over how and
for what purpose the information may be used.58 Finally, the policies require
the RCMP to consider the implications of sharing information with a country
that has a poor human rights record.
Content of shared information
68. As noted above, RCMP policy requires that information that the RCMP is
going to share with a foreign agency be carefully screened for relevance, reliability and personal information. Screening for relevance involves considering
why another agency is requesting the information, including the nature of that
agency’s investigation and how the agency might use the information. The
policy directs that information should only be shared with those who have a
need to know the information.59
69. Screening for reliability requires that information be screened for the
reliability of the sources of the information so that the recipient is not misled
about the value of the information. The policy sets out different categories of
reliability (“reliable,” “believed reliable,” “unknown reliability” or “doubtful
reliability”) and requires that the appropriate label be attached to each source.
Related to reliability screening, the RCMP also has a practice (not specifically
set out in the policy) of screening information for accuracy. Justice O’Connor
commented on the value of screening for accuracy: “Providing unreliable or
inaccurate information to other agencies is in no one’s best interests and can
58
59
Arar Inquiry, Factual Background, Vol. I, p. 31.
Arar Inquiry, Factual Background, Vol. I, pp. 32-33.
81
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create potentially serious problems for those who rely on it and possibly those
who are the subjects of the inaccuracies.”60
70. Finally, RCMP policy requires that information provided to other agencies be screened to ensure compliance with the Privacy Act. The Privacy Act
forbids the RCMP to disclose personal information without the consent of the
person to whom the information relates, subject to exceptions for consistent
use disclosure (a use consistent with the purpose for which the information was
obtained or compiled by the RCMP), disclosure for law enforcement purposes
and public interest disclosure.61
Control of shared information
71. The RCMP uses caveats to control how and for what purposes classified
and designated information is used.62 Information is “classified” if it is considered sensitive to the national interest. Information is “designated” when it
merely warrants safeguarding. Since most of the RCMP information of concern
to this Inquiry was classified information, the discussion that follows deals only
with the RCMP caveats that must be attached to classified information.
72. Rules about caveats are set out in Part XI of the RCMP Administrative
Manual. According to the Manual, when the RCMP shares classified information
with CSIS, a federal government department or another Canadian police agency,
the information must be accompanied by the following caveat:
This document may be subject to mandatory exemption under the Access to
Information and Privacy Acts. If access is requested under that legislation, no
decision should be taken without prior consultation with the Departmental Privacy
Coordinator of the RCMP.
73. Where classified information is passed to other domestic and foreign law
enforcement agencies and departments, the Manual directs that one of the following caveats must be attached:
1. This document is the property of the RCMP. It is loaned to your agency/department in confidence and it is not to be reclassified or further disseminated
without the consent of the originator.
2. This document is the property of the Government of Canada. It is provided on
condition that it is for use solely by the intelligence community of the receiving
60
61
62
Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Report
of the Events Relating to Maher Arar: Analysis and Recommendations (Ottawa: Public
Works and Government Services Canada, 2006), pp. 103-104 [Arar Inquiry, Analysis and
Recommendations].
Arar Inquiry, Analysis and Recommendations, p. 104.
Arar Inquiry, Factual Background, Vol. I, pp. 30-31.
�BACKGROUND and Context
government and that it not be declassified without the express permission of
the Government of Canada.
74. The Manual also provides that if considered necessary, the following
statement can be attached to classified information being disseminated within
the RCMP:
This intelligence should not be reclassified or disseminated outside the RCMP
without prior consent of the originator.
75. In addition to prescribing the caveats that must be used on outgoing
messages and correspondence, RCMP policy directs that caveats attached to
information received from other agencies must be respected, and that the RCMP
must seek the consent of the originating agency before releasing or downgrading classified information.
76. Several RCMP witnesses testified at the Arar Inquiry and told this Inquiry
about the use of “implied caveats,” a term that refers to unwritten understandings among law enforcement agencies that when information is exchanged, it
will not be disseminated or used without first obtaining the originator’s consent.63 The use of these caveats is not addressed in the RCMP Administrative
Manual. Justice O’Connor disagreed with the suggestion of some Arar Inquiry
witnesses that implied caveats were an adequate substitute for the written ones
required by RCMP policy. He wrote:
While written caveats do not provide a complete assurance of compliance, those
who are considering breaching a caveat, which is a type of agreement, will be less
likely to do so in the face of a clear and express written directive. It leaves little,
if any, opportunity to justify the breach of trust.64
Caveats in the post-9/11 period
77. At the Arar Inquiry, several RCMP officers testified that, in the aftermath of
the events of September 11, 2001, it was not practical or desirable to adhere to
policies on screening information and using caveats for information shared with
the United States. As some expressed it, “caveats were down.” Both Deputy
Commissioner Loeppky and Assistant Commissioner Richard Proulx, the Officer
in Charge of CID, rejected this position. They were clear that the RCMP, as an
institution, had not intended that RCMP officers deviate from RCMP policies on
screening of information and use of caveats. In his interview for this Inquiry,
former Commissioner Zaccardelli stated that he was not aware that the normal
63
64
Arar Inquiry, Factual Background, Vol. I, p. 31.
Arar Inquiry, Analysis and Recommendations, p. 106.
83
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practices of information-sharing were not being followed. He stated that he
did not provide any specific direction on information-sharing during the investigations of Mr. Almalki and Mr. Elmaati because there were policies and practices on information-sharing in place. Justice O’Connor agreed with Assistant
Commissioner Proulx and Deputy Commissioner Loeppky that “there was no
basis for changing RCMP information-sharing policies after 9/11.”65 He wrote:
I am satisfied that, in the period after 9/11, there was no need to depart from
established policies with respect to screening and the use of caveats. The
urgency of investigations and the workload of investigators did not justify such
a departure.66
Human rights considerations
78. The RCMP’s Operational Manual provides some guidance as to when
the RCMP may share information with countries that have poor human rights
records. Under the heading “Enquiries from Foreign Governments that Violate
Human Rights”, the Manual states that the RCMP “will not become involved or
appear to be involved in any activity that might be considered a violation of the
rights of an individual” unless there is a need to comply with certain international conventions related to terrorist activity. The Manual also provides that
information may be disclosed to a country with a poor human rights record in
certain circumstances:
The disclosure of information to an agency of a foreign government that does not
share Canada’s respect for democratic or human rights may be considered if it:
1. is justified because of Canadian security or law-enforcement interests,
2. can be controlled by specific terms and conditions, and
3. does not have a negative human rights connotation.
With respect to the third of these three requirements, Justice O’Connor
stated that he was not made aware of any guidelines covering more specific
issues—for example, what level of certainty is required that no rights violation will occur before information can be passed on or who should make the
assessment about whether such level of certainty exists. This Inquiry was
also not made aware of any guidelines of this kind. Justice O’Connor recommended that more formalized rules and guidelines relating to information sharing are required.67
67
65
66
Arar Inquiry, Analysis and Recommendations, p. 108.
Arar Inquiry, Analysis and Recommendations, p.108.
Arar Inquiry, New Review Mechanism, pp. 114-115.
�BACKGROUND and Context
79. In his public testimony before the Arar Inquiry, Deputy Commissioner
Loeppky testified that the issue of dealing with countries that have a poor
human rights record is an extremely important one, and that the RCMP condemns any form of human rights abuses. However, he said that in rare cases
the RCMP might have to deal with a country that has less than a perfect human
rights record in order to fulfill its obligation under section 18 of the RCMP Act
to preserve the peace and prevent crime. In the Arar Inquiry report, Justice
O’Connor expressed reservations about this exception, because it appeared
to exempt terrorism investigations from the primary requirement of not being
involved in rights violations.68
Mandate and functions of DFAIT
80. DFAIT, under the management and direction of the Minister of Foreign
Affairs, is mandated by the DFAIT Act to oversee the external affairs of Canada.69
This includes managing Canadian embassies, high commissions and consulates,
all of which provide assistance to Canadians in foreign countries.70
81. During the period when Mr. Almalki, Mr. Elmaati and Mr. Nureddin were
incarcerated in Syria and (in Mr. Elmaati’s case) Egypt, the Honourable William
Graham was Minister of Foreign Affairs. He was assisted by the Deputy Minister
of Foreign Affairs, first Gaëtan Lavertu and later Peter Harder, as well as the
Associate Deputy Minister, Paul Thibault and later Jonathan Fried.
82. DFAIT is divided into several branches, each headed by an Assistant
Deputy Minister. The branches are either geographic or functional. The geographic branches are responsible for bilateral relations between Canada and
other countries, and include Africa and the Middle East, the Americas, AsiaPacific and Europe.
83. Each branch at DFAIT comprises a number of bureaus, each headed by
a director general. During the relevant period, the Security and Intelligence
Bureau (in the Global and Security Policy Branch) was led by Paul Dingledine
and later Daniel Livermore. The Consular Affairs Bureau was led by Gar Pardy
and later by Konrad Sigurdson.
Security and Intelligence Bureau
84. DFAIT’s Security and Intelligence Bureau (ISD) is made up of two divisions:
security and foreign intelligence. The Foreign Intelligence Division (ISI), the
68
69
70
Arar Inquiry, New Review Mechanism, p. 114.
Department of Foreign Affairs and International Trade Act, R.S.C. 1985, c. E-22, section
10(1) [DFAIT Act].
DFAIT Act, section 10(2)(h).
85
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work of which is most relevant to this Inquiry, is further divided into three divisions: intelligence policy, intelligence coordination and client relations. During
the relevant period, ISI was headed by Director Scott Heatherington, who was
assisted by three deputy directors, including Jim Gould, the Deputy Director
of ISI’s intelligence policy division. Mr. Gould was assisted by policy advisers
Don Saunders, Bill Gusen and later Jonathan Solomon.71
85. ISD was described by its Director General, Daniel Livermore, as a client
service bureau. It provides support and assistance to a wide variety of bureaus
and divisions within DFAIT. This includes receiving and distributing intelligence
materials to clients and assisting clients in analyzing intelligence. In some cases,
ISD will directly assist a bureau or division in managing a file with an important
intelligence dimension.72
86. Among ISD’s clients is the Consular Affairs Bureau. When the Consular
Affairs Bureau receives word that a Canadian citizen has gone missing abroad,
ISD can assist the Bureau in locating the individual by conducting a search using
its Canadian and foreign intelligence sources. As well, the Consular Affairs
Bureau may seek ISD’s help to obtain information regarding the complexities
of a given consular situation, such as why an individual was detained, what the
complications of his or her continued detention might be, who holds power
in the country of detention and how Canadian influence might best be used
to meet its consular obligations. In trying to assist, ISD draws on a wide range
of information and sources within and beyond the Government of Canada.
Occasionally, ISD assists the Consular Affairs Bureau by providing personnel
to help manage consular case files or assist with the management of crises or
other issues.73
Consular Affairs Bureau
87. The Consular Affairs Bureau is responsible for providing information and
assistance to Canadians living and travelling abroad. Most consular services are
provided by consular officials and heads of mission at Canadian missions abroad.
These services include dealing with passport or notary issues, and facilitating
medical assistance. The Consular Affairs Bureau in Ottawa will generally get
directly involved only in the most complex and difficult consular cases, including those of Mr. Almalki, Mr. Elmaati and Mr. Nureddin.
88. Consular cases that require the assistance of the Consular Affairs Bureau
in Ottawa are managed by a case management officer. Each case management
73
71
72
Arar Inquiry, Factual Background, Vol. II, Annex 3, p. 579.
Arar Inquiry, Factual Background, Vol. II, Annex 3, p. 580.
Arar Inquiry, Factual Background, Vol. II, Annex 3, p. 580.
�BACKGROUND and Context
officer is responsible for a geographic region, and will liaise with consular officers in the region. In some cases, the Director of the Consular Affairs Bureau
will become involved, and will generally be in contact with and provide instructions to the head of mission in the relevant mission. During the time period
relevant to this Inquiry, the case management officer responsible for Africa and
the Middle East was Myra Pastyr-Lupul.
89. The actions of Consular officials, both at the Consular Affairs Bureau and
at missions abroad, are guided by the Manual of Consular Instructions. This
Manual, first published by DFAIT in 1993, provides general guidelines to consular officers in handling a consular case. The Manual provides guidelines on
the steps to be taken upon notification of a detained Canadian, intervention
with local authorities, sharing of consular information, conducting consular
visits to a detained Canadian and the frequency of consular visits. Consular
officials are expected to be familiar with the Manual before taking on a
consular position.
The CAMANT system
90. The CAMANT system is a database used by the Consular Affairs Bureau to
record all consular activities related to Canadians abroad. As soon as a consular
matter is brought to the attention of the Consular Affairs Bureau, the responsible
case management officer will create a file in the CAMANT system in order to
track consular activities related to that file. The CAMANT system is passwordprotected and accessible only to consular officers.
The role of the ambassador
91. Each mission abroad is directed by a head of mission. The title of that person is ambassador, consul-general or, in the case of Commonwealth countries,
high commissioner.74 Franco Pillarella served as Canadian Ambassador to Syria
from November 1, 2000 to September 13, 2003, when he was replaced by Brian
Davis. Michel de Salaberry served as the Canadian Ambassador to Egypt during
the relevant period.
92. The ambassador is appointed by the Governor in Council and is responsible not only for the activities of DFAIT, but also for the activities of other
departments and agencies of the Government of Canada in the country to which
the ambassador is appointed.75
74
75
Arar Inquiry, Factual Background, Vol. II, Annex 3 p. 575.
Arar Inquiry, Factual Background, Vol. II, Annex 3 p. 575; DFAIT Act, section 13(2).
87
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93. The specific objectives of an ambassador are established by a geographic
branch at DFAIT, in consultation with the functional branches and other government departments. For example, the Ambassador to Syria takes guidance and
assistance from DFAIT’s Middle East Branch. Other relevant branches, bureaus
or divisions may also provide instructions, depending on their areas of responsibility in relation to the Syrian mission.76
94. With respect to consular cases, an ambassador takes direction from the
Consular Affairs Bureau, which acts in consultation with the geographic and
legal bureaus. The role of the Consular Affairs Bureau in instructing the ambassador is particularly significant where more than one interest of the Canadian
government is engaged – for example, where consular, law enforcement and
security intelligence responsibilities are engaged. If different government objectives conflict, the Consular Affairs Bureau must make a decision and issue
instructions to the ambassador, in consultation with the relevant political division and, if necessary, the Deputy Minister or the Minister.77
95. According to Mr. Pardy, the ambassador does not have discretion to make
decisions that could adversely affect others, especially in a country with a poor
human rights record. For example, the ambassador should refer to DFAIT headquarters questions relating to sharing information about a Canadian detained
in a country with a poor human rights record. Mr. Pardy also stated that the
ambassador is to use his or her judgment before referring a matter to headquarters and, in exercising that judgment, should apply a test of possible injury,
especially where the fate of an individual is concerned.78
96. RCMP and CSIS officers abroad are expected to report to the ambassador
when visiting the ambassador’s post and to be guided by the ambassador’s
instructions while carrying out their responsibilities for the home agency. If
conflicts arise between police liaison and consular matters, the Manual of
Consular Instructions directs that they “be adjudicated by the Head of Mission,
who must weigh the merits of any case in the context of relations with the country concerned and of the rights and interests of the Canadian citizen involved,
in consultation with Headquarters.”79
Consular services for Canadians detained abroad
97. According to the Manual of Consular Instructions, one of the primary
functions of Canadian missions is to “protect the lives, rights, interests, and
78
79
76
77
Arar Inquiry, Factual Background, Vol. II, Annex 3, p. 576.
Arar Inquiry, Factual Background, Vol. II, Annex 3, p. 577.
Arar Inquiry, Factual Background, Vol. II, Annex 3, p. 577.
Arar Inquiry, Factual Background, Vol. II, Annex 3, p. 576.
�BACKGROUND and Context
property of Canadian citizens…when these are endangered or ignored in the
territory of a foreign state.” This includes providing services to a Canadian
citizen who has been arrested or detained in a foreign country.
98. The Manual of Consular Instructions states that, when a Canadian citizen
has been arrested and detained abroad, consular officers should investigate the
circumstances of the arrest and detention. The Manual directs that this investigation should be designed to reveal whether there was unlawful discrimination or denial of justice, harsh treatment during arrest, or denial of due process
of law.
99. DFAIT’s Service Standards, which are provided to employees and available
to all overseas offices, also set out guidelines for consular services. The Service
Standards state that “every effort is made to adhere to these standards” and
that DFAIT’s commitment is to service characterized at all times by sensitivity,
empathy, courtesy, speed, accuracy and fairness.80 According to the Service
Standards, the first contact with the detained person should be made within
24 hours of notification of the detention. The response time, however, is subject to factors that may be beyond DFAIT’s control.81
100. Once consular officials make contact with the detained Canadian,
the Manual of Consular Instructions directs them to provide the
following services:
visit and maintain contact with the prisoner;
attempt to obtain case-related information;
provide available information on local judicial and prison systems;
liaise with local authorities in order to seek regular access to the
prisoner;
• verify that the conditions of detention are at least comparable to the
best standards applicable to nationals of the country of incarceration;
and
• obtain information about the status of the prisoner’s case and encourage
local authorities to process the case without unreasonable delay.82
•
•
•
•
101. A Canadian citizen detained abroad has the right to meet with a consular
official as enshrined in the Vienna Convention on Consular Relations (“the
Vienna Convention”),83 to which Canada, Syria and Egypt are parties. Consular
80
83
81
82
Foreign Affairs and International Trade Canada, Service Standards, online, http://www.voyage.
gc.ca/main/about/service_standards-en.asp (accessed July 3, 2008) [Service Standards].
Service Standards.
Arar Inquiry, Factual Background, Vol. II, Annex 3, p. 574.
Article 36.
89
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officials are expected to report any refusal of access to a detained Canadian or
refusal to permit the detainee to communicate with them immediately to the
diplomatic mission or to DFAIT headquarters.84
102. The Manual of Consular Instructions provides that the appropriate frequency of consular visits to a Canadian detained abroad will vary
depending on:
the location of the prison, the conditions within the prison, the number of
Canadians incarcerated, as well as the size of the consular staff and competing
priorities at the Canadian mission. In countries where the prison conditions are
good and communication with the outside world is relatively easy, visits may be
made only on request.
Training to detect signs of torture and abuse
103. Several DFAIT witnesses at the Arar Inquiry and this Inquiry testified that
during the relevant period, consular officials did not receive training in recognizing the signs of torture and abuse of Canadians detained abroad.
104. In his testimony at the Arar Inquiry, consul Léo Martel acknowledged
that he was not an expert in recognizing the signs of torture and that he had
read expert reports to the effect that it was almost impossible to detect signs
of torture. Despite the lack of formal training in detecting signs of torture and
abuse, Mr. Martel testified that his years of experience assisted him in looking for different indicators of abuse during a consular visit. Mr. Martel stated
he would assess the detainee’s walk, take into account whether the detainee
answered his questions, determine whether the detainee’s hands shook and
look for any visible signs of abuse, among other indicators.
105. At this Inquiry, consuls Stuart Bale and Roger Chen confirmed that they
had not received training in detecting the mistreatment of detainees. According
to Mr. Chen, consuls received general training on different types of consular
cases, but there were no specific courses on cases involving detainees. In addition, Mr. Chen did not recall having any exposure to information about human
rights in Egypt.
106. In his report, Justice O’Connor recommended that consular officials
posted to countries that have a reputation for abusing human rights should
receive training on conducting interviews in prison settings in order to be able
to make the best possible determination of whether torture or harsh treatment
84
Arar Inquiry, Factual Background, Vol. II, Annex 3, p. 573.
�BACKGROUND and Context
has occurred.85 At the time of writing his report, Justice O’Connor understood
that DFAIT had implemented or was considering implementing a training program. He stated that it was an important initiative.86
107. In response to Justice O’Connor’s recommendation stated above, DFAIT
revised a workshop presentation entitled “Torture and Abuse Awareness,”
which had originally been developed in 2004. According to DFAIT, the publication is designed to educate consular officials about the protocols for dealing
with cases of torture and abuse and to ensure these protocols are followed.
Dual nationality and consular protection
108. The Manual of Consular Instructions provides consular officials with
some direction on how to approach cases of Canadian dual nationals detained in
the country of their other citizenship. The Manual notes that some countries
will not recognize the right of Canadian consular officials to formally intervene
in these cases, and that consular officers may be limited to making informal
representations. The Manual also states that DFAIT and diplomatic missions
“WILL NOT provide services to dual nationals in the country of their nationality
if that country does not recognize the prisoner’s Canadian citizenship.” One
DFAIT witness stated that while dual citizenship may affect the ability of consular officials to gain access to a detained Canadian dual national, it should not
affect the intensity of activity that consular officials devote to the case.
109. DFAIT prepares and makes available on its website an information brochure for Canadian dual nationals planning to travel to the country of their other
citizenship. The brochure, entitled “Dual Citizenship: What Travellers Should
Know,” warns that dual citizenship is not legally recognized in all countries,
which can lead to serious difficulties for Canadians when they are in the country of their second citizenship.87 It specifically notes that the authorities of the
country of second citizenship may not recognize Canada’s right to provide a
dual citizen with consular assistance.88 The brochure also includes a section
on military service, and states that dual citizens may be legally required to register for military service and to respond to call-up orders in the country of their
second citizenship. The brochure further warns:
87
85
86
88
Arar Inquiry, Analysis and Recommendations, p. 352.
Arar Inquiry, Analysis and Recommendations, p. 353.
Foreign Affairs and International Trade Canada, “Dual Citizenship: What Travellers Should
Know,” online, http://www.voyage.gc.ca/main/pubs/dual_citizenship-en.asp (accessed July 3,
2008) [“Dual Citizenship”].
“Dual Citizenship.”
91
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This legal obligation may exist even if you do not reside in the country of your
second citizenship. Your obligations could be enforced even if you’re just visiting
at some point in the future. […]
The consequences could be imprisonment or immediate induction into military
service the next time you arrive in the country or attempt to leave.89
Confidentiality of consular information and the Privacy Act
110. Information regarding individual Canadians gathered by consular personnel in the performance of their duties is confidential, subject to the provisions
of the Privacy Act.90 The Manual of Consular Instructions specifically directs
that this information is “not to be divulged to Liaison and Security Intelligence
officers [such as CSIS security liaison officers or RCMP liaison officers] without
the prior agreement of the person concerned.” Similarly, DFAIT’s “Guide for
Canadians Imprisoned Abroad” states that any information given by a Canadian
detainee to a Canadian consular official will not normally be passed on to anyone, other than consular officials concerned with the detainee’s case, without
the detainee’s permission.91
111. The Vienna Convention also contains a provision that can be interpreted
to require the confidentiality of consular information. Article 33 of the Vienna
Convention provides that “[t]he consular archives and documents shall be inviolable at all times and wherever they may be.” DFAIT has interpreted “consular
archives” in article 33 to include communications or documents received and
information gained by consular officers.
112. The Privacy Act permits disclosure of information subject to it in certain circumstances—for example, where the person to whom the information
relates gives his or her consent, where the public interest in disclosure clearly
outweighs any invasion of the person’s privacy or where disclosure would
clearly benefit the individual to whom the information relates.92 As well, the
Privacy Act provides that personal information may be disclosed to certain
investigative bodies, including the RCMP and CSIS, on the written request of
the investigative body, for the purpose of enforcing any law of Canada.
113. In her interview, Ms. Pastyr‑Lupul suggested that the practice of DFAIT
regarding the sharing of consular information changed after the events of
91
89
90
92
“Dual Citizenship.”
Privacy Act, R.S.C. 1985, c. P-21, sections 2 and 3 [Privacy Act].
Foreign Affairs and International Trade Canada, “Guide for Canadians Imprisoned Abroad,”
online, http://www.voyage.gc.ca/main/pubs/imprisoned_abroad-en.asp (accessed July 3,
2008).
Privacy Act, sections 8(1) and 8(2)(m).
�BACKGROUND and Context
September 11, 2001. She stated that until that time, consular information would
not be disclosed to an individual in another DFAIT division or another government department, but that after September 11, 2001, in cases where Canadians
were detained for security-related reasons, there was a reason to share information in the best interests of the individual with a wider audience.
114. In the fall of 2003, when Mr. Sigurdson arrived at DFAIT, he became concerned about the dissemination of consular information. One of the measures
taken by Mr. Sigurdson to address this problem was to prohibit the sharing of
CAMANT notes with anyone other than consular staff. This prohibition, according to Mr. Sigurdson, was particularly enforced with consular offices abroad.
CSIS and RCMP investigations in the post-9/11 environment
Push for cooperation in the face of a possible “second wave”
115. In the weeks and months after the terrorist attacks of September 11,
2001, there was intense pressure on intelligence and law enforcement agencies,
including CSIS and the RCMP, for maximum cooperation and collaboration.
According to Mr. Hooper, after 9/11 western intelligence agencies had a significant body of credible intelligence suggesting that there would be a second
wave of attacks directed against the United States. In light of this information,
these agencies spent considerable effort trying to identify and track individuals who might in some way be implicated in or supportive of another round
of attacks.
116. In this environment, there was an emphasis on maximum cooperation
and maximum sharing of information. The Americans led this push for maximum cooperation and information-sharing. A CSIS official testified at the Arar
Inquiry that after the 2001 attacks there was a lot of pressure on everybody
around the world to cooperate with the Americans. The same CSIS official
stated that, post-9/11, the Americans took a very aggressive approach towards
security intelligence, so much so that the rest of the world found it was difficult
to keep up with them.
117. The close relationship between Canadian law enforcement agencies and
U.S. authorities was acknowledged by the federal government in late September
2001. At that time, then Prime Minister Jean Chrétien established an Ad Hoc
Committee of Ministers on Public Security and Anti-Terrorism, which reviewed
policies, legislation, regulations and programs across government to adjust all
93
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aspects of Canada’s public security approach to respond to the “new realities.”93
The Anti-Terrorism Plan had five objectives: (1) prevent terrorists from getting
into Canada; (2) protect Canadians from terrorist acts; (3) activate tools to identify, prosecute, convict and punish terrorists; (4) keep the Canada-US border
secure; and (5) work with the international community to bring terrorists to
justice and address the root causes of terrorism.94 In listing the government’s
immediate measures, the federal government recognized that the RCMP and
CSIS were participating actively in “the intensive international investigation
to track down and catch terrorists, and disable their networks.”95 Further, the
federal government stated that all Canadian law enforcement agencies were
collaborating very closely with the U.S. authorities in the investigation of the
terrorist attacks of September 11.96
Transfer of investigations from CSIS to the RCMP
118. In the face of what western intelligence and law enforcement agencies
described as credible intelligence pointing to a possible second wave of attacks,
CSIS put several Toronto-based targets under around-the-clock surveillance.
According to Mr. Hooper, by September 22, 2001 CSIS officials in Toronto were
exhausted. They had been working 12-hour days. Mr. Hooper decided to seek
assistance from law enforcement agencies.97
119. On September 22, 2001, Mr. Hooper chaired a meeting at the CSIS Toronto
office involving officials from CSIS, the RCMP, the Ontario Provincial Police,
the Toronto Police Service and the Peel Regional Police, at which he briefed
them on the investigation of certain individuals identified as potential threats
to Canadian security. Mr. Hooper’s aim was to elicit their assistance in providing specialty investigators and surveillance teams. According to Mr. Hooper,
however, as the meeting progressed, a consensus emerged among the police
representatives that CSIS might have enough information to support criminal
conspiracy charges. They began to consider whether the case would be better
managed as a criminal investigation.98
120. Before proceeding further, the police requested that Mr. Hooper provide
information demonstrating that the activities of these individuals constituted a
93
96
97
98
94
95
Foreign Affairs and International Trade Canada, “Backgrounder: Canada’s Actions Against
Terrorism Since September 11,” online, www.dfait-maeci.gc.ca/anti-terrorism/canadaactionsen.asp (accessed July 3, 2008) [“Backgrounder: Canada’s Actions Against Terrorism”].
“Backgrounder: Canada’s Actions Against Terrorism.”
“Backgrounder: Canada’s Actions Against Terrorism.”
“Backgrounder: Canada’s Actions Against Terrorism.”
Arar Inquiry, Factual Background, Vol. I, p. 14.
Arar Inquiry, Factual Background, Vol. I, pp. 14-15.
�BACKGROUND and Context
crime. Mr. Hooper agreed to provide an “advisory letter” with data on the targets, and a profile that would enable the police to compare the targets against
what was known about al-Qaeda activists at that time.99 “Advisory letters” are
letters prepared by CSIS for the RCMP to provide the RCMP with background
information regarding possible criminal activity.
121. Shortly after the meeting held on September 22, 2001, American authorities requested that Canadian agencies investigate certain Canadian individuals
suspected of supporting Islamic extremism in Canada. The agencies were to
provide further information about these individuals, and if possible, detain them
for interviews. The RCMP did not act on the request from the Americans, as it
was not yet prepared to detain and interview the individuals named.100
122. In accordance with the request made at the meeting on September 22,
2001, CSIS provided the RCMP with a September 24, 2001 letter, two advisory
letters (dated September 26 and October 5, 2001) and a profile of al-Qaeda, sent
in the month following 9/11, containing information about several individuals.
The effect of these three letters was to transfer to the RCMP primary responsibility for certain national security investigations. One CSIS witness testified before
the Arar Inquiry that this was the most extensive transfer of investigations ever
made at one time by CSIS to the RCMP. In his interview for this Inquiry, former
Commissioner Zaccardelli stated that this was not the normal process and that
this was the only time that the Director of CSIS had ever called him to advise
that CSIS was transferring files to the RCMP. The transfer allowed CSIS to focus
on security threats that were less apparent, and to investigate new threats.101
123. Attached to the letter sent on September 24, 2001 was an unclassified
“Terrorist Group Profiler” prepared by CSIS, which included general information, compiled from a variety of open sources, about al-Qaeda. The document
included information about Osama bin Laden, as well as descriptions of al‑Qaeda’s structure, training camps, recent activity, presence in Canada and its links
to key Islamic organizations and individuals.
124. CSIS’ September 24 letter and its advisory letters dated September 26 and
October 5, 2001, led to the formation of two RCMP-coordinated investigation
projects—Project O Canada and Project A-O Canada.102
99
101
102
100
Arar Inquiry, Factual Background, Vol. I, p. 15.
Arar Inquiry, Factual Background, Vol. I, p. 14.
Arar Inquiry, Factual Background, Vol. I, p. 16.
Arar Inquiry, Factual Background, Vol. I, pp. 15-16.
95
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Internal Inquiry
Creation of Projects A-O and O Canada
Project O Canada
125. Project O Canada had its origins in CSIS’ September 24, 2001 letter. This
letter advised the RCMP that CSIS had reason to believe that the activities of
several Toronto-based individuals posed an “imminent threat to the public safety
and security of Canada.” Two days later, on September 26, 2001, CSIS sent an
advisory letter containing detailed information from CSIS files about these same
individuals and general information about al-Qaeda.103 Mr. Hooper testified at
the Arar Inquiry that the September 26 letter constituted an extraordinary disclosure of information to law enforcement agencies.104
126. After receiving this information, the RCMP created a coordinated investigation—Project O Canada—involving other police agencies, including the
Ontario Provincial Police (OPP) and the Toronto Police Service (TPS). Project
O Canada was based at RCMP “O” Division in Toronto. The case management
team included Chief Superintendent Ben Soave of the RMCP, Monitoring Officer;
Inspector Brian Raybould from the TPS, the Lead Investigator; and Detective
Inspector Al Bush from the OPP, the Operational Support Officer. Inspector
Keir MacQuarrie of the RCMP was appointed Case Manager of Project O Canada
to oversee and manage the project. The goals of the project were prevention,
intelligence-gathering and prosecution, in that order.105 To these ends, Project
O Canada conducted 24-hour surveillance and police background checks on
the identified targets.
127. At the end of November 2001, Project O Canada ceased its investigation
of the Toronto-based subjects. According to Inspector Michel Cabana, many
of the subjects of Project O Canada had left Toronto and the project moved on
to other priorities.106
Project A-O Canada
128. In early October 2001, RCMP “O” Division in Toronto asked RCMP
“A” Division in Ottawa for assistance in investigating the activities of
Mr. Almalki, an Ottawa resident who the RCMP believed to be connected to alQaeda.107 In response to this request, “A” Division created Project A-O Canada.
In a relatively short time, Project A-O Canada’s role evolved from assisting
105
106
107
103
104
Arar Inquiry, Factual Background, Vol. I, p. 15.
Arar Inquiry, Factual Background, Vol. I, p.15.
Arar Inquiry, Factual Background, Vol. I, p. 17.
Arar Inquiry, Factual Background, Vol. I, p. 27.
Arar Inquiry, Factual Background, Vol. I, p. 16.
�BACKGROUND and Context
Project O Canada with the Almalki investigation to conducting its own investigation of Mr. Almalki.
129. The primary goals of Project A-O Canada, in addition to investigating
Mr. Almalki’s activities, were prevention, intelligence-gathering and prosecution. The project’s first priority was preventing a possible “second wave”
of terrorist attacks. In the words of Inspector Michel Cabana, the Officer in
Charge of Project A-O Canada, the RCMP was to do everything legally available
to it to prevent any further attack in Canada and abroad. The project’s second
priority was intelligence-gathering to identify potential threats to Canada and its
allies. Prosecution, usually the primary focus of any RCMP investigation, was
Project A‑O Canada’s third priority.108
Composition of Project A-O Canada
130. According to the RCMP, two factors were considered when choosing
the investigators for Project A-O Canada. First, senior officers at “A” Division
expected that, since A-O Canada would be investigating Mr. Almalki’s alleged
involvement with al-Qaeda, the investigation would involve analyzing a large
amount of documentary evidence. As a result, the officers reasoned that they
should draw extensively on the experience of “A” Division’s Integrated Proceeds
of Crime (IPOC) unit. Second, since there was continuing concern about an
imminent terrorist attack, officials felt that the new project should have the best
investigators available.109
131. Assistant CROPS Officer, Superintendent Garry Clement, with input from
the Officer in Charge of “A” Division’s CROPS unit, Chief Superintendent Antoine
Couture, appointed Inspector Cabana the Officer in Charge of Project A‑O
Canada in early October 2001.
132. Superintendent Clement and Inspector Cabana worked together to determine an appropriate balance for the Project A-O Canada team. They gave preference to officers with criminal investigation expertise—for example, writing
affidavits, conducting covert entries, developing operational plans and following
a paper trail.110 They also focused on creating an integrated team with officers
from a number of different police services, because it was thought that no single
agency had sufficient resources to address the complexities involved in Project
A-O Canada’s investigation. Two officers from outside the RCMP were assigned
to serve as assistant managers: Staff Sergeant Patrick Callaghan, a member of
the Ottawa Police Service (OPS) and Staff Sergeant Kevin Corcoran, a member
110
108
109
Arar Inquiry, Factual Background, Vol. I, p. 17.
Arar Inquiry, Factual Background, Vol. I, p. 18.
Arar Inquiry, Factual Background, Vol. I, p. 18.
97
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Internal Inquiry
of the OPP. Other officers from the OPP and OPS, as well as officers from the
Sûreté du Québec, Gatineau Police Service and Hull Police Service, were also
added to the A-O Canada team.111
Training and experience of Project A-O Canada members
133. The Arar Inquiry report contains a detailed discussion of the training and
experience of Project A-O Canada members.112 Justice O’Connor concluded that
the officers assigned to Project A-O Canada, including the project’s managers,
lacked experience and training in conducting national security investigations
and in addressing human rights and cultural sensitivity issues that might arise
in such investigations.113 While he thought that the circumstances surrounding
the creation of Project A-O Canada—that is, in the midst of the post-9/11 crisis—made the lack of training and experience understandable, Justice O’Connor
said it was incumbent on senior RCMP personnel to provide the project with
clear instructions and to ensure that the lack of training and experience was
properly addressed.114
Project A-O Canada reporting structure
134. Since Project A-O Canada was conducting a criminal investigation, it
reported to “A” Division CROPS, rather than directly to headquarters as would
be required in a national security investigation being conducted by an INSET or
NSIS. Inspector Cabana reported to the Assistant CROPS Officer, Superintendent
Clement, who in turn kept Chief Superintendent Antoine Couture, the CROPS
Officer, up to date on the investigation. In addition to regular briefings,
the CROPS officers were provided with A-O Canada’s daily situation reports
(SITREPs), which detailed the progress of the investigation.115
135. Project A-O Canada also kept CID at RCMP headquarters informed of the
investigation by providing it with copies of its daily SITREPs, holding periodic
meetings and preparing briefing notes. However, because A-O Canada members and senior officers at “A” Division considered this to be solely a criminal
investigation, the Project reported to and received instructions from the “A”
Division CROPS officers rather than headquarters personnel.116
136. Justice O’Connor was critical of this reporting structure. He wrote
that “[g]iven the potentially far-reaching implications of a national security
113
111
112
114
115
116
Arar Inquiry, Factual Background, Vol. I, p. 19.
Arar Inquiry, Factual Background, Vol. I, pp. 21-23.
Arar Inquiry, Analysis and Recommendations, p. 17.
Arar Inquiry, Analysis and Recommendations, p. 72.
Arar Inquiry, Factual Background, Vol. I, pp. 23-24.
Arar Inquiry, Factual Background, Vol. I, pp. 24-25.
�BACKGROUND and Context
investigation, one would expect that such an investigation would be subject to
greater coordination and control from CID at RCMP national headquarters.”117
The practice of sharing travel itineraries
137. The Attorney General submitted to this Inquiry that several international
conventions and other instruments, such as the International Convention for
the Suppression of Terrorist Bombings and the International Convention for
the Suppression of the Financing of Terrorism, oblige Canada to share terrorism-related information, including travel information.
138. With respect to sharing of travel information by CSIS, the Attorney
General stated that CSIS may share the travel plans of Canadian citizens suspected on reasonable grounds of engaging in activities which constitute a threat
to national security. The Attorney General stated that when CSIS shares travel
information, it expects that receiving agencies will reciprocate in the sharing of
information and respect the caveats that CSIS has attached to the information.
139. Several CSIS witnesses were asked about the practice of sharing the travel
itineraries of persons of interest with foreign intelligence services. Two CSIS
officials stated that the practice of passing a travel itinerary to a country that
would have an interest in the person travelling is, or at least was at the time,
standard and routine.
140. In his interview for this Inquiry, Mr. Hooper explained that the practice
of sharing travel itineraries with foreign intelligence services is driven by at least
two factors. The first is the axiom in the intelligence business that in order to
develop intelligence around the intentions of a terrorist organization, “you follow the money, you follow the people, and you follow the documents.” This,
Mr. Hooper stated, became increasingly imperative in the post-9/11 environment. The second factor is the existence of various international conventions
which, according to Mr. Hooper, oblige Canada to share terrorism-related information and to inform other intelligence services when known or suspected
terrorists, operatives or supporters are travelling in an international arena.
141. The Attorney General stated that the RCMP has the same expectation
as CSIS that a foreign agency will respect the caveats when travel information
is shared. The Attorney General also stated that the RCMP may share travel
information to prevent the commission of a criminal act or in the course of an
investigation involving a threat to national security.
117
Arar Inquiry, Analysis and Recommendations, p. 76.
99
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Internal Inquiry
Syria’s and Egypt’s human rights records
Introduction
142. The following provides a summary of Syria’s and Egypt’s human rights
records during the time period relevant to this Inquiry, as described in publicly
available reports and in assessments by CSIS, DFAIT and the RCMP. Canadian
officials’ specific knowledge about Syria’s and Egypt’s human rights records is
discussed in Chapters 4, 5 and 6.
Syria’s human rights record
U.S. State Department and Amnesty International reports
143. The main sources of information about Syria’s human rights record for
Canadian officials during the relevant time were the U.S. State Department
Country Reports on Human Rights Practices and Amnesty International annual
reports. Canadian officials considered these two sources to be authoritative and
reliable. Both provided an unequivocal account of serious human rights abuses
by Syria, including:
• torture of detainees, especially while authorities were attempting to
extract a confession or information;
• arbitrary arrest and detention;
• prolonged detention without trial;
• unfair trials in the security courts; and
• poor prison conditions.118
A more detailed discussion of the State Department and Amnesty International
reports on Syria can be found in the Arar Inquiry Factual Background,
Volume II, Annex 2.
Human Rights Watch and SHRC reports
144. Canadian officials also relied on Human Rights Watch (HRW) reports to
inform themselves of Syria’s human rights practices. HRW, an international
human rights organization, reported in its World Report 2005 that “Syria has
a long record of arbitrary arrests, systematic torture, prolonged detention of
suspects, and grossly unfair trials.”119 HRW also cited information from the
118
119
Arar Inquiry, Factual Background, Vol. I, pp. 235-236.
Human Rights Watch, “Syria,” from World Report 2005, online, http://hrw.org/english/
docs/2005/01/13/syria9812.htm (accessed July 3, 2008) [Human Rights Watch, “Syria”].
�BACKGROUND and Context
London-based Syrian Human Rights Committee (SHRC) about political prisoners
dying in custody in 2004 as a result of torture.120
145. On its website, SHRC states that it is a human rights organization concerned with defending general liberties and human rights of the Syrian people,
including by exposing and publishing violations against human rights of Syrian
citizens.121 The SHRC annual reports for 2003 and 2004 described unlawful
detentions, and the torture and abuse of detainees. In 2003, SHRC reported
that “torture and maltreatment of detainees remain common practice in all
detention centres and prisons” and in particular, the Palestine Branch for
Military Interrogation.122 The report also listed the names of detainees, including Mr. Arar. According to the SHRC, the security forces were holding Mr. Arar
and he had been subjected to “severe torture and intensive interrogation and
charged with cooperating with al Qaeda.”123
146. The SHRC annual report for 2004 referred to the release of Mr. Arar
and Mr. Almalki from Syrian custody and noted that, at the time of reporting,
Mr. Almalki was not permitted to leave the country.124 The report also documented the arbitrary detention, torture and death of political prisoners in Syrian
prisons and interrogation centres.125
DFAIT’s assessment
147. DFAIT produces annual human rights reports for various countries,
including Syria. These reports are classified “confidential” and therefore not
made available to the public. They are only available to Canadian officials who
possess the proper security clearance and who need to know a country’s human
rights situation in order to carry out their functions or develop government
policy (certain consular officers, for example). There was no evidence before
the Arar Inquiry or this Inquiry that officials in either the RCMP or CSIS received
or reviewed DFAIT’s annual reports on Syria.126
122
120
121
123
124
125
126
Human Rights Watch, “Syria.”
www.shrc.org (accessed July 3, 2008).
Syrian Human Rights Committee, Annual Report 2003, p. 17, online, www.shrc.org/data/pdf/
ANNUALREPORT2003.pdf (accessed July 3, 2008) [Syrian Human Rights Committee, Annual
Report 2003].
Syrian Human Rights Committee, Annual Report 2003, p. 10.
Syrian Human Rights Committee, Annual Report on Human Rights Situation in Syria 2004,
p. 11, online, www.shrc.org/data/pdf/ANNUALREPORT2003.pdf (accessed July 3, 2008)
[Syrian Human Rights Committee, Annual Report on Human Rights Situation in Syria
2004].
Syrian Human Rights Committee, Annual Report on Human Rights Situation in Syria 2004,
pp. 6-11 and 16-19.
Arar Inquiry, Factual Background, Vol. I, p. 236.
101
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Internal Inquiry
148. DFAIT’s Syria: Annual Human Rights Reports for 2001 (dated February 8,
2002), 2002 (dated January 9, 2003) and 2003 (dated December 23, 2003)
described the human rights situation in Syria as poor. With respect to conditions of detention, the reports incorporated the U.S. State Department’s findings
of arbitrary arrests and extended periods of detention without charge, torture
by security services, coerced confessions, incommunicado detentions, the lack
of due process, unfair trials before the Supreme State Security Court, and the
power of security and military services in Syria. The reports also referred to
Amnesty International’s findings of routine torture and ill-treatment of prisoners, secret arrests in cases involving political or national security offences, and
prolonged detentions without due process.127
149. The 2001, 2002 and 2003 reports all concluded with a general statement
that “[t]he Canadian Embassy, along with other Western embassies in Damascus,
monitors the situation of human rights and raises issues of concern when appropriate with Syrian authorities and government institutions.”128
150. None of the three reports referred to Mr. Elmaati’s allegations of torture
in Syrian detention. The 2003 report outlined Mr. Arar’s allegations of torture,
indicating that:
While the Embassy saw no evidence of physical torture during meetings
with him, Arar did tell an Embassy official following his release that he
had a difficult first two weeks in Syrian custody while he was being
interrogated. He told the Embassy that he had been mistreated during
that period and after that he had been left alone.
CSIS’ assessment
151. CSIS officials obtained information about Syria’s human rights record
from several different sources, including publicly available reports by organizations such as the U.S. State Department, Human Rights Watch and Amnesty
International, and internal documents and the Country Profile prepared
by CSIS.129
152. Internal documents prepared by CSIS in 2002 and 2004 described
the human rights situation in Syria as poor. The internal documents relied
on open-source reports, including the U.S. State Department and Amnesty
129
127
128
Arar Inquiry, Factual Background, Vol. I, pp. 237-238.
Arar Inquiry, Factual Background, Vol. I, pp. 237-238.
Arar Inquiry, Factual Background, Vol. I, pp. 238 and 244.
�BACKGROUND and Context
International reports, in discussing the use of torture to extract a confession
or information.130
153. In addition to these internal documents, CSIS officials obtained information from the Country Profile for Syria prepared by CSIS’ Analysis and Production
Branch. The Country Profile reviewed by the Arar Inquiry, which was valid
to July 2003 and unclassified, stated that the international community continued to suspect Syria of human rights violations, but that there had been some
improvement in recent years. It noted that although numerous political prisoners had been released, human rights organizations estimated that between
700 and 800 political prisoners of conscience were still imprisoned in Syria.
This assessment was based on open-source information, including Amnesty
International reports.
154. The Service’s Country Profile for Syria was less inclusive and complete
than the U.S. State Department human rights report. The CSIS report did not
refer to the use of torture in Syria. However, Mr. Hooper questioned whether
CSIS needed to provide greater detail in the report, in light of the audience for
which the Country Profile was intended. Mr. Hooper stated that, in contrast to
the U.S. State Department reports, CSIS Country Profiles are designed for police
and security officials only, not to inform policy decisions.131
RCMP’s assessment
155. In contrast to DFAIT and CSIS, the RCMP does not produce human rights
assessments of countries. As discussed above, however, Deputy Commissioner
Loeppky testified before the Arar Inquiry that dealing with countries with poor
human rights records is an extremely important issue, and RCMP policy provides guidelines regarding respect for human rights and dealing with countries
with a poor human rights record.132
156. RCMP witnesses testified before the Arar Inquiry and this Inquiry that
they rely on DFAIT, and occasionally CSIS, for information about a country’s
human rights record if it is deemed relevant to an investigation or an operational step—for example, sharing information with foreign entities, interviewing detained Canadians abroad or sending questions to be posed to a
Canadian detainee abroad. The Memorandum of Understanding between DFAIT
and the RCMP, as well as ministerial directives, require the RCMP to consult
with DFAIT before embarking on certain acts that may have an international
130
131
132
Arar Inquiry, Factual Background, Vol. I, p. 238.
Arar Inquiry, Factual Background, Vol. I, pp. 244-245.
Arar Inquiry, Factual Background, Vol. I, pp. 246-247.
103
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Internal Inquiry
dimension.133 The RCMP Operational Manual also refers to post profiles that
can be obtained from the CROPS officer. According to the RCMP, the post
profiles are the human rights reports prepared by DFAIT. As stated above in
paragraph 61, RCMP members are expected to use good judgment in deciding
when it is necessary to consider human rights issues and consult with DFAIT.
Egypt’s human rights record
U.S. State Department and Amnesty International reports
157. Credible public sources of information on Egypt’s human rights record
during the relevant period, including U.S. State Department and Amnesty
International reports, generally described Egypt’s human rights record as poor.
The reports, which are summarized in some detail below, provided an account
of serious human rights abuses, including:
•
•
•
•
•
•
mistreatment and torture of prisoners,
arbitrary arrest and detention and detention without charge,
prolonged pre-trial detention,
poor prison conditions,
incommunicado detention, and
improper use of State Security Emergency Courts and military
courts.134
158. During the period preceding Mr. Elmaati’s detention and while he was
detained in Egypt, Canadian officials were aware of the existence of the State
Department and Amnesty International reports and used them in assessing
Egypt’s human rights record.
159. During the relevant period, state of emergency legislation (the “Emergency
Law”)—enacted in 1981 to combat terrorism and grave threats to national security—was in force in Egypt. The legislation restricted many basic rights.135 For
example, the Emergency Law allowed authorities to obtain a warrant upon
showing that an individual posed a danger to security and public order, and then
detain the individual indefinitely without charge.136 Also, under the Emergency
Law, cases involving terrorism and national security could be tried in military,
State Security, or State Security Emergency Courts, in which the accused did
133
134
135
136
Arar Inquiry, Factual Background, Vol. I, pp. 247-248.
U.S. State Department, 2001, 2002, 2003 Country Reports on Human Rights Practices: Egypt
[State Department Report], online, http://www.state.gov/g/drl/rls/hrrpt/ (accessed July 3,
2008); Amnesty International Reports 2002, 2003, 2004, online, http://www.amnesty.
org/ailib/aireport/index.html (accessed July 3, 2008).
2002 State Department Report, p. 1; Amnesty International Report 2004, p. 1.
2002 State Department Report, p. 6; 2003 State Department Report, p. 6.
�BACKGROUND and Context
not receive all the normal constitutional protections of the civilian judicial system.137 According to the State Department Report, some of the cases tried in
these courts had no obvious security dimension despite the purpose for which
the Emergency Law was enacted.138
160. According to Amnesty International, following the September 11, 2001
terrorist attacks, several people suspected of being affiliated to militant Islamist
groups were arrested under provisions of the Emergency Law.139
161. While the Egyptian Constitution prohibits the infliction of “physical or
moral harm” upon persons who have been arrested or detained, both the U.S.
State Department and Amnesty International reported that torture and abuse
of detainees by police, security personnel and prison guards was common and
persistent.140 Similarly, Human Rights Watch reported in a 2003 world report
that police and security personnel continued to routinely torture or mistreat
detainees, in some cases leading to death in custody.141 Human Rights Watch
noted that a number of political suspects on trial before military or state security
courts alleged that they had been tortured during interrogation. Human Rights
Watch also reported that deaths resulting from torture and ill-treatment in custody were not uncommon and showed a disturbing rise in 2002 and 2003.142
162. According to the Amnesty International and State Department reports,
torture and mistreatment at the hands of state security personnel was particularly common. The United Nations Special Rapporteur on Torture concluded
in 2001 that “torture is systematically practiced by the security forces in Egypt,
in particular by State Security Intelligence.”143 Human rights groups believed
that the State Security Investigations Sector (SSIS) employed torture to extract
information, to coerce victims to end oppositional activities, and to deter others
from similar activities.144
163. Principal methods of torture reportedly employed by police and security
forces included electric shocks, beatings with fists, metal rods or other objects,
suspension by the wrists or ankles and various forms of psychological torture,
including death threats and threats of rape or sexual abuse of the detainee or a
137
140
141
138
139
142
143
144
2002 State Department Report, p. 8; Amnesty International Report 2003, p. 2; Amnesty
International Report 2004, p. 2; 2003 State Department Report, pp. 7-8.
2003 State Department Report, p. 8.
Amnesty International Report 2002, p. 2.
2002 State Department Report, p. 3.
Human Rights Watch, “Egypt,” from World Report 2003, online, http://www.hrw.org/wr2k3/
mideast2.html (accessed July 3, 2008).
Human Rights Watch, Egypt’s Torture Epidemic, Briefing Paper, February 2004, p. 1, online,
http://hrw.org/english/docs/2004/02/25/egypt7658.htm (accessed July 3, 2008).
Amnesty International Report 2002, p. 2.
2002 State Department Report, p. 3.
105
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Internal Inquiry
female relative.145 Victims also frequently reported being subjected to threats
and forced to sign blank papers to be used against the victim or the victim’s
family in the future should the victim complain of abuse.146
164. Reports of incommunicado detention for prolonged periods, which
was authorized by the Emergency Law, frequently accompanied allegations
of torture.147
165. Both the U.S. State Department and Amnesty International reported poor
prison conditions. According to the U.S. State Department, tuberculosis was
widespread, and prisoners suffered from overcrowding of cells, lack of proper
hygiene, food, clean water, proper ventilation and recreational activities, and
inadequate medical care.148 Amnesty International reported that conditions in
some prisons amounted to cruel, inhuman or degrading treatment.149
DFAIT’s assessment
166. DFAIT produces an annual human rights report for Egypt. The reports
for Egypt, like those described above for Syria, are marked “confidential” and
only available to Canadian officials with the proper security clearance who
need to know the human rights profile of a given country. This includes some
consular officers.
167. DFAIT’s Egypt: Annual Human Rights Reports for 2001 (dated
January 30, 2002), 2002 (dated March 17, 2003) and 2003 (dated January 8,
2004) were available to some DFAIT officials during the period of Mr. Elmaati’s
detention in Egypt. They described Egypt’s human rights record as questionable, and highlighted the Emergency Law as a primary human rights concern.
168. According to the reports, after September 11, 2001, some Islamic individuals were arrested and detained arbitrarily. Trials were conducted in camera
by military tribunals, with no right of appeal, and often resulted in the accused
person being tried in absentia and being sentenced to death upon conviction.
Any criticism of this process from a foreign embassy was ignored.
169. The opening line of DFAIT’s 2001 report, quoting the Editor in Chief
of the Cairo Times, stated that 2001 was one of the worst human rights years
on record. Both the 2001 and 2002 reports indicated that a number of people alleged having been tortured while in detention. The reports also stated
145
146
147
148
149
2002 State Department Report, p. 3; Amnesty International Report 2002, p. 2; Amnesty
International Report 2003, p. 2; 2003 State Department Report, p. 3.
2002 State Department Report, pp. 3-4; 2003 State Department Report, p. 3.
2002 State Department Report, pp. 3, 7; 2003 State Department Report, p. 3.
2002 State Department Report, p. 5.
Amnesty International Report 2002, pp. 1-2.
�BACKGROUND and Context
that Islamic militants continued to be arrested, detained and tortured on a
regular basis.
170. The 2003 report described 2003 as a year with both highs and lows with
respect to human rights. The State Security Court was abolished and a National
Council on Human Rights was created to report and make recommendations
to the Egyptian government on human rights issues. At the same time, the
Emergency Law was renewed for three further years and activists advocating
against the war in Iraq were regularly arrested, detained and tried by military
courts. According to the report, torture continued to be widespread in detention centres and jail conditions continued to be deplorable.
171. The reports recommended that the Embassy send a clear message
to the Egyptian authorities that Canada places a high value on respect for
human rights.
CSIS’ assessment
172. CSIS obtained information on Egypt’s human rights record from several
different sources, including internal documents and the Country Profile for
Egypt prepared by CSIS, and reports from DFAIT. The Country Profile for Egypt
prepared in 2001, citing Amnesty International reports, stated that the practice
of torture continued to be systematic in the headquarters of the SSI in Cairo,
in SSI branches elsewhere in the country and in police stations. The Country
Profile, again citing Amnesty International, listed the most common methods
of torture as electric shocks, beatings, suspension by the wrists or ankles and
various forms of psychological torture, including death threats and threats of
rape or sexual abuse of the detainees or female relatives. The Service did not
prepare a Country Profile report for 2002 or 2003.
173. Other internal CSIS documents regarding Egypt discussed Egypt’s human
rights record. Citing Amnesty International reports, they stated that torture and
ill treatment of detainees continued to be systematic.
174. According to a CSIS official, CSIS officials also read DFAIT’s annual human
rights reports about Egypt.
RCMP’s assessment
175. As noted above in paragraphs 155 and 156, the RCMP does not produce
its own human rights assessment, but relies on DFAIT and CSIS for information
about a country’s human rights record.
107
��4
ACTIONS OF CANADIAN OFFICIALS IN
RELATION TO AHMAD ABOU-ELMAATI
1. The following is a summary of information obtained by the Inquiry, largely
from interviews of Canadian officials and review of relevant documents, concerning the actions of Canadian officials in relation to Mr. Elmaati.
Canadian officials’ interest in Mr. Elmaati
CSIS’ initial interest in Mr. Elmaati
2. Starting in the 1990s, CSIS was actively investigating potential security
threats posed by Canada-based supporters of Islamic extremism, al-Qaeda and
Osama bin Laden. In 2000, in the normal course of its investigation, CSIS
learned that Ahmad Abou‑Elmaati might have some knowledge of the threat to
Canada and Canadian interests abroad. The Service’s concern arose from information suggesting, in the Service’s view, that he had links to Islamic extremists,
that he had spent several years in Afghanistan engaged in insurgent activities,
and that there was a possibility that he might engage in violent activities.
Mr. Elmaati detained at U.S. border
3. In mid-August, 2001, Mr. Elmaati was stopped at a New York border crossing. He was questioned by U.S. Customs and law enforcement officials, and
the truck that he was driving that day was searched. According to a report
of the incident, Mr. Elmaati was the subject of a TECS lookout (described at
paragraphs 24 and 25 below), which is likely what caused him to be detained
and questioned. Neither CSIS nor the RCMP requested this detention, but
both were informed of it after it occurred. The items seized by U.S. authorities
from the cab of the truck included a map of Canadian Government buildings in
Tunney’s Pasture, Ottawa, a pair of reading glasses, and a document apparently
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printed from the Internet entitled “Know your rights if you are approached by
CSIS.” CSIS informed the Inquiry that it was aware, at the time, that documents
about CSIS such as this one were being disseminated by various organizations,
including the Canadian Arab Federation, to the Arab and Muslim communities
in Canada.
4. On August 27, 2001, Mr. Elmaati spoke to his manager at Highland Transport
about the incident at the U.S. border and showed her the map. He told her that
the items seized at the border did not belong to him. At Mr. Elmaati’s request,
his manager wrote a letter explaining that the map could have belonged to a
previous driver. Approximately one month later, in late September 2001, the
RCMP interviewed Mr. Elmaati’s manager with respect to the incident at the
U.S. border. She told the RCMP that the items seized might have belonged to a
previous driver and gave them a copy of the letter that she had written to that
effect. She also stated that as a result of this incident, Mr. Elmaati had said that
he did not think that he could continue to fulfill his duties since he felt he could
not cross the U.S. border. He had therefore requested work in the city.
5. In October 2001 the RCMP contacted the driver who had used the truck
immediately prior to Mr. Elmaati. He stated that he did not own the personal
property that had been left in the truck. By this time the RCMP had obtained
information that suggested that Mr. Elmaati’s employer did not make deliveries
to Tunney’s Pasture, although CSIS had obtained information that it had done
so. Some months later, the RCMP interviewed another previous driver of the
truck, who advised that he had never been in possession of the Tunney’s Pasture
map, although he stated that he had made deliveries to Tunney’s Pasture.
6. Further inquiries by the RCMP in October 2001 revealed that the map of
Tunney’s Pasture was at least 10 years old, and showed buildings that had since
been torn down. In mid-October, the RCMP advised CSIS that the map was
likely 10 years old and showed three government agencies that were no longer
there. When asked whether the fact that the map was out of date diminished
its significance, CSIS told the Inquiry that it did not. According to the Service,
it was an accurate map of a major Government of Canada facility at Tunney’s
Pasture. In late October, CSIS advised U.S. authorities that no sinister plan
towards Tunney’s Pasture had been uncovered and that the map was likely
10 years old.
CSIS’ September 11, 2001 interview
7. In the afternoon of September 11, 2001, two CSIS investigators interviewed
Mr. Elmaati regarding his background, family, travel, his job as a truck driver,
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO AHMAD ABOU-ELMAATI
the incident at the U.S. border in August, and the map of Tunney’s Pasture.
According to Mr. Elmaati, he showed them a copy of the letter from Highland
Transport. They continued to ask him questions. After some time, Mr. Elmaati
requested that a lawyer be present for the remainder of the interview. According
to Mr. Elmaati, the investigators told him that he should cooperate with them or
they would make the immigration application for his intended wife difficult.�
Mr. Elmaati also recalled that the investigator used the term mukhabarat (the
Arabic word for an intelligence service) and he interpreted this to be a threat.
8. The CSIS investigator who conducted the interview stated that he did not
recall being presented with a letter and that Mr. Elmaati requested a lawyer be
present before he would answer questions regarding time spent in Afghanistan
in the 1990s. The CSIS investigator told the Inquiry that while they did discuss
Mr. Elmaati’s sponsorship application, this was because they wanted to ask
Mr. Elmaati questions about his intended wife to obtain more information about
her, not as a means to compel answers to questions. The CSIS investigator also
stated that he had used the word mukhabarat for the purpose of distinguishing the Service from the way Mr. Elmaati might have perceived intelligence
services in the Middle East. The investigator told the Inquiry that he used the
term to highlight that CSIS is not a coercive organization, as Mr. Elmaati might
have expected, and that they were simply having a discussion.
CSIS sharing of information
9. On several occasions in 2000 and 2001, CSIS shared information about
Mr. Elmaati with the RCMP and foreign intelligence and law enforcement
agencies, including U.S. agencies. The Inquiry found no evidence that CSIS
shared or received information about Mr. Elmaati with Syrian authorities during
this time.
10. The information shared variously described Mr. Elmaati as an individual
who had spent seven years in Afghanistan involved in jihad-related activities, an
individual involved in the Islamic extremist movement and an individual with
links to local religious and Islamic extremists, including Ahmed Said Khadr.
11. Several CSIS witnesses were asked about the manner in which individuals
are described in information exchanges with foreign agencies. One CSIS official told the Inquiry that there are no fence posts or policies about how people
are described in communications with foreign agencies. He stated that the
description depends on what is in the mind of the analyst who drafts the com�
Mr. Elmaati had initiated an immigration sponsorship application to bring his intended wife to
Canada from Syria in June of 2001.
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munication (and the CSIS officials who approve it), as well as on the information
currently available, and the description can change daily as new information surfaces. Terms used such as “suspected” and “believed” frame CSIS assessments
and put the information into context for the receiving agency. According to
another senior CSIS official, sometimes the Service categorizes people in order
to give the receiving agency the proper perspective and information about
how the Service views them. Sometimes these types of characterizations are
used, in part, to elicit information from the foreign agency; by stating that a
given individual might be an Islamic extremist, the Service is trying to prompt
a response that corroborates or refutes that statement.
RCMP’s initial interest in Mr. Elmaati
12. On September 23, 2001 the FBI sent a letter to RCMP Commissioner
Zaccardelli identifying possible members of a terrorist cell in Canada. In this
letter, the RCMP was asked to provide further information about the individuals
identified in the letters and if possible, detain them for interviews. During this
time, similar request letters were sent by the FBI and another U.S. agency to the
RCMP and CSIS. As noted by Justice O’Connor, the RCMP did not act on the
FBI’s request. CSIS also did not do so, and would not have had the authority in
any event to detain anyone for questioning.
13. As described in Chapter 3, on September 24, 2001, CSIS provided a letter
to the RCMP that resulted in the creation of Project O Canada. In late September
2001, based on information provided by CSIS and the U.S. authorities, Project
O Canada began an investigation of which Mr. Elmaati was a primary target.
14. During the fall of 2001, material from Project O Canada was provided to
CSIS on an ad-hoc basis. During the period of the Project O Canada investigation, CSIS continued to exchange information regarding alleged Islamic extremists with foreign intelligence and law enforcement agencies and shared further
information about Mr. Elmaati with the RCMP.
RCMP sharing of information
15. On September 28, 2001, based on the information it received from CSIS
and U.S. authorities, rather than on any independent information of its own,
the RCMP sent a fax to the FBI and to a number of the RCMP’s liaison officers
stationed abroad, requesting that they seek information on an urgent basis with
respect to certain individuals, including Mr. Elmaati, who were described as
posing an imminent threat to public safety and the security of Canada.
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO AHMAD ABOU-ELMAATI
16. In response to this request, on September 29, 2001, the RCMP’s liaison
office in Rome sent an urgent request for assistance to law enforcement agencies in several countries including Syria and Egypt. The request letter stated
that the RCMP had received current and reliable information that a group of
individuals, including Mr. Elmaati, were engaged in activities in support of politically motivated violence and posed an imminent threat to public safety and the
security of Canada. The letter also urgently requested that each country conduct background and verification checks on all subjects identified in the letter.
The requests included a caveat that prohibited the distribution of the message
without consent.
17. The RCMP’s liaison officer in Rome, Inspector Stephen Covey, told the
Inquiry that he believed that the information the RCMP had received and then
shared regarding an imminent threat to public safety and the security of Canada
was true, which is why that phrase was included in the requests to the foreign
agencies and why he felt the sharing of this information with foreign agencies
was justified. Inspector Covey told the Inquiry that RCMP headquarters had
indicated that it was reliable information and, given that it was two weeks after
9/11 and the targeted individuals were alleged to have things in common with
members of al-Qaeda (alleged extremist views, military training and combat
experience in Afghanistan), he also believed that it was reliable and gave it high
priority. In early October 2001, Inspector Covey contacted the law enforcement agencies of several countries, including Syria, asking that the request be
made a priority.
18. On October 2, 2001, the RCMP sent a follow-up fax to a number of its liaison officers that contained additional information it had received on the individuals identified as an imminent threat in the previous fax, including Mr. Elmaati,
and listing Mr. Almalki as an additional imminent threat. In response, the liaison
office in Rome sent follow-up letters to the same countries, including Syria and
Egypt, disclosing the additional information and requesting any intelligence
that surfaced on any of the subjects. The letters were sent with the caveat that
this information could not be further disseminated by the receiving agency
without the express consent of the RCMP. However, according to Inspector
Covey, whenever the RCMP gives information to a foreign country, particularly
a country such as Syria, it loses complete control over the information; therefore
if there was something that Canada should not share with the Syrian authorities,
he would not send it. Inspector Covey was of the same view with respect to
the sharing of information with Egypt.
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19. The Officer in Charge of Project A‑O Canada, Inspector Michel Cabana,
was not involved in these communications and was not asked about them specifically. When asked about the sharing of information generally with foreign
agencies and the manner in which individuals might be characterized, Inspector
Cabana stated that it would be problematic to take a piece of correspondence
in relation to an individual, send it to a third party with little knowledge of an
investigation, and misrepresent the individual’s role in the matter under investigation. However, this was not a concern that applied to the U.S. agencies,
because they had a better understanding of the context of the communication
and could not be considered third parties. Inspector Cabana stated that the
RCMP had a mandate to work in an integrated fashion with the CIA and the
FBI, which meant the RCMP shared everything “in real time” with the American
agencies. In sharing information with third parties other than U.S. authorities,
Inspector Cabana stated, the RCMP would first send the information to its foreign liaison officers. They, he stated, have the appropriate training to know
how to structure requests of foreign authorities, and could therefore modify the
language of the communication as appropriate for the particular country.
20. In his interview, Inspector Richard Reynolds of the RCMP’s Criminal
Intelligence Directorate (CID) stated that describing an individual as an imminent threat was somewhat unusual. In the normal course, the RCMP would
use the term imminent threat to refer to a threat against individuals or property
rather than to describe an individual. Inspector Reynolds also stated that he
did not believe that a communication was ever sent to the Syrian or Egyptian
authorities changing this assessment of Mr. Elmaati.
21. Since neither Syria nor Egypt participated in the Inquiry, the Inquiry did
not receive any information regarding whether the RCMP’s letters to Syria and
Egypt in September and October of 2001 had any effect on Syria’s or Egypt’s
actions in respect of Mr. Elmaati.
Border lookouts and watch lists
Canada Customs lookouts
22. Canada Customs� conducts border checks through its Integrated Customs
Enforcement Service (ICES) system. An authorized Canada Customs officer may
initiate a lookout by entering a person’s name, vehicle or other information into
Prior to December 12, 2003, Canada Customs was part of the Canada Customs and Revenue
Agency (CCRA); however it is now part of the Canada Border Services Agency (CBSA). For the
sake of convenience (and since this change in organizational structure is not significant for the
purposes of this report) we have used the term “Canada Customs”.
�
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO AHMAD ABOU-ELMAATI
ICES. A lookout allows Canada Customs to monitor a person’s cross-border
movement into Canada and is triggered when the person’s passport is swiped
or the customs officer enters identifying information into the system. A lookout
can also direct customs officers to conduct a secondary examination of a traveller who crosses the border into Canada. The level of secondary examination
is at the discretion of the front line customs officer; it might involve a brief
interview or a more thorough search of the traveller’s bags.�
23. On September 29, 2001, Project O Canada requested lookouts for a number
of Project O Canada targets, including Mr. Elmaati. Lookouts were registered in
ICES and in the Canadian Police Information Centre (CPIC). CPIC is a central
computerized information system that provides all Canadian law enforcement
agencies with information on crimes and criminals. It is operated by the RCMP.
In the event of a criminal offence or conviction CPIC can receive information
from the ICES database.
U.S. border lookouts
24. Lookouts in the United States are conducted through the U.S. Customs
Treasury Enforcement Communications System (TECS). A variety of databases
feed into TECS, including terrorist watch list databases. Nineteen U.S. federal
agencies, as well as the RCMP, provide information for TECS. One of the
functions of TECS is to facilitate lookouts and checks on suspect individuals,
businesses, vehicles, aircraft and vessels; these lookouts are similar to Canadian
lookouts. Canadian agencies may request a TECS lookout for a given individual
but do not have access to the TECS system.�
25. In September 2001 CSIS learned that U.S. authorities had registered a TECS
lookout in Mr. Elmaati’s name so that he would be stopped, questioned, and
searched each time that he attempted to enter the U.S. Neither CSIS nor the
RCMP requested this lookout.
FBI watch list
26. In late September 2001, the FBI advised the RCMP that Mr. Elmaati had
been added to the FBI watch list. CSIS was also aware of this information. A
senior CSIS official told the Arar Inquiry that in the majority of cases the Service
�
�
For further information on Canadian lookouts, please see Commission of Inquiry into the Actions
of Canadian Officials in Relation to Maher Arar, Report of the Events Relating to Maher Arar:
Factual Background, Volume I (Ottawa: Public Works and Government Services Canada, 2006),
pp. 57-58 [Arar Inquiry, Factual Background, Vol. I].
For further information on U.S. lookouts, please see Arar Inquiry, Factual Background, Vol. I,
pp. 61-63.
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is unaware that an individual has been placed on a watch list. He did not think
that the Service had ever requested that anyone be put on a U.S. watch list.
27. In response to its inquiries about the watch list, the RCMP was told that
inclusion on the watch list did not necessarily mean that an individual was a
knowing or willing participant in criminal activity; rather it indicated that the
individual might possess information of value to an investigation.
Media reporting regarding “Kuwaiti man”
28. In mid-October 2001, there were media reports regarding a 36-year-old
Kuwaiti man who had been arrested by Canadian authorities in possession of
government maps. In response to these reports, a foreign agency wrote to
CSIS and requested further information on the identity of this individual. CSIS
informed the agency that the individual in question was Mr. Elmaati, and stated
that although there appeared to be no reason why Mr. Elmaati would have
had the map in his possession, further inquiries had revealed no sinister plans
towards the government buildings by Mr. Elmaati. The Service’s response also
stated that the map was likely 10 years old, and the newspaper article was
speculative in nature. The message was accompanied by two CSIS caveats.
29. Mr. Elmaati has publicly alleged that his lawyer left several telephone messages for the CSIS investigator who had previously interviewed Mr. Elmaati on
September 11, 2001 regarding Mr. Elmaati’s concerns over the media reporting, but his calls were never returned. When interviewed by Inquiry counsel,
this investigator responded that he had received one telephone message from
Mr. Galati, but that at that time the Service was in passive collection mode and
he did not have the authority to return the call without the approval of his
supervisor. According to the Service, there would have been a concern about
doing anything that might interfere with the RCMP’s investigation.
30. On October 31, 2001, CBC reporter Krista Erickson sent an email to the
Canadian Embassy in Kuwait asking the Embassy to clarify whether Mr. Elmaati
was suspected of being involved in terrorist activity. The Embassy in Kuwait
forwarded the email to DFAIT’s Foreign Intelligence Division (DFAIT ISI). Scott
Heatherington, the Director of DFAIT ISI, stated that he passed the information
to the RCMP, who, in accordance with its standard practice, would neither
confirm nor deny any investigation into Mr. Elmaati.
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO AHMAD ABOU-ELMAATI
Mr. Elmaati travels to Syria
Allegations against Mr. Elmaati’s brother Amr
31. On November 8, 2001, the RCMP received information that a foreign
agency believed that Mr. Elmaati’s brother, Amr Elmaati, had recently entered
Canada for the purpose of boarding a flight in Canada and diverting it to a target
in the United States. It is a matter of public record that U.S. authorities considered Amr Elmaati to be a serious terrorist threat. RCMP CID considered the
information received from the foreign agency to be credible and shared it with
the National Security Investigation Section of the RCMP, CSIS, Canada Customs,
Transport Canada, and Immigration Canada.
RCMP alerts Canadian authorities about Mr. Elmaati’s planned departure
32. On November 9, 2001, Project O Canada learned that Mr. Elmaati was planning to travel from Toronto to Syria on November 11, 2001, for his impending
wedding. The RCMP considered Mr. Elmaati a threat to the security of Canada
and the U.S. and feared that he might be planning to fulfill his brother’s alleged
hijacking plans. A member of RCMP CID took steps to ensure that no person
with the name Elmaati would be permitted to board a Canadian aircraft.
33. Unbeknownst to the member of RCMP CID, “O” Division had made a
decision to have Mr. Elmaati monitored on his journey and therefore took steps
to ensure that Mr. Elmaati would be allowed to board the aircraft. Project
O Canada planned to interview Mr. Elmaati at the airport in Toronto and then
have two members of the RCMP covertly accompany him on his flight through
Frankfurt to Vienna. Assistant Commissioner Richard Proulx, Head of RCMP
CID, authorized the RCMP covert escort of Mr. Elmaati to Vienna.
34. Inspector Keir MacQuarrie, the Officer in Charge of Project O Canada,
explained that the decision to accompany Mr. Elmaati to Vienna was made to
ensure that there was no security threat on the plane and to obtain information from him during the flight. Inspector MacQuarrie told the Inquiry that the
RCMP wanted to monitor Mr. Elmaati to Vienna because the RCMP was concerned about Mr. Elmaati diverting an airplane in accordance with his brother’s
alleged plan. The RCMP was of the view that if he travelled all the way to Vienna
and then boarded a flight for Damascus, there would no longer be a threat of
his diverting a plane because he would have demonstrated that he was indeed
travelling to Syria to be married. Inspector MacQuarrie told the Inquiry that
he did not have any knowledge or information about what would happen to
Mr. Elmaati when he arrived in Syria. Inspector Cabana told the Arar Inquiry
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that the RCMP was concerned about Mr. Elmaati boarding a plane, not the final
destination to which he was travelling.
35. On November 9, 2001, in anticipation of Mr. Elmaati’s departure, the
RCMP advised its liaison officers in Germany and Vienna of Mr. Elmaati’s travel
itinerary. They were directed to share the information with local agencies
as required. Inspector MacQuarrie told the Inquiry that the liaison officer
in Frankfurt was directed to alert local German authorities in case, during
Mr. Elmaati’s stop-over in Frankfurt, he decided to leave the airport; the RCMP
needed to have resources in place to follow him. Inspector MacQuarrie also
stated that the RCMP’s liaison officer in Vienna was alerted so that he could
confirm that Mr. Elmaati boarded the flight to Damascus, thereby negating
the threat.
36. On November 9, 2001, the RCMP also informed CSIS that Mr. Elmaati had
flight reservations for travel to Syria on November 11. According to a CSIS
official, the planned departure of Mr. Elmaati caused significant anxiety. The
Service had received the same information as the RCMP regarding Amr Elmaati’s
alleged plot to hijack a plane in Canada, and like the RCMP, was concerned
that perhaps Mr. Elmaati’s brother had asked him to do it for him. In its message to CSIS, the RCMP requested that CSIS not advise any other agencies of
Mr. Elmaati’s itinerary, because it could, and probably would, interfere with the
RCMP’s plans to monitor him covertly throughout his journey. A senior CSIS
official confirmed that CSIS did not communicate Mr. Elmaati’s itinerary to any
foreign agencies.
RCMP shares Mr. Elmaati’s itinerary with U.S. authorities
37. On November 10, 2001, the RCMP advised the CIA and FBI of Mr. Elmaati’s
travel plans and itinerary.
38. On November 10 and 11, 2001, Inspector Cabana met with Superintendent
Garry Clement, Assistant Criminal Operations (CROPS) Officer of “A” Division,
to discuss the issue of alerting American authorities. Superintendent Clement
then advised the CIA and FBI of Mr. Elmaati’s travel itinerary. However, it was
his understanding that the CIA was already aware of this information because
it had obtained the information from RCMP headquarters. Superintendent
Clement stated that it was within his purview to make the decision to disclose
this type of information to the American authorities without consulting anyone
more senior. He advised the Inquiry that in light of the information the RCMP
had received regarding the alleged threat to a U.S. target, it was his view that
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO AHMAD ABOU-ELMAATI
the American authorities must be notified. Around this same time, RCMP CID
had also notified the FBI of Mr. Elmaati’s intended departure.
39. The RCMP advised that sharing this information with the American authorities was consistent with the information sharing agreement that it understood
existed between the RCMP, CSIS, CIA, and FBI.
40. Inspector Cabana told the Inquiry that in light of the information received
about Amr Elmaati’s alleged plot to hijack a plane, the RCMP had a responsibility to advise the U.S. that Mr. Elmaati was about to board a plane in Canada.
Inspector Cabana testified in the Arar Inquiry that the decision to notify the
American authorities of Mr. Elmaati’s travel plans was a troubling one but he felt
that the RCMP had no choice: the U.S. authorities considered Amr Elmaati to be
a serious terrorist threat; Ahmad Elmaati had been stopped at the Canada-U.S.
border under suspicious circumstances; and the threat level in Canada at the
time was high. In his interview, Inspector Cabana further stated that whether
or not the RCMP provided Mr. Elmaati’s itinerary to the CIA, the itinerary would
have been available to the CIA. Other members of the RCMP agreed that since
there was a threat to the U.S., it was mandatory to pass along this intelligence;
the RCMP would have been remiss if it had not shared the information with the
U.S. authorities.
41. Former Commissioner Giuliano Zaccardelli did not recall having been
advised that the RCMP had shared Mr. Elmaati’s itinerary with the U.S.
However, in his view the sharing was acceptable because it was part of the
critical exchange of information. He stated that, at the time, the U.S. authorities were working with the RCMP and had full access to everything the RCMP
was doing.
Information shared without express caveats
42. In advising the CIA and FBI of Mr. Elmaati’s travel information, the RCMP
did not include express caveats about how the information could be used.
Assistant Commissioner Proulx told the Inquiry that while he did not know
whether the information shared with the CIA and FBI was shared with express
caveats, there is always an implied caveat that attaches to all information that
is shared.
Syrian authorities not informed
43. The RCMP did not notify the Syrian authorities of Mr. Elmaati’s itinerary.
According to Inspector Cabana, it did not do so because the threat was directed
at the American government, not the Syrian government, and the RCMP did
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not have a working relationship with the Syrian authorities. As stated at paragraph 34 above, according to Inspector Cabana, the RCMP was concerned about
Mr. Elmaati boarding a plane, not the destination to which he was travelling.
44. Another RCMP member testified at the Arar Inquiry that the RCMP did not
share this information with Syria because it did not have any kind of working
relationship with the Syrians. He also stated that he did not think the information was given to the Americans knowing that they would pass it along to
the Syrian authorities; he thought only that surveillance would be conducted
on Mr. Elmaati while in Syria. He told the Arar Inquiry that if the Americans
had passed the information along, it would potentially have been in breach
of the RCMP’s understanding regarding the sharing of information with the
American authorities.
Mr. Elmaati monitored from Toronto to Vienna
45. On November 11, 2001, Mr. Elmaati and his mother arrived at Pearson
International Airport. Mr. Elmaati was to depart Canada for Damascus connecting through Frankfurt and then Vienna. After obtaining their boarding passes
and just before passing through security, they were taken aside and separated.
Detective Sergeants Scott Mills and Dave Truax of the OPP (seconded to Project
O Canada) took Mr. Elmaati downstairs to an interview room. They asked
Mr. Elmaati about the purpose of his trip (which he said was to get married), the
planning of his trip (which he said had occurred ten days prior to departure),
and other details about his itinerary and items in his possession. Another officer took Mr. Elmaati’s mother aside and questioned her about their itineraries.
The officers then escorted Mr. Elmaati and his mother through security and to
the boarding gate, where they received new boarding passes with new seat
assignments.
46. Mr. Elmaati and his mother were covertly monitored on the flight to
Vienna by two RCMP officers. The RCMP had made a decision to accompany
Mr. Elmaati as far as Vienna and not to Damascus because its concern was the
flight from Canada to Vienna; it did not have a concern that he might divert an
airplane from Vienna. The RCMP was of the view that if it could ensure that he
boarded the plane and carried on with his travels from Vienna, the threat level
would dissipate.
47. The RCMP liaison officer stationed in Vienna, Inspector Patrick McDonell,
was asked to co-ordinate with Austrian authorities to ensure surveillance of
Mr. Elmaati and his mother from the time of their arrival in Vienna to the time of
their departure to their final destination. On November 11, Inspector McDonell
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO AHMAD ABOU-ELMAATI
met with several Austrian investigators at the airport in Vienna to request their
assistance in the surveillance of Mr. Elmaati and his mother the following morning. During this meeting, Inspector McDonell disclosed that Mr. Elmaati was of
interest to the RCMP based on a terrorism investigation in Canada.
48. On November 12, 2001, a foreign agency asked Inspector McDonell to
make arrangements with Austrian authorities to have Mr. Elmaati arrested once
he arrived at the airport in Vienna. Inspector McDonell refused. He had only
been asked by Project O Canada to monitor Mr. Elmaati and nothing more.
Mr. Elmaati was observed at the airport and permitted to board his next plane
as planned. Although the RCMP officers did not accompany Mr. Elmaati to
Damascus, they did confirm that he was on the plane. Inspector McDonell
reported his interaction with the foreign agency to Project O Canada the following day.
Mr. Elmaati detained in Syria
49. On November 12, 2001, CSIS learned that a foreign agency had taken steps
to have Mr. Elmaati detained and questioned along his travel route, including a
request to the Syrian authorities to do so. When CSIS received this information,
Mr. Elmaati had already departed from Europe and was on his way to Syria. CSIS
did not become aware of his detention until a few days later. The RCMP was
made aware of this same information on November 27, 2001.
DFAIT learns of detention
50. On November 13, 2001, Scott Heatherington, the Director of DFAIT ISI,
advised the Consular Affairs Bureau that DFAIT had learned that Mr. Elmaati had
been detained by Syrian authorities in Damascus, and suggested that inquiries
be made regarding whether he had sought consular access. Myra Pastyr-Lupul,
then case management officer for the Middle East at the Consular Affairs Bureau,
confirmed with the Embassy in Damascus on November 15 that Mr. Elmaati had
not yet sought consular access.
51. At the time DFAIT learned of Mr. Elmaati’s detention (on November 13,
2001), Gar Pardy, the Director General of the Consular Affairs Bureau, was out
of the country. He was in London from November 9 to November 19 and had
no knowledge of or involvement with the Elmaati case until his return.
DFAIT opens a CAMANT file for Mr. Elmaati
52. On November 16, 2001, having been advised by Sergeants Mills and Truax
of the OPP (who were seconded to Project O Canada) to do so, Mr. Elmaati’s
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aunt called DFAIT to advise that her nephew, Ahmad Elmaati, had gone missing while en route to Syria from Vienna. DFAIT then created its first CAMANT
note for Mr. Elmaati in which it asked the mission in Vienna to check on
Mr. Elmaati’s whereabouts.� Mr. Elmaati’s CAMANT file was originally opened
as a Vienna file because Vienna was the last place that Mr. Elmaati had been
seen. Ms. Pastyr‑Lupul was therefore not copied on the first CAMANT note, but
it was brought to her attention by the case management officer for Europe.
CSIS learns of detention
53. On November 15, 2001, the Service learned that Mr. Elmaati had been
detained in Syria. When forwarding this information from headquarters to its
offices in Washington and Toronto, CSIS headquarters commented that it was
possible that he had been detained at the request of a foreign agency.
54. A senior CSIS official could not recall whether anybody within CSIS briefed
DFAIT ISI about Mr. Elmaati’s detention in Syria, but stated that it was standard
operating practice to do so. He further stated that when information about a
Canadian in detention overseas is shared with ISI, the Service would expect ISI
to share this information with DFAIT’s Consular Affairs Bureau. According to
this official, the Service did not usually deal with the Consular Affairs Bureau
directly, but instead dealt with ISI and allowed ISI to pass the information along
to the Consular Affairs Bureau. In this case, a senior CSIS official stated that he
did not think that CSIS had alerted ISI. CSIS has no written record of having
advised DFAIT of Mr. Elmaati’s detention in Syria. It appears that DFAIT learned
of the detention two days before CSIS did, and that CSIS was not aware at that
time that DFAIT had this information.
RCMP learns of detention
55. Superintendent Clement, Assistant CROPS Officer at RCMP “A” Division,
learned of Mr. Elmaati’s detention on November 13, 2001. Superintendent
Clement told the Arar Inquiry that he assumed that there would be some justification for the arrest and that Mr. Elmaati would receive “some sort of process,”
albeit not necessarily to Canadian standards. He further stated that the RCMP
had no relationship with DFAIT at the investigative level and there was no obligation to notify DFAIT.
56. The RCMP instructed its liaison officer in Rome, Inspector Covey, to
determine whether Mr. Elmaati had been detained upon arrival in Syria and
�
The CAMANT System is a database used by the Consular Affairs Bureau to record all consular
activities related to Canadians abroad. For a more detailed discussion of the CAMANT System
see Chapter 3, paragraphs 22-28.
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO AHMAD ABOU-ELMAATI
where he was being detained. On November 15, 2001, Inspector Covey advised
Project O Canada that DFAIT would be approaching the Syrian authorities and
inquired whether he should still do so. In light of DFAIT’s involvement in the
case, Inspector Covey was told to refrain from approaching Syrian authorities
about Mr. Elmaati’s suspected detention.
57. On the same day, Inspector Covey exchanged a number of emails with
the RCMP liaison officer at DFAIT ISI regarding the detention of Mr. Elmaati. In
one of these emails, Mr. Covey wrote that if Mr. Elmaati was not already being
held in detention, as soon as consular officials started making inquiries with the
local police, he would be arrested and interrogated “Syrian style”. When asked
by Inquiry counsel about what he meant by “Syrian style,” Inspector Covey
stated that Syrian police and intelligence do not interview people in the same
way that Canadian authorities would. Inspector Covey told the Inquiry that
he had no indication of torture occurring in Syria, and no first- or second-hand
knowledge as to how Syrian authorities would interrogate people, but he was
convinced that detainees in Syria are treated worse than they are in Canada.
To what extent the treatment was worse, he could not comment. Inspector
MacQuarrie told the Inquiry that at the time he had no idea what was meant by
“Syrian style,” but he does now.
58. When interviewed, several members of the RCMP stated that, in all likelihood, Mr. Elmaati was detained as a result of information the U.S. authorities
had given to the Syrian authorities. When asked by Inquiry counsel whether
the RCMP had considered, at the time Mr. Elmaati’s itinerary was shared with
the U.S., whether it was reasonable to assume that the U.S. might take steps
that could cause Mr. Elmaati to be detained, Inspector Cabana stated that, in
retrospect, it was reasonable to assume that this was a possibility but at that time
the RCMP did not consider the issue. Its primary concern was the threat to the
U.S. As Justice O’Connor found in the Arar Inquiry, it is reasonable to assume
that Syria was informed of Mr. Elmaati’s arrival by U.S. authorities, and that
Project A‑O Canada would have been aware that the Americans had informed
the Syrians of Mr. Elmaati’s arrival in Syria.
RCMP interviews Mr. Elmaati’s aunt
59. On November 16, 2001, Detective Sergeants Mills and Truax interviewed
Mr. Elmaati’s aunt in furtherance of Project O Canada’s investigation into
Mr. Elmaati (who had been seen at her residence on numerous occasions).
Mr. Elmaati’s aunt told the Inquiry that based on their questions, she felt that
she had to convince the detectives that her nephew had gone to Syria for the
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purpose of getting married. She recalled that one of the detectives seemed
surprised to learn that Mr. Elmaati had gone to Syria for a wedding, saying that
if he had known, he would have advised Mr. Elmaati not to go when he stopped
him at the airport. She did not ask the detectives how he would have stopped
Mr. Elmaati from going, nor did the detective suggest that he had the power to
do so. When interviewed by Inquiry counsel, Detective Sergeant Mills stated
that he could not recall having made this statement to Mr. Elmaati’s aunt and
that he had had an indication in advance of the interview of Mr. Elmaati that the
purpose of his trip to Syria was to be married. He said that this was confirmed
by Mr. Elmaati when he interviewed him at Pearson International Airport on
November 11. At this meeting, as discussed at paragraph 52 above, Detective
Sergeants Mills and Truax advised Mr. Elmaati’s aunt to contact DFAIT and
report that Mr. Elmaati was missing.
Suggestion that RCMP “complicit” in Mr. Elmaati’s detention
60. A year after Mr. Elmaati’s arrest in Syria, a briefing note was prepared
for RCMP Commissioner Zaccardelli, dated November 21, 2002 and signed by
Assistant Commissioner Proulx, regarding the RCMP’s exchange of information
with the U.S. authorities prior to Mr. Elmaati’s departure from Canada. The
briefing note stated that based on the travel information that the RCMP had
provided to the American authorities, the RCMP could be considered “complicit” in Mr. Elmaati’s detention in Syria. The briefing note also stated that
there “was NO RCMP complicity or involvement” in Mr. Almalki’s detention by
Syrian authorities.
61. Former Commissioner Zaccardelli stated that he reviewed the briefing note
at the time but could not recall taking any action as a result of it. He stated that
the issue of complicity flowed from allegations in newspaper articles, and that
he would have expected that the RCMP Policy Centre that wrote the briefing
note would follow up on the allegations. Former Commissioner Zaccardelli
could not recall having briefed the Minister on the issue of complicity and was
of the view that there were no grounds to do so. He stated that more work
would have had to be done to determine whether the RCMP was indeed complicit before it would have been appropriate to brief the Minister.
62. Assistant Commissioner Proulx told the Arar Inquiry that he did not believe
the RCMP was in fact complicit, and that, when he signed the briefing note, he
was not referring to complicity in the criminal sense. He stated that it was the
public and the media who would consider the RCMP’s actions to be complicit.
The briefing note was drafted in response to published news articles regarding
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the RCMP’s alleged involvement in the arrest and detention of Canadian citizens abroad. The purpose of the briefing note was therefore to advise the
Commissioner on the cases of Mr. Elmaati, Mr. Almalki and Mr. Arar. Since the
RCMP had directly advised the CIA of Mr. Elmaati’s travel plans and provided
the CIA with his specific travel itinerary on request, there was a concern that
the public and the media might consider the RCMP’s actions in respect of
Mr. Elmaati to be complicit.
63. Superintendent Pilgrim told the Inquiry that although the RCMP provided
the Americans with Mr. Elmaati’s travel information he did not think that the
RCMP was complicit. According to Superintendent Pilgrim, the information was
provided to the Americans in good faith. However, what the Americans did
with the information after that was, in Superintendent Pilgrim’s view, beyond
the RCMP’s control.
64. There were several drafts of the briefing note. An earlier draft, dated
November 15, 2002, stated that Mr. Elmaati’s subsequent detention by Syrian
authorities was “NOT based on any cooperation/information provided by the
RCMP.” Assistant Commissioner Proulx told the Inquiry that he crossed out
those words and made notes in the margin that “the RCMP never requested the
detention of Elmaati by the Syrian authorities.” Other handwritten notes on this
earlier draft suggest a further revision to the second paragraph of the briefing
note to reflect that “American agencies were directly advised by RCMP that
Almaati (sic) was travelling to Syria. The American agencies were unaware of
this and requested travel specifics which were given to them by RCMP. AlMaati
(sic) was then arrested by Syrian authorities.” The RCMP was unable to provide
the Inquiry with information that would identify the author of these notes.
When asked about the revisions to the final briefing note and the comments
made on this earlier draft, Assistant Commissioner Proulx told the Inquiry that
these comments reflected what was known at the time: that the RCMP had
given Mr. Elmaati’s travel itinerary to the Americans and, as it later found out,
Mr. Elmaati was arrested in Syria seemingly on the information provided by the
Americans—who could be considered complicit—without the RCMP having
ever asked for his arrest. Assistant Commissioner Proulx added that it was not
in the RCMP’s interest for Mr. Elmaati to be arrested in Syria.
65. Other members of the RCMP stated that they did not view the statement as
an admission that the RCMP was in fact complicit, and it would have been more
appropriate to have said the RCMP’s actions might be considered complicit.
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Mr. Elmaati’s alleged confession
66. In mid-November 2001, CSIS and the RCMP received unsolicited information from a foreign agency that was said to have been obtained from Mr. Elmaati
while in detention in Syria. This information included the existence of an
alleged plot by Mr. Elmaati to blow up the Canadian Parliament buildings with
a truck bomb and the existence of an alleged terrorist cell in Canada.
CSIS assessment of alleged confession
67. When it received this information in November 2001, the Service immediately sought details concerning Mr. Elmaati’s detention in Syria and the specific
line of questioning used in his interrogation. The Service had some concerns
regarding the information in the alleged confession. It was concerned about
how much information might have been passed to the Syrian authorities by foreign agencies before the interrogation began and how much prompting might
have been provided.
68. Jack Hooper, then the Director General of CSIS’ Toronto office, thought
that the document could not be credibly viewed as the exclusive product of
statements by Mr. Elmaati, given the detail and quality of the information provided. Mr. Hooper considered the alleged confession to be a blend of actual
statement, analysis, assessment and conjecture.
69. In late November 2001, CSIS shared the Service’s concerns about the reliability of the alleged confession with the RCMP.
70. A senior CSIS official stated that, while the Service had a credible basis on
which to dismiss some of the information, the Service considered the alleged
threat to Parliament Hill to be fairly credible. In late November, 2001, the
Service issued a threat assessment based on this information.
71. Threat assessments are issued if the Service has information about a credible threat. An assessment of the alleged threat to Parliament Hill was drafted
by the Service and sent to a number of government departments including
the RCMP, DFAIT, Solicitor General, Communications Security Establishment,
National Defence, Privy Council, Transport Canada, and Canada Customs.
The assessment discussed the alleged planning of an attack on the Canadian
Parliament buildings and stated, without naming the individual involved, that
the individual was currently detained abroad. The threat assessment did not
identify how or from whom the information had been obtained.
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Consideration whether information derived from torture
72. According to Mr. Hooper, the Service rarely dealt with intelligence reports
derived from sources where torture was of concern. Information received by
the Service, irrespective of the source, would be evaluated in fundamentally
the same way in order to determine its reliability and veracity. Mr. Hooper
commented that the Service does not put stock in information that derives
from abusive or coercive means. If it was determined that the sources of the
information were questionable, the Service would not share the information and
would make little if any use of it. Mr. Hooper stated that the art of the business
is performing the balancing act between the consequences of acting on information that was likely the product of torture and the potential consequences
of not acting. According to Mr. Hooper, he never took the next step of trying
to determine whether or not Mr. Elmaati’s alleged confession was extracted
through the use of torture because as an intelligence product, it was virtually
useless as a stand-alone report.
73. A senior CSIS official told the Arar Inquiry that there were no personnel
within the Service who had been trained in, or had particular expertise in,
assessing whether a statement was the product of torture. When asked whether
there were outside experts on this issue, the same official stated that he believed
that there were people in Amnesty International and human rights groups who
had interviewed people who had been tortured and who would be able to
provide as close as one could get to expert testimony on the issue. However,
he said that there were no such experts within the Service, and he had never
personally consulted such an expert outside the Service. Like Mr. Hooper, this
official stated that the Service would assess any statement to determine its validity and whether it was capable of corroboration.
RCMP assessment of alleged confession
74. The RCMP had some concerns regarding the reliability of Mr. Elmaati’s
alleged confession. Superintendent Wayne Pilgrim, the Officer in Charge of
the National Security Investigations Branch (NSIB) at RCMP headquarters, felt
that some of the information was too specific and detailed. It therefore raised
a concern that some of the information might have been fed to Mr. Elmaati
by the interviewers and then subsequently documented as having come from
Mr. Elmaati himself.
75. Similarly, Inspector MacQuarrie’s view was that the alleged confession
was too perfect a statement and it contained answers to questions the RCMP
would have expected to get before the interview was even conducted. When
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asked what he meant, Inspector MacQuarrie told the Inquiry that the information contained in the alleged confession suggested that the interrogators had
the same information as the RCMP regarding Mr. Elmaati and that Mr. Elmaati
had somehow corroborated it all. This caused Project O Canada to question the
validity of the information. According to Inspector MacQuarrie, it was possible
that it reflected circular reporting, although he was not aware of anyone having
provided the interrogators with RCMP information.
76. The RCMP conducted an analysis of the alleged confession which involved
comparing it to the information the RCMP had previously obtained. Despite
the concerns expressed by some members of the Force, and the concerns
communicated to the RCMP by representatives of the Service, the analysis
corroborated significant portions of the alleged confession. For example: (1)
the RCMP confirmed that Mr. Elmaati had taken flying lessons in August 1999,
which, in its view, corroborated Mr. Elmaati’s alleged statement that he had
been instructed by his brother in February 1999 to do so; (2) the RCMP confirmed that Mr. Elmaati was a truck driver and had made several trips to Ottawa
in 2001, which, in its view, corroborated Mr. Elmaati’s alleged statement that
he planned to bomb the Parliament Buildings using a truck bomb; and (3) the
RCMP viewed the map of Tunney’s Pasture as corroborative of Mr. Elmaati’s
alleged statement that his brother had sent him the map and instructed him to
select a target location. The RCMP was therefore of the view that the alleged
confession was reliable and valid.
77. In late November 2001, Project A‑O Canada held a meeting to discuss
the direction of the investigation in light of Mr. Elmaati’s alleged confession.
Although Mr. Elmaati had been a target of Project O Canada up to this point,
based on this new information the Project A‑O Canada investigation was
expanded to include Mr. Elmaati and the alleged threat to Parliament Hill. The
meeting agenda included the use of the alleged confession to obtain search warrants, sending Project A‑O Canada investigators to Syria, and corroboration of
the information. According to Superintendent Clement, the RCMP wanted to
interview Mr. Elmaati regarding the alleged threat to Parliament Hill because it
could not simply rely on what he described as a chopped-up version of a statement that came in pieces through other sources.
78. Former Commissioner Zaccardelli did not recall having been briefed on
Mr. Elmaati’s alleged confession and, consequently, did not recall anyone from
the RCMP raising any concerns relating to it. When asked by Inquiry counsel
whether the alleged confession should have been brought to his attention,
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former Commissioner Zaccardelli said that he would not speculate and the best
answer he could give was that he had not been made aware of it at that time.
79. In light of Mr. Elmaati’s alleged confession, the Threat Assessment Branch
of CID issued a threat assessment level of “high” for Parliament Hill in late
November 2001. In December 2002, the threat level was reduced to “medium”
on the grounds that the alleged threat had been made over a year earlier and
the RCMP’s investigations had not revealed any corroborative evidence that the
plot would be executed, especially since the person the RCMP considered to
be the “main player,” Mr. Elmaati, was now detained in Egypt. The threat level
remained at “medium” for several years. The RCMP did not know the location
of the threat’s alleged instigator, Amr Elmaati, or whether there were others
associated with the threat to Parliament Hill.
Consideration whether information derived from torture
80. Superintendent Pilgrim could not recall any discussion of the possibility that Mr. Elmaati had been ill-treated or tortured at the time the RCMP was
conducting its assessment of the information. Both Inspector MacQuarrie and
Corporal O’Neil told the Inquiry that in analyzing the information, no consideration was given to the conditions under which the information might have
been provided to the Syrian authorities. Similarly, Assistant Commissioner
Proulx stated that the possibility of torture was not a common subject at the
time, and to his knowledge, there was never anyone who said that Mr. Elmaati
had been tortured.
81. Inspector Cabana had no direct knowledge of State Department reports or
reports from Amnesty International that claimed that Syria engages in torture.
He stated that he knew that Syria had a different approach to human rights and
that the Charter of Rights did not apply; however he was unaware of these
reports. Superintendent Clement stated that while detention facilities would
not meet RCMP standards, there are many countries with similarly poor detention facilities.
Mr. Elmaati’s description of the alleged confession
82. Paragraphs 12 to 25 of Chapter 7 set out Mr. Elmaati’s description of his
interrogation and treatment during his first few days of detention in Syria. As
outlined in that chapter, Mr. Elmaati told the Inquiry that his statements were
the product of torture.
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CSIS attempts to clarify information
83. According to a senior CSIS official, in order to assess the credibility of
the information, it was important to understand what information had been
injected into the process. The Service therefore drafted and sent a number of
clarification questions to a foreign agency in order to determine whether other
intelligence or law enforcement agencies had played a role in the Syrian information-gathering process. The questions pertained to how Mr. Elmaati came to be
detained and the circumstances that led to his alleged confession. There were
no questions about his treatment during interrogation. A senior CSIS official
stated that there were no questions about treatment because, at the time, the
Service had no information to indicate that Mr. Elmaati’s treatment should be
a subject of inquiry. Based on the results of these clarification questions, the
Service concluded that Syrian authorities had relied on their own information.
84. CSIS provided its analysis of the alleged confession, including its concerns
over certain discrepancies in the information allegedly obtained and discussed
above at paragraphs 67 to 71, to the RCMP and a foreign agency. The analysis
contained standard CSIS caveats.
CSIS learns that alleged confession shared with multiple foreign countries
85. In late November 2001, the Service received a summary version of
Mr. Elmaati’s alleged confession from a foreign agency. CSIS then provided that
agency with a copy of its analysis of the alleged confession. Soon afterwards,
in January 2002, the Service learned that another foreign agency might have
shared the summary version of Mr. Elmaati’s alleged confession with another
foreign agency, which might then have shared it with a number of other foreign
agencies, and thus created a risk of circular reporting. Aside from its concerns
over the possible circular reporting, the Service was also concerned that this
information had been shared without the Service’s assessment.
DFAIT consular officials not informed of alleged confession
Sharing of information with DFAIT ISI
86. It is unclear on what date DFAIT ISI became aware of Mr. Elmaati’s alleged
confession in Syria. While Mr. Heatherington’s notes for November 19, 2001
contain information similar to that provided to CSIS concerning Mr. Elmaati’s
interrogation, Mr. Heatherington was not able to specifically recall who shared
that information with him.
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87. Don Saunders, policy advisor for DFAIT ISI, stated that he first learned
of Mr. Elmaati’s alleged confession from a foreign intelligence partner
in early January 2002. He further stated that he could not explain where
Mr. Heatherington would have obtained the information that is reflected in
his notes dated November 19, 2001 and that if Mr. Heatherington shared that
information with him at the time, he could not recall it.
88. In early February 2002, CSIS provided DFAIT ISI with information obtained
from Mr. Elmaati while he was in detention in Syria.
Consular Affairs Bureau unaware of interrogation
89. The Consular Affairs Bureau was not made aware of Mr. Elmaati’s interrogation or his alleged confession at this time. Mr. Pardy stated that he was aware
Mr. Elmaati had been interviewed prior to his departure from Toronto. However,
he was not informed of the interrogation, or the resulting alleged confession.
90. Mr. Pardy stated that, based on his experience, he would not have had an
expectation that this kind of information would be shared with the Consular
Affairs Bureau by CSIS or the RCMP because the Consular Affairs Bureau was
considered to be civilian. However, it was Mr. Pardy’s opinion that in the best
of all worlds, that kind of information should be made available. According to
Mr. Pardy, the information shared by CSIS or the RCMP would not have had to
include details because the only thing that the Consular Affairs Bureau would
be looking for is confirmation; it took some time before the Consular Affairs
Bureau could be definitive that Mr. Elmaati was even in Damascus.
91. Mr. Pardy told the Inquiry that, if he had been aware of Mr. Elmaati’s interrogation, he would have been more definitive in his communications with the
Syrian authorities. According to Mr. Pardy:
The worst treatment always occurs up front, literally within hours or within days
of the person that is detained. Over time probably the abuse and torture lessens.
But at the same time, this is why you would like to be in there almost at the same
time as the individual who was detained, but that doesn’t happen.
92. During her interview by Inquiry counsel, Ms. Pastyr‑Lupul learned for the
first time that CSIS had been aware, as of November 19, 2001, that Mr. Elmaati
was being detained and interrogated by Syrian authorities. Ms. Pastyr‑Lupul was
surprised that this information had not been shared with her at the relevant time
and stated that it would have been very helpful for case management to have
been informed that Mr. Elmaati was in custody. She told the Inquiry that DFAIT
would have dealt with the Syrian authorities in a different way had it known
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this was an arrest and detention case. Its focus would have extended beyond
trying to determine where Mr. Elmaati was being held.
CSIS sends questions to be put to Mr. Elmaati
93. In early December 2001, the Service sent questions to a foreign agency to
be sent to Syrian authorities to be put to Mr. Elmaati. The questions addressed
various topics, including Mr. Elmaati’s background, his move to Canada, the
places he has lived, his training in Afghanistan, his flight training, his associates, his communications with his brother, and the alleged plan to bomb the
Parliament Buildings. These questions were sent with two standard CSIS caveats
(described above in Chapter 3, paragraphs 22 to 28).
94. A CSIS official stated that the Service was developing its questions to test
the veracity of the information derived from Mr. Elmaati’s interrogation and
determine whether any other agencies had added an assessment of the information along the way. The official stated that the Service was trying to make
the questions very specific; it did not want to identify additional areas of questioning to pursue. The Service’s expectation was that some of the questions
would be put to Mr. Elmaati. To the knowledge of the CSIS official, the Service
did not reflect on whether this would require that Mr. Elmaati continue to be
detained. The official said that the Service did not have any expectation about
whether the questions could possibly prolong Mr. Elmaati’s detention; since
this was the first time that a Canadian had been detained in this atmosphere,
the Service did not know how things were going to go. Mr. Elmaati was the
first Canadian to be detained in the Middle East on security-related grounds after
September 11, 2001.
95. Mr. Hooper stated that when questions are sent to a foreign agency to be
put to a detainee, it can sometimes make the situation better, and sometimes
make it worse. However, in every case the decision whether to send questions
involves a judgment call: the Service must weigh the interests of Canadian security and the possible detriment to the individual. He further stated that questions can be crafted to mitigate the adverse consequences to an individual.
96. In early January 2002, the Service received answers, through a foreign
agency, to some of the questions that it had submitted in December 2001.
DFAIT not consulted about sending of questions
97. Neither the Consular Affairs Bureau nor DFAIT ISI was informed or consulted about the Service’s plan to send questions to be asked of Mr. Elmaati by
Syrian authorities. Mr. Saunders stated that he was unaware that CSIS was
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sending these questions. When asked whether he would have expected that
CSIS would consult ISI about this, Mr. Saunders stated it might not be required
by the terms of agreement between the Service and DFAIT. According to
Mr. Saunders, the main instrument that governs the relationship between DFAIT
and CSIS is a Memorandum of Understanding (MOU) written in 1985. The MOU
requires CSIS employees abroad to keep heads of mission apprised of Service
activities without revealing operational details. Mr. Saunders indicated that the
MOU is sufficiently vague that the sending of questions could be considered
operational in nature and therefore there would be no obligation for CSIS to
consult ISI.
98. Mr. Pardy stated that he would have liked to have been informed that
CSIS was sending the questions because DFAIT had no information regarding
Mr. Elmaati’s situation with the Syrian authorities. Mr. Pardy stated that if he
had been informed of the Service’s intention to send questions to be asked
of Mr. Elmaati, he would have assumed that the Syrian authorities would use
their traditional methods of extracting information from detainees and that the
methodology they would use would not be gentle.
Consular Services in Syria
Diplomatic note to Syria
99. On November 21, 2001, DFAIT directed consular officials at the Canadian
Embassy in Damascus to send a diplomatic note to the Syrian government
inquiring whether it had any information with respect to Mr. Elmaati. On
November 22, nine days after DFAIT first learned of his detention, consular
officials sent the diplomatic note. The text of the note was drafted primarily
by Mr. Pardy. The Consular Affairs Bureau recognized that the Syrian Ministry
of Foreign Affairs (MFA) was notorious for not acknowledging or responding
to diplomatic notes. Mr. Pardy told the Inquiry that, if he had been aware that
Mr. Elmaati had been interrogated, he would have used “more definitive” language in the diplomatic note. For instance, he would have included information that Mr. Elmaati had arrived in Damascus on a specific date and was being
detained by the Syrian authorities. On December 2, 2001, consular officials met
with officials from Syria’s Ministry of Foreign Affairs, who confirmed that the
diplomatic note of November 22 had been sent to the Ministry of the Interior.
Diplomatic note to Egypt
100. Between November 21 and December 2, 2001 consular officials received
conflicting reports from Mr. Elmaati’s family about where Mr. Elmaati was being
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detained. On November 21, Mr. Elmaati’s aunt called Ms. Pastyr‑Lupul and
advised that family in Syria had received information that Mr. Elmaati had been
arrested by Syrian authorities upon his arrival and the parents of Mr. Elmaati’s
fiancée were searching for him. The following day, Ms. Pastyr‑Lupul spoke to
Mr. Elmaati’s father, Badr Elmaati, who advised that, according to the family of
Mr. Elmaati’s fiancée, Mr. Elmaati had been detained in Damascus for two and a
half days, before being transferred to the External Security Section of the Police
Department in Cairo, Egypt. A few days later, DFAIT directed the Canadian
Embassy in Cairo to send a diplomatic note to Egyptian State Security inquiring
about Mr. Elmaati.
101. On November 25, 2001, based on the information described above,
DFAIT sent a diplomatic note to the Egyptian government inquiring whether it
had any information with respect to Mr. Elmaati.
102. On November 28, 2001, the Canadian Embassy in Cairo received a
fax from Mr. Elmaati’s Member of Parliament, John Godfrey. The fax said
that Mr. Elmaati was being held at the External Security section of the Police
Department in Cairo and had been held there since November 14. The fax also
stated that Mr. Elmaati’s father wanted to know why he was being detained and
wanted him to be provided with a lawyer.
103. Later that same day, the Embassy was advised by its contacts at Egyptian
State Security that Mr. Elmaati was not in Cairo and that there was no record of
him entering Egypt. Stuart Bale, consul at the Canadian Embassy in Cairo, considered these contacts to be bona fide sources of information. On November 29
and December 2, the Canadian Embassy in Damascus spoke to Mr. Elmaati’s
fiancée’s family, who said that they had no idea of Mr. Elmaati’s whereabouts,
but that they assumed he was in Cairo.
104. In late November 2001, Egypt responded to DFAIT’s diplomatic note of
November 25, stating that it had no record of Mr. Elmaati entering Egypt.
105. Throughout this period, Ms. Pastyr‑Lupul spoke on several occasions with
Badr Elmaati and on one occasion with Mr. Elmaati’s family in Egypt to update
them on the efforts that were being taken to locate Mr. Elmaati.
Ambassador Pillarella discusses Mr. Elmaati with Deputy Minister Haddad
106. By the end of December 2001, the Consular Affairs Bureau had not yet
received confirmation of Mr. Elmaati’s detention in Syria; nor was it aware of
his interrogation, his resulting alleged confession, and the follow-up questions
sent by CSIS. Despite several attempts by consular officials to follow up on the
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first diplomatic note to Syria, the Consular Affairs Bureau had not yet received
a response. In an effort to address the matter at a “higher level,” Mr. Pardy
requested that Ambassador Franco Pillarella, the Canadian Ambassador to Syria,
contact the Syrian MFA directly.
107. On December 24, 2001, the Ambassador met with Deputy Minister
Haddad, of the Syrian MFA, and provided him with a letter from Austrian Airlines
confirming Mr. Elmaati’s flight to Damascus.
Syrian Ministry of Foreign Affairs confirms detention
108. On December 30, 2001, DFAIT received a diplomatic note from the Syrian
MFA advising that Mr. Elmaati had entered Syria on November 12, 2001 and
was residing in Damascus. The following day, on December 31, Ambassador
Pillarella received a phone call from the office of Deputy Minister Haddad,
confirming that Mr. Elmaati was being detained by Syrian authorities. He was
also advised that Mr. Elmaati was considered to be Syrian, and therefore fell
under Syrian jurisdiction. Ambassador Pillarella told the Inquiry that whenever
the Syrian authorities consider that an individual is of Syrian origin or a Syrian
citizen, it is standard for them to consider the individual not to be a concern of
the Canadian Embassy.
109. On January 2, 2002, Ambassador Pillarella telephoned the RCMP’s liaison
office in Rome to advise that he had received a telephone call from the Syrian
Ministry of Foreign Affairs on December 31, 2001, confirming that Mr. Elmaati
was being detained in Syria and advising that Canadian authorities should not
concern themselves with the case because Mr. Elmaati was considered Syrian.
Ambassador Pillarella informed the liaison office that the Embassy in Syria was
treating the case as a consular matter and would be sending a diplomatic note
to request access. In the report of this telephone call to Project O Canada, the
Rome liaison office wrote that it would refrain from making further inquiries
of Syrian authorities because DFAIT was treating the matter as consular. The
letter also noted that Ambassador Pillarella had already or would shortly be
briefing DFAIT headquarters in Ottawa and suggested that perhaps the RCMP
and DFAIT would discuss the best way to proceed. When asked about this
telephone call, Ambassador Pillarella stated that he was simply informing the
liaison office of what he had been told by the Syrian authorities. According to
DFAIT, the Head of Mission is responsible for every program under his purview,
not just consular services. The Inquiry was advised that the Ambassador had
been aware, since the outset of Mr. Elmaati’s detention, of the RCMP’s interest
in the case. Mr. Covey had, in November 2002, been directed to coordinate his
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activities with Ambassador Pillarella and share information with him on a “priority basis”. According to DFAIT, in these circumstances it was appropriate for the
Ambassador to promptly notify both DFAIT and the RCMP when he received
confirmation from the Syrian MFA.
110. Ms. Pastyr‑Lupul shared the news of Syria’s response with Badr Elmaati
on January 2, 2002. Badr Elmaati was surprised to learn that Syrian authorities considered Mr. Elmaati a Syrian citizen; he advised Ms. Pastyr‑Lupul that
Mr. Elmaati was an Egyptian citizen. The Embassy later obtained a legal opinion
from a Syrian lawyer confirming that since Syrian law traces nationality through
a person’s father, and Mr. Elmaati’s father was Egyptian, Mr. Elmaati was
also Egyptian.
Consular attempts to obtain response to diplomatic notes
111. On January 3, 2002, DFAIT sent a second diplomatic note to Syria stating that Mr. Elmaati was a Canadian citizen and requesting consular access.
On February 5, DFAIT sent a follow-up diplomatic note to Syria requesting a
response to the diplomatic note of January 3. On the same day, representatives
of the Embassy met with the consular section of the Syrian MFA. They were
told that Mr. Elmaati was not being detained but was “residing” in Damascus.
Regular contact with Mr. Elmaati’s family
112. Throughout this period, DFAIT provided Badr Elmaati with regular
updates regarding Mr. Elmaati’s case.
RCMP attempts to interview Mr. Elmaati in Syria
113. By December 2001, Project A‑O Canada officials had formed the view
that an interview of Mr. Elmaati in Syria would be an important step in their
investigation, and had discussed that possibility with a U.S. agency. The RCMP
felt that it could not completely rely on the information in Mr. Elmaati’s alleged
confession. In order to move its investigation forward, it sought access to
Mr. Elmaati to determine whether there was a bona fide threat against Canadian
interests and to shed some light on the relationship between Mr. Elmaati and
Mr. Almalki.
114. On January 9, 2002, the RCMP contacted its liaison officer in Rome,
Inspector Covey, to request assistance in gaining access to Mr. Elmaati in Syria
for the purpose of conducting an interview. The RCMP provided Inspector
Covey with details of its investigation and interest in Mr. Elmaati, and referred
to efforts that had already been made to gain access. Project A‑O Canada
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officials made representations to, and sought the assistance of, the U.S. agency
in this regard.
115. The RCMP did not consider torture to be an issue at that time; what
was of concern was whether Mr. Elmaati’s alleged confession would be admissible in a Canadian court, and whether there had been non-compliance with
Canadian law in the way the statement was taken. Superintendent Clement
told the Arar Inquiry that, although Project A‑O Canada investigators had some
concerns about whether Mr. Elmaati’s alleged confession had been the product
of physical abuse, Project A‑O Canada investigators had no evidence of any
torture at that time.
116. The RCMP made efforts to get access to Mr. Elmaati through both its liaison officer in Rome and its contacts with the U.S. agency. In January 2002, there
were different views within the RCMP as to which approach would prove most
effective. Inspector Covey was concerned that having many different groups
contacting the Syrian authorities was creating confusion and that he was best
situated to pursue the RCMP’s interests with the Syrian authorities. By contrast,
Superintendent Clement was of the view, from the beginning, that the RCMP
should work with the U.S. agency to get access.
117. Superintendent Clement told the Inquiry that in his view, the fact that
the RCMP was making efforts to interview Mr. Elmaati in Syria would have
been beneficial to his treatment. Although Superintendent Clement knew
very little about Syria, he held a strong belief that the RCMP’s interest in interviewing Mr. Elmaati would have put Mr. Elmaati into an international spotlight and had a positive, and not a negative, effect on his treatment. Similarly,
Superintendent Pilgrim stated that if the RCMP was pursuing an interview with
Mr. Elmaati, the authorities who were detaining him would probably treat him
in a better manner.
118. Former Commissioner Zaccardelli was aware that attempts were being
made to interview Mr. Elmaati while he was in detention. He became aware of
these attempts as part of the general discussions that occurred during his normal
briefings. Former Commissioner Zaccardelli stated that it was normal practice,
as part of an investigation, to attempt to interview someone who is believed to
be of interest to the investigation or to have information relative to a serious
threat. In pursuing an interview, the RCMP would take into account “a whole
series of factors,” including consultation with key partners at the government
level. Former Commissioner Zaccardelli did not recall that any question of the
conditions under which Mr. Elmaati was being detained was raised at these
briefings. Former Commissioner Zaccardelli did not provide the RCMP with any
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guidance on whether an interview of Mr. Elmaati should be pursued; nor would
he expect to be asked for guidance, because there was a Deputy responsible
for operations who would have had access to the relevant information.
119. At the end of January 2002, Superintendent Clement discussed the possibility of an RCMP interview of Mr. Elmaati with a U.S. agency. In a discussion
between Superintendent Clement, Inspector Cabana and a representative of
the U.S. agency, the representative asked what the RCMP’s position would be
if Mr. Elmaati claimed torture. In his interview for the Inquiry, Superintendent
Clement stated that if the RCMP had interviewed Mr. Elmaati in Syria and he had
alleged torture, he would have documented the allegations, noted Mr. Elmaati’s
demeanour and apparent injuries, and then immediately gone to the Ambassador,
who could then have followed up with consular officials. Inspector Cabana
agreed with Superintendent Clement that if Mr. Elmaati had alleged torture, the
responsibility of the RCMP would be to inform DFAIT of the issue.
120. The RCMP did not succeed in obtaining an interview of Mr. Elmaati
in Syria.
RCMP search warrants and January 2002 searches
121. Justice O’Connor made extensive factual findings with respect to the
RCMP’s application for a search warrant and its conduct of searches in January
2002. Consistent with the Terms of Reference for this Inquiry, those findings
are largely not repeated here. For further discussion of these matters, please
refer to the Report of the Events Relating to Maher Arar: Factual Background,
Volume I, chapters 3.9 and 4.1-4.3. The following narrative highlights some of
the facts particularly relevant to the issues in this Inquiry.
RCMP requests warrants
122. By the end of 2001, Project A‑O Canada had exhausted its domestic leads
and decided to conduct searches to determine whether the original threats were
founded, and whether anyone still in Canada might be considered a threat. As
the Arar Inquiry publicly reported, when applying for the search warrants, the
RCMP relied on information derived from Mr. Elmaati’s alleged confession in
Syria. Project A‑O Canada identified Syria as the source of the information but, as
discussed at paragraph 128 below, did not mention its human rights record.
123. Project A‑O Canada investigators were of the view that Mr. Elmaati’s
alleged confession would be useful in obtaining the warrants. When it first
considered applying for the search warrants, Project A‑O Canada had only a
summary of the alleged confession, not the original Arabic version. Project
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A‑O Canada did not receive a more detailed, un-translated version of the alleged
confession until the summer of 2002, when it was received directly from the
Syrian Military Intelligence (SyMI). The translated version did not conflict with
the summary the RCMP had received earlier.
124. To the extent that Project A‑O Canada wanted to use information from
foreign agencies in its applications for search warrants in January 2002, it first
sought the consent of the providing agencies.
The possibility that the alleged confession was obtained by torture
125. Inspector Cabana told the Arar Inquiry that, prior to drafting the
Information to Obtain (ITO), the investigative team had discussions with CID,
CSIS, Department of Justice (DOJ) lawyers and a foreign agency regarding use
of the alleged confession because of the concern that it might have been the
product of torture. However, Inspector Cabana told the Inquiry that, while the
group realized that the statement was likely not taken pursuant to Canadian
standards, Project A‑O Canada had no evidence at that time that torture had
been used to obtain the statement.
126. Staff Sergeant Callaghan of the Ottawa Police Service (seconded to Project
A‑O Canada) testified in the Arar Inquiry that he could not recall any discussions
about Syria’s human rights record or the possibility of torture having been raised
at that time.
127. When interviewed for the Inquiry, Superintendent Clement stated that
Project A‑O Canada investigators had no information that Mr. Elmaati had
been tortured when they applied for the search warrants, that the vast majority of investigators who draft ITOs would not have first-hand knowledge of
Syria’s human rights record to make a statement like that, and it would have
been wrong to cast aspersions against a country without first having the facts
straight. Superintendent Clement also stated that the judge who issued the
search warrants would have been aware that the information was derived
from Mr. Elmaati’s alleged confession while in Syrian custody. According
to Superintendent Clement, Project A‑O Canada had no evidence indicating
that Syria was a “human rights violator” and therefore to comment on that
in an application for a warrant would have been expressing an opinion on a
political issue.
128. Justice O’Connor found that in its request to obtain the warrants, Project
A‑O Canada identified Syria as the source of the information derived from
Mr. Elmaati’s alleged confession but did not mention Syria’s poor human rights
record or the fact that the information might have been the product of torture.
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In addition, as noted by Justice O’Connor, no assessment of the reliability of
the information was made or included in the ITO. The Inquiry has reviewed
the ITO and has no reason to disagree with this conclusion.
Validity of the warrants
129. Justice O’Connor stated that the question of the validity of the search
warrants was not before him and it was not, therefore, appropriate for him
to comment further at this time. It is similarly not within the mandate of this
Inquiry to determine the validity of the search warrants.
Execution of the searches
130. On January 21, 2002, search warrants for seven residences and a sealing
order were issued based on the ITO. Project A‑O Canada members in cooperation with RCMP “C” and “O” Divisions conducted searches of the residences on
January 22. The searches resulted in seizure of an extensive amount of material,
including computer hard drives, VHS videotapes, CDs and documents. Faced
with a large amount of data that had to be processed within a short timeframe,
the RCMP convened a meeting with U.S. agencies, CSIS and various police
force representatives on January 31 to provide an update on the progress of the
investigation and to request assistance, in personnel and resources, in translating
and analyzing this information. Project A‑O Canada offered to share copies of
all of the seized data with U.S. agencies and CSIS in order for them to assist in
the analysis. Superintendent Pilgrim recalled that an agreement was reached
with the U.S. agencies to have them assist in analyzing the information from
the searches. CSIS did not offer any assistance because its post-September 11
resources were already stretched.
RCMP shares results of the searches
131. In mid-February 2002, U.S. authorities officially requested the fruits of
the searches, including an inventory of the seized items, a mirror image of all
of the hard drives, copies of CDs, audio and video tapes, investigative reports
and computer analysis reports. The RCMP had copied all documents related
to the Project A‑O Canada investigation, including surveillance reports relating
to Mr. Elmaati’s activities prior to his departure from Canada – for example, his
purchase of a remote control for a television – as well as all documents seized
during the January 22 searches, on to its Supertext database. In early April 2002,
Project A‑O Canada prepared CDs containing the entire Supertext database and
provided them to U.S. agencies without caveats. As noted by the Arar Inquiry,
the ITO was also shared with the Americans in February 2002.
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132. Inspector Cabana explained that this sharing of information was consistent with Project A‑O Canada’s mandate to work in partnership with outside
agencies to prevent further terrorist attacks. He further stated that the entire
database was shared because the information derived from the searches could
not be properly analyzed in isolation. Superintendent Clement stated that this
sharing of information was in keeping with his original direction for everything
to be open book, but acknowledged that certain documents such as legal opinions should not have been shared.
133. Justice O’Connor made extensive public findings regarding the transfer
of the Supertext database to U.S. agencies. He found several problems with
the transfer of documents contained in the three CDs sent by the RCMP: the
information on the CDs should not have been provided to the U.S. agencies
without written caveats; the portion of the documents that were not related to
the executed searches should have been reviewed for relevance, reliability, and
personal information; and third party materials to which caveats were attached,
such as letters received from CSIS and documents received from Canada
Customs, should not have been transferred without the originator’s consent.
Mr. Elmaati’s will
134. During the searches conducted on January 22, 2002 the RCMP discovered
Mr. Elmaati’s last will and testament, which included a statement of his desire to
be awarded a certificate of martyrdom. The will was dated March 1999, which
the RCMP noted was one month after Mr. Elmaati had allegedly been instructed
by his brother to take flying lessons. Further inquiries by the RCMP revealed
that Mr. Elmaati had taken flying lessons in August 1999 at Buttonville airport
but discontinued them in September 1999. Project A‑O Canada investigators
advised that they could not recall whether, at the time they found the will, they
knew of the practice of making an Islamic will when embarking on a trip to the
Hajj. They did, however, have the will analyzed by a U.S. agency in 2002 and
another foreign agency in 2003.
135. Mr. Elmaati’s will was also shared with U.S. agencies when the RCMP
shared its Supertext database in April 2002. As found by Justice O’Connor, there
were no express written caveats attached to the sharing of this information.
136. The RCMP gave CSIS a translated copy of the will in December 2002.
Like the RCMP, CSIS also noted that the will had been written shortly after
Mr. Elmaati had allegedly been advised by his brother Amr to take flying lessons.
A CSIS official further stated that the fact that the will was dated March 1999,
after Mr. Elmaati’s return to Canada, and not earlier when he was in Afghanistan,
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was of particular concern. When asked whether the Service had consulted any
religious or other experts for an assessment of the will, another CSIS official told
the Inquiry that the Service had been receiving information about martyrdom
certificates for years, and therefore to some extent they were themselves the
experts. The Service stated that it had expertise in many facets of Islam, including the practice of Islamic wills.
137. The will was viewed as an expression of Mr. Elmaati’s desire to die as a
martyr in support of the mujahedeen.
138. In 2002, a U.S. agency requested consent from the RCMP to question
Mr. Elmaati about the will in Egypt, but the RCMP refused to allow it to do so.
The RCMP wanted to get access to Mr. Elmaati in Egypt and intended itself to
put the will to him.
CSIS sends another round of questions
139. In the latter part of January 2002, the Service sent another list of questions to a foreign agency to be sent to the Syrian authorities for use in “debriefing” Mr. Elmaati. These were follow-up questions based on the answers that
the Service had received to its first set of questions. In its cover letter to the
foreign agency, the Service asked for information about Mr. Elmaati’s current
location, health and future prospects. A senior CSIS official told the Inquiry
that these questions (about health and future prospects) were added because
at this point Mr. Elmaati had been in detention for six weeks, it was no longer a
simple border interview, and the Service was wondering what was going to happen next. According to this official, the Service did not have much experience
with Canadian citizens detained abroad, and there was no protocol or standard
operating procedure in place to dictate after what length of time in detention
these types of questions were to be asked. All of these questions were provided
with two standard CSIS caveats.
140. A senior CSIS official stated that he did not believe that a response to
any of these questions was ever received. The Inquiry found no evidence to
suggest that CSIS received answers to the questions. It seems likely that the
Syrian authorities never put this second set of questions to Mr. Elmaati because
he was transferred to Egypt around this time.
Mr. Elmaati’s transfer to Egypt
141. As described in Chapter 7 at paragraphs 39 to 41, Mr. Elmaati told the
Inquiry that, on approximately January 25, 2002, he was taken from his cell
at Far Falestin prison in Syria and, with his hands handcuffed and a hood over
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO AHMAD ABOU-ELMAATI
his head, transported via jet plane to Egypt. However, as discussed below,
Canadian officials only began to learn of this transfer in mid-February 2002.
Mr. Elmaati’s description of his treatment while in detention in Egypt can be
found in Chapter 7.
Interview with Badr Elmaati
142. In mid-February 2002, Badr Elmaati met CSIS representatives in relation
to his son’s detention in Syria. He told them that he believed that his son was
still in custody in Damascus, and he gave no indication that he expected that
his son would be released or relocated any time in the near future. Badr Elmaati
reported having had no direct contact with his son since his detention, but said
that he had been in regular contact with DFAIT Ottawa.
DFAIT learns of Mr. Elmaati’s transfer
143. On February 12, 2002, Mr. Heatherington of DFAIT ISI received information that Mr. Elmaati had been moved to Egypt.
144. It is unclear when the Consular Affairs Bureau was made aware of this
transfer. When questioned about this, Mr. Pardy stated that he did not recall
having any knowledge of Mr. Elmaati’s presence in Egypt before he received
a diplomatic note from Syria on April 4, 2002, stating that Mr. Elmaati had
voluntarily left Syria for Egypt. However, DFAIT consular reports from this
time period suggest that some new information had been received by March 7,
2002, prompting diplomatic notes to the Egyptian Ministry of Foreign Affairs
on March 18, April 3, and April 10, as well as contact with immigration officials
and calls to Egyptian State Security. Mr. Heatherington indicated that he is not
certain when Mr. Pardy would have learned of Mr. Elmaati’s transfer to Egypt;
however, it would have been consistent with the practice at the time to have
provided Mr. Pardy with this information.
145. Mr. Saunders, also of DFAIT ISI, was similarly unable to account for the
delay in Mr. Pardy’s receipt of the information about Mr. Elmaati’s transfer
to Egypt. Mr. Saunders stated that when ISI received the information that
Mr. Elmaati had been “handed over” to Egyptian intelligence, ISI believed the
information to be accurate. However, at the time it was not clear where he was
actually being held. Mr. Saunders stated that it was possible Mr. Pardy had “held
off” for a while before approaching Egyptian authorities on the whereabouts of
Mr. Elmaati while ISI sought confirmation of his location.
146. Mr. Pardy attributed the delay between the date that ISI learned of
the transfer on February 13, 2002 and the diplomatic notes sent to Egypt on
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March 18, April 3, and April 10, 2002 to a number of factors: the inherent
delay in sending the information received by Mr. Heatherington to the Deputy
Minister for his approval; the fact that Mr. Saunders of ISI had informally advised
Mr. Pardy orally that ISI had learned that Mr. Elmaati had been transferred; and
the fact that confirmation of the transfer was received from the Syrian authorities
only on April 4, 2002. Mr. Pardy stated that the information received from the
Syrian authorities was the conclusive evidence required for DFAIT to send the
diplomatic notes. Mr. Pardy also stated that the delay was neither unusual
nor excessive.
RCMP learns of Mr. Elmaati’s transfer
147. On February 11, 2002, Superintendent Clement was advised by a foreign
agency that Mr. Elmaati had been transferred from Syria to Egypt. The advising agency did not provide a reason for the transfer. Superintendent Clement
immediately asked, through this same foreign agency, whether the RCMP would
have the opportunity to interview Mr. Elmaati in Egypt. On February 13, 2002,
Superintendent Clement was advised that an interview might be possible within
the next two to three weeks.
148. On the same date, February 13, 2002, Mr. Heatherington spoke to members of Project A‑O Canada by telephone to discuss Mr. Elmaati’s transfer to
Egypt and to seek assurances, in light of consular concerns, that DFAIT would
be kept informed of any developments with respect to any potential interviews
of Mr. Elmaati.
149. Although Project A‑O Canada had received information that Mr. Elmaati
had been moved to Egypt, the RCMP liaison officer stationed in Rome, Inspector
Covey, and Ambassador Pillarella continued to try to determine Mr. Elmaati’s
location in Syria. On February 18, 2002, Inspector Covey sent a letter to “A”
Division, “O” Division and CID, detailing his recent trip to Syria, his meetings
with the Ambassador and Interpol Syria, and confirmation he had received
regarding Mr. Elmaati’s detention in Syria. On February 19, Superintendent
Clement sent a letter to Inspector Covey stating that the RCMP had received
reliable information that Mr. Elmaati was no longer in Syria and was in custody
in Egypt.
RCMP informs CSIS of Mr. Elmaati’s transfer and possible interview
150. On February 14, 2002, RCMP CID informed CSIS that it had learned that
Mr. Elmaati had been moved to Egypt, and that the RCMP could be permitted to
conduct an interview in Egypt within the next couple of weeks. In anticipation
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of a potential interview of Mr. Elmaati, a meeting took place on February 20
between representatives of the Service and the RCMP. Following the meeting,
the Service sent a list of questions to the RCMP to be asked of Mr. Elmaati. This
list of questions included two standard CSIS caveats.
CSIS attempts to confirm the transfer
151. Based on the information from the RCMP, the Service sought to confirm
the transfer by making inquiries of foreign agencies. The Service also sent an
official request for confirmation to the RCMP.
152. On March 3, 2002, the RCMP informed CSIS that, while it was not in a
position to corroborate any information that Mr. Elmaati has been transferred
from Syria to Egypt, it had no reason to doubt that he was now in the custody
of the Egyptian authorities. The RCMP further stated that it had never been officially confirmed that Mr. Elmaati had been detained by the Syrian authorities and
that the Canadian Ambassador to Syria had told the RCMP not to concern itself
with Mr. Elmaati’s case because of his alleged Syrian citizenship. When asked
about this statement, Ambassador Pillarella told the Inquiry that, as discussed at
paragraph 109 above, he simply told the RCMP what he had been told by the
Syrian authorities on December 31, 2001 when they confirmed Mr. Elmaati’s
detention in Syria and the RCMP was obviously passing that on.
DFAIT confirms Mr. Elmaati was transferred
153. On April 4, 2002, DFAIT received a diplomatic note from the Syrian
Ministry of Foreign Affairs dated April 1, 2002 indicating that Mr. Elmaati had
left Syria for Egypt at his own request. Ms. Pastyr‑Lupul told the Inquiry that
she found this diplomatic note from Syria to be obscure, and that she did not
believe the information was accurate. The diplomatic note was received from
Syria in response to a diplomatic note sent by the Canadian Embassy to Syria
on February 5, 2001. The Syrian diplomatic note was entered into DFAIT’s
CAMANT system and a copy was provided to Project A‑O Canada through
Chief Superintendent Antoine Couture, the Officer in Charge of “A” Division’s
Criminal Operations Unit. DFAIT shared this diplomatic note with the RCMP
because the RCMP had demonstrated an interest in gaining access to interview
Mr. Elmaati.
154. On April 12, 2002, Mr. Heatherington informed a CSIS official that DFAIT
was in receipt of the diplomatic note. This was entered in the Service’s records
as the first official confirmation of Mr. Elmaati’s transfer.
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155. On May 8, 2002, at the request of DFAIT, the Canadian Embassy in Syria
sent a diplomatic note to the Syrian MFA requesting the date of Mr. Elmaati’s
departure and the flight information for his alleged trip to Egypt. The Syrian
MFA responded on June 24, advising that it did not have additional information
about Mr. Elmaati’s departure.
Official confirmation from Egyptian authorities
156. On August 4, 2002, Mira Wassef, a consular officer with the Canadian
Embassy in Cairo, was informed by the Egyptian authorities, by telephone, that
Mr. Elmaati was being detained as “an extremist element” in Egypt. Ms. Wassef’s
CAMANT note states that the Egyptian authorities did not disclose when
Mr. Elmaati had entered the country or where he was being held, except that
it was a high-security facility. Ms. Wassef asked the Egyptian authorities for
access to Mr. Elmaati. She was advised that she should send a written request
to the appropriate authorities, who would approve the request. Ms. Wassef
sent the letter immediately.
157. On August 6, 2002, CSIS was informed of this telephone call confirming
Mr. Elmaati’s detention in Egypt. It was entered in the Service’s records as the
first confirmation by Egyptian authorities of Mr. Elmaati’s incarceration.
RCMP attempts to interview Mr. Elmaati in Egypt
158. In mid-February 2002, once the RCMP learned that Mr. Elmaati had been
transferred to Egypt, Project A‑O Canada began making efforts to interview
Mr. Elmaati in Egypt. It was thought, based on Mr. Elmaati’s alleged confession regarding a plot to bomb the Parliament Buildings, that Mr. Elmaati might
have information vital to the RCMP’s ongoing investigation into threats to the
security of Canada. The RCMP had discussions regarding a possible interview
with senior RCMP officials, the RCMP liaison officer in Rome, CSIS, DFAIT, and
a foreign agency.
Efforts through a foreign agency
159. In mid-February 2002, Superintendent Clement was advised by a foreign
agency that before the Egyptian authorities would make Mr. Elmaati available
for an interview, the RCMP would have to provide the Egyptian authorities
with copies of any documents it had relevant to its interest in Mr. Elmaati. The
RCMP was also advised that since Mr. Elmaati’s location had not been officially
confirmed at this time, the RCMP would have to provide an assurance that it
would not reveal the fact that he was being detained in Egypt. The RCMP did
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO AHMAD ABOU-ELMAATI
not agree to either request. According to Superintendent Clement, at the time
of this request the RCMP was very interested in obtaining an independent and
objective interview of Mr. Elmaati that would be admissible in Canadian courts.
Superintendent Clement told the Inquiry that the Egyptian authorities had not
provided sufficient grounds to justify disclosure of the RCMP’s documents,
and the RCMP was concerned about the use that could be made of them if
disclosed. Similarly, the RCMP would not agree to an interview if it had to keep
Mr. Elmaati’s location a secret. Superintendent Clement stated that he informed
the foreign agency that if Mr. Elmaati’s parents ever filed a complaint, the RCMP
would have a legal obligation to disclose his location.
160. In late February 2002, the RCMP considered whether it would be appropriate to have a foreign agency conduct the interview of Mr. Elmaati in Egypt
on the RCMP’s behalf. The collective view of the RCMP was that it needed to
proceed with its own interview. Superintendent Clement testified in the Arar
Inquiry that asking another agency to conduct an interview on its behalf could
have created more harm than good, would not allow the RCMP to document
any human rights abuse or health issues, and would have produced nothing of
evidentiary value.
161. In late February 2002, Superintendent Clement spoke to Mr. Heatherington,
at DFAIT ISI, regarding the RCMP’s intentions to gain access to Mr. Elmaati
in Egypt. Superintendent Clement’s notes indicate that Mr. Heatherington
expressed the view that an RCMP interview of Mr. Elmaati would require sanctioning of senior government officials. Mr. Heatherington did not recall the
conversation as described by Inspector Clement; however, he assumed that
sanctioning of senior government officials, as described in Inspector Clement’s
notes, referred to DFAIT’s need to obtain approval from its senior officials
before it could discuss the possibility of facilitating RCMP access to Mr. Elmaati
in Egypt. Superintendent Clement stated that it was his understanding that there
were subsequent discussions between DFAIT and the RCMP; however, he did
not participate in them since he had left his position shortly after his discussion
with Mr. Heatherington. Chief Superintendent Couture also recalled meeting
with Mr. Heatherington in April 2002 to discuss a proposed RCMP interview of
Mr. Elmaati.
162. Further inquiries of DFAIT indicate that, although DFAIT did not discuss
the possibility of facilitating RCMP access until August 2003 (see paragraphs 318
to 325 below), it did brief its senior officials about the RCMP’s position in
early 2002. Mr. Bale told the Inquiry that he could not recall any other cases,
other than the case of Mr. Elmaati, where consular officers communicated,
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by diplomatic note or other means, a request by the RCMP for access to a
detained Canadian.
163. In early March 2002, Project A‑O Canada was advised by a foreign agency
that it had recently been given limited access to Mr. Elmaati and made efforts to
interview him. The foreign agency advised that Mr. Elmaati’s level of cooperation had apparently declined and that those conducting the interviews were
having difficulty because they did not have intimate knowledge of the investigation. It was the RCMP’s view that limited access by the foreign agency
meant that it did not have clear and unfettered access to Mr. Elmaati and that
all requests had to be passed through Egyptian authorities. The RCMP did not
know which authorities were conducting the interviews or what was meant
by the apparent decline in cooperation. The foreign agency was of the view
that access to Mr. Elmaati would be given to the RCMP if it (the foreign agency)
made the request to Egyptian authorities on the RCMP’s behalf. When asked
whether the RCMP had considered how Mr. Elmaati might be treated during
any interview by the foreign agency, the RCMP told the Inquiry that it believed
that any interview conducted by the foreign agency would be conducted in a
similar fashion to the interview proposed by the RCMP and would be admissible
in a Canadian court.
164. In the spring of 2002, the RCMP was advised that the Egyptian authorities were not being very responsive to requests by a foreign agency and the
RCMP should not expect an interview to occur any time soon. By this time,
Syrian authorities had confirmed that Mr. Elmaati had been transferred to Egypt.
Egyptian authorities took the position, communicated to the RCMP through
a foreign agency, that if it was urgent for the RCMP to interview Mr. Elmaati,
the RCMP would have agreed to its earlier requests for preconditions on
the interview.
Efforts through its liaison officer in Rome
165. The RCMP also made efforts to secure access to Mr. Elmaati through its liaison officer in Rome, Inspector Covey. In the spring of 2002, Project A‑O Canada
sent a fax to Inspector Covey requesting that he contact his Egyptian counterparts to determine the availability of Mr. Elmaati for an interview by members
of the RCMP. In this request letter, Project A‑O Canada told Inspector Covey
that in making these inquiries he could share information about Mr. Almalki
with the Egyptian authorities. Inspector Covey did not recall sharing any information about Mr. Almalki with Egyptian authorities. Further inquiries of the
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RCMP confirmed that it had no information to suggest that Inspector Covey
ever shared this type of information.
166. In late May 2002, Inspector Covey met with representatives from various security agencies in Egypt regarding Mr. Elmaati. They informed Inspector
Covey that none of their agencies had Mr. Elmaati in custody; it was possible
Mr. Elmaati was being held by intelligence. They also informed him that it was
possible that there would be no record of his detention. The RCMP followed
up this meeting with a message to CSIS and Interpol Cairo, requesting information on the status of Mr. Elmaati in Egypt.
167. In late June 2002, members of Project A‑O Canada and CSIS met to discuss
access to Mr. Almalki in Syria and Mr. Elmaati in Egypt. According to Corporal
Richard Flewelling of RCMP CID, a CSIS official had advised that while the
chances of the RCMP being granted access to Mr. Elmaati for the purpose of an
interview might be very slim, it was worth trying. Corporal Flewelling told the
Arar Inquiry that despite Egypt’s poor human rights record, Project A‑O Canada
members had no evidence at the time that Mr. Elmaati had been tortured and
did not question the propriety of an interview in Egypt on that basis. In any
event, the RCMP considered torture of a Canadian detained abroad to be more
a concern for DFAIT.
168. In July 2002, Inspector Cabana had a meeting with the former liaison officer in Rome, Inspector Covey, who had by then returned to Canada, regarding
Mr. Elmaati and Mr. Almalki. Inspector Covey informed Inspector Cabana that
the RCMP should not expect either Mr. Elmaati or Mr. Almalki to be returned to
Canada because neither the Syrian nor the Egyptian authorities recognized their
Canadian citizenship. The RCMP concluded that it should continue to seek to
question Mr. Elmaati while in Egypt regarding any alleged threats to Canada.
169. The RCMP was never granted access to interview Mr. Elmaati in Egypt.
RCMP and DFAIT meet with SyMI
170. On July 4, 2002, Ambassador Pillarella arranged a meeting with General
Khalil of the Syrian Military Intelligence (SyMI) and Inspector Covey, the RCMP’s
liaison officer in Rome. Ambassador Pillarella stated that he arranged the meeting for Inspector Covey, at Inspector Covey’s request, because he recognized
that no one else could have done so. According to Ambassador Pillarella,
Inspector Covey sought information about Mr. Elmaati from Syrian intelligence
but did not have any contacts in the intelligence field in Syria. Inspector Covey’s
contacts and dealings in Syria had, until this meeting, been limited to the Syrian
National Police. Inspector Covey told the Inquiry that he asked Ambassador
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Pillarella to facilitate a meeting with a Syrian official who would have the requisite knowledge to confirm where in fact Mr. Elmaati had been transferred to.
Inspector Covey stated that at this point in time the Egyptian authorities had
not yet confirmed his detention in Egypt and before leaving the post of liaison
officer in Rome, he hoped to clarify if he could where Mr. Elmaati was being
held. This meeting was the first time that the Ambassador had met General
Khalil. Ambassador Pillarella stated that he was able to arrange the meeting as a
result of his past involvement with intelligence as well as his good relationship
with Deputy Minister Haddad.
171. At this meeting, General Khalil confirmed that Mr. Elmaati had been
detained by Syrian Military Intelligence and held for questioning at great
length. General Khalil gave Inspector Covey a copy, in Arabic, of the report of
Mr. Elmaati’s interview by Syrian officials. General Khalil also confirmed that
Mr. Elmaati had been transferred to Egypt and stated that the Egyptian authorities had been unable to obtain any further information from Mr. Elmaati than
had already been included in the Syrian report. He offered nonetheless to have
questions put to Mr. Elmaati in Egypt on behalf of the RCMP. The Inquiry has
received no information suggesting that the RCMP ever sent any questions to
the Syrian authorities to be put to Mr. Elmaati in Egypt.
172. In his interview for the Inquiry, Inspector Covey stated that he sensed
that General Khalil took pride in the fact that the Egyptian authorities were not
able to extract any further information than the Syrian authorities had obtained
in Syria. Inspector Covey reported that although General Khalil had offered to
have questions put to Mr. Elmaati in Egypt, the General did not think that should
be necessary because the Syrian authorities had obtained “all the information”
that Canada would need for its investigations.
173. According to Inspector Covey’s report of this meeting, General Khalil
stated that in his view the most effective means to deal with people such as
Mr. Elmaati must be employed. Inspector Covey stated he did not know what
was meant by “the most effective means;” however, he never considered that
Mr. Elmaati might have been tortured into providing information. Inspector
Cabana stated that he understood “the most effective means” to mean that the
RCMP should use all investigative tools at its disposal and he did not understand
it to mean abusive treatment or torture.
Presentation to the Americans
174. During this period, when attempts were being made to locate and interview Mr. Elmaati, the RCMP gave several presentations to the American authori-
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ties regarding its investigation. As discussed in Chapter 5 at paragraphs 49
to 54, on May 31, 2002, Inspector Cabana and Staff Sergeants Callaghan and
Corcoran gave a presentation to representatives of the FBI and other agencies
at FBI headquarters in Washington D.C.
175. The RCMP’s presentation, entitled “The Pursuit of Terrorism: A Canadian
Response,” included a general description of the Project A‑O Canada investigation and an overview of several individuals who were of interest to Project
A‑O Canada, including Mr. Almalki and Mr. Elmaati. The presentation stated
that Mr. Elmaati was the primary target of Project O Canada and characterized
him as a confessed terrorist/conspirator. The notes from the presentation
stated that Mr. Elmaati had identified an alleged terrorist cell in Canada and a
conspiracy against Parliament Hill. The notes also referred to the will found
during the January 22 searches, which outlined his debts and apologies. The
notes stated that an analyst was of the opinion that the will was similar in style
and content to wills of terrorists dedicated to suicide-type missions. A concluding slide, entitled “Project A‑O Canada: What’s Next,” indicated that the RCMP
intended to interview Mr. Elmaati. An updated version of the presentation,
excluding speaking notes, was sent to the Americans, at the request of the FBI,
on July 22, 2002.
DFAIT attempts to gain consular access
176. In May, June and July 2002, the Consular Affairs Bureau and the Embassy
in Cairo made several efforts to obtain confirmation from the Egyptian Ministry
of Foreign Affairs of Mr. Elmaati’s detention and obtain consular access to him.
In this period, the Embassy sent four diplomatic notes, made several follow-up
telephone calls, and met with Egyptian officials. The Consular Affairs Bureau
and the Embassy were, at the same time, keeping Mr. Elmaati’s family up to date
on their efforts to gain access to Mr. Elmaati. This included frequent contact
between consular officials and Badr Elmaati. On one occasion, in late May 2002,
they advised him that DFAIT was very confident that Mr. Elmaati was in Egypt
and that while DFAIT would continue to push Egyptian officials for information about Mr. Elmaati, his dual Egyptian-Canadian citizenship meant that it was
doubtful that Egyptian officials would respond. At Badr Elmaati’s request, DFAIT
faxed him a list of Egyptian lawyers for his consideration.
177. On July 16, 2002, Mr. Pardy sent a note to Mr. Bale regarding additional
information that Mr. Bale should include in his diplomatic note and representations to the Egyptian authorities. Mr. Pardy suggested that the note should
include a statement to the following effect: “The Royal Canadian Mounted Police
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Liaison Officer in Rome is planning to request access to Mr. Elmaati in order to
further a major investigation in Canada. Changes are underway in the staffing
of the Liaison Office in Rome and as soon as these have been resolved a request
for access from the RCMP to the Egyptian police will be made.” On July 17,
2002, the Canadian Embassy in Cairo sent a diplomatic note to the Egyptian
Ministry of Foreign Affairs. The note included the two sentences suggested by
Mr. Pardy regarding the RCMP’s plans to request access to Mr. Elmaati. The note
also included information that DFAIT had received from Syria confirming that
Mr. Elmaati had left Syria for Egypt and the strong beliefs of Mr. Elmaati’s family
that he was indeed in Egypt.
178. As described at paragraph 156 above, on August 4, 2002, the Canadian
Embassy was advised by Egyptian authorities that Mr. Elmaati was being detained
in Egypt. On the same date, it was also advised that it should write a letter to
Egyptian prison authorities in order to arrange a consular visit. The Embassy
immediately sent a letter to this effect.
179. After receiving confirmation of Mr. Elmaati’s detention in Egypt, consular
officials took steps to obtain more precise information about his location and
to gain access to him. By August 6, they had received a response from prison
authorities advising that Mr. Elmaati was not listed in any of the prisons. A
consular official from the Embassy then followed up with Egyptian authorities
to find out in which prison Mr. Elmaati was being detained.
180. Consular officials tried to contact the Elmaati family on August 4, 2002
to advise that Mr. Elmaati’s detention in Egypt had been confirmed, but did
not make contact with a family member until August 6. According to DFAIT,
when advised of the news and the efforts DFAIT had made to obtain access to
Mr. Elmaati, a family member expressed gratitude for DFAIT’s efforts.
181. On August 7, 2002, the Embassy was advised that Mr. Elmaati was being
held at Tora prison. The Embassy immediately sent the prison authorities a letter requesting access.
Concerns about Mr. Elmaati’s treatment in Egypt
ISI memorandum suggests possibility of torture
182. In July 2002, DFAIT ISI, CSIS and the Privy Council Office received information regarding Mr. Elmaati’s detention in Egypt that, according to DFAIT ISI,
suggested that Mr. Elmaati might have been tortured while in detention in Egypt.
Unlike DFAIT ISI, CSIS did not conclude that this information was indicative
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of torture. The RCMP became aware of this information as a result of an interagency meeting on July 8, 2002.
183. On August 6, 2002, Mr. Saunders of DFAIT ISI drafted a memorandum to
the Associate Deputy Minister, at the time Paul Thibault, which stated that ISI
had obtained information that suggested that Mr. Elmaati might have been tortured during his detention and/or interrogation in Egypt. When interviewed by
Inquiry counsel, Mr. Saunders confirmed his belief that the information obtained
suggested that Mr. Elmaati had been tortured while in Egyptian custody.
184. The August 6, 2002 memorandum was shared with the Consular Affairs
Bureau. Mr. Saunders told the Inquiry that when ISI received information such
as this, its ordinary practice was to share it with Mr. Pardy. Mr. Pardy told the
Inquiry that although he could not recall having seen the same information as
ISI, information that suggested that Mr. Elmaati had been tortured by Egyptian
authorities would not have been a surprise to him. According to Mr. Pardy,
given the long delay between Mr. Elmaati’s transfer to Egypt in January 2002
and the granting of consular access in August 2002, his working assumption at
the time was that he was being tortured.
185. The Inquiry obtained no information to suggest that DFAIT made any
inquiries in response to the information contained in the memorandum to
determine whether Mr. Elmaati had been subjected to torture in Egypt.
RCMP concerned about “extreme treatment”
186. As the Arar Inquiry publicly reported, in July 2002 the RCMP was concerned that Mr. Elmaati might have been exposed to “extreme treatment” while
in detention in Egypt. A briefing note to the Commissioner dated July 8, 2002,
prepared by Corporal Tim O’Neil of NSIB and approved by Superintendent Pilgrim
and Assistant Commissioner Proulx, included the statement, “Indications are that
Elmaati has been exposed to extreme treatment while in Egyptian custody.”
187. The briefing note further stated that the RCMP was continuing to negotiate with its Canadian and international partners to gain access to Mr. Elmaati
and assist in returning him to Canada. This same information was contained in
another briefing note to the Commissioner dated July 18, 2002.
188. Former Commissioner Zaccardelli did not recall reviewing the briefing
note or being briefed on the issue of extreme treatment. When asked whether
this type of information should have been brought to the attention of the
Commissioner, he replied that it was dependent on the situation and that without the context, he could not say one way or the other.
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189. On July 8, 2002, a meeting was held between Project A‑O Canada, CID,
CSIS, DOJ, and DFAIT to discuss the possibility of interviewing Mr. Elmaati in
Egypt. At the time of this meeting the RCMP was advised, likely by DFAIT, that
information had been received, as discussed at paragraph 182 above, suggesting that Mr. Elmaati might have been exposed to extreme treatment while in
Egyptian custody. Apart from this meeting, there is no evidence that indicates
the source of the RCMP’s information that Mr. Elmaati had been exposed to
extreme treatment. According to the RCMP, a consensus was reached at the
meeting that RCMP employees stationed abroad and CSIS employees, supported
by consular officials, would apply pressure for immediate RCMP access to
Mr. Elmaati.
190. When Corporal O’Neil was questioned about what the briefing note
meant by indications of extreme treatment, he could not recall what the indications were. As for the meaning of extreme treatment, Corporal O’Neil stated
that he meant treatment other than what would be found in a Canadian or
western detention facility. He added that if he felt that Mr. Elmaati had been
tortured, he would have indicated that.
191. Superintendent Pilgrim, who approved the briefing note, also could not
recall what was meant by indications of extreme treatment. He stated that
extreme treatment could mean a number of things, such as lack of sleep, inadequate food and water, or length of interviews. He drew a distinction between
extreme treatment and torture, stating that the RCMP would have written the
word torture if it had meant torture. He could not recall whether there was
any follow-up to determine what the indications of extreme treatment might
have been.
192. Assistant Commissioner Proulx confirmed that he signed the briefing note
dated July 8, 2002, but had no recollection of its content. When asked about
the meaning of extreme treatment, he stated that while it sounded serious, since
there was no accompanying description he did not know what it meant.
193. Inspector Reynolds stated that he did not see the briefing note at the time
it was submitted to the Commissioner and he was not sure what was meant by
extreme treatment. When asked why the RCMP continued to persist in seeking an interview of Mr. Elmaati in Egypt after it became known that there were
indications that he had been exposed to extreme treatment there, Inspector
Reynolds stated:
As reprehensible as torture is and as the practices of these nations are that have
poor human rights records, we still have to pursue the investigation because there
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is a threat. If in fact they were successful, there was an existing plot and they were
successful in planting a bomb, say on Parliament Hill, regardless of the incarceration of one individual, and people died as a result, it would be very difficult to
explain why we didn’t pursue interviewing the individual.
By interviewing the individual also, we know the conditions under which the
questions are answered that we pose, and we are posing the questions, as opposed
to sending them off to somebody else and having the questions posed.
194. Staff Sergeant Dennis Fiorido replaced Inspector Covey as the RCMP’s liaison officer in Rome in July 2002. Staff Sergeant Fiorido was not given a copy of
the July 8, 2002, briefing note when he started his post in Rome and was never
informed by anyone at the RCMP that it had indications that Mr. Elmaati had
been exposed to extreme treatment while in Egyptian custody. Staff Sergeant
Fiorido explained that the briefing notes were designed for executive-level
management and distributed through the chain of command on a need-to-know
basis. When asked whether he needed to know that there were indications
that Mr. Elmaati had been exposed to extreme treatment, Staff Sergeant Fiorido
said that it might have changed his approach. He might have sought clearer
directions concerning the best way for the RCMP to proceed in passing on
questions or asking the Syrians to conduct an interview on the RCMP’s behalf.
Staff Sergeant Fiorido stated that he had no specific view at the time regarding
whether the Egyptian authorities engaged in torture, but agreed that, hypothetically, if he had known about the extreme treatment memorandum at the time,
it would have caused him to consider the issue of treatment while in detention,
and more specifically the issue of whether the Egyptian authorities engaged
in torture; although he could not state whether or how it might have affected
his actions.
195. The Inquiry found no evidence to suggest that the RCMP made any
inquiries concerning the indications of extreme treatment to which the briefing
note referred.
Canadian officials’ knowledge of Egypt’s human rights record
DFAIT officials’ knowledge of Egypt’s human rights record
196. The human rights reports prepared by DFAIT, and described in Chapter 3
at paragraphs 166 to 171, were made available to the Consular Affairs Bureau,
although it did not receive them immediately after publication. When questioned about their knowledge of human rights in Egypt, the responses of DFAIT
officials varied.
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197. Mr. Pardy and Michel de Salaberry, Canadian Ambassador to Egypt, understood that Egypt had a poor human rights reputation. Mr. Pardy stated that when
individuals came to be detained in certain countries with rigorous conditions
of detention, not only in the Middle East, there was a working assumption that
they were being mistreated. Ambassador de Salaberry stated that he worked
closely with non-governmental organizations such as the Egyptian Organization
for Human Rights, and that he received and read all the reports from Amnesty
International and the U.S. State Department regarding human rights in Egypt.
Ambassador de Salaberry’s understanding of conditions of detention in Egypt
was that human rights violations were widespread and there was a problem
with prison overcrowding. Ambassador de Salaberry also agreed that the likelihood that a detainee will be the victim of mistreatment is highest during the
early stages of detention, when the detaining authorities would be looking for
new information.
198. Consular officials did not all share the same understanding of Egypt’s
human rights record. Both consuls in Egypt during the relevant period acknowledged knowing that DFAIT’s human rights reports were available to them, but
could not specifically recall having read them. Mr. Bale told the Inquiry that he
might have read these reports. Mr. Bale also stated that he had not formed an
opinion about the likelihood that torture was being employed in Egyptian jails
and that the issue would not have come up. Roger Chen, who would replace
Mr. Bale as consul at the Canadian Embassy in Cairo, stated that he did not read
any reports on human rights or jail conditions in Egypt.
CSIS’ knowledge of Egypt’s human rights record
199. Although CSIS would have received information from DFAIT regarding
conditions in Egyptian detention centres, CSIS had no evidence as to how
individuals would be treated while in Egyptian detention, given the minimal
occurrence of Canadians detained abroad for security-related reasons at that
time. A CSIS employee abroad told the Inquiry that before Mr. Elmaati came to
be detained in Egypt, he had very minimal knowledge about conditions of detention in Egypt. He knew from reading internal documents and open press about
the country that there was an issue of overcrowding in the jails, but had not
read any specific reporting on the issue. After Mr. Elmaati came to be detained
in Egypt, the CSIS employee read reports prepared by Amnesty International
and Human Rights Watch and came to understand that the conditions in Egypt
did not generally meet western standards.
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RCMP’s knowledge of Egypt’s human rights record
200. The RCMP liaison officers posted to Rome during the relevant period,
Inspector Covey and Staff Sergeant Fiorido, both stated that they had no firsthand knowledge of torture occurring in Egypt. Inspector Covey stated that,
while he had no first- or second-hand knowledge of the use of torture, he knew
that prisoners would not be treated in the same way that they would be treated
in Canada.
201. When Staff Sergeant Fiorido took up the post of liaison officer to Rome in
July 2002, he had no direct knowledge about, and did not receive a briefing on,
the conditions of detention that might exist in Egyptian prisons. However, his
own view was that prison conditions in the Third World and in the Middle East
would not meet Canadian standards. Staff Sergeant Fiorido told the Inquiry that
he did not recall ever forming an opinion regarding the use of torture in Egypt
and that he did not review any human rights reports related to those issues.
Mr. Elmaati’s first consular visit and allegation of torture in Syria
202. On August 12, 2002, Mr. Elmaati received his first consular visit, at Tora
prison from Consul Stuart Bale, Vice-Consul Jean Ducharme and a consular officer. Two Egyptian security officials were present during the consular visit. One
worked at the prison. The other, Mr. Bale assumed, worked at State Security.
Neither would provide information to DFAIT regarding Mr. Elmaati’s detention. Consular officials were not directed to ask, and did not ask, to speak to
Mr. Elmaati alone.
203. Mr. Bale reported that Mr. Elmaati appeared to be in good physical condition, good spirits, was calm and spoke in a rational manner, and had advised that
he was being well treated and was provided with sufficient food. Mr. Ducharme
made similar observations about Mr. Elmaati’s demeanour, which he reported to
Ms. Myra Pastyr-Lupul at a meeting on August 19, 2002. He told Ms. Pastyr‑Lupul
that Mr. Elmaati was in good spirits and in a good mood. Paragraphs 83 to 85 of
Chapter 7 set out Mr. Elmaati’s description of this first consular visit, including
his statement that at the time he felt that he had no choice but to tell consular
officials that he was being well treated since the Egyptian officials were in the
room and could hear and understand what was said.
204. During this visit, Mr. Elmaati asked consular officials to contact his mother
and father to let them know where he was and that he was okay. He also
asked that his uncle and aunt in Cairo be contacted and advised of his location
and situation.
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205. Mr. Elmaati described his experience in Syria to Mr. Bale. According to
Mr. Bale, Mr. Elmaati related that prior to leaving Toronto he was approached by
two CSIS officials and asked about where he was travelling to, and that he was
followed on each flight by a security official. Mr. Elmaati stated that upon arrival
at the Damascus airport, he was taken into custody by Syrian security officials.
During the two and a half months that he spent detained in Syria, Mr. Elmaati
said that he was beaten, subjected to electric shocks, and forced to give false
information. Mr. Elmaati would not provide details of the false information but
said that he would be willing to speak to a CSIS official back in Canada. (He also
advised he had been interviewed by CSIS on September 11, 2001.)
206. Mr. Bale reported that Mr. Elmaati had explained that he had requested
contact with the Canadian Embassy in Damascus but was denied access by
Syrian authorities. Mr. Elmaati said that he was transferred to Cairo via small
jet around the end of January 2002. Since that time he had been held in four
separate facilities in Egypt, the latest being Tora prison, where he arrived on
July 30, 2002. Mr. Bale asked Mr. Elmaati if the authorities in either Syria or
Egypt had advised him why he was being detained, but Mr. Elmaati replied that
they had not. He said that he himself did not know why he had been detained
but suspected that he had been set up by CSIS in Canada. He also said that CSIS
knew everything about his life from the time he was born.
207. According to Mr. Bale, Mr. Elmaati asked consular officials whether the
Embassy could help him. They responded that they would request further
background information from Egyptian authorities regarding the reason for
his detention and when he might be released. Consular officials also advised
Mr. Elmaati that he should retain the services of a lawyer who could initiate
legal proceedings on his behalf and arrange for visits by his family members.
At the conclusion of the visit, consular officials asked Mr. Elmaati if he needed
anything (such as food, reading material or clothing); he responded that he did
not need anything and, according to Mr. Bale, said that his morale was high.
208. Following the consular visit, the Embassy sent a diplomatic note to the
Egyptian Ministry of Foreign Affairs regarding the detention of Mr. Elmaati.
The note cited the Vienna Convention on Consular Relations and protested
Egypt’s failure to notify DFAIT of the detention. It requested the reasons for
Mr. Elmaati’s detention and asked whether there were any formal charges pending. The note also asked the Ministry to facilitate family visits to Mr. Elmaati
and to permit Mr. Elmaati to write a letter or make a phone call to his father
in Canada.
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209. Consular officials contacted Mr. Elmaati’s family on August 14, 2002 to
provide information about the August 12 consular visit. Between August 14
and 20, consular officials were in regular contact with the family, primarily on
the issues of arranging family visits and the process of hiring a lawyer.
DFAIT shares report of the first consular visit with CSIS and RCMP
210. The report summarizing this consular visit was provided to CSIS on
August 12, 2002 and to the RCMP on August 13. Although Mr. Pardy was out
of town at the time this report was shared, he indicated that during this period
(August 2002), the Consular Affairs Bureau was getting a sense of the magnitude
of the activities of the RCMP and CSIS in this area. The report was therefore
provided to the two agencies because it was thought it would be useful for them
to have Mr. Elmaati’s account of what had happened in Syria.
211. Mr. Saunders stated that the report was shared with the RCMP and CSIS
because of the information that it contained regarding Mr. Elmaati’s allegation of
torture and the recanting of his alleged confession. Mr. Saunders acknowledged
that while this information was very important, in hindsight DFAIT ISI should
have blacked out some of the more personal information in the document.
DFAIT’s reaction to allegation of torture
212. Mr. Bale stated that he found strange Mr. Elmaati’s calm demeanour in
describing the torture he had endured while in Syria. Mr. Bale recalled thinking that for someone who had gone through as much as Mr. Elmaati had gone
through, including what he endured in Syria and since his arrival in Egypt, he
was very calm and very soft spoken, and was not agitated or proclaiming his
innocence as other detainees, in his experience, often did.
213. Ms. Pastyr‑Lupul stated that there was no protocol in place at the time
for dealing with allegations of torture. Upon receipt of Mr. Bale’s report,
Ms. Pastyr‑Lupul made her superiors, including Mr. Pardy, aware of Mr. Elmaati’s
allegations and believed that they would take them up with others in DFAIT.
CSIS’ reaction to allegation of torture
214. A CSIS employee abroad stated that his initial reaction on learning of
Mr. Elmaati’s allegation of torture was to wonder whether Mr. Elmaati had accurately depicted what had happened. He told the Inquiry that the possibility of
torture is always at the back of a person’s mind when dealing with countries
that do not have stellar human rights records. However, whether a particular
allegation is true must always be verified.
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215. Another CSIS official stated that if the Service was aware that information had been derived from torture, then that would affect CSIS’ confidence in
the information. He recalled discussion, in light of Mr. Elmaati’s allegations of
torture, of the reliability of the information from Syria.
216. Mr. Hooper stated that he did not form a view at the time, and still has
not formed a view, as to whether the allegation of torture was true. On the
one hand, Mr. Hooper considered the Syrian human rights record, which indicated that the types of abuses alleged by Mr. Elmaati had occurred. On the
other hand, he thought Mr. Elmaati would have to rationalize the amount and
nature of information he provided. Mr. Hooper also expected that a claim of
torture might be made even if there had been no mistreatment amounting to
torture; this expectation was based on the publicly available al-Qaeda manual�
that instructs individuals who are operating in association with al-Qaeda to
allege torture if they are taken into incarceration by security intelligence or law
enforcement services. Mr. Hooper was of the view that there was insufficient
information available to allow a reasonable conclusion, one way or the other,
about whether the statements made by Mr. Elmaati were true or about the treatment to which he was subjected in Syria or Egypt.
217. When asked whether CSIS had considered approaching the Syrian authorities about Mr. Elmaati’s claims of torture, a CSIS official stated that it was not
something that he concerned himself with at the time and he did not recall
having discussed it; his view, like that of the RCMP, was that it was the responsibility of DFAIT.
RCMP meetings in response to allegation of torture
218. On August 14, 2002 two meetings were held among representatives from
Project A‑O Canada, CID, Criminal Operations (CROPS), the Integrated National
Security Enforcement Team (INSET), and the RCMP’s in-house Department of
Justice (DOJ) counsel. The purpose of the first meeting was to discuss the
response to expected media inquiries concerning Mr. Elmaati’s allegations of
torture, and to prepare for an inter-agency meeting to be held the following day.
A briefing note regarding this meeting stated that, despite Mr. Elmaati’s belief
to the contrary, his arrest was not at the request of Canadian authorities.
219. The second meeting was convened to allow representatives from across
the RCMP to discuss Mr. Elmaati’s allegation of torture, the impact on his
�
The al-Qaeda training manual became publicly available in December 2001 when it was entered
into evidence during a trial being conducted in Manhattan and uploaded to the U.S. Department
of Justice website. The first documented reference to the manual in CSIS’ records is in April
2001, and in the RCMP’s records it is first referred to in January 2002.
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO AHMAD ABOU-ELMAATI
alleged confession, and the investigative options available to the RCMP going
forward—for example, whether RCMP investigators should travel to Egypt
to interview Mr. Elmaati, and strategies to deal with his anticipated return to
Canada. Inspector Reynolds stated that Mr. Elmaati’s allegation that he had
been tortured into making his alleged confession, certainly diminished the statement. Inspector Reynolds further stated, however, that regardless of how much
torture is inflicted, a person is only capable of disclosing facts that they know.
Similarly, Inspector Cabana stated that the truthfulness of the statement and the
circumstances under which the statement was taken were two different issues.
However, Inspector Cabana also stated that the focus of the RCMP at the time
was not on the admissibility of the statement but on the validity of the threat
information that it contained. As a result, despite Mr. Elmaati’s allegation of
torture, the RCMP’s focus continued to be to try to corroborate the information
in the alleged confession.
220. On August 15, 2002, Project A‑O Canada sent a fax to Staff Sergeant
Fiorido, who, as noted above, had replaced Inspector Covey as the RCMP’s
liaison officer in Rome, stating that it had been agreed that the RCMP must
take steps to interview Mr. Elmaati in Egypt, and asking Staff Sergeant Fiorido
to contact Egyptian authorities and request access. The fax also referred to
Mr. Elmaati’s allegation of mistreatment in Syria and stated that the consular
officials who had spoken to Mr. Elmaati were not aware of the RCMP’s investigation of Mr. Elmaati in Canada.
221. When asked about the RCMP’s desire to question Mr. Elmaati in Egypt
after learning of his allegations of mistreatment in Syria, Assistant Commissioner
Proulx stated that the RCMP needed to interview him in order to learn more
about the alleged threat and whether there were any co-conspirators. On
August 22, 2002 Staff Sergeant Fiorido was informed that Egyptian authorities
had agreed to allow Canadian investigators to interview Mr. Elmaati in Egypt.
However, the Egyptian authorities never did grant an interview.
222. Former Commissioner Zaccardelli stated that he was not advised at the
time of Mr. Elmaati’s allegations of torture and could not recall having been
informed of the allegations while he held the position of Commissioner, or of
having been asked for direction on how to deal with them. When asked whether
the Commissioner should be advised of an allegation of torture, Mr. Zaccardelli
stated that it depended on the circumstances of the investigation. He stated
that if that type of information came to the attention of one of his investigators,
he would expect the investigator to take the appropriate steps to deal with the
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situation, including making a decision regarding whether it should be brought
to the attention of the Commissioner.
223. In the middle of August 2002, the INSET, discussed further in Chapter 3,
had a meeting in which it discussed, among other things, the alleged terrorist
cell in Canada. In discussing its significance, the INSET characterized the alleged
confession by Mr. Elmaati as somewhat questionable in light of the possibility
that Mr. Elmaati might have been tortured by Syrian authorities into making
his statements.
Inter-agency meeting in response to torture claim
224. In response to Mr. Elmaati’s allegation that he had been tortured, an
inter-agency meeting was held on August 15, 2002 among representatives from
CSIS, DFAIT, RCMP, Privy Council Office and Solicitor General. The purpose of
this meeting was to prepare media lines to be used by each of the agencies if
the responsible Ministers received media inquiries about Mr. Elmaati’s welfare.
There was no discussion about the torture allegations; it had been determined
that the torture issue would be handled by DFAIT.
225. Ms. Pastyr‑Lupul was asked by ISI to attend the inter-agency meeting.
At the beginning of the meeting, Ms. Pastyr‑Lupul was shocked to learn that
everyone else in attendance had a copy of Mr. Bale’s report on the consular visit
with Mr. Elmaati. Ms. Pastyr‑Lupul then learned that the subject of the meeting
was a potential national security concern. She stated that at the meeting other
Canadian officials questioned her about her contacts with the Elmaati family.
Ms. Pastyr‑Lupul described feeling under extreme duress, as she realized that
there was something more to the situation than she had been led to believe. She
felt at the time that she needed to be honest because of these national security
concerns. However, in retrospect, she said that she would not have been as
honest and forthright with them.
226. According to an RCMP report of the meeting, DFAIT had advised that it
would only address Mr. Elmaati’s claims about torture with the Syrian authorities after he was released from Egyptian custody, and that he had not made any
complaints about his treatment in Egypt. When asked about DFAIT’s decision
to wait to pursue Mr. Elmaati’s torture claims until after his release, Mr. Pardy
stated that, while he did not attend that meeting, there were a number of things
to consider before deciding what to do with that information, including what
benefits or potential consequences would be derived from going to the Syrian
authorities with that information. According to Mr. Pardy, it was determined
that confronting the Syrian authorities with Mr. Elmaati’s allegations of torture
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO AHMAD ABOU-ELMAATI
would have no direct benefit to Mr. Elmaati, and had the potential to cause harm
to Mr. Almalki, who was at the time detained in Syria.
227. Mr. Saunders stated in his interview that he had discussions with Jim
Gould and Scott Heatherington about the possible implications for Canadians
who were still detained in Syria of Canada going public with complaints about
mistreatment of prisoners. According to Mr. Saunders, they would have discussed trying to press for Mr. Elmaati’s release first and foremost, with a view to
dealing with these other issues after he was safely out of the country. He further
stated, however, that the decision as to what strategy was to be employed would
not have been for ISI, but for the Consular Affairs Bureau, reporting through the
chain of command.
Joint meeting to discuss the RCMP’s plans for an interview
228. On August 28, 2002, after confirmation had been received from Egyptian
authorities that Mr. Elmaati was in custody in Egypt, a joint meeting was convened between representatives of CSIS and the RCMP to discuss the RCMP’s
plans for a possible interview. At this meeting, the RCMP discussed its investigation of Mr. Elmaati and its intention to interview him in the near future; the
RCMP also requested the Service’s input into questions to be asked if granted
an interview.
229. Inspector Cabana told the Inquiry that in the summer of 2002 the RCMP
had received information from DFAIT that the Egyptian authorities were contemplating the release of Mr. Elmaati. As a result, the RCMP felt there was an urgent
need to gain access to Mr. Elmaati to conduct its interview. Inspector Cabana
told the Arar Inquiry that the RCMP wanted to interview Mr. Elmaati before
he was released because there was a concern that once released he might not
return to Canada, and the RCMP did not want to lose track of his whereabouts
given his alleged confession. The urgency subsided when, shortly thereafter,
an RCMP liaison officer posted abroad was informed by the Egyptian authorities that there was no plan for Mr. Elmaati’s release any time soon. However,
despite the lack of urgency, Project A‑O Canada advised Staff Sergeant Fiorido,
on September 10, 2002, that the RCMP felt the interview was important and
was developing the appropriate background information to ensure its efforts
would be successful.
DFAIT aware of potential for interview by the RCMP
230. DFAIT ISI was aware that the RCMP wanted to interview Mr. Elmaati
once he was transferred from Egyptian intelligence to Egyptian police custody.
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ISI reporting indicates that it was believed that the RCMP would have a better
chance of getting access to Mr. Elmaati through the police than through the
intelligence services. In a memorandum dated June 26, 2002, Mr. Saunders
noted that both the RCMP and a foreign agency were seeking interviews of
Mr. Elmaati, and that, although Mr. Elmaati had allegedly confessed during interrogation to a plot to blow up the Parliament Buildings and had given details
about an alleged terrorist cell in Canada, it was unclear how much of this
information was fact and how much was fiction. When interviewed about
this statement, Mr. Saunders stated that he was reflecting on a conversation he
had had with a CSIS official about the accuracy of some of the information that
was contained in the document. Mr. Saunders’ recollection was that this CSIS
official had been skeptical of the alleged confession because it would be very
unlikely that a man in Syrian custody would have been able to produce such
detailed information; Mr. Saunders’ view was that the CSIS official believed that
Mr. Elmaati had been fed this information and then asked to confirm it.
Ambassador Pillarella attempts to assist the RCMP
231. In a meeting between DFAIT and the RCMP on September 10, 2002 to
discuss sending questions for Mr. Almalki to Syria, as described in Chapter 5,
paragraphs 125 to 128, there was some discussion regarding Syrian information
on Mr. Elmaati. Mr. Solomon does not have a strong recollection of this meeting; however, he believes the RCMP asked Ambassador Pillarella to approach
the Syrian authorities to obtain more information about Mr. Elmaati and request
RCMP access to any documents the Syrians might have in relation to him. It
was Mr. Solomon’s belief that Ambassador Pillarella would approach General
Khalil on that issue. Mr. Pillarella does not recall having agreed to approach
the Syrian authorities with respect to Mr. Elmaati at the September 10 meeting;
nor did he do so.
Consular Activities in Egypt
232. In addition to the first consular visit on August 12, 2002, Mr. Elmaati
would receive seven other consular visits, as well as other forms of assistance
provided by DFAIT consular officials to him and his family, while in detention
in Egypt. All eight consular visits were conducted in English although, on occasion, consular officer Mira Wassef would converse with Mr. Elmaati in Arabic.
Training to detect signs of torture and abuse
233. As discussed in Chapter 3 at paragraphs 103 to 107, during the relevant
period, consular officials did not receive training in recognizing the signs of
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO AHMAD ABOU-ELMAATI
torture and abuse of Canadians detained abroad. Both consuls at the Canadian
Embassy in Cairo, Mr. Bale and Mr. Chen, confirmed that they had received no
training in detecting the mistreatment of detainees. According to Mr. Chen,
consuls received general training on different types of consular cases, but there
were no specific courses on cases involving detainees. In addition, Mr. Chen did
not recall having any exposure to information about human rights in Egypt.
234. Even without formal training to detect the signs of torture, Mr. Bale
and Mr. Chen stated that they had considered several indicators to determine
whether Mr. Elmaati was being mistreated. During his first consular visit with
Mr. Elmaati, Mr. Bale assessed several aspects of Mr. Elmaati’s physical appearance. He noted that Mr. Elmaati did not look as if he was suffering from malnutrition, he did not have any scars or bandages, he spoke rationally and he
was coherent. In Mr. Bale’s view, Mr. Elmaati was fine. As discussed at paragraph 203 above, Mr. Elmaati told the Inquiry that at the time of this consular
visit he felt that he had no choice but to tell consular officials that he was being
well treated since the Egyptian officials were in the room and could hear and
understand what was said. Mr. Elmaati’s evidence about how well he was doing
at the time is discussed in Chapter 7.
235. According to Mr. Chen, there were no indications that Mr. Elmaati was
mistreated. Mr. Chen stated that Mr. Elmaati provided consular officials with
information about the conditions of his incarceration and, in his view, there were
no clues from that information that there was anything out of the ordinary.
Requests for consular access alone
236. During the time that Mr. Elmaati was detained in Egypt, there was no
DFAIT policy that instructed or required consular officials to request private
visits with individuals being held in detention.
237. Mr. Bale’s experience with consular visits was that it was standard practice to expect prison or security officials to be in attendance during visits and
he therefore did not, during his consular visits to Mr. Elmaati in Egypt, ever ask
to visit privately with Mr. Elmaati, nor was he ever ordered by DFAIT to do so.
Further, Mr. Bale advised the Inquiry that he recalled several instances when
security officials were sufficiently distracted or temporarily absent, and when
Mr. Elmaati would have had the opportunity to convey information that he
felt he was unable to provide in the presence of prison officials. As discussed
at paragraph 104 of Chapter 7, Mr. Elmaati told the Inquiry that he was never
alone with Canadian consular officials while in detention in Egypt and did not
feel that he ever had the opportunity to share this information.
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238. Mr. Chen, who occupied the post of consul in Egypt after Mr. Bale’s
departure, also never asked, and was never directed by DFAIT to ask, to visit
privately with Mr. Elmaati. Mr. Chen’s experience in other countries was that
consular visits were always accompanied with a host country official present.
He recalls inquiring whether consular visitation practices in Cairo were any
different in this regard, and was informed by Mira Wassef that the standard procedure was that an Egyptian official was always in attendance at prison visits.
239. Konrad Sigurdson, who replaced Mr. Pardy as Director General of the
Consular Affairs Bureau in September 2003, told the Arar Inquiry that consular
officials, in dealing with a country that might be suspected of engaging in torture, have the right to request access to the Canadian detainee alone. However,
the foreign country has no obligation to allow this access. Mr. Sigurdson further stated that a consular official in a country that may be suspected of torture
should ask prison officials to see the Canadian detainee alone.
240. After having adopted his testimony from the Arar Inquiry (as set out in
the preceding paragraph), Mr. Sigurdson advised the Inquiry that he wanted to
provide the following clarification of his Arar Commission testimony:
The statement that the consular officers should ask for private visits refers to the
fact that in cases of detention, irrespective of the conditions or location of detention, consular officials should give consideration to whether or not to ask for private visits. However, there is no DFAIT policy or requirement that a request in fact
be made. Although a private session is preferable, the first priority is to gain access
to determine the Canadian’s well being. If a demand for private access jeopardizes
access generally, it is not made. The judgment is with the officer in the field in
consultation with Headquarters. In respect of Syria and Egypt, the experience of
the Consular Bureau was that no such private access would ever be granted and
therefore no such request was made.
241. Mr. Saunders told the Inquiry that before he joined DFAIT ISI, he had
occupied several positions at DFAIT during the 1960s and 1970s that involved
the provision of consular services. In these postings, he had the opportunity
to meet with Canadians who were being held in detention. When he did so,
Mr. Saunders stated, it was his practice to request to speak with the Canadian
detainee alone. When asked whether there was a practice at DFAIT of requesting that any foreign officials leave the room to enable a private interview,
Mr. Saunders stated that it might not have been a practice; however, it was
always something that he requested, and he never had anyone refuse. When
asked a similar set of questions, Mr. Livermore, Director General of DFAIT’s
Security and Intelligence Bureau (DFAIT ISD), also stated that in his experience
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO AHMAD ABOU-ELMAATI
in the consular area more than 25 years ago, his practice was to ask the detaining
authorities if he could see the detained individual alone. Mr. Livermore further
stated that one had to assume that answers might be conditioned by the presence of someone else. His practice was therefore to ask to see the individual
alone, and ask to speak to the person in English or French. In his experience,
however, these requests were never granted.
Second consular visit
242. In the fall of 2002, Mr. Elmaati remained in detention at Tora prison.
In anticipation of the second consular visit to Mr. Elmaati, Ms. Pastyr‑Lupul
instructed Consul Stuart Bale to try to inquire of Mr. Elmaati, discreetly if
possible, how he was being treated, keeping in mind that he might not feel
in a position to express himself openly or truthfully given the presence of
Egyptian officials.
243. On September 1, 2002 Mr. Elmaati received his second consular visit,
from Mr. Bale and a consular officer. Mr. Elmaati inquired whether Mr. Bale had
any news about his situation and if and when he might be released. Mr. Bale
advised Mr. Elmaati that a diplomatic note had been sent to Egypt seeking
information regarding his detention and pending charges but that no response
had yet been received. Mr. Bale noted that he appeared to be in good spirits
and good physical condition. Mr. Elmaati advised that he was sharing a cell
with seven others. Mr. Bale asked Mr. Elmaati if he knew the reason why his
cell mates were being detained. According to Mr. Bale, Mr. Elmaati responded
that they were political prisoners who were being detained because of their
religious beliefs.
244. Mr. Bale reported that Mr. Elmaati advised that he was permitted in the
recreation yard only once per week and that he had trouble breathing at times
because of poor ventilation. Mr. Bale inquired with prison officials about the
possibility of providing Mr. Elmaati with more time outside. Mr. Bale was
informed that this would be possible upon completion of the renovations to
the yard.
245. Mr. Elmaati informed Mr. Bale that his money was being kept in storage
by prison officials but it had been counted and he had been issued a receipt.
Mr. Elmaati also advised that he had been permitted to exchange US$100 for
Egyptian currency to allow him to purchase items from the prison kitchen.
Mr. Elmaati requested a family visit as soon as possible and asked that they
provide him with some clothing, food, reading materials and personal items.
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246. In a report dated September 1, 2002, Mr. Bale reported that consular officials were able to introduce a few questions to Mr. Elmaati regarding prison conditions while prison officials were busy attending to another issue. According
to Mr. Bale’s report, Mr. Elmaati advised that he was being well treated, was
well fed, and had adequate access to shower and toilet facilities. Mr. Bale
reported that every time he asked prison officials about Mr. Elmaati’s rights and
treatment, Mr. Elmaati repeatedly advised prison officials that it was the Embassy
asking these questions and not him.
247. As suggested in the report, during this visit prison officials left the room
for a few minutes. Mr. Bale told the Inquiry that he felt that, during this time,
Mr. Elmaati could have told him that he was being tortured. In his interview by
Inquiry counsel, Mr. Bale stated that he asked Mr. Elmaati if he was being abused
and Mr. Elmaati said that he was “fine” and that prison officials were not doing
anything to him. Mr. Bale then asked if prison officials were interrogating him.
Mr. Elmaati replied that they were not. Paragraphs 87 to 88 of Chapter 7, set
out Mr. Elmaati’s description of this second consular visit, including his recollection that the Egyptian officials never left the room and sat close enough that
they could hear everything that was being said. Mr. Elmaati could not recall
Mr. Bale asking any questions about Mr. Elmaati’s treatment in the jail or asking for a private meeting, although he stated that maybe Mr. Bale knew that he
could not meet privately.
248. On September 3, 2002, the Embassy followed up on its visit with
a diplomatic note to Egypt, stating that it had not yet received a response
to the diplomatic note of August 14, 2002 and asking for the reasons for
Mr. Elmaati’s detention.
249. DFAIT officials advised Mr. Elmaati’s family of this second consular visit
and informed them that he was being well fed and treated. Consular officials
also provided Mr. Elmaati’s sister with a letter that Mr. Elmaati had written to
her during this visit.
Third consular visit
250. On September 11, 2002, Mr. Elmaati received a third visit from consular
officials, accompanied by Mr. Elmaati’s sister and her husband. The only difference noted by Vice-Consul Jean Ducharme at this meeting was that security officials were not paying very much attention to the discussions between
Mr. Elmaati and his family members. The report of this meeting is very brief,
and includes no mention of conditions of detention.
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO AHMAD ABOU-ELMAATI
251. On September 19, 2002, Ms. Pastyr‑Lupul sent a note to the Embassy
in Cairo advising that since a consular presence had now been established
with Mr. Elmaati, consular officials were not obliged to visit him as often. She
advised that the guideline for consular visits is one visit every three months.
She also suggested that the family visits be facilitated directly with the Director
of the Prison so they would not have to wait until each consular visit to
have contact.
252. Throughout the summer and fall 2002, Mr. Elmaati’s family was in contact
with the Consular Affairs Bureau, which kept the family up to date on the efforts
being made in Mr. Elmaati’s case. Consular officials also assisted the family with
the procedures required to visit Mr. Elmaati in prison.
253. In October and November 2002, consular officials and Embassy staff
made efforts to facilitate a meeting between Mr. Elmaati and his mother. On
December 23, 2002, consular officials were successful in obtaining permission for Mr. Elmaati’s mother to visit her son. This meeting took place on
January 5, 2003.
Consular Affairs Bureau provides DFAIT ISI with access to CAMANT notes
254. Ms. Pastyr‑Lupul stated that prior to November 2001, the Consular Affairs
Bureau did not share CAMANT notes with DFAIT ISI. However, the Consular
Affairs Bureau had realized that Mr. Elmaati’s case represented a very different
kind of environment and situation than any previous cases. In the interests
of assisting with providing consular assistance to Mr. Elmaati, a decision was
made to share certain CAMANT notes with members of ISI. ISI has the ability
to canvass intelligence sources and provide the Consular Affairs Bureau with
information that might help it understand who has the power in a given country
and how best to utilize Canadian influence to fulfill consular obligations.
255. Mr. Livermore stated that ISI requested consular information from
Mr. Pardy on fairly urgent national security grounds. Mr. Livermore explained
that ISI was having discussions with CSIS and the RCMP about these cases. It
was not interested in the private lives of these individuals but simply wanted
access to information such as what these men were doing, who their associates
were, and why they were incarcerated.
256. In October 2002, Jonathan Solomon of DFAIT ISI was granted access to
the CAMANT system in order to facilitate his work with the Consular Affairs
Bureau in these cases.
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Providing CSIS with access to consular information
257. Some consular information was shared with CSIS. The first report containing confidential information shared with the Service was the August 12,
2002 report regarding Mr. Elmaati’s first consular visit in Egypt, when he alleged
he had been tortured in Syria. In September 2002, Consul Stuart Bale advised a
CSIS employee about additional consular visits with Mr. Elmaati, including his
impression that Mr. Elmaati appeared to be treated well by Egyptian authorities. Mr. Bale stated in his interview that he did not ask for permission from
headquarters before discussing consular information with CSIS because he
had asked in the past, had noticed that headquarters was allowing other agencies to see this information, and therefore did not see anything wrong in it.
Mr. Bale went on to say that, in retrospect, consular information should not
have been shared.
258. In addition to these oral disclosures of information to CSIS, DFAIT provided copies of certain CAMANT notes to the Service in response to a request
from the Service for access to information regarding Mr. Bale’s interview
reports, or summaries and assessments of those reports. Aside from the report
of Mr. Elmaati’s first consular visit in August 2002, DFAIT also provided the
Service with the reports of its consular visits to Mr. Elmaati on September 1,
September 11 and November 18, 2001, as well as translated copies of two diplomatic notes received from the Egyptian Ministry of Foreign Affairs regarding
Mr. Elmaati.
259. Mr. Solomon of DFAIT ISI explained that there were specific rules about
how, and under what circumstances, consular information could be shared.
Over and above the rules governing general consular information, if DFAIT
received a request for production of a CAMANT note, then specific permission
of Mr. Pardy was required before it could be shared with anyone other than
persons already having access to the CAMANT system. Mr. Solomon stated that
while he did not have a specific recollection of doing so, he likely would have
been the person who passed the CAMANT notes to CSIS, and would have done
so with Mr. Pardy’s permission.
260. Mr. Pardy explained that consular information could be shared to assist a
person in trouble. According to Mr. Pardy’s understanding of the Privacy Act,
DFAIT could use the information for the purposes for which it was collected.
If the information was collected to assist a Canadian in difficulty, and if DFAIT
officials were of the view that they could assist that Canadian citizen by sharing the consular information, then they did so. In deciding whether or not to
share information with CSIS or the RCMP, Mr. Solomon and Mr. Pardy examined
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO AHMAD ABOU-ELMAATI
each document, and weighed the pros and cons of sharing that particular piece
of information.
261. Ms. Pastyr‑Lupul stated that she discussed consular information with CSIS
in the spirit of cooperation with other agencies and their mutual attempts to prevent any terrorist attacks on Canada. Ms. Pastyr‑Lupul believed that she could
share information that was relevant to a national security concern. However,
she stated that in retrospect, it was probably naïve to think that this information
would be received as innocently as she had collected it.
262. Consular officials continued to meet with Mr. Elmaati, and shared certain
consular information with the Service, through the fall of 2002. A CSIS official
stated that the Service had not provided him with any information regarding
Foreign Service policies on the sharing of information obtained during consular
visits; nor had anybody ever suggested that it was inappropriate for DFAIT to
share information. He stated that the Service would ask but it was up to the
person disclosing the information to decide whether they were permitted to
give it to them. A senior CSIS official stated that it was not his understanding
that consular reports were confidential, and that it would not be unusual for
the Service to receive consular reports on security-related matters.
263. The Service received these reports from DFAIT ISI, rather than the
Consular Affairs Bureau. A senior CSIS official stated that DFAIT does not have
a standard caveat that it attaches to these consular reports, although it would
sometimes say “please protect” or “be cautious about” or “do not disseminate
further.” This same CSIS official did not believe that these reports ever moved
beyond the Service in any event. He stated that consular information can be
helpful to the Service and that he was not aware of any standards or policy
with respect to the sharing of consular information by DFAIT officials, or of
any training or communication by the Service on the subject. He also stated
that under the Privacy Act, CSIS could request access to information that was
deemed relevant to the security of Canada and Canadians. Aside from formal
consular reports from DFAIT, it would not be uncommon for the Service to have
discussions with consular officials if it required information.
Providing the RCMP with access to consular information
264. In addition to sharing certain information with CSIS, DFAIT also provided
the RCMP with information obtained from Mr. Elmaati in the course of providing
consular services to him. DFAIT shared the report of Mr. Elmaati’s first consular
visit, on August 12, 2002 and shared CAMANT note from its November 18, 2002
consular visit to Mr. Elmaati with the RCMP.
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Consular Affairs Bureau changes practice on sharing consular information
265. As noted above, Konrad Sigurdson replaced Mr. Pardy as Director General
of the Consular Affairs Bureau in September 2003. In his interview, Mr. Sigurdson
indicated that at that time, he was aware that information was being broadly
shared and that there were no reservations about sharing CAMANT notes. As
a result, Mr. Sigurdson began taking steps to obtain a better understanding of
where the information was going and to ensure that any sharing was in the
context of DFAIT’s work and mandate. One of the measures implemented by
Mr. Sigurdson was to stop the dissemination of CAMANT notes outside of the
Consular Affairs Bureau. Consular offices abroad were also instructed not to
talk about their consular cases with RCMP or CSIS employees abroad.
266. The confidentiality of consular information is discussed further in
Chapter 3 at paragraphs 110 to 114.
Fourth consular visit
267. On November 13, 2002, consular officials attempted to visit Mr. Elmaati
at Tora prison, but were unable to do so because he had been moved to the
Abu Zaabal jail. On November 18, 2002, Consul Stuart Bale and a consular officer met with Mr. Elmaati and provided him with food items that were sent by
his sister. Mr. Bale reported that Mr. Elmaati appeared to be in good health.
268. During this visit, Mr. Bale asked Mr. Elmaati about his willingness to talk
to officers from the RCMP or CSIS. Mr. Bale told the Inquiry that he raised the
prospect of speaking with the RCMP and CSIS because during his first consular
visit with Mr. Elmaati, he had asked Mr. Elmaati why he thought he was being
detained, and Mr. Elmaati had responded that he did not want to talk about it
with anyone other than CSIS or the RCMP. Mr. Bale further stated that he was
not asking Mr. Elmaati to meet with law enforcement officials because anyone
had asked him to do so, but rather, as an attempt to get some answers about
why Mr. Elmaati was being detained. Mr. Bale stated that he was making an
effort to explore all possibilities and that he wanted to move the consular case
forward to get Mr. Elmaati back to Canada. Mr. Elmaati responded that he was
willing to talk to them on Canadian soil only. As discussed at paragraph 104 of
Chapter 7, Mr. Elmaati told the Inquiry that he recalled being regularly asked if
he would be willing to meet with Canadian security officials.
269. During this visit, Mr. Elmaati informed Mr. Bale that he had been released
by the court back in October and sent to State Security for six days, after which
State Security had renewed his detention. Mr. Bale described Mr. Elmaati as very
vague regarding who he saw at court and what the proceedings were all about.
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Mr. Bale told Mr. Elmaati that he had not previously been made aware of this
information and made some inquiries of the Egyptian officials present in the
room during the visit. Mr. Bale was told that it had not been a release and that
changing prisons was a regular occurrence. Mr. Bale indicated to Mr. Elmaati
that DFAIT would follow up on the issue.
270. On November 19, 2002, the Canadian Embassy sent a diplomatic note to
the Egyptian Ministry of Foreign Affairs requesting information on the reason
for Mr. Elmaati’s continued detention despite his court-ordered release. The
note stated:
To date, the Embassy has yet to receive a reply as to the reason why Egyptian
authorities have detained Mr. Abou El Maati, if there are any formal charges pending, or when he may be expected to be released. Canadian media interest in this
case is now just starting. The questions which the Embassy has raised are very
basic in nature and will surely be raised by the media.
271. The Consular Affairs Bureau and consular officials informed the Elmaati
family of the consular visit as well as Mr. Elmaati’s request that they bring him
clothing and blankets and retrieve his suitcases from Tora prison. In the weeks
following the fourth consular visit, consular officials assisted the family in its
attempts to visit Mr. Elmaati and to bring him the items he had requested.
DFAIT informs RCMP of Mr. Elmaati’s release and re-arrest
272. On November 18, 2002, DFAIT orally advised Project A‑O Canada that
Mr. Elmaati had apparently had a court appearance in Cairo, been released
from custody, and then been re-arrested by Egyptian intelligence officials. On
November 25, Project A‑O Canada requested that Staff Sergeant Fiorido, its liaison officer in Rome, attempt to clarify Mr. Elmaati’s status and current location.
On November 28, DFAIT provided Project A‑O Canada with a November 18
CAMANT note summarizing the meeting between consular officials and
Mr. Elmaati on November 18.
273. On December 5, 2002, Staff Sergeant Fiorido informed Inspector Cabana
that Mr. Elmaati had appeared before a judge who had apparently determined
that there were no grounds to further detain him, that he had then been
transferred to another facility, and that he was now pressuring consular officials to secure his release. On December 12, Staff Sergeant Fiorido further
advised Inspector Cabana that he had been informed by a consular official that
Mr. Elmaati would not be released any time soon.
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Meetings with Badr Elmaati
274. In early and late November 2002, representatives of the Service met with
Mr. Elmaati’s father, Badr Elmaati. It has been alleged, publicly, that about this
time, Badr Elmaati was told that the Service would attempt to get Mr. Elmaati
out of Egyptian detention if he agreed to stay in Egypt and not return to Canada.
According to Ms. Pastyr‑Lupul, who heard about this alleged promise from Badr
Elmaati, it was unclear whether this was supposed to be a long-term or shortterm proposal. A CSIS official told the Inquiry that the Service did not make
those statements and could not have made those statements; it was not within
the Service’s ability to make that kind of a proposal. Mr. Hooper could not recall
any discussions, with members of DFAIT or others, about a proposal along the
lines of that which Badr Elmaati said was made to him, and stated that it would
be difficult for him to believe that a Service representative would have made that
proposal. The Inquiry has found no documentary evidence that this proposal
was ever considered or made by the Service.
Mr. Elmaati’s continued detention in Egypt
275. By January 2003, DFAIT had written many letters to the Egyptian authorities requesting information on Mr. Elmaati, including one letter that mentioned
that there was now media interest in the detention. According to Mr. Bale,
there was a concern that the Minister of Foreign Affairs would have to answer
questions about Mr. Elmaati in the House of Commons. In late January 2003,
Canadian Immigration Minister Denis Coderre, who was visiting Egypt, had
a meeting with the Canadian Ambassador to Cairo, Michel de Salaberry and
another Canadian official concerning circumstances in Egypt at the time.
Minister Coderre asked about Mr. Elmaati’s situation. The Minister learned
from the Canadian official what had been done and was being done to try to
ascertain information about the detention. The discussion was very general,
and not an in-depth briefing.
Egypt provides a reason for detention
276. On December 17, 2002, consular officials met with the Egyptian Deputy
Minister of Foreign Affairs responsible for consular matters and raised the case
of Mr. Elmaati. They requested information about the charges, if any, pending
against Mr. Elmaati and reminded the Deputy Minister of the rising media interest in Mr. Elmaati’s case back in Canada.
277. In response to several requests by Embassy officials for information on
why Mr. Elmaati was being detained, the Egyptian Ministry of Foreign Affairs
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finally advised, in a letter dated January 26, 2003 and received by DFAIT on
February 6, 2003, that Mr. Elmaati had been arrested because he was an element of an extremist group, and that he continued to be detained to prevent
him from “his activities.” The Ministry of Foreign Affairs went on to advise that
in accordance with prison regulations, Mr. Elmaati would not be permitted to
have contact with his family through telephone calls or letters.
Further consular services in Egypt
Fifth consular visit
278. The fifth consular visit, held on January 21, 2003, was different from
the first four in a number of ways. First, Mr. Bale noticed that instead of lowranking officials, he and his consular officer were joined in the interview room
by two generals. Second, Mr. Elmaati was offered tea or something to drink if
he wanted it. However, the generals refused to answer any specific questions
about Mr. Elmaati’s detention.
279. Mr. Bale noted in his report, which was sent to the Consular Affairs
Bureau, that Mr. Elmaati appeared in good condition and had stated that he
was being well treated. Mr. Elmaati advised that he had not yet received a visit
from a lawyer and questioned whether DFAIT had received an explanation for
his detention from the Egyptian government. When asked whether he was
being interviewed by Egyptian authorities, Mr. Elmaati advised that when he
first arrived in Egypt he was questioned on a regular basis but that he had not
been questioned for several months.
280. During this consular visit, Mr. Elmaati appeared to have changed his mind
about meeting with Canadian officials. According to Mr. Bale, when asked
whether he wanted to meet with Canadian security or police officials in Egypt,
Mr. Elmaati said that if he was forced to, he would meet with them in Egypt, but
he preferred not to. In his interview, Mr. Bale stated that he understood this to
mean that Mr. Elmaati was giving in a bit in comparison to his earlier refusals
to meet with CSIS or the RCMP at all. Mr. Bale also stated that he thought that
“if forced to” meant that Mr. Elmaati would prefer to meet in Canada but was
prepared to meet with CSIS and the RCMP in Egypt as a last resort. Mr. Bale
stated that he might have informed a CSIS employee abroad that Mr. Elmaati
had agreed to meet with the Service in Egypt, but he did not tell the RCMP.
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Sixth consular visit
281. A sixth consular visit occurred on February 27, 2003 at Tora prison.
Consul Stuart Bale and a consular officer were accompanied by Mr. Elmaati`s
mother, sister and brother-in-law on this visit. In his report of the meeting,
which he sent to the Consular Affairs Bureau, Mr. Bale described Mr. Elmaati as
being in good health and very happy to see his family. When asked about this
assessment, Mr. Bale told the Inquiry that on every visit consular officials asked
Mr. Elmaati how he was doing, feeling, and being treated in order to assess the
state of his health and wellbeing. Mr. Bale stated that in his view, Mr. Elmaati
was not showing or communicating any signs that he was being mistreated at
this visit.
282. According to Mr. Bale’s report of this meeting, Mr. Elmaati informed him
that he had been transferred from Abu Zaabal jail to Tora prison approximately
one week earlier and upon arrival at Tora had been questioned briefly (for
approximately five minutes) by State Security officials. Mr. Elmaati told Mr. Bale
that the questions seemed to be an attempt to verify previous answers to questions Mr. Elmaati had been asked when he first arrived in Egypt. According
to this report, Mr. Elmaati also advised that he had never been questioned at
Abu Zaabal. Mr. Elmaati asked about the two release orders from the Egyptian
courts and Mr. Bale advised that the Embassy was trying to verify the authenticity of the release orders by contacting his Egyptian lawyer and sending a
diplomatic note to the Egyptian Ministry of Foreign Affairs.
283. During this visit, according to Mr. Bale, Mr. Elmaati advised that he would
now be willing to talk with CSIS or RCMP officials as long as Egyptian authorities agreed. Mr. Bale remarked in his report that this was a change in his previous stance and that Mr. Elmaati had stated that he had nothing to hide and he
had done nothing wrong. On March 4, Mr. Bale sent an email to Staff Sergeant
Fiorido advising that Mr. Elmaati was now willing to meet with the RCMP or
CSIS officials as long as the Egyptian authorities approved. Mr. Bale told the
Inquiry that he did not recall whether he ever communicated Mr. Elmaati’s
willingness to speak with CSIS and the RCMP to CSIS. CSIS has no record that
this information was ever communicated.
284. According to Mr. Elmaati, after one of the consular visits from the
Embassy, he was called to meet with a security officer who understood English
and wanted to know why Mr. Elmaati was refusing to meet with Canadian security officials. As described in Chapter 7, paragraphs 106 to 107, Mr. Elmaati told
the Inquiry that he explained the basis for his refusal to the Egyptian security
officer, who then instructed Mr. Elmaati to agree to meet with them the next
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time he was asked. Mr. Elmaati recalled that he conveyed his willingness to
Mr. Chen in the fall of 2003.
Consular efforts to arrange family visits
285. During the sixth consular visit, in February 2003, Mr. Elmaati’s mother,
sister and brother-in-law were able to bring food and personal items for him.
On March 25, 2003, the Embassy assisted in arranging a further prison visit by
Mr. Elmaati’s family. Throughout this period, Ms. Pastyr‑Lupul was in contact
with Badr Elmaati to advise him of recent consular efforts and attempts to
arrange for visitation by his family members. Ms. Pastyr‑Lupul also attempted
to assist the family in respect of the difficulties the family was having with
Mr. Elmaati’s lawyer.
April 2003 action memorandum
286. On April 7, 2003, Mr. Pardy wrote an action memorandum for the Minister
of Foreign Affairs regarding improving coordination across government on security-related consular cases. Mr. Pardy told the Inquiry that because of the myriad
of Canadian government interests that were involved in cases such as these
where there is a security aspect, it was important to develop coherence in the
way these cases were thought about and dealt with from a consular perspective.
In the annex to this memorandum, Mr. Pardy wrote that “Mr. Elmaati seems to
be a case of little evidence to support the allegations of involvement in terrorist
activities but rather one of associating with others who may have.” When asked
what he meant by that statement, Mr. Pardy was unable to provide an explanation but suggested that he might have been confusing Mr. Elmaati with Mr. Arar,
about whom he had made a similar statement in the same memorandum.
Egyptian Ministry of Foreign Affairs provides justification for Mr. Elmaati’s
detention
287. On May 20, 2003, DFAIT received a letter from the Egyptian Ministry of
Foreign Affairs dated April 29, 2003 and addressed to the Canadian Embassy,
responding to inquiries from DFAIT regarding Mr. Elmaati’s temporary release
and subsequent detention. The letter stated that Mr. Elmaati had been arrested
after his arrival in Egypt under the provisions of the Emergency Law and then
released from jail by court order dated October 15, 2002. It went on to state
that since it had been determined that Mr. Elmaati continued to be a “criminal
danger,” he had been subsequently re-arrested and remained in detention.
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RCMP refuses to consent to sharing of Mr. Elmaati’s will
288. In early February 2003, the Service requested the RCMP’s permission
to pass the translated contents of Mr. Elmaati’s will (described above at paragraphs 134 to138) directly to a foreign agency. The RCMP refused CSIS’ request
to share the will. Since it was the RCMP’s intention to continue its efforts to
interview Mr. Elmaati, the RCMP thought it inappropriate to release the document for use by CSIS or any other agency. The RCMP intended to show the will
to Mr. Elmaati when it got the chance to interview him. Neither CSIS nor the
RCMP ever provided Mr. Elmaati’s will to this foreign agency or told the agency
that it could obtain a copy of the will from the American authorities.
289. Chapter 7, paragraphs 99 to 102, sets out Mr. Elmaati’s evidence that in
March of 2003 he was transferred to State Security headquarters in Nasr City and
was interrogated about his Islamic will. As outlined in that chapter, Mr. Elmaati
told the Inquiry that he was tortured while being interrogated about the will,
including being subjected to electric shocks.
290. In early April 2003, members of Project A‑O Canada met with a representative of a foreign agency and provided him with a copy of both Mr. Elmaati’s
original Arabic will and the translated English version for analysis by this agency.
In the cover letter accompanying these documents, the RCMP wrote that the
will had been seized from the residence of a potential suicide bomber. In a
report of this exchange, Project A‑O Canada investigators noted that the representative of this agency had agreed that the information would be kept in
confidence between the RCMP and this foreign agency. The RCMP received no
indication that this agency shared the will with anyone else.
RCMP’s continued efforts to obtain access to Mr. Elmaati
291. On December 17, 2002, Inspector Cabana submitted a request for travel
authorization to the officer in charge of “A” Division Criminal Operations in the
event that the RCMP gained access to Mr. Elmaati in Egypt. With this request,
Inspector Cabana provided an “Investigational Planning and Report” dated
November 18, 2002 for Mr. Elmaati. The report provided a summary of the
information received from foreign agencies about Mr. Elmaati and his alleged
links to al-Qaeda. The report also referred to Mr. Elmaati’s alleged confession,
corroboration of parts of his alleged confession and his Islamic will. The objective of the proposed interview was to assess the actual threat to Parliament Hill,
identify other individuals involved in the alleged conspiracy and gather other
information that would be relevant to the investigation. The report also recommended a cautioned interview, included an interview plan and proposed inter-
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO AHMAD ABOU-ELMAATI
view team, and made reference to discussions regarding use of any statements
made during the interview back in Canada, particularly in light of Mr. Elmaati’s
allegation that he had been tortured in Syria.
292. As discussed at paragraph 221 above, when asked about the RCMP’s
desire to question Mr. Elmaati in Egypt despite his allegation of torture in Syria,
Assistant Commissioner Proulx stated that the RCMP needed to interview him
in order to learn more about the threat and possible co-conspirators. Assistant
Commissioner Proulx did not recall this request ever being approved. In any
event, since the RCMP was never granted access to Mr. Elmaati in Egypt, the
interview plan was never implemented.
293. During the winter and spring of 2003, the RCMP continued, through its
liaison officer in Rome, to make efforts to secure access to Mr. Elmaati. In late
February 2003, Staff Sergeant Fiorido sent an update to Project A‑O Canada on
the detention of Mr. Elmaati and his efforts to secure access. Staff Sergeant
Fiorido reported that DFAIT had received a letter from the Egyptian authorities that stated that Mr. Elmaati was being detained as a result of his alleged
memberships in an extremist element and in al-Qaeda. He also wrote that
Mr. Elmaati had informed Embassy officials that he had been initially interviewed
and interrogated by police authorities approximately six months earlier when
first brought to Egypt, but had not been interviewed since.
294. Staff Sergeant Fiorido reported that while in Cairo he had met with representatives from various Egyptian agencies regarding an interview of Mr. Elmaati.
He also reported that he had been advised by DFAIT that Mr. Elmaati would
rather meet with the RCMP than CSIS, but would like to meet back in Canada
and not in Egypt. DFAIT provided Staff Sergeant Fiorido with copies of two
court documents, obtained from Mr. Elmaati’s mother, from two separate court
appearances in which the judge ruled that Mr. Elmaati should be released. On
both occasions, the Egyptian authorities would not release him but returned him
to custody. Paragraphs 93 to 96 of Chapter 7 set out Mr. Elmaati’s description
of the process whereby he was repeatedly released from detention by Court
Order and then immediately re-detained.
295. On March 4, 2003, Staff Sergeant Fiorido was informed that Mr. Elmaati
was now willing to meet with Canadian officials in Egypt provided that the
Egyptian authorities did not object. On March 12, Project A‑O Canada, after
consulting representatives from Project O Canada and RCMP members from “A”
and “C” Divisions, determined that the methodology to be used in an interview
of Mr. Elmaati would be to conduct a “cautioned” interview, one that complied
with the Canadian Charter of Rights and Freedoms.
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296. By June 2003, the RCMP was still awaiting permission from the Egyptian
authorities. On June 5, Staff Sergeant Fiorido sent a letter to Egyptian authorities
requesting a meeting in Cairo to discuss two files, including that of Mr. Elmaati.
In his request, Staff Sergeant Fiorido, relying on descriptions of Mr. Elmaati
found in previous correspondence from the RCMP, CSIS and other agencies
(and located in the Rome liaison office file that he reviewed on arrival in Rome),
described Mr. Elmaati as the “terrorist detained in Egypt” and stated that the
RCMP was still very much interested in interviewing him. When interviewed
by the Inquiry, Staff Sergeant Fiorido stated that after his meetings in Cairo
he became quite certain that access according to the conditions specified by
the RCMP (a direct face-to-face interview) would never be granted. Indeed it
never was.
297. A July 25, 2003 unsigned briefing note to the Commissioner stated that a
face-to-face interview with Mr. Elmaati would never be granted and described
the only conditions under which an interview could possibly be facilitated.
Inspector Reynolds told the Inquiry that an interview on these conditions would
have been of no value since it could not guarantee the truthfulness of the
answers and would not constitute useful evidence. Assistant Commissioner
Proulx stated that an interview under these conditions was unacceptable.
Service’s characterization of Mr. Elmaati
298. In March 2003, the Service expressed concern to DFAIT ISI about
Mr. Elmaati’s activities if he were to be released.
299. In May 2003, the Service wrote to the Egyptian authorities asking about
Mr. Elmaati’s continued detention. The request included similar concerns to
those it had communicated to DFAIT ISI two months earlier, and one additional
concern. (The details of these concerns cannot be disclosed here for reasons
of national security confidentiality.)
300. Mr. Hooper stated that regardless of the language used by the Service,
or whether the Service expressed any concerns at all, in his view, the Egyptian
authorities would have the same choices: they could keep Mr. Elmaati in custody or release him back to Canada. When asked whether the statements
created a risk of mistreatment, a senior CSIS official expressed the view that
the Service’s characterization of Mr. Elmaati would not have had any effect on
Egyptian authorities.
301. A CSIS employee with experience abroad stated that he did not believe
that CSIS’ comments would have had any impact on Mr. Elmaati’s continued
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detention and treatment in Egypt. Another CSIS official stated that he had not
considered whether the characterization of Mr. Elmaati would have an effect
on the length of Mr. Elmaati’s detention, that CSIS’ characterization was not
evidence, and that he always considered legal processes to be separate from
the intelligence process.
302. According to a senior CSIS official, the Service’s purpose was to try to
elicit a response from Egyptian authorities, as the Service had not received any
information from them. He also stated that he did not know how the Egyptian
authorities would have interpreted the comments, but that he did not think
that they were relying on anything the Government of Canada was doing to
keep Mr. Elmaati in detention. This senior CSIS official further stated that it was
important to both the Service and DFAIT to know what the Egyptian authorities
intended for Mr. Elmaati.
303. The Inquiry was unable to obtain any information from Egyptian authorities about the impact, if any, of CSIS’ expressions of concern on the detention
of Mr. Elmaati.
Consular Services in late 2003
Seven month gap between consular visits
304. During the summer of 2003, both the consul and vice-consul at the
Embassy in Cairo changed. In June 2003, Stuart Bale left the position of consul
and was replaced by Roger Chen. On July 29, 2003, Ms. Pastyr‑Lupul instructed
Mr. Chen to arrange for a visit to Mr. Elmaati, since it had been five months
since the last consular visit. However, the next consular visit did not take place
until September 24, 2003, some two months later, and seven months after the
previous consular visit.
305. Throughout this period, Mr. Elmaati’s family was in contact with
Ms. Pastyr‑Lupul and consular officials at the Embassy, who kept them informed
of the efforts being made in Mr. Elmaati’s case. Consular officials assisted the
family by requesting and obtaining permission letters for its visits to Mr. Elmaati
unaccompanied by Embassy staff.
Seventh consular visit
306. When consular officials attempted to visit Mr. Elmaati on September 19,
2003, they were informed that he had been moved to the Abu Zaabal jail. On
September 24, 2003, Consul Roger Chen and Vice-Consul Anna Pappas visited
the Abu Zaabal jail. Mr. Chen described the visit as routine; they asked the
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typical list of questions regarding medical needs, information to be passed on,
and any special requests. When asked whether the typical list of questions
included questions about mistreatment, Mr. Chen stated that they would never
directly ask Mr. Elmaati whether he was being mistreated but did ask him questions about his well-being, such as how he found the prison conditions, how
he was being treated and whether he had any special needs.
307. Mr. Elmaati advised Mr. Chen that he required medical attention for his
knee. Mr. Elmaati had fallen six months earlier and thought he might have torn
a ligament; his knee was inflamed and he could barely walk. Mr. Elmaati told
Mr. Chen that he had reported the problem to the prison doctor but no further
action had been taken. Mr. Chen told Mr. Elmaati that he would inquire with
prison authorities and the Egyptian Ministry of Foreign Affairs to see that his
request for medical attention was attended to.
308. Mr. Chen described Mr. Elmaati as very agitated over the delay in consular
visits and family visits. Mr. Chen reminded Mr. Elmaati that consular officials
had assisted the family each time they wanted to arrange a visit. Mr. Elmaati’s
mother had visited him a few days prior to this consular visit. Mr. Chen told
Mr. Elmaati that departmental consular policy and procedures dictate quarterly
consular visits but the increased delay in this case had been a result of departmental changeover.
309. Mr. Elmaati indicated his belief that CSIS played a role in his incarceration
and that the Canadian government was not doing enough to secure his release.
Mr. Elmaati asked Mr. Chen about his previous two court releases and suggested
that a third release was forthcoming.
310. During this meeting, Mr. Elmaati stated that he was being transferred
every three to four months between Tora and Abu Zaabal prisons. According
to Mr. Chen’s report of the meeting, Mr. Elmaati initially advised that he did
not know why he was being transferred but later, when the prison officials
stepped out of the room, told Ms. Wassef in Arabic that he was being transferred for interrogation by Egyptian State Security. Ms. Wassef could not recall
the exact wording used by Mr. Elmaati but confirmed that it most probably
was “interrogation.”
311. The Embassy followed up its consular visit with a diplomatic note to
Egypt asking for verification of the authenticity of the court order releasing
Mr. Elmaati from detention. The Embassy also informed the family of the consular visit and kept the family updated regarding its efforts over the following
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO AHMAD ABOU-ELMAATI
weeks. The family informed the Embassy of its visits to see Mr. Elmaati on
November 17, December 1, and December 22, 2003.
DFAIT seeks local legal advice
312. In late October 2003, after DFAIT received confirmation that the Egyptian
courts had issued a third release order for Mr. Elmaati, consular officials sought
the assistance of Egyptian legal counsel in order to better understand a hypothetical case of a foreigner detained in the Egyptian prison system. They sought
clarification of Egypt’s ability to detain a prisoner despite his having been
released by an order of the court, what impact national security concerns might
have on Egypt’s ability to detain a person, and whether a person detained under
these circumstances would be entitled to legal representation.
313. Egyptian counsel informed the consular officials that while any prisoner
in Egypt is in ordinary circumstances entitled to legal counsel and to a habeas
corpus remedy if there is no reason for his detention, under the current state
of martial law, these rights were suspended. Under martial law there was no
limit to the Minister of the Interior’s ability to detain someone deemed to be a
security risk.
Eighth and final consular visit
314. On December 29, 2003, Mr. Chen and Ms. Wassef had their final consular visit with Mr. Elmaati. On their arrival at the Abu Zaabal jail, prison officials asked whether the visit was as a result of a human rights complaint by
Mr. Elmaati. Mr. Chen stated that it was not and that the visit was a quarterly consular visit to which Mr. Elmaati was entitled. According to Mr. Chen,
Mr. Elmaati stated that during his interrogations Egyptian officials had told him
they had nothing against him and therefore, in Mr. Chen’s view, Mr. Elmaati was
convinced that he was being detained because Canadian authorities wanted him
there. Mr. Elmaati advised that he had not yet met with his Egyptian lawyer but
the lawyer was working with his mother.
315. In Mr. Chen’s report of this meeting, he wrote that Mr. Elmaati had
requested that he and Ms. Wassef take note of the fact that he had been tortured
in Syria in the same facility in which Maher Arar had been tortured, and that
he believed that it might have been the same official who tortured them both.
Mr. Chen’s report also stated that Mr. Elmaati advised that Egyptian intelligence
officials had taken his Canadian citizenship certificate, as well as his credit cards
and other identification cards when he first arrived in Egypt, and that Syrian
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officials had taken over C$5,000 worth of his personal belongings contained in
three bags that he brought to Syria.
316. During this period, consular officials were told that Mr. Elmaati was being
held in solitary confinement but was allowed out of his cell between 9:00 a.m.
and 3:00 p.m. every day. He had access to toilet facilities and blankets; however,
he indicated that it was cold in the prison. He also advised that he had been
seen by the prison doctor and that an MRI for his knee had been scheduled.
Although Mr. Elmaati had access to recreational facilities, he could not use them
because of problems with his knee.
317. Mr. Chen attempted to have Mr. Elmaati sign a retainer agreement permitting Mr. Paul Copeland, a Toronto lawyer, to act for him in conjunction with
Amnesty International. Prison officials refused to allow Mr. Elmaati to sign the
document and directed Mr. Chen to go through official channels to have the
document approved. Mr. Chen reported that Mr. Elmaati asked him whether
his oral agreement to the retainer, as witnessed by Mr. Chen and Ms. Wassef,
would be sufficient but Mr. Chen advised that he was not qualified to confirm
whether this would have any legal effect or be acceptable to the firm in Canada.
According to Mr. Chen, Mr. Elmaati suspected that this was because the retainer
agreement made mention of human rights concerns. During this meeting,
Mr. Elmaati gave consular officials an envelope which Mr. Chen understood
to be a card or letter for his intended wife (on September 22, 2003 DFAIT had
been advised by Badr Elmaati that Mr. Elmaati’s Syrian bride-to-be had decided
that she would wait for Mr. Elmaati to be released), which was to be passed to
Mr. Elmaati’s mother.
RCMP Requests Assistance from DFAIT
Request for Intervention by Egyptian Ambassador to Canada
318. In late August 2003, RCMP Chief Superintendent Dan Killam wrote a
letter to Mr. Livermore requesting that he approach the Egyptian Ambassador
to Canada to ask for her assistance in facilitating access to Mr. Elmaati in Egypt.
Project A‑O Canada understood that the Ambassador had been of assistance to
Canadian law enforcement in the past, and it was hoping that she could assist
the RCMP in obtaining an interview of Mr. Elmaati in Egypt. In this letter, the
RCMP stated that an interview of Mr. Elmaati was necessary, as a matter of
national security, in order to determine whether the information contained in
Mr. Elmaati’s alleged confession was true. The RCMP further stated that the
interview would have to be conducted under appropriate conditions that met
the evidentiary standards expected by Canadian courts.
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO AHMAD ABOU-ELMAATI
Request for assistance from Canadian Ambassador to Egypt
319. In late October 2003, Project A‑O Canada managers met with the Canadian
Ambassador to Egypt, Ambassador de Salaberry, and Mr. Livermore to discuss
Project A‑O Canada’s request for an interview of Mr. Elmaati. At this meeting, the
Ambassador stated that he would wait for a letter from DFAIT outlining the need
to interview Mr. Elmaati before he approached the Egyptian government.
DFAIT drafts letter to Egyptian Foreign Minister
320. On November 25, 2003, Robert Fry, then Senior Policy Advisor in the
office of then Minister of Foreign Affairs, William Graham, Ms. Pastyr‑Lupul and
Konrad Sigurdson, then Director General of the Consular Affairs Bureau, met
with Badr Elmaati, father of Mr. Elmaati. In his interview, Mr. Fry stated that
after the Arar experience, he felt it was important to meet with Badr Elmaati.
After this meeting, Mr. Fry indicated he would attempt to have Minister Graham
write a letter to the Egyptian Foreign Minister to request that Mr. Elmaati be
given due process. Mr. Fry told the Inquiry that it was unusual to have the
Minister write a letter and it had only been done on two other occasions while
he occupied his post (including for Mr. Arar), but that it was reasonable in the
circumstances because it seemed that Mr. Elmaati was being unfairly detained.
According to Mr. Fry, the fact that Mr. Elmaati was repeatedly released and
then re-detained suggested that parts of the Egyptian system were willing to
let him go and parts were not. Mr. Fry told the Inquiry that a letter requesting
due process was therefore appropriate in these circumstances. According to
Ms. Pastyr‑Lupul, a Canadian who is detained abroad is subject to the laws of
that country, and consular officials cannot intervene in the legal jurisdiction
of that country by requesting that the detainee be released. In these types
of circumstances, all DFAIT can do is request that the individual be granted
due process.
321. Mr. Fry also stated that he would have briefed then Minister Graham
on Mr. Elmaati, although the briefing would have been limited to stating that
Mr. Elmaati went to Syria, was mistreated in Syria, was now in Egypt, was doing
better in Egypt, and DFAIT had access to him and he was not in any imminent
danger. The letter to the Foreign Minister was drafted but never sent because
the final draft was prepared the day before Mr. Elmaati’s final release.
DFAIT concerns about possible mixed messages
322. On December 2, 2003, a meeting was held among a number of DFAIT
divisions regarding the draft consular letter from the Minister and the RCMP’s
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request for assistance in obtaining access to Mr. Elmaati. One of the issues
raised at this meeting was whether confusion could arise from putting forward two seemingly competing interests—of consular access and police access.
According to Mr. Heatherington’s summary of this meeting, the two initiatives
(one asking for Mr. Elmaati’s release on humanitarian grounds and the other
asking for police access to Mr. Elmaati in order to collect evidence that could
be used against him in Canada) could seem contradictory. In his interview
for the Inquiry, Mr. Livermore stated that in his view the two interests were
not inconsistent, and it would have been relatively easy to protect against the
Egyptians forming the wrong impression by making Ambassador de Salaberry
aware of both initiatives and managing the two interests very carefully on the
ground. Ambassador de Salaberry, however, stated that by this time he had
grown impatient because he had been reporting the divergence between the
two interests and yet there was still no Government of Canada position.
323. As a result of this meeting, and consultations with counsel at DOJ who
advised that there might be issues with evidence obtained in an Egyptian prison,
ISI recommended to DFAIT Deputy Minister Gaëtan Lavertu that DFAIT convey
its concerns regarding the admissibility of evidence obtained in the course of an
overseas interview to the RCMP, and proceed with the letter from the Minister.
ISI also stated that if the letter were to prove successful, and Mr. Elmaati was
able to return to Canada following his release, then the RCMP would be able to
pursue its interview in more favourable conditions.
324. Mr. Saunders could not recall having attended the meeting on December 2,
2003. However, he did recall having discussed whether DFAIT should assist
the RCMP in getting access to Mr. Elmaati. According to Mr. Saunders, telling
the Egyptians that there were national security dimensions to this particular
consular case would have neither impeded nor delayed the ultimate release
of Elmaati because they were already aware that there was a national security
interest.
325. As stated above, the Minister’s letter was never sent because it was
prepared the day before Mr. Elmaati’s final release. Nor did DFAIT ISI ever
approach the Egyptian Ambassador to Canada with a request for RCMP access
to Mr. Elmaati.
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO AHMAD ABOU-ELMAATI
Mr. Elmaati released from detention�
326. On January 11, 2004, Mr. Elmaati was informed that the Minister of the
Interior had ordered that he be released from detention. He was then sent from
the jail to State Security, where he remained for three days before being sent to
his mother’s home on January 14, 2004. DFAIT was informed of Mr. Elmaati’s
possible release on January 14, 2004. On this same day, Ms. Pastyr‑Lupul was
able to confirm this information with Mr. Elmaati’s mother.
327. Ms. Papas spoke with Mr. Elmaati on January 15, 2004. According to
Ms. Papas, Mr. Elmaati indicated that he was feeling good and was happy for
his mother and father who had been through so much. Mr. Elmaati said that
his release came as a surprise and that he had been advised by prison officials that his release was ordered by the Ministry of the Interior. Ms. Papas
asked Mr. Elmaati about his health and knee surgery; he responded that he
had not had the surgery although the surgery had been booked. According to
Ms. Papas, Mr. Elmaati thanked the Embassy; he stated that he appreciated the
help that he had received. He indicated that he had not made any travel plans
yet and would be spending some time with his family. He agreed to come to
the Embassy and said he would arrange to make an appointment to meet with
consular officials.
CSIS and the RCMP learn of Mr. Elmaati’s release
328. CSIS learned of Mr. Elmaati’s release in mid January 2004. In the same
time period, the Service also learned that the reason for his release was that he
was no longer considered to be a threat to the security of Egypt.
329. When CSIS learned of Mr. Elmaati’s release, it explored with DFAIT the
possibility of interviewing him. Because the intention was to gather threatrelated information, the proposed interview would be conducted without other
officials present. The Service intended to ask a number of questions regarding
Mr. Elmaati’s knowledge of threats to Canada, as well as whether he was mistreated in Syria and/or Egypt, and if so, how. CSIS also recommended that a
doctor examine Mr. Elmaati for any abuse he might have suffered.
330. On the same date as Mr. Elmaati’s release, January 14, 2004, the Service
advised a U.S. agency that Mr. Elmaati had been released from custody and
asked whether it had any further information regarding the circumstances
�
This section of this chapter contains a discussion of events that occurred after Mr. Elmaati’s
release. The Terms of Reference do not require any examination of actions of Canadian officials
in this post-release period, and no findings have been made in respect of them. A discussion of
the post-release period has been included to provide context and for the sake of completeness.
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Internal Inquiry
of the release. This communication included a statement of concern about
Mr. Elmaati’s activities if he were to depart Egypt. This correspondence included
CSIS caveats. According to the Service, it shared this information with, and
sought information from, the U.S. agency because of their previous exchanges
and mutual interests.
331. On January 14, 2004, CSIS (as well as NSIB, CID and the RCMP’s liaison
office in Rome) informed Project A‑O Canada that Mr. Elmaati had been released
from custody and that it was believed that he was still in Egypt but wanted
to return to Canada. CSIS also, on January 14, advised DFAIT and the Canada
Border Services Agency of Mr. Elmaati’s release. The following day, on January
15, 2004, the CBSA, in response to a request from the Service, amended the
status of its border lookout on Mr. Elmaati.
332. On January 16, 2004, a meeting was held in Ottawa between representatives from the RCMP and CSIS to discuss Mr. Elmaati’s release from detention. Topics of discussion included whether Mr. Elmaati would be returning
to Canada and whether the RCMP could interview him in Egypt. The RCMP
did not consider laying any charges against Mr. Elmaati to be a viable option at
the time.
Attempts to obtain access to Mr. Elmaati through DFAIT
333. Both CSIS and the RCMP were interested in interviewing Mr. Elmaati
after his release. On January 19, 2004, a senior CSIS official contacted
Mr. Heatherington by email regarding the Service’s interest in interviewing
Mr. Elmaati. Mr. Heatherington confirmed DFAIT ISI’s continuing support.
Mr. Heatherington stated, however, that his support of CSIS’ efforts was on
the understanding that Mr. Elmaati would have to agree to meet with CSIS. On
January 21, the RCMP liaison officer requested notification of any visits to the
Embassy by Mr. Elmaati.
334. Further to the Service’s interest in interviewing Mr. Elmaati without other
officials present, the Service requested that DFAIT facilitate contact between
Mr. Elmaati and a Service representative. The Head of Mission, Cairo, was supportive as long as it was voluntary and Mr. Elmaati was advised it would be with
a CSIS representative. On January 18, 2004, Vice-Consul Anna Papas advised
that she was not in a position to facilitate contact with the Service without
express approval by the DFAIT Consular Management officer, who at the time
was Ms. Pastyr‑Lupul. Approval was never given because Mr. Elmaati did not
want to meet with, or be contacted by, the RCMP or CSIS.
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO AHMAD ABOU-ELMAATI
335. On January 21, 2004, Ms. Papas requested the advice of Mr. Sigurdson
concerning CSIS’ interest in contacting Mr. Elmaati. Ms. Pastyr‑Lupul, on behalf
of Mr. Sigurdson, instructed Ms. Papas not to provide any information about
Mr. Elmaati without his permission.
Mr. Elmaati meets with Embassy officials
336. Mr. Elmaati and his mother paid a visit to the Canadian Embassy in
Cairo on January 25, 2004. According to a report prepared by Ms. Papas,
Mr. Elmaati stated that he was feeling fine but that his knee was still bothering
him. Mr. Elmaati advised that the Egyptian authorities did not inform him why
he was finally released. When asked about the treatment he had received while
in detention, Mr. Elmaati replied that it could take him hours or days to recount
all that had happened to him and so he would simply summarize certain events.
According to Ms. Papas’ report, Mr. Elmaati then described how he had been
treated in Syria from his arrest at the airport in Damascus to his transfer to Egypt.
This included his description of his cell as being like a “tomb,” and an account of
the torture that had been inflicted during interrogations, such as being doused
with cold water and beaten with cables. According to Ms. Papas’ report, when
asked about his treatment in Egypt, Mr. Elmaati would say nothing more than
that it was “a little bit better” than Syria, that he had access to a doctor and that
the food was “no problem.”
337. Mr. Elmaati stated that since his release, he was required to report to
State Security every five days to provide details on his whereabouts, who he
talked to and what was said. According to Ms. Papas’ report, Mr. Elmaati was
afraid, based on his last uneasy post-release interview with State Security, that
he might be detained again. Ms. Papas wrote that when asked about his future
plans, Mr. Elmaati stated that his first priority was his intended wife, who was
expected to travel from Syria to Egypt in the next couple of days, and Mr. Elmaati
would not leave for Canada without ensuring that she could go too.
338. When Mr. Elmaati was released from detention, both his Canadian passport, which would expire in February 2004, and his Egyptian passport, which
had expired 20 years earlier, were returned to him. However, his citizenship,
social insurance, health insurance and credit cards were not. Mr. Elmaati therefore requested the assistance of the Embassy in obtaining a new Canadian passport and citizenship card. According to Ms. Wassef, Mr. Elmaati was advised that
the Embassy would attempt to retrieve his citizenship card from the Egyptian
authorities but he was provided with an application for both a citizenship card
and a passport just in case. At the end of the meeting, Ms. Papas asked whether
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Internal Inquiry
Mr. Elmaati would require the assistance of the Embassy should he decide to
travel back to Canada. Mr. Elmaati responded that he would probably require
some assistance because he was nervous about going back alone and would be
in touch if he decided to go back.
Embassy did not disclose Mr. Elmaati’s information
339. On January 25, DFAIT advised CSIS that Mr. Elmaati had visited the
Canadian Embassy requesting consular services. Ms. Papas reported that she
provided the necessary services and then asked Mr. Elmaati if he would have any
objection to being contacted by CSIS. Mr. Elmaati replied that he did not want
his information to be disclosed to the Service; nor did he want to be contacted
by the Service. Based on this response, the Embassy did not provide either CSIS
or the RCMP with Mr. Elmaati’s information.
340. On January 28, 2004, DFAIT advised Project A‑O Canada that Mr. Elmaati
had refused to allow his contact information to be disclosed to any other
Canadian agencies. On February 12, 2004, CSIS advised Project A‑O Canada
that Mr. Elmaati had attended at the Canadian Embassy in Cairo and had declined
the opportunity to speak with CSIS or the RCMP. According to the RCMP’s
report of the communication, CSIS stated that it did not have any plans to interview Mr. Elmaati but suggested that if the RCMP had the opportunity (through
Mr. Elmaati’s lawyer) it should take advantage of it.
CSIS obtains information about Mr. Elmaati’s release
341. In February 2004, a senior CSIS official obtained information from a foreign agency concerning Mr. Elmaati’s detention in Egypt and possible reasons
for his release.
Request for detention and questioning
342. In the middle of February 2004, the Service learned that steps had been
taken by a foreign agency to have Mr. Elmaati detained and questioned if he
attempted to enter an allied country.
Mr. Elmaati’s request for security escort from DFAIT
343. On February 17, 2004, Mr. Elmaati telephoned the Canadian Embassy
in Cairo and requested a meeting to discuss his return to Canada. Mr. Elmaati
expressed concern that while in transit back to Canada he might be detained or
arrested in another country. He was also concerned that the Egyptian authorities might arrest him again or prevent him from leaving the country. Mr. Elmaati
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO AHMAD ABOU-ELMAATI
therefore requested a security detail. The Embassy responded that Canada could
not interfere in the lawful administration of Egyptian law: if the Egyptians or
any other police legally arrested him, there was nothing that DFAIT could do
to stop them.
344. In February and March 2004, the Consular Affairs Bureau and the Embassy
made various attempts to assist Mr. Elmaati’s return to Canada in the face of
bureaucratic difficulties in Egypt. Consular officials sent a diplomatic note to
Egyptian authorities requesting confirmation that Mr. Elmaati would not have
any difficulties leaving the country. They also assisted Mr. Elmaati in obtaining
travel documents, replacing personal documents, attempting to secure funding from his family for his airfare back to Canada, making arrangements for
Mr. Elmaati to consult a doctor, and arranging for a consular official to meet
Mr. Elmaati at his point of transit. Consular officials advised Mr. Elmaati of all
actions taken on his behalf.
345. Despite Mr. Elmaati’s requests, the Consular Affairs Bureau did not provide him with an escort to Canada. In her interview, Ms. Pastyr‑Lupul stated
that the Consular Affairs Bureau only provided an escort by a consular official
in extraordinary situations, assessed at the highest levels, where there was a
fear for someone’s safety, security, and physical well-being if not accompanied.
Ms. Pastyr‑Lupul stated that in the fall of 2003, after the release of Mr. Arar, there
had been discussions at the consular level about whether the provision of an
escort back to Canada would become a consular service. DFAIT decided that
it would not become a standard consular service because this would create a
significant financial burden. DFAIT was therefore conscious of the danger in
setting a precedent that all Canadians in trouble abroad would receive a DFAIT
escort back to Canada. In Mr. Elmaati’s case, the Consular Affairs Bureau was
concerned about his safe passage out of Egypt and therefore arranged to have
Mr. Elmaati escorted by consular officials through the security channels at the
airport, and then monitor his journey at his point of transit.
346. On March 4, 2004, DFAIT provided the Service with the anticipated
travel schedule for Mr. Elmaati’s return to Canada. According to this schedule,
Mr. Elmaati would depart Cairo on March 7 and would return to Toronto via
Amman and Frankfurt. When asked whether the Service had informed DFAIT
of the foreign agency’s request to have Mr. Elmaati detained and questioned on
his return journey, as discussed above at paragraph 342, the Service stated that
it had no information to suggest that the authorities in Frankfurt (through which
Mr. Elmaati would travel) had considered the request to detain and question.
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Internal Inquiry
The Service also noted that it had been advised by DFAIT that DFAIT had made
arrangements to facilitate Mr. Elmaati’s return to Canada.
347. DFAIT told the Inquiry that consular officers have no authority to intervene in local legal matters and would have been unable to prevent any detention of Mr. Elmaati while in transit. When asked if it would have come to a
different decision regarding an escort for Mr. Elmaati if it had known of the
foreign agency’s request to detain, DFAIT told the Inquiry that while the question is hypothetical, it is unlikely DFAIT would have taken a different approach.
According to DFAIT, providing an escort would not have afforded Mr. Elmaati
any additional protection beyond what he received by being accompanied to
the airport and provided with a travel facilitation letter.
Mr. Elmaati’s return to Canada
348. On March 5, 2004, Project A‑O Canada learned that Mr. Elmaati was
to return to Canada on March 7. On March 7, the Service was informed that
Mr. Elmaati was on his way to the airport in Cairo and was scheduled to depart
on a flight bound for Canada, through Frankfurt. Although Mr. Elmaati checked
into his flight in Cairo, he was not permitted to board the plane.
349. On March 22, 2004, Staff Sergeant Fiorido, the RCMP’s liaison officer in
Rome, sent an update to Project A‑O Canada regarding Mr. Elmaati’s delayed
departure from Egypt, apparently because Mr. Elmaati’s name had not been
removed from a list of persons of interest.
350. On March 29, 2004, Mr. Elmaati returned to Canada.
�5
ACTIONS OF CANADIAN OFFICIALS IN
RELATION TO ABDULLAH ALMALKI
1. The following is a summary of information obtained by the Inquiry, largely
from interviews of Canadian officials and review of relevant documents, concerning the actions of Canadian officials in relation to Mr. Almalki.
Canadian officials’ interest in Mr. Almalki
CSIS
2. Starting in the early 1990s, CSIS was actively investigating potential security
threats posed by Canada-based supporters of Sunni Islamic extremism, al-Qaeda
and Osama Bin Laden. In the late 1990s, in the normal course of this investigation, CSIS learned that Abdullah Almalki might have some knowledge of the
threat to Canada and Canadian interests abroad. The Service had concerns arising out of information that linked Mr. Almalki to Islamic extremists.
3. On two occasions during the summer of 1998, Mr. Almalki agreed to be
interviewed by a CSIS investigator. According to CSIS records, during the first
interview Mr. Almalki was asked about his family, his business, his business travel
and his work in Pakistan and Afghanistan with Human Concern International, a
Canada-based charitable organization. According to CSIS’ report of the second
interview, the CSIS investigator asked Mr. Almalki about the August 1998 attacks
in Sudan, Afghanistan, Tanzania and Kenya, and about Osama Bin Laden.
4. Mr. Almalki agreed to be interviewed by CSIS investigators again in
February 2000. According to Mr. Almalki and to CSIS records, the investigators questioned him about his business. Around that same period, Mr. Almalki
recalls being told that people in the Muslim community had been questioned
about him by CSIS.
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Internal Inquiry
5. On several occasions starting in the late 1990s, CSIS shared information
about Mr. Almalki with the RCMP and various foreign intelligence and law
enforcement agencies, including U.S. agencies and Malaysian agencies. The
nature of the shared information varied, but generally related to the threat from
Islamic extremists. CSIS’ communications were in all cases accompanied by
caveats. The Inquiry found no evidence that CSIS shared with or received from
Syrian authorities information about Mr. Almalki during this time.
RCMP
6. The RCMP became interested in Mr. Almalki at some point in 2000 and
began corresponding and cooperating with the FBI regarding possible investigative steps. In July 2000, the FBI informed the RCMP that Mr. Almalki was
suspected of attempting to procure restricted items from the United States for
shipment abroad.
7. Following the events of September 11, 2001, the RCMP received several
letters from CSIS and U.S. authorities advising it of individuals suspected of supporting Islamic extremism in Canada. Among these letters was a September 26,
2001 letter from CSIS that mentioned but did not name an individual believed
to be an “al Qaida procurement officer in Canada,” and a September 23, 2001
letter from the FBI describing Mr. Almalki as the “Ottawa-based procurement
officer” for Osama Bin Laden. Based on these letters, on October 2, 2001,
the RCMP sent a fax to the RCMP liaison officers in Islamabad, Rome, Delhi,
Washington, London, Berlin and Paris identifying Mr. Almalki as an “important
member” of al-Qaeda. The letters attributed the description of Mr. Almalki as an
“important member” of al-Qaeda to another agency; the description was not a
product of the RCMP’s own investigation. Two days later, on October 4, 2001,
the RCMP’s liaison office in Rome sent letters to law enforcement agencies in
several countries, including Syria and Egypt, providing biographical data about
several Canadian residents, including Mr. Almalki, and requesting any intelligence that might surface on any of them.
8. These October 4 letters were sent further to letters that the liaison office had
sent to the same entities on September 29, in which certain Canadian residents
(not including Mr. Almalki) were described as being linked through association
to al-Qaeda and engaged in activities that posed an “imminent threat” to the
public safety and security of Canada. This description was not a product of the
RCMP’s own investigation, but reflected information from another source.� At
�
A more detailed discussion of the September 29, October 2 and October 4 letters is at paragraphs
15 to 21 of chapter 4.
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO ABDULLAH ALMALKI
the end of each of the October 4 letters was a caveat prohibiting dissemination
without the RCMP’s consent.
9. Since Syria did not participate in the Inquiry, the Inquiry did not receive
any information regarding whether the RCMP’s letters to Syria of October 4 and
September 29 had any effect on Syria’s actions in respect of Mr. Almalki.
Project A-O Canada
10. CSIS provided information to the RCMP, including an advisory letter dated
October 5, 2001, at the RCMP’s request. In October 2001, Mr. Almalki became
the primary target of the Project A-O Canada investigation, which focused on
Mr. Almalki’s alleged involvement with al-Qaeda. Project A-O Canada investigators were instructed to try to uncover Mr. Almalki’s business relationships
around the world with a view to collecting evidence that might support a charge
of facilitating terrorist activity.�
11. During the period of the Project A-O Canada investigation, CSIS continued
to exchange information regarding Islamic extremists with foreign intelligence
and law enforcement agencies, and provided the RCMP with additional advisory
letters containing information on Mr. Almalki.
Investigative tools used by Project A-O Canada
12. In its investigation into Mr. Almalki, Project A-O Canada obtained information about Mr. Almalki from various sources, including surveillance, execution
of search warrants, exchanges of information with foreign law enforcement
agencies and border lookouts placed with Canadian and United States customs
agencies. One of these investigative tools—the lookouts—is described immediately below.�
Canada Customs lookouts
13. On November 1, 2001, at the request of the RCMP, Canada Customs issued
a lookout against Mr. Almalki and four of his family members. On November 2,
2001, at the request of Project A-O Canada, the lookout was changed.
The crime of “facilitating terrorist activity” was created by Bill C-36 (the Anti-Terrorism Act),
which came into force on December 24, 2001, and is now found at section 83.19(1) of the
Criminal Code.
�
Background information on American and Canadian lookouts is included in Chapter 4, paragraphs
22 to 25.
�
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Internal Inquiry
U.S. Customs lookouts
14. On June 11, 2001, a TECS lookout was entered for Mr. Almalki, so that he
would be detained for questioning if he attempted to enter the United States.�
RCMP documents suggest that the RCMP was aware as of early October 2001
that this lookout was in place. On October 31, 2001, Inspector Michel Cabana,
the Officer in Charge of Project A-O Canada, authorized a request to the United
States Customs Service to issue TECS checks and lookouts on Mr. Almalki and
several of his family members. Though Project A-O Canada was aware that
Mr. Almalki was already a subject of a TECS lookout, it made this request so
that it would be notified of any cross-border activity. The request described
Mr. Almalki and his family members as “Islamic extremist individuals suspected
of being linked to the Al Qaeda terrorist movement”. A United States customs
agent advised the RCMP on November 6, 2001 that the individuals named in the
lookout request, and their vehicles, had been entered into the TECS system.
15. According to the RCMP, the language “Islamic extremist individuals
suspected of being linked to the Al Qaeda terrorist movement” contained in
the lookout request was formulated in part based on information received
from other agencies, and in part based on information obtained from its own
investigations.
16. A copy of the RCMP’s October 31, 2001 request to the U.S. Customs
Service was included on the CDs provided to U.S. agencies in April 2002.
Mr. Almalki goes to Malaysia
November 27 departure
17. On November 27, 2001, Mr. Almalki left Canada for Malaysia, with a return
ticket and a scheduled return date of December 25, 2001. His family—his pregnant wife, his four children and his parents—all flew to Malaysia the following
day. Project A-O Canada was aware of Mr. Almalki’s parents’ travel plans prior
to November 28, but did not become aware of the travel plans of Mr. Almalki’s
wife and children until immediately prior to their departure on November 28.
Project A-O Canada did not learn of Mr. Almalki’s departure until several days
after he left Canada.
18. The Inquiry found no evidence to suggest that the RCMP or any other
Canadian officials were aware of Mr. Almalki’s itinerary or communicated it to
foreign agencies before he left Canada.
Inspector Clement believed that this lookout may have been entered at the request of a U.S.
agency.
�
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO ABDULLAH ALMALKI
RCMP searches for Mr. Almalki
19. After learning that Mr. Almalki’s family had departed for Malaysia, Project
A-O Canada officials, unaware that Mr. Almalki had already left the country,
spent several days trying to locate him in Canada. According to Inspector
Cabana’s notes from November 30, 2001, Inspector Cabana met that day with
Staff Sergeant Patrick Callaghan (a member of the Ottawa Police Service, who
was seconded to Project A-O Canada) and requested that the airport special
squad be advised of the situation, so that if Mr. Almalki was located, the squad
could arrest him for breach of the peace. The notes indicate that the purpose
of arresting Mr. Almalki was to interview him. In his interview with the Inquiry,
Inspector Cabana stated that the goal of arresting Mr. Almalki would not have
been to prosecute him, but to detain and question him and confront him with
some of the evidence that the RCMP had uncovered; he thought that he needed
to take advantage of every opportunity to apprehend and interview Mr. Almalki,
because there was no guarantee that he would return to Canada. Inspector
Cabana said that he could not remember what led the RCMP to believe that it
had grounds to arrest Mr. Almalki for breach of peace. However, he said that,
at a later date, he looked at the breach of peace provisions of the Criminal Code
and determined that they do permit peace officers to arrest individuals whom
the officers believe, on reasonable grounds, are going to be or will be breaching the peace. Inspector Cabana said that arresting Mr. Almalki for breach of
the peace, and interviewing him, was consistent with Project A-O Canada’s
mandate, which was to do everything lawfully within its powers to prevent
anything from happening anywhere.
20. On November 30, 2001, a Project A-O Canada investigator learned that
Mr. Almalki had purchased a plane ticket to Malaysia, with a departure date
of November 27 and a return date of December 25. Later that day, Corporal
Randy Buffam of Project A-O Canada notified the FBI that Mr. Almalki had
departed for Malaysia. The RCMP was aware that the FBI would likely relay
this information to the CIA. From Corporal Buffam’s perspective, notifying the
FBI was simply part of the understanding that there was to be an open sharing
of information.�
21. On December 1, 2001, Corporal Buffam asked the RCMP liaison officer in
Singapore to liaise with foreign agencies to find out if Mr. Almalki had arrived
in Kuala Lumpur on November 29, and to obtain copies of any documentation
he might have produced. However, six days later, on December 7, the RCMP’s
The understanding that there was to be an open sharing of information is discussed above at
Chapter 3, paragraph 77.
�
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Internal Inquiry
Criminal Intelligence Directorate (CID) instructed the liaison officer to immediately discontinue all efforts to obtain information from foreign agencies, on
the basis that such efforts could jeopardize the integrity of the investigation.
22. On December 2, 2001, the RCMP finally confirmed that Mr. Almalki had
left Canada for Malaysia on November 27. The RCMP also became aware
on that day that Mr. Almalki’s brother had been with him at the airport.
Inspector Cabana advised Superintendent Garry Clement (the Assistant Criminal
Operations Officer at RCMP “A” Division) of Mr. Almalki’s confirmed departure,
and Superintendent Clement advised the Ottawa Police Service and a foreign
agency. When asked why he had advised this foreign agency of Mr. Almalki’s
departure, Superintendent Clement said that he believed that Mr. Almalki had
left Canada under very suspicious circumstances, and the RCMP wanted the
foreign agency’s assistance in monitoring and locating him. Mr. Almalki’s departure was suspicious, Superintendent Clement elaborated, because he was so
surveillance conscious and because, though he spoke of concern for his wife
and children, he flew separately from them to Amsterdam (en route to Malaysia).
Superintendent Clement told the Inquiry that he did not have information as
to why Mr. Almalki might have been travelling on his own, and that he did not
specifically consider that there might be legitimate reasons for Mr. Almalki to
decide to fly to Amsterdam separately from his wife and children.
Luggage search
23. Prior to the departure of Mr. Almalki’s wife and children on November 28,
2001, the RCMP recommended to officials at Dorval airport in Montreal that the
family’s baggage (which consisted of six to eight suitcases) be x-rayed. When
airport officials x-rayed and searched the luggage, they found a computer tower.
On the instructions of Inspector Cabana, officials seized the computer, and
Inspector Cabana obtained a warrant to copy the hard drive. In early January
2002, a U.S. agency requested a copy of the data from the hard drive and the
RCMP’s analysis of that data. While the data and analysis were not shared with
the U.S. agency at that time, the data from the analysis of the hard drive was
uploaded to the RCMP Supertext database and included on the CDs that were
provided to U.S. agencies in April 2002 (as discussed below).
Events during Mr. Almalki’s stay in Malaysia
24. Mr. Almalki stayed in Malaysia from late November 2001 until approximately April 2002. He did not return to Canada on December 25, 2001 as
scheduled. CSIS learned in late January 2002 that Mr. Almalki had postponed
his return to Canada because of an illness in the family. Project A-O Canada
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO ABDULLAH ALMALKI
learned on January 22, 2002, during an interview of one of Mr. Almalki’s
brothers, that Mr. Almalki and his family had extended their stay in Malaysia
because Mr. Almalki’s wife had encountered medical complications surrounding her pregnancy and could not travel back to Canada in time to give birth to
the baby.
Information sharing
25. During the time that Mr. Almalki was in Malaysia, CSIS was in contact and
shared information with the Malaysian authorities regarding Mr. Almalki. In late
April 2002, the Service provided the Malaysians with a message containing business information and information relating to the threat from Islamic extremism.
The message was accompanied by a caveat.
26. In March 2002, the Service granted a foreign agency permission to share
information regarding one of Mr. Almalki’s business contacts with authorities in
Bahrain, and that information was apparently shared with Bahraini authorities.
Though Mr. Almalki travelled to Bahrain in early April 2002, on his way to Syria,
the information that the foreign agency apparently shared with Bahraini authorities was not about Mr. Almalki’s travel plans. The Inquiry found no evidence
that the Service was aware of Mr. Almalki’s plan to travel to Bahrain.
Possible extradition to Syria
27. In December 2001, several weeks after Mr. Almalki had arrived in Malaysia,
CSIS learned that Malaysian authorities allegedly had a Syrian warrant for
Mr. Almalki’s arrest and were considering extraditing Mr. Almalki to Syria. The
RCMP also learned about the alleged warrant, and its assistance was sought in
convincing Malaysian authorities to arrest and extradite Mr. Almalki. Neither the
RCMP nor CSIS was provided with evidence of the arrest warrant, and neither
organization requested evidence of it. Superintendent Clement testified at the
Arar Inquiry that the normal practice with respect to a warrant having crossborder effect was to put a notice of the warrant in Interpol, but that there was
no Interpol notice of the alleged Syrian warrant.
28. The Service’s position on the possible arrest/extradition, which it shared
with foreign agencies, including Malaysian authorities, was that it would defer
to Malaysian law and judgment, but wished to be notified of any arrest. The
RCMP, in response to at least two requests from a foreign agency that it share
information that might assist the foreign agency in convincing the Malaysians
to make the arrest, told the foreign agency that it would not collaborate in any
way or support its plan.
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29. The RCMP also had discussions with the same foreign agency about a possible plan to arrest Mr. Almalki (apparently without the participation or concurrence of Malaysia) prior to his scheduled return to Canada (on December 25).
At a meeting on December 10, 2001 between representatives of the foreign
agency, Superintendent Clement, Inspector Cabana, Corporal Buffam, Staff
Sergeant Callaghan and Staff Sergeant Corcoran (a member of the Ontario
Provincial Police seconded to Project A-O Canada), the foreign agency advised
that it would try to locate and apprehend or intercept Mr. Almalki before
December 25. Superintendent Clement and Inspector Cabana assumed that
the foreign agency would only arrest Mr. Almalki if he travelled through the
country in which that foreign agency had jurisdiction, or through a country with
which the agency had some sort of relationship. According to Superintendent
Clement, the RCMP attendees at the meeting made it clear to the foreign agency
that it would not be permitted to arrest Mr. Almalki on Canadian soil.
30. Late in December 2001, CSIS also learned that a request had been made
of authorities in another country to arrest and deport Mr. Almalki to Syria. CSIS
was advised of this request and was asked whether it had any information to
warrant an arrest, and how it felt about the request. The Service responded by
stating that Canadian officials would meet Mr. Almalki once he arrived in Canada
and that this would suffice for CSIS.
31. The Service did not notify or consult with DFAIT about the possible arrest
or extradition of Mr. Almalki. According to a senior CSIS official, the Service
would have notified DFAIT if it obtained information that Mr. Almalki had been
arrested. The official said that CSIS’ operating practice was to inform DFAIT if
it became aware that a Canadian living or travelling abroad has had legal action
taken against him.
32. It is not clear whether or not the RCMP consulted with DFAIT about
Mr. Almalki’s possible arrest or extradition. Superintendent Clement said he
had reason to believe that a representative of the foreign agency that was seeking the RCMP’s assistance with the extradition would be contacting DFAIT,
most likely Scott Heatherington, the Director of DFAIT’s Foreign Intelligence
Division (DFAIT ISI). Superintendent Clement also told the Inquiry that the
foreign agency’s efforts to engage the RCMP in the arrest and extradition of
Mr. Almalki were documented in RCMP situation reports (SITREPS), which were
sent to RCMP headquarters, and that it was the responsibility of headquarters
and not the investigators to brief other government agencies, including DFAIT.
However, the Inquiry did not receive any evidence of either a conversation
between a representative of the foreign agency and Scott Heatherington (or
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO ABDULLAH ALMALKI
anyone at DFAIT), or any briefing of DFAIT by RCMP headquarters, regarding
the possible arrest or extradition of Mr. Almalki.
Border interview by Malaysian authorities
33. In early January 2002, Mr. Almalki travelled to the border of Singapore and
Malaysia to renew his visa, which was going to expire in February. According to
Mr. Almalki, when he crossed the border back into Malaysia, he was questioned
by Malaysian immigration officials about when he would be returning to Canada,
his religion and his business. Mr. Almalki observed that the “regional chief” was
getting questions and sharing answers with someone on the phone. According
to Mr. Almalki, the regional chief advised him that the Canadian government
had asked Malaysian authorities to question him.
34. The Inquiry found no evidence that the January 2002 interview of
Mr. Almalki by Malaysian officials was conducted at the request of the Canadian
government. CSIS told the Inquiry that it did not request the border interview,
and that it did not learn until late January 2002 that the interview had taken
place. The RCMP told the Inquiry that neither the RCMP database nor inquiries
with various members involved in Project A-O Canada supported the conclusion
that the RCMP had asked Malaysian authorities to question Mr. Almalki.
January 2002 searches and interviews
35. As discussed in chapter 4, paragraphs 121 to 133, as part of its investigation, Project A-O Canada carried out searches and conducted interviews on
January 22, 2002. Among the residences searched were those of Mr. Almalki
and one of his brothers. Project A-O Canada members also interviewed several
of Mr. Almalki’s family members, including two of his brothers and a cousin who
had sold the Almalki family plane tickets to Malaysia. According to Mr. Almalki,
the officers who interviewed his cousin asked the cousin whether she thought
that Mr. Almalki would go to Syria. One of the RCMP officers who conducted
this interview told the Inquiry that she does not recall asking Mr. Almalki’s
cousin this question.
FBI / Project A-O Canada meeting in February 2002
36. In mid-February 2002, members of the Project A-O Canada team met
with five FBI personnel over several days. During the visit, the FBI sought and
received access to Project A-O Canada files, which included documents seized
during the January 22 searches. Among these documents were documents
related to Mr. Almalki’s businesses.
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Sharing of the Supertext database
37. As discussed at Chapter 4, paragraphs 131 to 133, in April 2002, the
RCMP provided U.S. agencies with three CDs containing the RCMP’s Supertext
database. The CDs were sent at the request of those agencies. Among the
documents contained on the CDs were documents that had been seized during the January 22, 2002 search of Mr. Almalki’s residence and copied from
Mr. Almalki’s hard drives, such as:
• email messages regarding Mr. Almalki’s business activities, including one
email from Mr. Almalki to Industry Canada requesting a corporate name
change (from TS Linktk International Corp. to DSP Group Inc.);�
• other documents from Mr. Almalki’s business, including invoices and
Ontario Ministry of Finance information questionnaires; and
• a typewritten report prepared by Mr. Almalki containing his recollection
of his early 2000 CSIS interview.
38. The CDs also contained documents related to Project A-O Canada’s investigation of Mr. Almalki, including:
• Project A-O Canada SITREPs containing information about the investigation of Mr. Almalki, including one that listed Mr. Almalki’s companies and
described Mr. Almalki as a “procurement officer;”
• documents concerning the time that Mr. Almalki had spent in
Afghanistan;�
• notes made by RCMP officers involved in Project A-O Canada’s
investigation;
• notes made by RCMP officers involved in the January 22, 2002 searches,
including a note indicating that two switchblades were found in
Mr. Almalki’s residence;�
• documents stating names alleged to be Mr. Almalki’s “aliases”, including
a document dated August 2001 in which the name “Abu Wafa”
appeared;�
As discussed at Chapter 8, paragraph 40, Mr. Almalki told the Inquiry that Malaysian officials
interrogated him in Syria, and that they had a report listing several trade names that Mr. Almalki
had tried (unsuccessfully) to register in Canada.
�
As discussed at Chapter 8, paragraph 33, Mr. Almalki told the Inquiry that his Syrian interrogators
questioned him about the time he had spent in Afghanistan.
�
As discussed at Chapter 8, paragraph 38, Mr. Almalki told the Inquiry that his Syrian interrogators
had a report, which they told him had been provided by Canada, indicating that a search of
Mr. Almalki’s parents’ home in Canada had turned up weapons.
�
As discussed at Chapter 8, paragraph 25, Mr. Almalki told the Inquiry that his Syrian interrogators
showed him a report that referred to him as an “active member of al Qaeda” with the code
name “Abu Wafa.” According to CSIS records, Mr. Almalki advised CSIS during an interview
in the summer of 1998 that the name “Abu Wafa” appeared on his Syrian birth certificate.
�
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO ABDULLAH ALMALKI
• photographs of Mr. Elmaati, Mr. Almalki and other targets of or persons
of interest to the investigation;10
• documents referring to a named associate of RCMP targets;11 and
• an organizational chart linking Mr. Almalki to Ottawa-based “Bin Laden
associates.”
Mr. Almalki detained in Syria
Mr. Almalki leaves Malaysia
39. On May 10, 2002, CSIS and Project A-O Canada learned from foreign agencies that Mr. Almalki was no longer residing in his apartment in Malaysia. The
foreign agencies did not know where Mr. Almalki had gone. On May 30, 2002,
a foreign agency advised Project A-O Canada that Mr. Almalki had left Malaysia
and travelled from Singapore to Bahrain on April 4, 2002 and then to Qatar on
April 6. The Inquiry found no evidence to suggest that Canadian authorities
either were aware of or communicated Mr. Almalki’s plans to travel to Syria.
CSIS learns that Mr. Almalki is detained in Syria
40. In late May 2002, the Service learned that Mr. Almalki might be under
detention in Syria. On May 31, 2002, the Service shared this information
with DFAIT and the RCMP CID, and asked the RCMP to keep the information
tightly controlled until the RCMP and Service had an opportunity to discuss the
Canadian implications of Mr. Almalki being detained abroad. In the middle of
June 2002, the Service obtained information confirming that Mr. Almalki was
detained in Syria.
41. According to one senior CSIS official, the Service did not view Mr. Almalki’s
detention in Syria as an opportunity to obtain information from him, in part
because the Service had conducted several interviews with Mr. Almalki. The
same senior CSIS official, when asked whether the Service had any concerns
about how Mr. Almalki would be treated in Syria, said that matters concerning
Mr. Almalki’s detention were left to DFAIT.
RCMP learns of Mr. Almalki’s detention
42. As noted above, the RCMP learned of Mr. Almalki’s possible detention
from CSIS on May 31, 2002. On that day, a senior CSIS official telephoned
10
11
As discussed at chapter 8, paragraph 106, Mr. Almalki told the Inquiry that during a post-release
interrogation in April 2004, his Syrian interrogators had a report containing photographs of
individuals; he observed that the report had been faxed on March 29, 2004.
Mr. Almalki told the Inquiry that his Syrian interrogators asked him about this individual.
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Corporal Richard Flewelling of CID and advised him that Mr. Almalki might be
in custody. According to Corporal Flewelling’s notes of that conversation, the
CSIS official wanted to know if the RCMP had enough information to support
charges and if the RCMP wanted him back. Corporal Flewelling and the CSIS
official agreed that they would discuss these issues further at a meeting on June
3. (The meeting is discussed in more detail below.) Following the conversation,
CSIS sent Corporal Flewelling a message with more details about Mr. Almalki’s
possible detention.
DFAIT learns of Mr. Almalki’s detention
43. Though CSIS reported that it orally advised DFAIT on May 31, 2002 that
Mr. Almalki might be detained in Syria, the first DFAIT record of Mr. Almalki’s possible detention is dated June 6, 2002. On June 6, Scott Heatherington of DFAIT
ISI made a note that Mr. Almalki was in custody in Syria. Mr. Heatherington
could not recall who gave him this information, but thought that it could have
been CSIS. On June 7, James Gould, the Deputy Director of DFAIT ISI’s intelligence policy division, wrote in his notebook that, according to the RCMP,
Mr. Almalki was of “major interest” to both the United States and Canada and
was in custody in Syria. He also noted that, according to the RCMP, the Embassy
in Damascus probably didn’t know about the possible detention.
44. Though DFAIT ISI had knowledge of Mr. Almalki’s possible detention by
June 6, 2002, DFAIT ISI did not immediately share the information with the
Consular Affairs Bureau. The reason for this, according to Mr. Heatherington
and to Don Saunders, a policy advisor in DFAIT ISI, is that ISI has a practice of
passing only confirmed, or at least reliable, information to the Consular Affairs
Bureau, and the information about Mr. Almalki’s detention had not yet been
confirmed. Mr. Saunders explained that DFAIT had only received snippets of
information from CSIS and a foreign agency, and that these snippets were too
tentative to warrant passing them on to the Consular Affairs Bureau.
45. Mr. Saunders stated that DFAIT ISI’s practice of confirming information
before passing it on to the Consular Affairs Bureau included making inquiries
with the source of the information, but he could not recall whether ISI made
any inquiries of the foreign agency or CSIS. Nor could he recall when the information about Mr. Almalki’s detention was sufficiently confirmed and specific
that it could be passed along. He thought that the information might have been
confirmed later in June, but he could not recall exactly when.
46. According to Mr. Heatherington, ISI received confirmation by June 26,
2002 that Mr. Almalki was in custody in Syria, though he could not recall the
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO ABDULLAH ALMALKI
source of the confirmation. He made a note sometime at the end of June suggesting that Mr. Almalki had gone to Syria via Bahrain and that he was awaiting CSIS’ advice. He noted on June 26 that Mr. Almalki had been arrested in
Syria. Also on June 26, Mr. Heatherington prepared a classified memo for
the Deputy Minister of Foreign Affairs, copied to the Consular Affairs Bureau,
regarding the status of several Canadians detained abroad. The memo said that
Mr. Almalki was in detention somewhere in Syria and that CSIS was trying to
ascertain his location. Another memorandum, dated August 6, 2002 and signed
by Mr. Heatherington stated, “We do not know the precise date he was arrested
but we only became aware of his presence in Syria in late June.”
47. Gar Pardy, Director General of DFAIT’s Consular Affairs Bureau, recalled
learning of Mr. Almalki’s detention at some point in late July 2002, when he
received a copy of Mr. Heatherington’s June 26 memo.12 Mr. Pardy stated that
the June 26 memo triggered the Consular Affairs Bureau’s action. When he
received it in late July, he asked Myra Pastyr-Lupul, the consular case management officer responsible for Africa and the Middle East, to see what she could
find out about Mr. Almalki.
48. Franco Pillarella, Canadian Ambassador to Syria, learned of the detention
on July 4, 2002 at a meeting with Stephen Covey (the RCMP liaison officer in
Rome) and General Khalil of the Syrian Military Intelligence (“SyMI”).13 The
embassy took no consular action at that time; Ambassador Pillarella believed
that the Consular Affairs Bureau was aware of Mr. Almalki’s detention and that
the Embassy could not act until it received instructions from the Consular Affairs
Bureau.14 As discussed above, however, while Ambassador Pillarella believed
that the Consular Affairs Bureau was aware on July 4, 2002 of Mr. Almalki’s
detention, according to Mr. Pardy the Consular Affairs Bureau did not learn of
the detention until late July 2002.
12
13
14
Mr. Pardy explained that classified memoranda from ISI were communicated to him by way of
a special courier. The courier would make an appointment to meet with Mr. Pardy and show
him the information. Mr. Pardy would not be permitted to retain that information. According
to Mr. Pardy, the courier would only come when there was more than one piece of information
to be delivered and therefore it would not be unusual for him not to see a memorandum until
several days or even weeks after it was written.
This meeting is discussed in some detail in at paragraphs 170 to 173 of Chapter 4. Ambassador
Pillarella does not have any notes of the meeting. Inspector Covey’s report of the meeting
indicates that “other priority cases” were discussed, but does not mention Mr. Almalki. When
interviewed, Inspector Covey stated that he was unsure whether or not Mr. Almalki’s name
was raised at the meeting.
Ambassador Pillarella’s belief that the Consular Affairs Bureau was already aware of the detention
in early July was based on his expectation that if the RCMP (Inspector Covey) was obtaining
information about a detained Canadian, the appropriate consultation to facilitate such action
had occurred at DFAIT headquarters.
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Discussions regarding criminal investigation of Mr. Almalki
RCMP / FBI meetings regarding an FBI criminal investigation
49. In late May 2002, Project A-O Canada members had discussions with
members of the FBI and other U.S. agencies regarding a possible FBI criminal
investigation of Mr. Almalki and his associates. At a meeting on May 21, 2002,
an FBI member urged the Project A-O Canada members to present the status
of their investigation to FBI prosecutors in Washington. The hope was that
such a presentation would convince the FBI prosecutors to launch their own
criminal investigation.
50. Project A-O Canada members determined that it would be desirable to
lobby for a criminal investigation in the United States. Chief Superintendent
Couture said he believed that this would enable the RCMP to obtain information from the FBI more quickly. Inspector Cabana said he thought that an FBI
criminal investigation would allow the RCMP to get access to more information
for its own investigation, and in a format that would be admissible in court.
Superintendent Clement also believed that an FBI criminal investigation would
generate information that could be used by the RCMP in court.
51. On May 31, 2002, Inspector Cabana and Staff Sergeants Callaghan and
Corcoran gave a presentation to members of the FBI and other agencies at FBI
headquarters in Washington D.C. The Project A-O Canada members asked the
U.S. officials to consider the possibility of commencing a criminal investigation
with respect to Mr. Almalki and his associates.
52. The RCMP’s presentation, entitled “The Pursuit of Terrorism: A Canadian
Response” included a general description of the Project A-O Canada investigation and an overview of several individuals who were of interest to Project
A-O Canada, including Mr. Almalki and Mr. Elmaati. The presentation characterized Mr. Almalki as an alleged procurement officer and referred to the
accounting records for Mr. Almalki’s businesses. A concluding slide, entitled
“Project A-O Canada: What’s Next” indicated that the RCMP intended to interview Mr. Almalki.
53. An updated version of the presentation, excluding speaking notes, was
sent to the Americans, at the request of the FBI, on July 22, 2002.
54. Project A-O Canada was not successful in convincing the FBI to commence
a criminal investigation.
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO ABDULLAH ALMALKI
RCMP / CSIS meetings regarding criminal charges
55. On June 3, 2002, CSIS and RCMP officials (including Chief Superintendent
Couture, the Officer in Charge of “A” Division’s Criminal Operations Unit,
Inspector Cabana, Staff Sergeants Corcoran and Callaghan and Corporal
Flewelling) met at CSIS headquarters to discuss possible criminal charges against
Mr. Almalki. The RCMP indicated that it was not yet prepared to lay charges
because it did not have sufficient evidence. As well, according to Inspector
Cabana, there was no urgency to lay a charge against Mr. Almalki because he
(like Mr. Elmaati) had left Canada and was not expected to return.15
56. The RCMP’s summary of the June 3 meeting reported that “CSIS was hoping to approach the Syrians on the basis that the RCMP were charging Almalki
with terrorist offences and wanted him returned back to Canada.” When interviewed, a senior CSIS official who attended the June 3 meeting stated that this
report did not precisely describe the position taken by CSIS at that meeting.
According to the CSIS official, CSIS asked the RCMP about the status of its
investigation and advised the RCMP representatives that, if they decided to lay
charges, the Service was prepared to assist by engaging foreign agencies.
57. When asked about this offer to assist the RCMP, the senior CSIS official
stated that these were just discussions. He said that in situations where CSIS
can assist the RCMP in moving an investigation forward, it generally will try to
do so.
58. Whether the RCMP could lay charges against Mr. Almalki was discussed
again at a June 21, 2002 meeting between RCMP and CSIS officials. Corporal
Flewelling, who attended the meeting, noted that the officials discussed whether
the RCMP had enough evidence to charge Mr. Almalki under Bill C-36 and, if so,
whether the RCMP wanted him back in Canada so that he could be charged.
When asked at the Arar Inquiry whether the RCMP decided at the meeting to
charge Mr. Almalki, Corporal Flewelling said he could not recall if a definitive
decision was made.
59. According to Corporal Flewelling’s notes of the June 21 meeting, the
attendees also discussed gaining access to Mr. Almalki in Syria for the purposes
of conducting an interview. Corporal Flewelling noted, “The question is really
how is Syria going to play,” by which he meant that the main issue was whether
the Syrians would allow the RCMP to interview Mr. Almalki. As discussed below
15
As discussed below at paragraph 115, Project A-O Canada had been advised by Inspector
Stephen Covey (then the RCMP liaison officer in Rome) that, because Syria did not recognize
Mr. Almalki’s dual Canadian-Syrian citizenship, it would likely not extradite him to Canada if
the RCMP laid charges.
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at paragraphs 114 to 168, starting in the summer of 2002, Canadian officials
(primarily in the RCMP and DFAIT) had extensive discussions about interviewing Mr. Almalki in Syria and sending questions for Syrian officials to put to
Mr. Almalki.
Role of Malaysia in Mr. Almalki’s detention/interrogation in Syria
60. As discussed in chapter 8, paragraphs 39 to 43, Mr. Almalki stated that
he was interrogated in Syria in July 2002 by several people whom he believed
to be Malaysian officials. Since Malaysia did not respond to the Inquiry’s
requests that it participate in the Inquiry, the Inquiry was unable to confirm
whether a Malaysian agency went to Syria to question Mr. Almalki. CSIS, DFAIT
and the RCMP appear to have no information that indicates whether or not
this occurred.
61. As discussed at paragraph 40 of chapter 8, Mr. Almalki stated that he
believes that the Malaysian officials questioned him in Syria at the request of the
Canadian government, or at least based on information that Malaysian officials
received from the Canadian government. The Inquiry found no evidence that
Canadian officials asked Malaysian officials to interrogate Mr. Almalki in Syria or
elsewhere, or that Canadian officials supplied Malaysian officials with questions,
information or documents with which to interrogate Mr. Almalki.
Mr. Almalki’s torture allegation / Impact of Mr. Elmaati’s torture
allegation
62. While Mr. Almalki was arrested and detained in Syria in May 2002,
Canadian officials did not learn of his allegation that he was tortured in Syria
until November 4, 2003. On that day, Maher Arar, who had just been released
from Syrian detention, gave a press conference at which he reported meeting
Mr. Almalki at Sednaya prison. Mr. Arar stated that, when they met, Mr. Almalki
told him that he had been severely tortured while in detention.
63. Though Canadian officials did not learn of Mr. Almalki’s allegation until
November 2003, they were generally aware that Syria had a poor human rights
reputation. They were also aware that another Canadian citizen, Mr. Elmaati,
had made a similar allegation. In August 2002, while in detention in Egypt,
Mr. Elmaati told DFAIT consular officials that he was tortured while in
Syrian detention.
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO ABDULLAH ALMALKI
CSIS’ view
64. In the Arar Inquiry, Justice O’Connor found that CSIS officials had or likely
had during the relevant time knowledge of Syria’s poor human rights reputation, including reports that Syrian security agencies used torture to interrogate
detainees. He also found that CSIS officials were familiar with the Amnesty
International and U.S. State Department reports on Syria and assessed these
documents as credible. He noted, however, that CSIS Director Ward Elcock
testified that, without knowing the evidence on which these reports relied, CSIS
could not conclude absolutely that Syria engaged in torture.
65. CSIS had contrary information from a European intelligence agency, which
advised the Service that it was not aware of any Western citizens being tortured
by a certain Syrian agency. CSIS had previously assessed this information in
conjunction with public information regarding Syria’s human rights record and
concluded that there was no solid information linking the specific Syrian agency
to human rights abuses. However, Jack Hooper, who during the relevant period
was Director General of CSIS’ Toronto Region, and then CSIS’ Assistant Director
of Operations, testified during the Arar Inquiry (though not in relation to the
torture allegations of Mr. Elmaati and Mr. Almalki) that the Service put undue
reliance on the foreign agency’s information and performed an improper balancing act when assessing these reports against information in the public record.
66. CSIS learned of Mr. Elmaati’s torture allegation on August 12, 2002. Two
factors caused the Service to question the credibility of the allegation. First, the
Service was aware of an al-Qaeda training manual that instructed individuals, if
they were detained, to claim that they had been abused or tortured. Second,
the Service had information suggesting that Mr. Almalki was in good health,
despite his incarceration, and being treated well by Syrian officials.
67. One CSIS official was asked how he reconciled the information suggesting that Mr. Almalki was in good health with Mr. Elmaati’s torture allegations.
The official said that he was reluctant to draw a direct correlation between the
treatment of one person and another because people can be treated differently
in similar circumstances. He also said that assessing the conditions in which
Mr. Almalki and Mr. Elmaati were being held was a DFAIT function, and not
something that, in view of his role, he was particularly concerned about.
68. While most of the information that CSIS had concerning Mr. Almalki’s
treatment suggested that he was in good health and not being mistreated,
CSIS also had some information suggesting that he had not been treated fairly
earlier. A senior CSIS official was asked how this affected his assessment of
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Mr. Almalki’s situation. He responded that he did not know what to make of
the information. The official was also asked whether he was aware of the view
that mistreatment, where it occurs during incarceration, generally occurs early
in the period of incarceration. He responded that he would not know what
happens to individuals at different periods of their detention.
DFAIT’s view
69. DFAIT officials from the Consular Affairs Bureau and DFAIT’s Security and
Intelligence Bureau (DFAIT ISD) generally testified before the Arar Inquiry to
having some understanding that Syria had a poor human rights reputation. They
based their conclusions on media reports, first-hand experience with Syrian
officials, communications with Syrian citizens, DFAIT human rights reports, U.S.
State Department reports, reports from various human rights organizations and
other open sources.
70. DFAIT officials’ specific knowledge of Syria’s human rights reputation
varied. Many testified to having some knowledge that Syrian security authorities might use torture. Many were also aware that Syria might hold prisoners
incommunicado for a period of time to extract information before disclosing
the individual’s whereabouts. The then-Minister of Foreign Affairs, William
Graham, had no knowledge of specific acts of torture in Syria or details about
prison conditions and interrogation methods, but was generally aware that
Syria’s reputation included repression of internal dissent, especially with respect
to the Muslim Brotherhood. Ambassador Pillarella, then Canada’s ambassador
to Syria, stated that in 2002 and 2003 he knew of the allegations of torture in
the U.S. State Department reports, but that it was extremely difficult to verify.
He said that as the Ambassador to Syria during those years he did not have any
indication that there were serious human rights abuses that he could verify.
However, he cited one example of a Syrian woman detained incommunicado
by Syrian security forces for six months without charges. She told Ambassador
Pillarella that prison conditions were appalling but that she had not otherwise
been mistreated or tortured.
71. Léo Martel, who served as consul at the Canadian Embassy in Damascus
starting in September 2002, told the Inquiry that, prior to taking up this position, he had read extensively about Syria and the human rights situation there.
He was aware that political dissidents and opponents of the regime had been
mistreated by the Syrian government, but when he arrived in Syria in 2002, he
did not think that dual nationals (dual Canadian-Syrian citizens for example)
would be treated the same way. Mr. Martel said that during the three years
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that he occupied the position of consul in Damascus, he became aware of many
dual nationals (Canadian-Syrians and Australian-Syrians, to whom the Embassy
also provided services) being detained by the Syrian security services. He said
that some of these dual citizens told him that they had been mistreated while in
detention, while others told him they had not. He said that no two cases were
the same.
72. When Mr. Martel took up the position of consul at the Canadian Embassy
in Damascus in 2002, he was not provided with the current DFAIT human rights
report or the publicly available reports by Amnesty International and Human
Rights Watch as part of his orientation, but he said that he was already very
familiar, from his past experience and reading, with the situation in Syria. He
also said that each individual at the Embassy had a responsibility to keep himself
or herself apprised of the situation in the region, by reading relevant documents
and attending weekly meetings with the Head of Mission.
73. While DFAIT officials were generally aware of Syria’s poor human rights
reputation, two DFAIT officials (Ambassador Pillarella and Daniel Livermore, the
Director General of DFAIT ISD) said they were reluctant to draw conclusions
about the treatment of specific detainees without specific evidence. In contrast,
while Mr. Pardy did not believe that a political prisoner in Syrian detention
would be subjected to torture in every case, his “working assumption” was
that torture was taking place, and he would need to be convinced it was not.
Mr. Pardy based this assumption on the public record and his experience with
other consular files in the region.
74. There is no document that clearly sets out Mr. Pardy’s “working assumption.” However, he testified that he believed that anyone in Ottawa who deals
with such cases would read into the circumstances the possibility of torture or
serious abuse. Mr. Pardy believed that DFAIT officials—both at his level and
above—were aware of and shared his working assumption.
75. Konrad Sigurdson, who replaced Mr. Pardy as Director General of the
Consular Affairs Bureau on September 1, 2003, stated that he worked under
the assumption that there was some mistreatment of individuals imprisoned in
Syrian jails. He said that he believed most of his colleagues worked under the
same assumption, but that no one knew the extent of the mistreatment.
76. On August 12, 2002, Mr. Elmaati told consular officials in Egypt that he
had been tortured while in Syrian detention. The Canadian Embassy in Syria
was not immediately advised of Mr. Elmaati’s torture allegation. Ambassador
Pillarella said that he did not learn of the allegation until later in 2002, possibly
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in November or December of 2002, and could not recall how he had learned
about it. Léo Martel, who arrived in Damascus in September 2002, did not learn
of Mr. Elmaati’s torture allegation until approximately September 2005. When
asked why consular officials in Damascus learned of Mr. Elmaati’s allegation so
late, Mr. Pardy explained that when the Embassy in Cairo sent the email message reporting the allegation, it did not include the Embassy in Damascus on
the distribution list. Mr. Pardy said that consular officials in Ottawa should have
noticed this, and forwarded the message to Damascus, but that unfortunately
they did not.
77. Mr. Pardy and Ms. Pastyr‑Lupul, consular officials based in Ottawa, suggested that Mr. Elmaati’s torture allegations influenced DFAIT’s assessment of
Mr. Almalki’s situation. When asked about the likelihood that Mr. Almalki was
being tortured while in Syrian detention, Mr. Pardy said that, while one could
not be absolutely certain, there was a probability, based on his knowledge of
Syrian behaviour in these kinds of circumstances, that “something nasty” was
happening to Mr. Almalki. In Mr. Pardy’s view, Mr. Elmaati’s allegation of torture, which was the first direct information of a Canadian being mistreated in
Syrian custody, increased the probability that Mr. Almalki was being mistreated.
When Ms. Pastyr‑Lupul was asked whether she was concerned that Mr. Almalki
might be facing the same risk of torture that Mr. Elmaati had alleged, she said
that the thought had crossed her mind.
RCMP’s view
78. At the Arar Inquiry, investigators in Project A-O Canada, officials in RCMP
CID and the RCMP liaison officer with responsibility for Syria were questioned
regarding their knowledge of Syria’s human rights reputation. Project A-O
Canada investigators either had no knowledge of Syria’s human rights record or
only generally knew that Syria operated under different standards from Canada.
RCMP CID officials testified that they were generally aware that Syria did not
have the same system or standards as Canada, but were not aware that torture
might be used during interrogation of detainees. Staff Sergeant Fiorido, the
liaison officer responsible for facilitating the RCMP’s contact with Syrian agencies, testified to having basic knowledge from media sources that Syria was a
country in which human rights abuses might be a concern.
79. The RCMP learned about Mr. Elmaati’s torture allegation from DFAIT ISI on
August 12, 2002. Several RCMP and/or Project A-O Canada members stated that
they had doubts about the validity of the allegation. One Project A-O Canada
member stated that he was aware that CSIS believed that there were gaps in
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Mr. Elmaati’s alleged confession indicating that he was not tortured. The same
member was also aware of the al-Qaeda training manual instructing detainees
to claim that they were tortured. Another Project A-O Canada member cited
several reasons to doubt the validity of Mr. Elmaati’s allegation, including the
al‑Qaeda training manual, and a comment that Mr. Elmaati had made about a nonexistent Guantanamo Bay camp. An RCMP member suggested that Mr. Elmaati
might be looking for leverage to gain something that he wanted.
Consular actions
First steps
80. The first consular action with respect to Mr. Almalki was taken on July 30,
2002. Mr. Pardy instructed Ms. Pastyr‑Lupul to make inquiries into Mr. Almalki’s
citizenship in order to verify that he was a Canadian citizen and therefore entitled to consular assistance. Ms. Pastyr‑Lupul carried out this request that day.
81. On August 2, 2002, Ms. Pastyr‑Lupul wrote a note to remind herself to
work on the “Dip Note for Almalki”. On August 13, Ms. Pastyr‑Lupul advised
the Embassy in Damascus that Mr. Almalki had been detained by Syrian authorities and asked that the Embassy send a diplomatic note requesting consular
access. Ms. Pastyr‑Lupul attributed this 11-day gap to her heavy caseload (which
included the Kazemi case,16 the Elmaati case, and other cases spanning 61 countries) and a medical condition for which she was under a doctor’s care.
Diplomatic notes
82. On the request of Ms. Pastyr‑Lupul, the Canadian Embassy in Damascus
sent a diplomatic note to Syria on August 15, 2002, requesting consular access
to Mr. Almalki. In her instructions, Ms. Pastyr‑Lupul had requested that the
Embassy follow up on the diplomatic note if a response was not received
within two weeks. The Embassy agreed to follow up in two weeks, but advised
Ms. Pastyr‑Lupul that previous experience suggested that the Syrian Ministry of
Foreign Affairs (MFA) would likely not respond in less than one month. The
Embassy also advised her that this delay could be longer if the detention was for
political reasons or if Mr. Almalki was a Syrian citizen, and that pressure from
the Embassy rarely resulted in a more rapid response.
83. On September 3, 2002 and again on September 12, 2002, the Embassy
contacted the Consular Department of the Syrian MFA to follow up on the
16
Zahra Kazemi was an Iranian-Canadian journalist who died in Iranian custody on July 11, 2003
after she was arrested for taking pictures outside a prison during a student protest in Tehran.
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diplomatic note. The MFA informed the Embassy that it had sent the note to
the Syrian Minister of the Interior and was waiting for a response.
84. Syria did not respond to the Embassy’s August 15, 2002 diplomatic note
until April 26, 2003. Its response was that Mr. Almalki was Syrian and therefore
subject to Syrian laws. Neither the Embassy nor the Consular Affairs Bureau
responded to this note. Upon receiving the note, Mr. Martel passed it on to the
Consular Affairs Bureau and Ambassador Pillarella. He did not receive instructions to follow up with another note or otherwise pursue the issue of consular
access further.
85. In August 2003, DFAIT provided to CSIS a copy of the CAMANT note
containing the text of Syria’s April 26, 2003 diplomatic note.
Ambassador Pillarella meets with Deputy Minister Haddad and General Khalil
86. On October 20, 2002, Ambassador Pillarella met with Deputy Minister
Haddad of the Syrian MFA to discuss Mr. Arar. At the request of Mr. Pardy,
Ambassador Pillarella also raised the case of Mr. Almalki, and was told that Deputy
Minister Haddad would look into the case. Though the Inquiry did not find
any evidence to suggest that Deputy Minister Haddad looked into Mr. Almalki’s
case, as promised, he did arrange a meeting between Ambassador Pillarella and
General Khalil for November 3, 2002 to review the case of Mr. Arar.
87. On October 22, 2002, Ambassador Pillarella met with General Khalil. The
report of this meeting suggests that the focus of the meeting was Mr. Arar, and
that Mr. Almalki was not discussed.
88. Ambassador Pillarella met with General Khalil again on November 3, 2002
at the meeting set up by Deputy Minister Haddad. According to Ambassador
Pillarella’s report of the November 3 meeting, Ambassador Pillarella raised
the issue of Mr. Almalki and observed that General Khalil seemed “disposed
to accept” that Mr. Almalki could meet with a Canadian official. Ambassador
Pillarella’s report of the November 3 meeting does not include any other reference to Mr. Almalki.
89. On November 5, 2002, Ambassador Pillarella and Mr. Pardy discussed the
Ambassador’s observation that General Khalil seemed disposed to accept that
Mr. Almalki could meet with a Canadian official. They concluded that “Canadian
official” in this context likely meant an intelligence official and not a consular
official. As discussed below in paragraphs 102 to 113 (“CSIS’ Trip to Syria”),
DFAIT ISI communicated this to CSIS along with General Khalil’s offer to allow
a Canadian intelligence official to visit Damascus to review the information
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provided by Mr. Arar. The result was that CSIS officials travelled to Syria in late
November 2002 to meet with Syrian officials.
90. According to Mr. Pardy, no one in the Consular Affairs Bureau used
General Khalil’s November 3, 2002 invitation as a basis on which to pursue
consular access to Mr. Almalki. According to DFAIT, the crucial focus of the
October 20, 22 and November 3 meetings with Syrian officials was on establishing access to Mr. Arar.
Relationship between Ambassador Pillarella and General Khalil
91. Ambassador Pillarella testified at the Arar Inquiry to having a relatively
direct relationship with General Khalil, the head of the SyMI, and, according
to the Ambassador, an extremely powerful figure within the Syrian political
framework. He said that this relationship was cultivated over the course of
2002, and that the situation regarding consular access to detainees changed
tremendously as a result. Ambassador Pillarella testified that he was generally
received by General Khalil “in a most friendly manner” and that he believed
that the General’s relationship with him was genuine. He also said that General
Khalil could always be relied on to keep his word and would respond quickly
to requests for consular access and information.
92. Mr. Hooper also commented at the Arar Inquiry on the relationship
between Ambassador Pillarella and General Khalil. He attributed what was
considered to be the extraordinary consular access to Mr.Arar, at least in part,
to the relationship between General Khalil and the Ambassador. He believed
that this relationship was the reason that the General extended to CSIS an offer
to visit Syria and meet with SyMI officials. According to Mr. Hooper, these were
indicators that Ambassador Pillarella and General Khalil had a “reasonable dialogue going on.”
DFAIT makes contact with Mr. Almalki’s family
93. On December 10, 2002, Ms. Pastyr‑Lupul spoke with Nazih Almalki, brother
of Mr. Almalki, and informed him both of who she was and of the measures that
DFAIT had taken in an attempt to gain consular access. Mr. Almalki’s brother
told Ms. Pastyr‑Lupul that the family had been pursuing the matter through its
own channels for several months, but gave Ms. Pastyr‑Lupul no indication that
the family had, by that point, had any contact with Mr. Almalki. The Inquiry
received evidence that the Almalki family had earlier met with Senator Terry
Stratton to discuss Mr. Almalki’s circumstances and that Senator Stratton’s office
had made calls to DFAIT respecting Mr. Almalki.
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94. In June 2003, Ms. Pastyr‑Lupul met with Safa Almalki, another of
Mr. Almalki’s brothers, to discuss the case. Ms. Pastyr‑Lupul’s report of this
meeting states that the family reiterated its wish not to have Mr. Almalki’s
name released publicly.17 Her report also says that Safa Almalki asked for
Ms. Pastyr‑Lupul’s assistance in obtaining an “Ottawa Police Certificate” stating
that Mr. Almalki did not have a criminal record in Canada. A CAMANT note
from October 2003 indicates that the family needed the certificate in order to
obtain a postponement of Mr. Almalki’s Syrian military service requirements.
At some point in October or November of 2003, Ms. Pastyr‑Lupul sent a letter
to the Ottawa Police, on the family’s behalf, requesting this certificate. Michael
Edelson, Mr. Almalki’s then lawyer, made two similar requests of the RCMP.
In June 2003, Mr. Edelson sent a letter to Sergeant Walsh of the RCMP asking
for confirmation that Mr. Almalki had no criminal conviction known to the
Canadian authorities. According to an RCMP SITREP, the RCMP responded in
mid-July 2003 by leaving a telephone message asking that Mr. Edelson confirm in
writing that he was Mr. Almalki’s counsel before the RCMP provided any criminal record information. As discussed below in paragraph 184, in November
2003, Mr. Edelson again asked the RCMP for a letter confirming, among other
things, that Mr. Almalki had no criminal record in Canada.
95. On October 10, 2003, Ms. Pastyr‑Lupul spoke again with Safa Almalki and
assured him that DFAIT was still trying to obtain consular access to Mr. Almalki.
In her report of this conversation, she requested that Mr. Martel advise her of
any recent diplomatic notes or consular efforts. Mr. Martel’s response confirmed that the only diplomatic note was the one sent to Syria in August 2002,
and did not mention any other efforts to gain consular access to Mr. Almalki.
Mr. Martel’s meetings with Colonel Saleh
96. In his interview, Mr. Martel indicated that during the period of Mr. Almalki’s
detention, he was meeting with Mr. Arar through Colonel Saleh of the SyMI. On
more than one occasion, Mr. Martel asked Colonel Saleh unofficially whether he
had any information on Mr. Almalki, and whether Mr. Martel could have access
to Mr. Almalki. Colonel Saleh refused on every occasion. These unofficial
requests and refusals were not documented in a CAMANT note or any other
DFAIT document.
17
With respect to the family’s concern about publicity, CSIS had information suggesting that
the family was concerned that releasing its name publicly could lead to reprisals against
family members.
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Consular visits to Mr. Arar and Mr. Elmaati
97. Mr. Arar was detained at Far Falestin starting in early October 2002. He
received his first consular visit, from Mr. Martel, on October 23, 2002. He
received eight other consular visits (on October 29, November 12 and 26,
December 10, 2002, January 7, February 18, April 22 and August 14, 2003)
before he was released on October 5, 2003.
98. As discussed in Chapter 4 above, Mr. Elmaati was detained in Syria from
November 12, 2001 until about late January 2002, and during that time he did
not receive any consular visits. He received eight consular visits while he was
detained in Egypt (from late January 2002 until mid-January 2004).
Intensity of consular activities
99. Ambassador Pillarella was asked to explain why the consular efforts in
Mr. Almalki’s case were less intense than the consular efforts undertaken in
the cases of Mr. Arar and Mr. Elmaati. Ambassador Pillarella’s explanation was
that the Embassy had been instructed by the Consular Affairs Bureau in Ottawa
not to treat Mr. Almalki’s case as a consular case. He stated that Mr. Pardy had
informed him that Mr. Almalki’s family did not want DFAIT to pursue his case as
a consular case, and as a result the Embassy, from the start, desisted in pursuing
the matter.
100. In their interviews, Mr. Martel, Ms. Pastyr‑Lupul and Mr. Pardy disagreed with Ambassador Pillarella on this issue. Mr. Martel stated that while
he was aware that the family had some concerns about publicity, he would
not have said that the family did not want DFAIT to pursue Mr. Almalki’s case.
Ms. Pastyr‑Lupul, who was the Almalki family’s contact person at DFAIT, stated
that there was a misconception that the family did not want DFAIT to intervene
in Mr. Almalki’s case. According to Mr. Pardy, the Almalki family did not instruct
DFAIT not to pursue the matter as a consular case; the family was merely concerned that the diplomatic efforts did not cut across what the family was trying
to achieve using its own channels in the Syrian government. Mr. Pardy stated
that there was no ambiguity with respect to the status of Mr. Almalki’s case as
a consular case and something that DFAIT had to pursue. He acknowledged,
however, that the level of consular activity in Mr. Almalki’s case was less than
that in the cases of Mr. Elmaati and Mr. Arar, and that the Consular Affairs Bureau
lost focus.
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RCMP’s meeting with Michael Edelson
101. On October 4, 2002, Project A-O Canada managers and Department of
Justice counsel met with Michael Edelson, Mr. Almalki’s then lawyer. According
to the SITREP from October 4, Mr. Edelson expressed concern over the detention of Mr. Almalki in Syria and Mr. Arar in New York, and was assured that they
had not been arrested at the request of Project A-O Canada. The SITREP also
stated, “The reality about foreign governments also investigating the same A-O
Canada targets for terrorist related activities was explained to [Mr. Edelson].”
CSIS’ trip to Syria
102. In November 2002, a CSIS delegation travelled to Syria to meet with
officials from the Syrian Military Intelligence (“SyMI”). The trip was arranged
in response to an invitation from the SyMI that had been communicated to
Ambassador Pillarella at a November 3, 2002 meeting. At that meeting, General
Khalil told Ambassador Pillarella that he would agree to allow a Canadian intelligence official to visit Damascus to review the information provided by Mr. Arar.
With respect to Mr. Almalki, Ambassador Pillarella observed that General Khalil
seemed “disposed to accept” that Mr. Almalki could meet with a Canadian official. The November 3 meeting is discussed above at paragraph 8.
103. DFAIT advised the Service of General Khalil’s invitation in early
November 2002. The invitation was discussed by representatives from the
RCMP, CSIS, DFAIT ISI, and by Ambassador Pillarella, at meetings on November 4
and 6, and then CSIS communicated its acceptance to the SyMI in the middle
of November.
Purpose of the trip
104. The Service’s trip to Syria had several purposes. Among the main ones,
it was thought that the trip would allow CSIS to acquire critical intelligence in
support of its Sunni Islamic terrorism investigation and to receive and evaluate
information about Mr. Arar. CSIS also intended to raise Mr. Almalki’s case with
the Syrians, in part to determine what was likely to happen, i.e., whether he
was going to be charged under Syrian law, released or otherwise.
105. Though CSIS intended to raise Mr. Almalki’s case with the Syrians,
the intent of the trip was not to raise or discuss the conditions under which
Mr. Almalki was being held. In fact, according to one CSIS official, CSIS had
specifically decided that it would not become involved in the consular process.
He recalled a meeting, held prior to the Syria trip, in which DFAIT was quite
adamant that the Service not become involved in consular issues. Mr. Saunders,
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a DFAIT official who attended this meeting, does not recall anyone from DFAIT
being adamant that the Service not become involved in consular issues. In his
view, it would have been nice for any Canadian official, DFAIT or not, to meet
with Mr. Almalki, because at that time DFAIT did not have access to him and
did not know how he was doing.
106. According to Mr. Hooper, it was not CSIS’ role to raise Mr. Almalki’s treatment with the Syrian authorities. He stated that there would be some jeopardy
in the Service inserting itself into affairs that were appropriately the purview of
DFAIT’s Consular Affairs Bureau. He said that while CSIS has a duty to notify
other stakeholders if it suspects that reporting it receives is the product of a
human rights abuse, and to take precautions to ensure that Canadian assets
are not used to perpetrate human rights abuses, it does not have a duty to ask
an intelligence interlocutor whether he is torturing somebody or violating a
person’s human rights. He said that that is the purview of DFAIT.
107. While DFAIT was apparently concerned that CSIS not become involved
in consular issues, the RCMP was concerned that CSIS not do anything in Syria
that could affect the criminal investigation into Mr. Almalki and others. At a
meeting held prior to the Syria trip, Inspector Cabana asked CSIS not to interview Mr. Almalki, because he thought that an interview could adversely affect
the admissibility of any future statement from Mr. Almalki and potentially make
a CSIS official a compellable witness at a criminal trial of Mr. Almalki. Inspector
Cabana left the meeting with the impression that CSIS would not attempt to
speak to Mr. Almalki during the trip.
Meeting with the Syrian authorities
108. The CSIS delegation met with officials from the SyMI in Syria on
November 23 and November 24. At one of the meetings, Mr. Almalki was discussed. The delegation received information obtained from the questioning of
Mr. Almalki, and obtained information about the date of Mr. Almalki’s official
arrest (which was different than the date of detention) and the basis of the
charges against him. The delegation also received information indicating that
the case was before the Syrian courts, but it did not get any indication of what
the outcome might be.
109. One of the CSIS officials who had travelled to Syria and met with the
SyMI was responsible for evaluating the information that had been provided
to the delegation (including the information obtained from the questioning of
Mr. Almalki). He had no prior experience in determining if information might
be the product of mistreatment, and he did not specifically turn his mind to the
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possibility of torture or interrogation methods when evaluating the information.
However, he emphasized that while he had no specific expertise in evaluating
information that might have been obtained by torture, he had a lot of experience in determining how intelligence information might have been acquired.
110. The official stated that if he had turned his mind to the issue of mistreatment, he would not have concluded that the information resulted from mistreatment. For one thing, he found the reporting from the Syrians to be incomplete.
He said that he would expect that a person being abused would give up a lot
of information, and that the reporting would be more detailed than what the
Service had received from the Syrians. In addition, as noted above, he said that
the Service had information suggesting that Mr. Almalki was in good health and
not being mistreated. Finally, as discussed above at paragraph 65, the CSIS official was aware that a European intelligence agency had previously advised CSIS
that the SyMI does not resort to torture or physical abuse during questioning.
Debriefing DFAIT
111. The CSIS delegation did not debrief Ambassador Pillarella before leaving
Damascus, but one member of the delegation debriefed DFAIT officials about
the trip at a meeting in Ottawa on November 28, 2002. The individual who gave
the debriefing could not recall if Mr. Almalki was mentioned during the meeting, but said that it would have been normal for him to debrief the attendees
on Mr. Almalki as well. Notes made by Jonathan Solomon, a policy advisor in
DFAIT ISI who attended the meeting, suggest that Mr. Almalki was discussed.
He noted “-Reason to believe Arar & Al-Malki not tortured – significant gaps”.
The Inquiry found no evidence that the Service delegation provided DFAIT with
details about the information it had received in respect of Mr. Almalki, including, for example, information about when Mr. Almalki was officially arrested
and what charges he was facing.
Mr. Almalki’s interrogation in November and December 2002
112. As discussed at paragraph 48 of Chapter 8, Mr. Almalki stated that
he believes that he was interrogated in November and December 2002 based
on information that Syrian officials had obtained during meetings with the
CSIS delegation. He told the Inquiry that he observed one of his interrogators reviewing a typed report entitled “Meeting with the Canadian delegation
November 24th 2002.”
113. The Inquiry found no other evidence to suggest that CSIS provided any
reports or information about Mr. Almalki to the Syrian authorities during the
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November 2002 trip to Syria. One member of the CSIS delegation told the
Inquiry that (for reasons that I am precluded by national security confidentiality
from disclosing here) information could not have been shared with Syria.
Questions for Mr. Almalki
114. Between July and December of 2002, the RCMP, at times in consultation
with DFAIT ISI (and occasionally with other organizations, including CSIS and
the Department of Justice), discussed various possibilities for gaining access to
Mr. Almalki in Syria and cooperating with the Syrians to share information about
Mr. Almalki.
115. At least four factors drove these discussions. First, according to Staff
Sergeant Callaghan, the RCMP hoped that obtaining information from Mr. Almalki
would aid the RCMP in fulfilling its mandate of prevention, disruption, gathering of intelligence and, if possible, an eventual prosecution. Second, there was
a belief within the RCMP that Mr. Almalki might have information about the
alleged threat to Parliament Hill (see Chapter 4 , paragraph 79). Third, Project
A-O Canada had been advised by Inspector Stephen Covey (then the RCMP
liaison officer in Rome) that Mr. Almalki would probably not return to Canada.
Inspector Covey told Project A-O Canada that, because Syria did not recognize
Mr. Almalki’s dual Canadian-Syrian citizenship, it would likely not extradite him
to Canada if the RCMP laid charges. Based on this advice, Project A-O Canada
shifted its focus from charging Mr. Almalki to obtaining information from him.
Fourth, prior to Mr. Almalki’s detention, and during Mr. Elmaati’s detention in
Syria, the Syrian authorities had expressed willingness to question a detainee
on the RCMP’s behalf and share information about (or from) a detainee with
the RCMP.
Interview or questions
116. The RCMP first considered travelling to Syria to interview Mr. Almalki
directly. However, the RCMP’s efforts to obtain interview access to Mr. Almalki
failed. Moreover, both Ambassador Pillarella and the RCMP liaison officer in
Rome advised the RCMP that the Syrian authorities would likely not agree to
permit a police agency to interview Mr. Almalki in Syria.
117. After several failed attempts to set up an interview in Syria, the RCMP
began to consider sending questions to Syria to be posed to Mr. Almalki by
Syrian officials. Aware that Syria might expect something in exchange for
questioning Mr. Almalki on its behalf, the RCMP also started to make plans to
share with Syria information from the Project A-O Canada investigation.
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118. Several RCMP witnesses stated that they believed a direct interview of
Mr. Almalki was preferable to sending questions to be asked of him. They
explained that with a direct interview, the RCMP would know the conditions
under which the questions were answered, and that the results of an interview
could be used in court, while the answers to questions posed by the Syrians
could not.
Consulting with DFAIT about gaining access and sharing information
119. In the course of considering and planning for sending questions to and
sharing information with the Syrian authorities, the RCMP held several meetings
with officials from DFAIT ISI.
July 29 meeting
120. On July 29, 2002, Inspector Cabana met with DFAIT ISI officials to discuss
the possibility of sending questions to, and sharing information with, Syrian
authorities. According to Inspector Cabana, the discussions about sharing
information with Syria were initiated at this meeting. An RCMP SITREP for that
day reported that “[t]hey discussed the repercussions of disclosing [the Almalki]
investigation to the Syrians and its potential impact on Almalki”.
121. According to Mr. Saunders of DFAIT ISI, he and his colleague Mr. Gould
expressed concerns at the meeting about the possibility of sending questions for
Mr. Almalki. Mr. Saunders said that he and Mr. Gould did not have a problem
with the RCMP questioning Mr. Almalki in a Syrian jail, but were quite concerned
about the idea of them sending questions to the Syrians, because they had no
way of knowing what kind of interrogation techniques they might employ.
Mr. Saunders recalled telling the RCMP that Syria has a reputation for being fairly
brutal with prisoners, that Syria would probably not interrogate Mr. Almalki
the same way the RCMP would, and that he thought sending questions was a
bad idea. He said that Mr. Gould agreed with his view. Mr. Gould testified at
the Arar Inquiry that, while he recalled the discussion about the RCMP sharing
information with the Syrians and sending questions for Mr. Almalki, he could
not recall whether DFAIT stated a position about the appropriateness of sending questions. Mr. Gould also could not recall the outcome of the meeting or
whether there was any agreement regarding information sharing.
122. Inspector Cabana’s recollection of the July 29 meeting differs from
Mr. Saunders’. Inspector Cabana testified at the Arar Inquiry, in evidence that
he confirmed to this Inquiry, that the individuals who attended the meeting did
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not appear to have any major issue with the potential sharing and that everyone
seemed to be in agreement that it was the thing to do.
123. The day after the July 29 meeting, Inspector Cabana instructed Staff
Sergeant Callaghan to draft a list of questions to be asked of Mr. Almalki and
to start preparing a “disclosure package” for the Syrian authorities. This task
was delegated to a Project A-O Canada investigator who prepared a 26-page
report dated July 31, 2002 containing both background information and proposed questions. The questions, which derived from the criminal investigation,
addressed Mr. Almalki’s background, business dealings, charity dealings, associates, immigration matters, banking, investments and international travel. The
background information was about Mr. Almalki and his family, and included
information about his siblings’ occupations and recent activities, his alleged
military training, his companies and the names of people who had worked in his
companies, his work with various charitable organizations and his associations
with people suspected of having direct connections to terrorism and al-Qaeda.
In one place, the report said that Mr. Almalki was a member of a Canadian terrorist cell. The Inquiry found no evidence that the July 31, 2002 report was
circulated outside of the RCMP.
August 6 DFAIT memorandum
124. The RCMP’s efforts to engage the Syrians in the questioning of Mr. Almalki
were addressed in an August 6, 2002 DFAIT ISI memorandum drafted by
Mr. Saunders, signed by Mr. Heatherington and sent to senior DFAIT officials.18
The memorandum noted that there was a danger that the Syrians would employ
“rougher interrogation techniques” than would the RCMP. When asked what he
meant by the term “rougher interrogation techniques,” Mr. Saunders responded
“torture”. Mr. Pardy, who received a copy of the memo, said that he understood
the term “rougher interrogation” to include torture, abuse and mistreatment.
September 10 meeting
125. On September 10, 2002, RCMP Chief Superintendent Couture and senior
officers from Project A-O Canada met with a number of DFAIT ISI officials and
Ambassador Pillarella, who attended the meeting because he happened to be
on vacation in Ottawa. The meeting dealt primarily with the type of assistance
DFAIT could provide the RCMP, either in sending questions for Mr. Almalki,
or in arranging an interview. At this meeting, Mr. Solomon of DFAIT ISI, who
18
The memo was sent to the Associate Deputy Minister of Foreign Affairs, and copied to the
Consular Affairs Bureau, DFAIT ISD, the Deputy Minister of Foreign Affairs and one Assistant
Deputy Minister.
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had recently completed a posting with the Human Rights and Humanitarian
Law division of DFAIT, raised the possibility that sending the questions would
put Mr. Almalki at risk of being tortured. He used words to the effect of: “if
you are going to send questions to the Syrians, would you ask them not to
torture him?”
126. Mr. Heatherington of DFAIT ISI did not recall the September 10 meeting,
but he did not dispute that the meeting had taken place or what others said
was discussed during the meeting. Ambassador Pillarella recalled the meeting
but did not recall Mr. Solomon’s comments about the possibility of torture.
According to Inspector Cabana’s notes on the meeting, Ambassador Pillarella
agreed to facilitate any requests to the Syrian authorities, but suggested that the
Syrian authorities would likely expect the RCMP to share information with Syria
in exchange. When asked about this comment, Ambassador Pillarella said he
did not know if he made the comment at this meeting, but that it is only logical that if you ask someone for information, that person will expect to receive
information in return.
127. Inspector Cabana recalled there being some discussion at the meeting about the possibility of torture, but could not recall specific comments.
One of the RCMP attendees noted that Inspector Cabana commented at the
meeting that individuals may claim torture when it has not actually occurred.
Though Inspector Cabana could not recall making this comment, he stood by it.
Inspector Cabana did not recall Mr. Solomon’s comment about torture, but said
that since the Ambassador and the other senior DFAIT officials in attendance
did not have any objection to sending questions and were in fact offering to
facilitate the RCMP’s efforts, the issue of torture did not concern him.
128. Staff Sergeant Callaghan recalled Mr. Solomon’s comment, but regarded
it as off-the-wall and absurd; he thought that communicating the comment to
Syria would be a slap in the face for the Syrians. Staff Sergeant Callaghan went
on to say that others in the meeting did not pay any attention to the comment
and just kept on dealing with the issue at hand. He also stated that, apart from
this comment, no one from the RCMP, Project A-O Canada, CSIS or DFAIT had
expressed a concern that sending the questions might result in Mr. Almalki
being tortured.
September 10 fax to Staff Sergeant Fiorido
129. After the September 10 meeting, Inspector Cabana, with the authorization of Superintendent Wayne Watson, sent a fax to Staff Sergeant Fiorido (the
RCMP’s liaison officer in Rome), with a copy to Corporal Flewelling of RCMP
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CID, requesting him to approach his Syrian contacts to see if they would grant
the RCMP access to conduct an interview of Mr. Almalki. The fax stated that
an interview by the RCMP would be in the RCMP’s best interests but that, as
an alternative, the RCMP was contemplating providing the Syrian officials with
questions for Mr. Almalki. Both Inspector Cabana and Chief Superintendent
Couture thought that interviewing Mr. Almalki was preferable to sending questions to Syria. Inspector Cabana explained that the results of an interview could
be used in court while the answers to questions posed by Syrian officials could
not. Inspector Richard Reynolds of RCMP CID also suggested that a direct
interview would be preferable to sending questions because the RCMP would
know the conditions under which the questions were answered.
130. Although Inspector Cabana asked Staff Sergeant Fiorido to approach his
Syrian contacts about the possibility of the RCMP interviewing Mr. Almalki in
Syria, Staff Sergeant Fiorido understood (based on previous correspondence
from the former liaison officer in Rome, Inspector Covey) that the SyMI would
likely not want to speak with a police agency about this issue. Staff Sergeant
Fiorido thought that it would make more sense to ask Ambassador Pillarella to
facilitate the RCMP’s request. When he contacted the Ambassador on October
24 to discuss the issue, Ambassador Pillarella advised him that General Khalil
did not like to deal with police agencies and there was not much chance of the
RCMP gaining access to Mr. Almalki, but he offered his continued support of
RCMP efforts.
131. Inspector Cabana’s September 10 fax also said that the Syrian authorities
had expressed an interest in gaining access to the information that the RCMP
had on Mr. Almalki. The fax proposed that the RCMP extend an invitation to
Syrian investigators to come to Canada and meet with the Project A-O Canada
team to “share information of common interest”. Notwithstanding the statement
in the September 10 fax that the Syrian authorities had expressed an interest in
information the RCMP had on Mr. Almalki, the RCMP is not aware of any interest
expressed by the Syrian authorities for RCMP information regarding Mr. Almalki.
The RCMP told the Inquiry that it is likely that this statement reflects advice
that Inspector Cabana received from Ambassador Pillarella at the September
10 meeting. As discussed above, according to Inspector Cabana, Ambassador
Pillarella advised the RCMP that it would have to give information to the Syrians
in order to get direct access to Mr. Almalki or to Syrian information regarding
Mr. Almalki.
132. The invitation proposed by Inspector Cabana was never extended to
Syrian authorities. After a discussion with Superintendent Wayne Pilgrim (the
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Officer in Charge of the National Security Investigations Branch at RCMP headquarters), Corporal Flewelling advised Inspector Cabana that he did not have
the power to invite a foreign country to come to Canada to discuss an investigation—such an invitation could only be extended by the RCMP Commissioner
in conjunction with DFAIT.
October 10 memorandum
133. In an internal memorandum dated October 10, 2002, Mr. Livermore
updated one of the Assistant Deputy Ministers of Foreign Affairs on the status of
the RCMP’s initiative to send questions. He stated that both ISI and the Embassy
had pointed out to the RCMP that such questioning might involve torture, but
that the RCMP had nonetheless decided to proceed.
October 21 discussion between Inspector Cabana and Mr. Gould
134. In late October 2002, Inspector Cabana spoke with Mr. Gould of DFAIT
ISI about the possibility of sharing RCMP information with Syria. Mr. Gould
called Inspector Cabana on October 21 to advise him that Ambassador Pillarella
would be meeting with Syrian authorities the next day. According to Inspector
Cabana’s notes and his testimony at the Arar Inquiry, Mr. Gould wanted to confirm whether the RCMP was interested in Mr. Almalki and if charges were pending. Inspector Cabana told him that the RCMP and Crown were confident that
there was enough evidence to charge Mr. Almalki. (Mr. Almalki has never been
charged by the RCMP.) Mr. Gould also asked if the RCMP had any messages
that it wanted the Ambassador to convey, to which Inspector Cabana responded
that the RCMP had intelligence and evidence in relation to both Mr. Arar and
Mr. Almalki that it was prepared to share with Syrian authorities. In his notes
on the conversation, Mr. Gould wrote that “[t]he RCMP has generated a great
deal of information about al-Malki and they are prepared to share this information with Syrian authorities is [sic] they wish to send someone to Ottawa (this
offer may already have been passed to the Syrians by the RCMP LO).”
135. Ambassador Pillarella met with General Khalil the following day
(October 22, 2002). The report of this meeting suggests that the focus of the
meeting was Mr. Arar, and that Mr. Almalki was not discussed. The Inquiry
found no evidence to suggest that Ambassador Pillarella conveyed to General
Khalil any messages on behalf of the RCMP or shared with him any information
about Mr. Almalki.
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October 30 memorandum and draft letter
136. On October 30, 2002, Mr. Solomon drafted a memorandum for
Mr. Livermore’s signature to James Wright, a DFAIT Assistant Deputy Minister.
The memorandum stated that both ISI and the Ambassador to Syria had told
the RCMP that sending questions to Syria would raise a “credible risk” of torture. It went on to propose that DFAIT send a letter to Assistant Commissioner
Proulx, the head of RCMP CID, setting out DFAIT’s concerns about torture, and
indicating that DFAIT would not support or assist the RCMP in its effort to send
questions to Syria.
137. A draft of the proposed letter was attached to the October 30 memorandum. The draft letter said that DFAIT had advised the RCMP of the risk
of torture, but that RCMP representatives were nonetheless prepared to send
questions for the Syrians to ask Mr. Almalki. The letter also urged the RCMP “in
the strongest possible terms not to send the Syrian security services questions
to be put to Al-Malki”, because it “would be contrary to Canadian domestic law,
international law and foreign policy for a Canadian citizen to be questioned
under duress at the behest of the Government of Canada.”
138. The letter was never sent to Assistant Commissioner Proulx. Mr. Livermore
believed that the Deputy Minister of Foreign Affairs at the time, Gaëtan Lavertu,
would be speaking to RCMP Commissioner Giuliano Zaccardelli about the
issue, but told the Inquiry that he does not know whether the conversation
took place. Former Commissioner Zaccardelli did not recall a conversation
with Mr. Lavertu, and was not aware that DFAIT expressed concerns about
sending the questions. When asked if he should have been made aware of
these concerns, former Commissioner Zaccardelli responded that he could not
comment because he did not know the circumstances and context in which
the concerns were raised. Mr. Heatherington thought the matter might have
been resolved by a November 3, 2002 meeting between General Khalil and
Ambassador Pillarella, at which General Khalil suggested he would be willing to allow Mr. Almalki to meet with a Canadian official (obviating the need
to send questions). Mr. Solomon believed that the matter was resolved by
Mr. Livermore. He explained that when the draft letter got to Mr. Livermore,
Mr. Livermore felt it was a big step and conveyed a fairly strong tone, and indicated to Mr. Solomon that he would check with the RCMP before sending it.
Mr. Solomon recalled Mr. Livermore communicating with someone in the RCMP
with the result that it was no longer necessary to send the letter.
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139. The Inquiry found no evidence that the RCMP advised DFAIT that it was
not going to send the questions or that DFAIT specifically confirmed with the
RCMP that it was not going to do so.
Questions sent
Decision to send the questions
140. By December 11, 2002, Project A-O Canada had decided to send questions to Syria. Staff Sergeant Fiorido told Inspector Cabana that, based on a
discussion with Ambassador Pillarella, Staff Sergeant Fiorido thought that the
best approach would be to send questions, rather than attempting to obtain
an interview. He also suggested to Inspector Cabana that, if the answers provided by Mr. Almalki were not conclusive, the Syrians might consider granting
an interview.
141. Inspector Cabana recognized that a decision to send questions for
Mr. Almalki could put Mr. Almalki at risk of being tortured. However, he stated
that based on a balancing of all the issues, and following the RCMP’s consultations with DFAIT and Ambassador Pillarella, the RCMP decided to send
them. Inspector Cabana believed that the importance of gaining access to
Mr. Almalki in order to get information about the threat level in Canada warranted sending questions.
142. Though the RCMP apparently considered Mr. Elmaati’s torture allegation in coming to the decision to send questions, the impact of the allegation
was, according to Staff Sergeant Callaghan, minimal. Staff Sergeant Callaghan
explained that the RCMP had doubts about the credibility of Mr. Elmaati’s allegation, and that these doubts were, in effect, reinforced by DFAIT’s offer to
facilitate the sending of questions for Mr. Almalki.
143. Inspector Cabana emphasized that the decision to send questions for
Mr. Almalki was a troubling one, but one that he did not make on his own.
He said that Superintendent Clement and Chief Superintendent Couture, his
superiors in Criminal Operations, had, earlier in the year instructed him to gain
access to Mr. Almalki, whether by sending questions or interviewing him, and
then were directly involved in the process of sending questions. Furthermore,
he stated that the decision to send questions flowed from a lengthy consultation process that took place with different players, including DFAIT, the RCMP
liaison officers, CSIS and the Department of Justice. Apart from the limited
involvement referred to below in paragraph 157, the Inquiry found no evidence
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO ABDULLAH ALMALKI
that CSIS was involved in the process of formulating or sending the questions
for Mr. Almalki.
144. The decision to send questions apparently did not involve Assistant RCMP
Commissioner Proulx. He was under the impression that the questions for
Mr. Almalki were not going to be sent to Syria, and was surprised when he
learned otherwise. At the Arar Inquiry, Assistant Commissioner Proulx was
asked if sending the questions was appropriate. He replied that, if DFAIT had
advised that the person would be tortured and recommended that the RCMP
not send questions, then the RCMP should not have done it. However, he said,
the Ambassador in the country had the final authority on the matter.
145. Former Commissioner Zaccardelli does not recall when he first learned
that the RCMP was going to send questions to be posed to Mr. Almalki—it
might have been after the questions were sent. He stated that sending the questions did not raise any concerns in his mind because he knew, from briefings
by Deputy Commissioner Garry Loeppky, that the RCMP was having extensive discussions with various partners, including DFAIT, and that the RCMP
was receiving the best advice and guidance possible in dealing with what he
described as “the most serious threat to Canada.” By “the most serious threat
to Canada,” former Commissioner Zaccardelli meant allegations that Canadian
residents were involved in terrorist activities that posed an “imminent threat” to
Canada. These allegations were based on information that had been communicated to the RCMP in late September and early October 2001, by U.S. agencies
and CSIS.
146. When asked about CID’s involvement in the decision to send questions
for Mr. Almalki, Superintendent Pilgrim said that the decision to send the questions was an operational matter in which CID would not have been extensively
engaged. He said that, while CID might have been involved in the discussions
and in facilitating the sending of the questions to Syria, the final decision would
have been left with the operational unit or the division. Superintendent Pilgrim
said that, if CID had any serious concerns about sending the questions, it would
have raised them. However, Superintendent Pilgrim could not recall if CID
voiced any serious concerns, and the Inquiry has not seen any information to
suggest that it did.
147. Superintendent Clement suggested that sending questions for Mr. Almalki
might have been beneficial to his treatment. He thought that showing interest
in Mr. Almalki would put his case in an international spotlight, which would
make a big difference. As an example, he raised the case of detainees in Hong
Kong; he believed that when the RCMP expressed interest in interviewing
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the detainees, they received better treatment. Superintendent Clement
acknowledged, however, that he did not have knowledge about the situation in Syria. Superintendent Pilgrim made similar comments with respect
to Mr. Elmaati. He said that pursuing an interview of Mr. Elmaati might have
resulted in him being treated in a better manner.
Content of the questions
148. The final draft of the questions for Mr. Almalki was not nearly as extensive as those set out in the July 31, 2002 report that had been prepared by a
Project A-O Canada investigator (discussed above at paragraph 123). The final
list was three pages long and contained 23 questions, derived from the criminal
investigation, which addressed only some of the topics set out in the July 31
report, including Mr. Almalki’s alleged military training, his former employer,
the Canadian Global Relief Foundation (a charity), the purpose of some of his
business shipments, and his relationship with Mr. Elmaati, Mr. Arar, Mr. Khadr
and others. The list also included questions that asked whether Mr. Almalki
was a member of a terrorist cell in Canada, whether he was acting as a procurement officer for any terrorist group, and whether he was aware of any terrorist
threats in Canada. The final list of questions did not contain any information
about Mr. Almalki and his family members or state that he was a member of a
Canadian terrorist cell.
149. Staff Sergeant Callaghan, who had instructed the Project A-O Canada
investigator to prepare the draft list of questions in July 2002, was asked why
the RCMP stripped down the investigator’s initial draft before sending it to the
Syrian authorities. Staff Sergeant Callaghan stated that Inspector Cabana and
others felt that the initial draft contained too much information and that it was
not advisable to disclose the entire investigation to a foreign body (the Syrian
authorities) with which the RCMP had no appropriate liaison relationship or
past experience. He also said that Inspector Cabana and others made the decision to pare down the questions and try to establish some level of cooperation
with the Syrian authorities in order to see what the RCMP could get back from
them. Inspector Cabana said that the RCMP’s goal in sending the questions was
not to get answers to those questions but to offer something to Syrian officials
in the hope that they would ultimately grant the RCMP access to Mr. Almalki.
150. Though the questions were stripped down from the initial draft, Staff
Sergeant Callaghan thought that that they were still pretty strong in themselves.
He stated that someone reading the questions might think that, if Mr. Almalki
was possibly associated with the people listed in the questions, “maybe the
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO ABDULLAH ALMALKI
Canadians have something here.” Inspector Cabana, on the other hand, stated
that the questions were, for the most part, innocuous types of questions to
which the RCMP knew, or reasonably assumed it knew, the answers.
Questions translated
151. On December 11, on the recommendation of Staff Sergeant Fiorido,
Inspector Cabana asked Staff Sergeant Callaghan to have the proposed questions
translated into Arabic. The next day, Inspector Cabana noted that the questions
were being translated, that DFAIT was aware of the translation, and that the
questions would be sent to the Ambassador. However, he had no notes as to
who at DFAIT he had spoken to in this regard, and the Inquiry found no other
information concerning this discussion.
Questions sent to Staff Sergeant Fiorido
152. Mr. Fiorido asked that the questions for Mr. Almalki be sent to him
ahead of time so he could ensure that the contents were appropriate. On
December 20, 2002, he received a fax from Inspector Cabana and Staff Sergeant
Callaghan (and approved by Superintendent Wayne Watson), to which was
attached a draft list of questions and a handwritten Arabic translation.19 Each
list of questions was three pages long. The fax, which had been approved by
Superintendent Pilgrim, stated:
You can advise the Syrian authorities that this is only a portion of the information we would like discussed with Almalki…we would like to treat this offering
of questions as an opportunity to establish cooperation between the Syrians and
the RCMP.20
153. The list of questions sent to Staff Sergeant Fiorido did not include a
caveat. Mr. Fiorido explained that he did not think there should have been a
caveat given the nature of the inquiries and the secrecy under which agencies
in the Middle East operate. He said that information passed by a police agency
is always treated as being subject to the third-party rule, and it was only when
you got burned that you wanted to start including the caveat.
154. In his interview, Staff Sergeant Fiorido was asked whether, in reviewing
the questions and arranging for them to be delivered to the Syrian authorities,
he had any concerns about the style of interrogation that the Syrian authorities might employ. He said he thought that the Syrians would be concerned
19
20
The questions were sent to Staff Sergeant Fiorido again on January 7, 2003 as the copy sent on
December 20 was illegible in part.
Corporal Flewelling of RCMP CID also received a copy of this fax, but he could not recall
whether he objected to the content of the fax.
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about the way they are perceived in the eyes of the big democratic powers and
therefore carry out the interrogation of Mr. Almalki in a professional manner.
He said that it was his understanding that Canadian citizens detained in Syria
were less likely to be mistreated than individuals of other nationalities, though
he acknowledged that a dual Syrian-Canadian citizen would likely not be treated
as well as a person with Canadian citizenship only.
155. Staff Sergeant Fiorido did not make any independent inquiries—of DFAIT
for example—regarding how Mr. Almalki might be interrogated; he stated that
this issue was not on his radar screen and that he assumed a level of professionalism and a way of operating that would be in keeping with the expectations of
a truly democratic society. He also stated that, given the other demands on his
time, unless he received direct information that mistreatment was occurring,
he would not investigate the possibility of abuse.
Cover letter to General Khalil
156. Staff Sergeant Fiorido prepared a draft cover letter addressed to General
Khalil to send with the list of questions for Mr. Almalki. He sent a copy of
this draft to Inspector Cabana on January 8, 2003; he wanted the Inspector to
review the wording to ensure it was accurate and consistent with the RCMP
investigator’s operational goals. He also sent a copy to an official at CSIS, as
CSIS was mentioned in the letter. Staff Sergeant Fiorido did not send a copy
of the draft letter to RCMP headquarters or his own branch, the International
Operations Branch; nor did he send a copy to DFAIT.21
157. Several RCMP documents suggest that a CSIS official was consulted about
the draft cover letter, and that he told Staff Sergeant Fiorido that he was comfortable with the contents of the letter and willing to assist in any way he could.
This official vaguely recalled being consulted about the cover letter. However,
he said that he always believed that the questions prepared by the RCMP to
be delivered to the SyMI were destined for Mr. Arar, and not Mr. Almalki. His
understanding was based on two factors. First, the name “Almalki” did not
appear in any of the correspondence or arise in any of the discussions between
Staff Sergeant Fiorido and the CSIS official, as all of their communications were
open (i.e. not secure) communications. This includes the actual draft cover
letter, which did not refer to Mr. Almalki by name, but referred to him as “this
person”. Second, at the time, the Arar case was the most topical, and the CSIS
official recalls that Arar’s was the name on everyone’s mind.
21
According to Mr. Fiorido, this type of material is rarely shared with the International Operations
Branch in Ottawa.
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158. The final draft of the cover letter, dated January 10, 2003, and approved
by Inspector Cabana, said that depending on the quality and accuracy of
Mr. Almalki’s answers to the questions, the RCMP might deliver to the SyMI a
second series of questions. The letter also proposed that Staff Sergeant Fiorido
and a CSIS official meet with officials from the SyMI to further discuss the
matter. Finally, the letter advised that the RCMP was “in possession of large
volumes of highly sensitive documents and information, seized during investigative efforts or obtained from confidential informants associated to terrorist cells
operating in Canada” and offered to share this information with the SyMI.
Delivery of questions to Ambassador Pillarella
159. On January 14, 2003, Ambassador Pillarella met with Staff Sergeant
Fiorido and received a sealed envelope containing the RCMP’s questions for
Mr. Almalki. Although he did not open the envelope, Ambassador Pillarella was
aware of its contents. The Ambassador recalled being told by Staff Sergeant
Fiorido that the instructions to deliver the questions had come from Ottawa.
Therefore, Ambassador Pillarella assumed that the appropriate consultations
had taken place regarding any possible issues that DFAIT might have had with
submitting these questions. Ambassador Pillarella understood that the questions
were being passed on to the Syrians in the context of what he considered to be
the extraordinary cooperation shown by the Syrians in the Arar case.
160. Staff Sergeant Fiorido, on the other hand, testified at the Arar Inquiry that
he did not make any reference to approval from Ottawa when he gave the questions to Ambassador Pillarella. However, he recalled telling the Ambassador that
the questions were not his, that he had received them directly from investigators
and that he was just facilitating the exchange.
161. While Ambassador Pillarella was aware of Mr. Elmaati’s torture allegation
at the time he passed on the questions to the Syrians, he testified that he was
unaware that Mr. Solomon had, in an October 30, 2002 draft memorandum,
expressed a concern that there was a “credible risk” of torture if the questions
were submitted.
162. Ambassador Pillarella arranged for Consul Léo Martel to deliver the envelope to Colonel Saleh to be passed on to General Khalil. Mr. Martel delivered
the envelope to Colonel Saleh, as instructed, on January 15, 2003. When asked
why he would ask a consular officer to provide these questions to the Syrians
for Mr. Almalki, Ambassador Pillarella stated that it was merely a matter of
coincidence that Mr. Martel was meeting Colonel Saleh that day. Mr. Martel,
however, testified before the Arar Inquiry that he made a special trip to see
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Colonel Saleh in order to deliver the envelope at the request of Ambassador
Pillarella. Mr. Martel also testified that he was not aware, and was not advised
by the Ambassador, of the contents of the envelope. In fact, Mr. Martel thought
that the envelope might contain pleas from Ambassador Pillarella on behalf of
Mr. Arar.
Mr. Almalki’s interrogation in mid-January 2002
163. As discussed at paragraphs 51 to 52 of chapter 8, Mr. Almalki stated
that he was interrogated in Syria on January 16, 2003 on the basis of what he
observed to be a two-page typed list of questions and a half-inch thick report.
According to Mr. Almalki, the interrogator told him that the questions were
provided by Canada, and that Mr. Almalki had to answer them so that the interrogators could send the answers to Canada. The questions he was asked on
January 16 included questions about whether he was trained and what he was
trained on. He was also asked questions about the names of various individuals,
most of which Mr. Almalki did not recognize.
No reply from the SyMI
164. The RCMP does not know whether its questions were ever put to
Mr. Almalki. Neither DFAIT nor the RCMP received any response from the
SyMI to the questions or to the RCMP’s offer to share investigative material.
Ambassador Pillarella attributed this to a number of factors, including the deterioration in relations between Canadian officials and the SyMI, possibly as a
result of pressures to secure the release of Mr. Arar. He believed that the Syrians
were “really annoyed with Canada because [Canada was] causing problems
for them.”
165. Ambassador Pillarella also attributed the SyMI’s failure to respond to its
aversion to working with a police organization. Ambassador Pillarella said that
when he met with General Khalil in the middle of August 2003 and raised the
issue of Mr. Almalki, General Khalil told him that SyMI officials had read the
questions and determined that all the answers to the questions had been communicated during the briefing given to CSIS on November 24, 2002, and that
he did not wish to interact with a police force.
166. In mid-August 2003, following discussions and correspondence with
Ambassador Pillarella, Staff Sergeant Fiorido sent a fax message to Project
A‑O Canada indicating that there had been a deterioration of relations between
Canadian officials and the SyMI, that the list of questions for Mr. Almalki
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO ABDULLAH ALMALKI
would not be responded to, and that the SyMI did not wish to deal with any
police agencies.
No further questions or sharing of information
167. In his interview, Staff Sergeant Callaghan stated that the RCMP only provided Syrian authorities with the list of questions and the cover letter to General
Khalil; it did not give the Syrian authorities any documents or summaries of
information. Staff Sergeant Callaghan also stated that the RCMP did not send
the Syrian authorities a second series of questions, as had been suggested might
occur in the cover letter.
Possibility of mixed messages
168. Brian Davis, who replaced Ambassador Pillarella as the Canadian
Ambassador to Syria on September 13, 2003, and was involved in DFAIT’s efforts
to obtain consular access to Mr. Almalki, was asked about the possibility that
the RCMP’s questions, combined with DFAIT’s efforts to gain consular access
to Mr. Almalki, sent mixed messages to Syrian officials. He said that while he
was not aware at the time that the RCMP had sent questions to Syria, none of
the Syrian officials he spoke to expressed any confusion about what he was trying to achieve. He said that his Syrian counterparts never mentioned that there
was information or questions coming in from other sources, or how they were
dealing with CSIS on cases like Mr. Almalki’s. Ambassador Davis also said that
Mr. Haddad, with whom he had regular contact on the Almalki case, was the
most likely of his Syrian contacts to raise issues unrelated to Canada’s diplomatic
efforts, but that he did not do so.
Consular actions following Mr. Arar’s press conference
169. As noted above, on November 4, 2003, Mr. Arar gave a press conference at
which he described meeting Mr. Almalki at Sednaya prison. Mr. Arar stated that
Mr. Almalki told him that he had been severely tortured while in detention.
Minister Graham’s meeting with Ambassador Arnous
170. After Mr. Arar’s press conference, on November 4, 2003, Minister
Graham called Syrian Ambassador Arnous in for a brief meeting to discuss both
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Mr. Arar and Mr. Almalki.22 At their meeting, Mr. Graham expressed a concern
to Ambassador Arnous that Syria act appropriately towards Mr. Almalki and
said that they (Canada and Syria) would have to work together and openly for
a positive outcome. Following the meeting, Minister Graham’s office issued a
press release calling on the Syrian government to investigate Mr. Arar’s torture
allegation, as well as the detention of all other Canadians being held in Syria.
November 6 meeting with Mr. Almalki’s family
171. On November 6, 2003, DFAIT officials including Dave Dyet (then the
Director of the Consular Case Management Division of the Consular Affairs
Bureau) and Ms. Pastyr‑Lupul met with several of Mr. Almalki’s family members. According to a transcript of the meeting prepared by DFAIT, the family
expressed concern about the possibility that Mr. Almalki was being tortured,
and asked that the Canadian government send a strong statement to the Syrian
government requesting that Mr. Almalki be released. The DFAIT officials
advised the family that Minister Graham had contacted the Syrian Ambassador
and requested consular access to Mr. Almalki. They also said that DFAIT could
not force the Syrians to release him.
172. The transcript of the November 6 meeting also indicates that DFAIT
officials asked the family members for some information about how and why
Mr. Almalki ended up in Syria. According to the transcript, Safa Almalki advised
that, to the best of his knowledge, Mr. Almalki had travelled to Syria to visit his
parents, who were in Syria at that time, and to conduct some business. The transcript states that Safa advised the DFAIT officials that, in advance of Mr. Almalki’s
trip to Syria, his parents had checked his Syrian “intelligence file” to determine
if it could be dangerous for him to travel to Syria, and found that there was
“nothing at that time.”23 The transcript also indicates that DFAIT officials asked
why the family had not approached the Consular Affairs Bureau sooner, and
Safa explained that they did not want to endanger family members in Syria or
22
23
In his interview, former Minister of Foreign Affairs William Graham indicated that he was not
made aware of Mr. Almalki’s case until Mr. Arar’s release. While an “Action Memorandum for
the Minister of Foreign Affairs” dated April 7, 2003, referred to Mr. Almalki’s case in an annex
and stated that Syrian authorities refused to acknowledge that he was being held, former
Minister Graham was not fully briefed on the details of Mr. Almalki’s case until he personally
intervened in November 2003.
According to the transcript of the November 6 meeting, Safa Almalki explained Syrian
“intelligence files” as follows: the Syrian government keeps an intelligence file on every
Syrian. Syrians in Canada can inquire about their intelligence files at the Syrian Embassy in
Canada. Often Syrian-Canadians will check their intelligence file before deciding whether to
travel back to Syria. The Syrian Embassy may advise a person not to travel back to Syria or to
travel at his/her own risk. If the Syrian government “really really wanted someone” the Syrian
Embassy might not instruct that person not to travel; however, generally the system is intended
to encourage people to travel to Syria and not to trap them into travelling there.
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO ABDULLAH ALMALKI
make things worse. According to the transcript, Safa also explained that, until
this time, the family had favoured quiet diplomacy over going public with
Mr. Almalki’s story, because they felt it would be more effective and because
they did not want to take any action that could adversely affect Mr. Almalki; he
noted that it was the family’s choice to use quiet diplomacy, and that it had not
been pressured by DFAIT to do so.
DFAIT’s efforts to meet with Syrian officials
173. As a result of Minister Graham’s meeting with Ambassador Arnous, the
Canadian Embassy in Syria was asked to follow up with the Syrian MFA, ideally with Vice-Minister Mouallem, in order to press for access to Mr. Almalki.
Between November 6 and November 13, Embassy staff made at least five unsuccessful attempts24 to set up a meeting with Vice-Minister Mouallem. They
speculated that the Vice-Minister’s office was avoiding the meeting because it
knew what the subject matter was.
174. On November 11, 2003, Ambassador Davis requested that the Embassy
draft a second diplomatic note asking Syria to investigate the allegations of torture, grant consular access to Mr. Almalki, and allow Mr. Almalki to have a legal
defence at his trial.25 This note was sent to the Syrian MFA on November 30,
2003. When asked whether he felt it was appropriate for DFAIT to have left
a 15-month gap between diplomatic notes in Mr. Almalki’s case, Ambassador
Davis explained that when dealing with military security, diplomatic notes are
not very useful and that it was the contacts they had and the phone calls they
made that would move things ahead.
175. On November 18, 2003, in an email message to his consular officers,
Ambassador Davis emphasized the importance of documenting every effort to
set up a meeting with Vice-Minister Mouallem. Ms. Pastyr‑Lupul made a similar
comment in a CAMANT note, urging the consular officers to document each
step taken in the Almalki case. She explained that a record of the actions taken
would be necessary to explain the consular efforts to Mr. Almalki’s family and
to the Minister.
176. On November 19, 2003, the Embassy was successful in setting up a meeting between Ambassador Davis and the Deputy Minister of Foreign Affairs for
November 30. However, on November 30, when the Ambassador arrived at
24
25
Phone calls were placed on November 6, 9, 11, 12 and 13.
According to a DFAIT document, Mr. Almalki advised DFAIT in May 2004 that he had been
charged under article 278 of the Syrian Punishment Act of “Doing actions that the Syrian
Government did not allow…These actions expose/exploit Syria to the danger of being retaliated
against”.
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the Deputy Minister’s office, no one in the office seemed to have any knowledge of the meeting, and the Ambassador was told that the Deputy Minister
was out of town. In a diplomatic note to the Deputy Minister of Foreign
Affairs dated December 1, 2003, Ambassador Davis protested the cancellation
of the November 30 meeting and requested that it be rescheduled as soon
as possible.
177. At various points in late 2003, Ambassador Davis raised Mr. Almalki’s case
with several Syrian government officials, including the Minister of Expatriates,
the Deputy Prime Minister, and the Speaker of the House.
Senator De Bané’s meeting with Syrian officials
178. At the request of DFAIT, Senator Pierre De Bané agreed to raise the case
of Mr. Almalki with Syrian officials during a previously scheduled trip to Syria
and Lebanon as chair of the Canadian Parliamentary Delegation. Prior to the
trip, DFAIT officials briefed the Senator on Mr. Almalki’s case, and advised that
DFAIT wanted Syria to permit consular access as soon as possible, to provide
Mr. Almalki with immediate medical attention and an independent medical
exam and to respond to Mr. Arar’s torture allegations.
179. On December 4, 2003, Senator De Bané and Ambassador Davis met with
former Deputy Minister Haddad of the Syrian MFA and President Al-Assad to
discuss the cases of Mr. Almalki and another Canadian citizen detained in Syria.
In response to Senator De Bané’s request that the Canadians be released, concerns were raised about Canada’s failure to defend Syria’s actions in its recent
release of Mr. Arar.
180. Following the meeting, Senator De Bané raised Mr. Almalki’s case with
the Syrian Prime Minister, who promised to do the best he could. Also following the meeting, Ambassador Davis spoke again with Mr. Haddad. It was
noted that there might be reasons that the Syrians would not be able to release
Mr. Almalki, and Mr. Almalki’s alleged membership in al-Qaeda was cited as one
example. The Ambassador responded that, even if release was not possible,
the Embassy should at least be given access and Mr. Almalki should be given a
fair trial. It was agreed that access would be justifiable. Ambassador Davis also
asked the Minister what the next steps should be, and whether the Embassy
should be sending diplomatic notes or doing something else. It was indicated
that this was not necessary, that the matter was being looked after, and that
things were going to happen. Ambassador Davis stated that he felt encouraged
by these comments.
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO ABDULLAH ALMALKI
181. In his report on the meeting and subsequent discussions of December 4,
2003, which was sent to Konrad Sigurdson and others in DFAIT, Ambassador
Davis suggested that DFAIT consider taking steps to manage public reaction to
the case of Mr. Almalki and others so as to avoid undermining DFAIT’s efforts
to secure Syria’s cooperation. The concern was that an unbalanced portrayal of
Mr. Almalki’s case in the media, including a persistent focus on Syria’s human
rights reputation, might further complicate cooperation in the resolution of
this case and future cases. With respect to information about the Senator’s
trip to Syria and meetings with Syrian officials, Ambassador Davis asked that, in
accordance with the Senator’s express wishes, every effort be made to minimize
disclosure to the families, the public and the press. The concern was that such
disclosure might jeopardize the possible resolution of Mr. Almalki’s case.
182. The results of Senator De Bané’s trip and the comments by Syrian officials
were communicated to Canada’s Minister of Foreign Affairs in an Information
Memorandum dated December 10, 2003. The memorandum concluded that
“…a low-key, incremental approach which avoids controversy is the best way to
serve the interests of the two detainees as it will help to encourage continuing
Syrian cooperation.”
183. As a follow-up to Senator De Bané’s trip, Ambassador Davis kept in regular
contact with Mr. Haddad about Mr. Almalki’s case.
RCMP letter to Mr. Edelson
184. In November 2003, Michael Edelson, Mr. Almalki’s then-lawyer, sought
the RCMP’s assistance in obtaining Mr. Almalki’s release from Syrian detention.
At a meeting between Mr. Edelson, Safa and Nazih Almalki (Mr. Almalki’s brothers) and Project A-O Canada managers on November 7, Mr. Edelson asked the
RCMP to draft a letter confirming that:
• Mr. Almalki had no criminal record in Canada;
• Mr. Almalki was not, as of the date of the letter, the subject of an arrest
warrant anywhere in Canada; and
• there was no legal impediment to Mr. Almalki’s return to Canada given
his status as a Canadian citizen.
Mr. Edelson also sought clarification as to whether or not the RCMP provided Mr. Almalki’s business records to the Syrian authorities, as he had reason
to believe that some business records were put to Mr. Almalki during interviews
in Syria.
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185. In response to Mr. Edelson’s request, and after consulting with the RCMP’s
legal counsel, Assistant Commissioner and Commanding Officer “A” Division
Ghyslaine Clément sent a letter to Mr. Edelson on December 11, 2003. The
letter confirmed that Mr. Almalki did not have a criminal record in Canada,
that there was no warrant for his arrest, and that the RCMP did not request
that Mr. Almalki be detained. With respect to Mr. Almalki’s citizenship and any
possible impediments to his return, the letter recommended that Mr. Edelson
consult with DFAIT and Citizenship and Immigration Canada. The letter did
not comment on the issue of Mr. Almalki’s business records. However, Project
A‑O Canada managers were confident that, while a series of questions was
sent to the Syrian authorities to be posed to Mr. Almalki, no supporting documentation was provided. The Inquiry found no evidence that the RCMP (or
CSIS) provided any of Mr. Almalki’s business records to Syrian authorities. As
discussed above, the Supertext database shared with U.S. agencies in April 2002
contained records from Mr. Almalki’s businesses. As well, Mr. Almalki’s laptop
was seized and searched by Syrian authorities while he was detained in Syria.
Mr. Almalki’s possible release
Ambassador Davis’ conversation with Mr. Haddad
186. On January 5, 2004, Ambassador Davis received a call from Mr. Haddad,
with whom he had been in regular contact since Senator De Bané’s trip, advising
that Mr. Almalki had been acquitted by a non-military court on December 31,
2003, and would be set free shortly. Ambassador Davis learned that since
Syrian authorities had been criticized domestically for handing over a Syrian
citizen (Mr. Arar) to a foreign government (Canada), they had decided to set
Mr. Almalki free in Syria and leave it to him to decide where to go. In a confidential note to the Consular Affairs Bureau, Ambassador Davis indicated that
while Mr. Haddad had been reliable and effective in the release of Mr. Arar, he
was hesitant to become too excited until he received evidence of Mr. Almalki’s
release. Ambassador Davis stated that he was in regular contact with Mr. Haddad
after receiving this information in order to find out why Mr. Almalki had not
yet been released. Despite his efforts, Ambassador Davis was never told why
Mr. Almalki was not released until mid-March 2004.
CSIS communications regarding Mr. Almalki’s release
187. In early January 2004, the Service communicated with the SyMI regarding Mr. Almalki. The Service wanted to know whether the SyMI was planning
to release Mr. Almalki and whether the SyMI would permit CSIS to interview
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO ABDULLAH ALMALKI
Mr. Almalki prior to his release. In making these inquiries, the Service did not
want to comment on Mr. Almalki’s detention or put forth its position on the
situation. The Service, aware that the Syrians were upset about allegations that
they had tortured Mr. Arar, also wanted the SyMI to respond to these allegations
and to advise if it had made any extraordinary efforts to ensure the fair treatment
of Canadian citizens detained in Syria.
188. The Service received information that Syrian authorities were astonished
by the hostile media campaign launched by those who were demanding the
release of Mr. Arar and that they hoped other cases did not cause the same
media uproar. With respect to the treatment of detained Canadians, the Service
received information that the prisoners were detained under “normal” prison
conditions and that health care was provided to them. The Service also received
information about the basis of the charges against Mr. Almalki, and that he
would be tried and released shortly.
189. A senior CSIS official was asked how he assessed the response from the
Syrians. He said that CSIS was not able to draw any conclusions from it, in part
because the Syrians did not provide the Service with any additional background
information or supporting documents. The Service did not, to this official’s
recollection, follow up with the Syrians to obtain further elaboration or information, and the Inquiry found no evidence that it did.
Possible interview of Mr. Almalki in January 2004
Consultation with DFAIT
190. As part of its efforts to gain interview access, CSIS consulted with
Mr. Heatherington and Mr. James Wright about how the interview should be
conducted. Mr. Wright insisted that the interview be on a voluntary basis, that
Mr. Almalki be informed of his right to consular assistance, that the Ambassador
be briefed on the interview, and that the interviewer evaluate Mr. Almalki’s
physical and mental condition, identify any possible signs of torture, and report
this evaluation to DFAIT. Mr. Wright also emphasized that Mr. Almalki’s release
was imminent, and asked that CSIS make clear to the SyMI that the interview
should not affect his release.
191. Mr. Wright was asked whether (assuming that the Service agreed to
these conditions) he was comfortable with the Service going ahead with an
interview. Mr. Wright cited four factors that gave him some comfort about
the interview. First, the interview was going to be conducted by a Canadian,
not a Syrian. Second, Mr. Wright’s conditions (to which the Service ultimately
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agreed) ensured that Mr. Almalki would be reminded of his rights and of the
standing offer of assistance from the Canadian Embassy. Third, DFAIT believed
at that time that Mr. Almalki’s release was imminent. Fourth, DFAIT had not
enjoyed any consular access to Mr. Almalki and though, in a perfect world, a
consular officer would be the first Canadian official to speak to Mr. Almalki, a
Service interview was better than no access at all.
192. Mr. Heatherington was asked why DFAIT would support the Service’s
efforts to obtain interview access to Mr. Almalki, even though it did not support
the RCMP’s efforts to send questions to Syria. Mr. Heatherington explained
that the critical thing was that DFAIT was supportive of face-to-face meetings
between CSIS and the RCMP and Canadian citizens, but was very uncomfortable
with questions being sent to third parties to be asked of detained Canadians.
Purpose of the interview
193. The proposed interview was to serve several purposes. Among them, the
Service hoped to gain insight into potential threats to the security of Canada.
At DFAIT’s request, the interview was also to be an opportunity for the Service
to evaluate Mr. Almalki’s physical and mental condition, identify any possible
signs of torture, and report this evaluation to DFAIT.
194. Though one of the purposes of the proposed interview was to evaluate Mr. Almalki’s condition, the proposed interviewer, a CSIS official, had not
received any training regarding the physical or mental signs of torture. The
official stated, however, that he would have looked for visual indications of
mistreatment, such as a haggard appearance, bruises and welts. The official
also stated that, had the SyMI granted the Service access to Mr. Almalki, CSIS
headquarters would probably have provided him with additional information
and instructions regarding the conduct of the interview.
Possibility that the interview would affect Mr. Almalki’s release
195. Since the Service and DFAIT believed that Mr. Almalki might be released
imminently, they wanted to ensure that CSIS’ request for an interview did not
affect the Syrian authorities’ decision regarding Mr. Almalki’s release. One
senior CSIS official said that CSIS did not want to give the Syrians the impression
that CSIS wanted the Syrian authorities to keep Mr. Almalki. He explained that
this concern was motivated by the Arar case, which had been very problematic
for the Service and which the Service did not want to see repeated.
196. When questioned by the Inquiry, the official who was to interview
Mr. Almalki said that he had no information to suggest that the timing of
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO ABDULLAH ALMALKI
Mr. Almalki’s release was influenced by the Service’s request to interview him.
Since Syria did not participate in the Inquiry, the Inquiry did not receive any
information regarding whether or not CSIS’ request for an interview influenced
the timing of Mr. Almalki’s release.
Interview never took place
197. Ultimately, the Service’s efforts to secure interview access to Mr. Almalki
were unsuccessful. The SyMI never refused the Service’s request for an interview, but Mr. Almalki was released before any interview could take place.
Plans for Daniel McTeague’s visit to Syria
198. In mid- to late January 2004, during a DFAIT inter-departmental meeting
including the geopolitical offices, the Consular Affairs Bureau and the Minister’s
office, Daniel McTeague, then the Parliamentary Secretary to the Minister of
Foreign Affairs with a special emphasis on Canadians abroad, expressed an
interest in travelling to Syria.26 He wanted to engage the Syrians on consular
issues in general and discuss sensitive cases involving dual nationals.
199. During the latter part of January 2004, there were many discussions
within DFAIT regarding the possibility of Mr. McTeague travelling to Syria.
On January 21, 2004, Ambassador Davis, in a message regarding the proposed
visit, wrote that while the Embassy would be pleased to receive a visit from
Mr. McTeague, he believed it would be far more effective if he visited after the
release of Mr. Almalki and another Canadian who was detained in Syria. He
explained that because these cases fell under the authority of the Syrian security
forces, they were not amenable to normal diplomatic pressures. He also said
that because the Syrians considered Mr. Almalki and the other detained Canadian
to be Syrian citizens only, the best way to deal with the cases was through Syrian
“back channels.” Furthermore, Ambassador Davis wrote that, given Syria’s “displeasure about the aftermath of the Arar case,” a visit by Mr. McTeague might
be confrontational and prove unproductive.27 In addition to the Ambassador’s
concerns about the proposed visit, then Deputy Prime Minister Anne McLellan
was apparently anxious that visits to Syria and similar statements/actions by
Mr. McTeague not undermine Canada’s security relationship with key allies.
26
27
The position of Parliamentary Secretary with a special emphasis on Canadians abroad was
created in late 2003 because, according to Mr. McTeague, consular cases were becoming a
very important matter of public policy for Canadians. Mr. McTeague was the first appointee
to the position. He was appointed in December 2003 by then Prime Minister Paul Martin.
Syrian officials were apparently displeased at what they perceived to be Canada’s failure to
publicly acknowledge Syria’s release of Mr. Arar
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200. While Mr. McTeague was apparently aware of these concerns, his “gut
instinct” was to make the attempt. Mr. McTeague emphasized that he had a
mandate from and reported directly to then Prime Minister Paul Martin, who had
told him to do what he thought was the right thing. With respect to apparent
concerns about Canada’s security relationship with key allies, Mr. McTeague
said that he was not an expert in security, but could not see how his visiting
Syria would pose a problem. He said that his mission was to improve damaged
relations between Canada and Syria.
201. At the end of February 2004, in an email to Mr. Robert Wright (then the
National Security Advisor to the Prime Minister), Mr. James Wright noted that,
despite recommendations to the contrary, Mr. McTeague was “as determined
as ever to travel to Syria” and had asked that DFAIT send a diplomatic note to
the Syrian government proposing that he visit in March.
202. In the middle of March 2004, after some correspondence and discussions
between the Embassy and the Syrian MFA, Ambassador Davis received a call
from the office of Vice-Minister Mouallem indicating that he was now prepared
to meet with Mr. McTeague. As a result, a meeting between Mr. McTeague,
Vice-Minister Mouallem and Ambassador Davis was arranged for March 22, 2004.
The substance of this meeting is discussed below, in paragraph 210.
Mr. Almalki’s release from detention28
Pre-release meetings between Canadian and Syrian officials
203. On January 29, 2004, Ambassador Davis met with Vice-Minister Mouallem
and raised the case of Mr. Almalki, drawing attention to Canada’s concerns
about Syria’s treatment of Mr. Almalki’s case. Ambassador Davis believed
that Vice‑Minister Mouallem might not have been aware of the Almalki case.
Ambassador Davis left the meeting with the impression that Syria was concerned
about the negative impact of the Arar case and unhappy about the manner in
which Canada had responded to the release of Mr. Arar.
204. On February 5, 2004, Ambassador Davis and DFAIT’s Special Coordinator
for the Middle East Peace Process, who was visiting Syria at the time, raised
Mr. Almalki’s case with Minister Sharaa and Vice-Minister Mouallem. The DFAIT
officials were again left with the impression that their Syrian counterparts were
28
This section of this chapter, and the sections that follow it, contain a discussion of events that
occurred after Mr. Almalki’s release. The Terms of Reference do not require any examination
of actions of Canadian officials in this post-release period, and no findings have been made in
respect of them. A discussion of the post-release period has been included to provide context
and for the sake of completeness.
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO ABDULLAH ALMALKI
not aware of the case. DFAIT took this as evidence of the limited involvement
of the Syrian MFA in security cases of this type.
205. Ambassador Davis met with Vice-Minister Mouallem again on March 10,
2004. At that meeting, Ambassador Davis raised Mr. Arar’s allegation that
Mr. Almalki had been tortured while in Syrian custody, urged the Syrians to
investigate the allegation and encouraged Vice-Minister Mouallem to release
Mr. Almalki. Vice-Minister Mouallem replied that lengthy detention was sometimes necessary, but indicated that one of the Canadian detainees (Mr. Almalki
or the other Canadian detainee) could soon be released. Finally, Vice-Minister
Mouallem promised to do his best to facilitate consular access to Mr. Almalki.
Mr. Almalki released
206. Mr. Almalki was released from custody on March 9, 2004 but was not
allowed to leave Syria at that time. He was required to report to the Syrian
authorities and a large bond was posted to secure his release and to make sure
he remained in Syria for a court appearance (possibly a trial) scheduled for
June 6, 2004. Mr. Martel described Mr. Almalki’s status in Syria as similar to
being out on bail.
207. DFAIT did not learn of his release until March 18, 2004, when Mr. Almalki
visited the Canadian Embassy in Damascus to get assistance renewing his passport, which had expired while he was in detention. Mr. Almalki met with
Mr. Martel that day, and Mr. Martel provided him with a passport application.
The two men discussed the conditions on which Mr. Almalki had been released
and arranged a future meeting. They agreed that future visits to the Embassy
would have to be under the guise of passport renewal, because Mr. Almalki had
been ordered by Syrian officials not to visit or call the Embassy. According to
Mr. Martel’s report of the meeting, he asked Mr. Almalki about the reasons for
his arrest, and Mr. Almalki said that he had been informed by the Syrian authorities that they had acted on information received from Canada. Also according
to Mr. Martel, he noticed during the meeting that Mr. Almalki was limping and
asked him whether this was a result of his detention; Mr. Almalki answered,
“This is a long history” and Mr. Martel did not press further. According to
Mr. Almalki, he advised Mr. Martel that he had been tortured but that he could
not talk about the details.
208. In the period between his release from detention and his departure from
Syria, Mr. Almalki visited the Canadian Embassy in Damascus on a regular basis.
Mr. Martel explained that Mr. Almalki would often spend two or three hours at
the Embassy, and while he was there consular staff let him make phone calls—to
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his family and lawyers in Canada for example—and tried to facilitate his life
and help him maintain contact with Canada. Mr. Martel stated that this kind of
service was not given to everybody.
Lunch with Mr. Martel
209. On March 22, 2004, Mr. Martel and Mr. Almalki met for lunch. According
to the chronology of public information filed by the intervenors, Mr. Martel told
Mr. Almalki that the Syrian president had told Senator De Bané in December
2003 that he was frustrated because Syria was being blamed for the detentions
of people that Canadians had asked them to detain. Mr. Martel told the Inquiry
that he did not say this to Mr. Almalki. He recalls mentioning to Mr. Almalki that
Canada was doing its best to assist Canadian detainees and that Senator De Bané
had recently met with the Syrian president to discuss the matter. However,
Mr. Martel told the Inquiry that he did not convey to Mr. Almalki any further
information about the meeting; he was not aware of what had transpired at
the meeting.
Mr. McTeague’s meeting with Syrian officials
210. On March 22, 2004, Mr. McTeague and Ambassador Davis met with
Vice-Minister Mouallem and an official from Far Falestin. Mr. McTeague was
told that Mr. Almalki had been released because of close cooperation between
Canada and Syria and because of a Canadian request. Mr. McTeague attempted
to discuss the need for pragmatic cooperation in the cases of a growing number
of dual nationals, but was unsuccessful in engaging Vice-Minister Mouallem on
that issue.
211. Following his meeting with Syrian officials, Mr. McTeague met with
Mr. Almalki. According to a report of their meeting prepared by an Embassy
official, Mr. Almalki did not want to discuss his treatment in detention, but
stated he had lost some teeth and that his foot and leg had been damaged during his detention.
Information to CSIS
212. In late March 2004, DFAIT provided CSIS with the text of two email
messages regarding Mr. Almalki’s release and his visits to the Embassy in
Damascus. The messages had been drafted by consular officials, approved by
the Ambassador, and sent to officials in DFAIT headquarters. The first message,
dated March 18, 2004, reported details of Mr. Almalki’s visit to the Embassy on
March 18. It recounted what Mr. Almalki had told consular officials about the
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO ABDULLAH ALMALKI
conditions of his release, the reasons for his arrest, and his current living situation in Syria. It indicated that Mr. Almalki had asked consular officials to keep
his visit confidential. The second email message, dated March 23, 2004 reported
details of Mr. McTeague’s March 22 meeting with Mr. Almalki.
Post-release interrogation of Mr. Almalki
213. As discussed at paragraphs 105 to 106 of Chapter 8, Mr. Almalki stated
that in late March or early April he was asked to return to Far Falestin to retrieve
his laptop. He stated that when he did so he was interrogated about information contained in a report that had been faxed on March 29, 2004. The Inquiry
found no evidence that Canadian officials supplied a report or other information
to Syrian officials on or around March 29, 2004.
214. Embassy officials learned about Mr. Almalki’s post-release interrogation
shortly after it occurred. According to Mr. Almalki, he advised Mr. Martel and
Maha Kotrache (a consular officer) of the interrogation and the report when he
met them for lunch in late April 2004. According to an April 27, 2004 CAMANT
note, Mr. Almalki’s brother told Ms. Pastyr‑Lupul that Mr. Almalki had, about one
week before, been interrogated by Syrian officials and asked about “a report
from Canada.” His brother advised that Mr. Almalki had been released when
he told them that there was no substance to the report, but that Mr. Almalki
was terrified during the interrogation. According to DFAIT documents from
early May 2004, Mr. Almalki visited the Embassy on May 6, 2004 to collect his
passport, and while he was there, advised Embassy officials that he had been
called back to the “Military Intelligence Branch” on April 22 and interrogated
about several individuals, asked to identify persons shown in 10 pictures, and
accused of being the spiritual leader of “The Prayer Group”.
Mr. Almalki’s court hearing and exit from Syria
DFAIT’s efforts to secure Ambassador’s attendance at Almalki’s trial
215. In mid- to late April 2004, the Consular Affairs Bureau and the Canadian
Embassy in Damascus made efforts to secure the attendance of Ambassador
Davis at Mr. Almalki’s trial. Mr. Almalki indicated to the Embassy that he felt its
involvement would put pressure on the Syrians and force them to proceed with
a more transparent trial. The Embassy sent a diplomatic note on May 12, 2004
requesting confirmation of Mr. Almalki’s charges and permission for Ambassador
Davis to attend the trial.
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Internal Inquiry
216. In late April, Ambassador Davis met with the head of the Security Court
about the possibility of his attending Mr. Almalki’s trial. During this meeting,
Ambassador Davis was asked why he cared about such a “dangerous person.”
Ambassador Davis explained to the head of the Security Court that he was
primarily concerned that Mr. Almalki be granted due process. At the end of
the meeting, the head of the Security Court said he could not make a decision that day and therefore had to postpone Mr. Almalki’s trial. Ambassador
Davis suspected that Mr. Almalki’s case was adjourned on that day because of
his presence.
Mr. Almalki’s trial
217. Mr. Almalki’s trial was held on July 25, 2004, and Ambassador Davis and
a senior consular officer were allowed to attend. According to DFAIT documents, at the conclusion of the trial, the judge found Mr. Almalki not guilty on
the basis that there was insufficient evidence, but ruled that, as a dual national,
Mr. Almalki had to report for military duty on July 27, 2004. According to a
Syrian court document, which was provided to the Inquiry by Mr. Almalki’s
counsel, the majority of the judges panel hearing his case held that he did not
have the legal intent required for the crime with which he had been charged,29
but that, because he was released, he had to go to the Military Recruiting Unit to
settle his military drafting status. He was not required to report to the Military
Recruiting Unit for 48 hours.
218. Following the verdict, Mr. Almalki left the court with Embassy staff.
DFAIT sends Syria a diplomatic note regarding Mr. Almalki’s military service
219. To assist Mr. Almalki, DFAIT took what Ambassador Davis considered to
be the exceptional measure of sending a diplomatic note to Syria on July 26,
2004, requesting a deferral of Mr. Almalki’s military service. Ambassador Davis
explained that he pursued the issue quite aggressively, because although it
might be considered an intervention in local law on military service, he felt that
it was warranted nonetheless.
220. The diplomatic note sent to the Syrian authorities on July 26 requested
that the authorities reconsider their decision to order Mr. Almalki to report
for military service. The note explained that Mr. Almalki had been unable
to apply for deferral of his military service because he was detained in Syria,
and stated:
29
Mr. Almalki had been charged under Article 278 of the Syrian General Penal Act with doing
acts not permitted by the government, that expose Syria to the danger of hostile acts.
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO ABDULLAH ALMALKI
Now that the reasons for his detention of over two years have been dismissed
by the High Security Court, it would seem only reasonable and equitable for the
Government of Syria to agree to renew the deferment of his military [sic].
Embassy’s final contact with Mr. Almalki
221. On July 27, 2004, the day he was required to report for military duty,
Mr. Almalki visited the Embassy and spent some time there making telephone
calls and speaking with Embassy officials. Mr. Almalki told Mr. Martel that
Mr. McTeague’s office had contacted Mr. Almalki’s brothers in Ottawa and
told them to tell Mr. Almalki to go to the Canadian Embassy and stay there
until the military service issue was resolved. Mr. Martel was surprised by this
message because the Embassy had not received instructions to this effect. He
told Mr. Almalki that it was not the Embassy’s policy to allow anyone to stay
after hours. He also told Mr. Almalki that he was not authorized to help him
circumvent the local law and that this was something that Mr. Almalki had to
settle with his country of birth. At 4:30 p.m., the Embassy closed for the day,
and Mr. Almalki was told by the receptionist that he had to leave.
222. July 27 was the last time that Mr. Martel, or anyone from DFAIT, saw
Mr. Almalki in Syria. Mr. Martel explained in his interview that he went away
for the weekend and upon his return attempted to contact Mr. Almalki by cell
phone. After a few days, he contacted Mr. Almalki’s family members and was
told nothing. At that point, Mr. Martel suspected that Mr. Almalki had left
the country.
Mr. Almalki returns to Canada
223. According to Mr. Almalki, on July 28, 2004 he sought advice from people
he knew in the Syrian government, who advised that if the judge had really
wanted him to fulfill his military service, he would not have been allowed to
leave the court; they told him that the judge had let him go because he wanted
him to leave the country. Mr. Almalki went to a Syrian immigration office to
make arrangements to leave Syria. According to Mr. Almalki, when he asked
the immigration officials to transfer his entry visa from his old passport to his
new passport they gave him an exit visa instead and then sent him to the head
of immigration, who signed the exit visa. Mr. Almalki immediately booked a
flight to Vienna and departed the same day.
Canadian officials learn of Mr. Almalki’s return to Canada
224. On August 9, 2004, CSIS and the RCMP learned that Mr. Almalki was back
in Canada. On two occasions in August 2004, CSIS made inquiries of officials
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Internal Inquiry
at the Canadian Embassy in Damascus regarding Mr. Almalki’s return to Canada,
and Embassy officials provided CSIS with their belief as to how Mr. Almalki
might have made it back to Canada, as well as information about Mr. Almalki’s
trial, and about his activities in Syria prior to his departure. The officials also
provided CSIS with details of a conversation that a DFAIT official had had with
Mr. Almalki regarding his military service obligations.
225. The RCMP learned about Mr. Almalki’s return to Canada from a CBC
radio report, and then inquired with Canada Customs to determine why the
Canada Customs lookouts on Mr. Almalki (one of which had been requested by
Project A-O Canada) were not triggered upon his re-entry into Canada. Canada
Customs advised that, when Mr. Almalki passed through customs upon arriving in Canada, his documents had been checked by a summer student customs
officer. Since Mr. Almalki’s passport had been issued outside of Canada, it was
not machine-readable, and information from his passport had to be entered
manually. The officer entered Mr. Almalki’s first and last name as they appeared
on his passport, details which were insufficient to trigger the lookout.
Sharing of consular information
226. On at least two occasions during the period following Mr. Almalki’s
release, Mr. Martel of the Canadian Embassy in Damascus shared information
about Mr. Almalki with CSIS. During a discussion in early May 2004, Mr. Martel
volunteered to CSIS some information that Mr. Almalki had shared with him
since his release: that Mr. Almalki had no travel plans in the near future, that
Mr. Almalki was living in Damascus with his family, and that Mr. Almalki had
been summoned to the SyMI two weeks before and questioned about some
individuals in Canada. Later in 2004, after Mr. Almalki had left Syria, CSIS asked
Mr. Martel for information about Mr. Almalki, and Mr. Martel provided it.
227. When interviewed, Mr. Martel was asked about the propriety of sharing
information obtained in the course of providing consular services to Mr. Almalki
with CSIS. Mr. Martel said that while he generally tried to avoid getting into
discussions with CSIS officials about Mr. Almalki, he wanted to keep the lines
of communication open because he thought that CSIS might be able to provide
him with some helpful information about Mr. Almalki.
228. At some point Mr. Martel became aware that DFAIT headquarters might
be sending his confidential consular reports to CSIS. He said that while he was
not certain and had no firm knowledge that the reports were being shared, he
was under the impression and would not have been surprised if they were.
When asked whether this sort of sharing would be a breach of Consular Affairs
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO ABDULLAH ALMALKI
Bureau policy, he again said that he was not certain, but that it would depend
on the terms of the agreements between DFAIT and the government departments or agencies that received the reports. He went on to say, however, that
if the reports dealt with his clients, they were confidential, and that giving
them to another agency would be a breach of paragraph 2.4.10 of the Manual
of Consular Instructions.30
30
Paragraph 2.4.10 of the Manual of Consular Instructions states, “Information regarding individual
Canadians which is gathered by consular personnel in the performance of their duties is not
to be divulged to Liaison and Security Intelligence officers without the prior agreement of the
person concerned.”
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ACTIONS OF CANADIAN OFFICIALS IN
RELATION TO MUAYYED NUREDDIN
1. The following is a summary of information obtained by the Inquiry, largely
from interviews of Canadian officials and review of relevant documents, concerning the actions of Canadian officials in relation to Mr. Nureddin.
Canadian officials’ interest in Mr. Nureddin
CSIS
2. Starting in the 1990s, CSIS was actively investigating potential security
threats posed by Canada-based supporters of Islamic extremism, al-Qaeda and
other related organizations. In the late 1990s, in the normal course of this investigation, CSIS learned that Muayyed Nureddin might have some knowledge of
the threat to Canada and Canadian interests abroad.
3. Based on its Sunni Islamic extremism investigations, the Service suspected
that Mr. Nureddin was acting as a financial courier for individuals believed to
be supporters of Islamic extremism. In late 2002, the Service communicated
this suspicion to U.S. agencies and another foreign agency. In one case, CSIS’
communication to a U.S. agency did not include any caveats.
4. In early July 2003, CSIS shared information regarding Mr. Nureddin with
several foreign intelligence agencies, including U.S. agencies. The communication said that the Service had confirmed that Mr. Nureddin acted as a courier
in the transfer of money to the Ansar al Islam (AAI) in Northern Iraq.� This
information was accompanied by a caveat.
AAI appears on the list of entities designated as terrorist organizations pursuant to section 83.05
of the Criminal Code R.S., 1985, c. C-46; Public Safety Canada, “Currently listed entities,” online,
www.publicsafety.gc.ca/prg/ns/le/cle-en.asp (accessed July 9, 2008).
�
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Internal Inquiry
RCMP
5. The RCMP became interested in Mr. Nureddin in September 2001 because
of his association with a subject of the Project O Canada investigation. Project O
Canada’s interest increased in October 2002 after one of its foreign law enforcement partners advised that it had discovered a probable connection between a
senior al-Qaeda facilitator and Mr. Nureddin.
6. Upon learning this information, the RCMP began corresponding and cooperating with American authorities in gathering background information on
Mr. Nureddin. In January 2003, the RCMP’s Criminal Intelligence Directorate
(CID) sent American authorities a copy of a Project O Canada situation report
(SITREP) containing information about Mr. Nureddin. The SITREP stated that
Mr. Nureddin’s telephone number had been found in the possession of a subject
of the Project O Canada investigation, described Mr. Nureddin’s suspected role
as a financial courier for people believed to be supporters of Islamic extremism,
and said that the RCMP would be conducting surveillance on Mr. Nureddin prior
to his expected departure on a pilgrimage trip in late January. At the bottom
of the SITREP was a caveat prohibiting dissemination of the document without
the RCMP’s consent.
RCMP’s requests for more information
7. At the end of January 2003, Project O Canada sent faxes to the RCMP CID
and the RCMP Financial Intelligence Branch (FIB) advising them of the possible
link between Mr. Nureddin and al-Qaeda, and requesting that they liaise with
other police and intelligence agencies to obtain more information. Project
O Canada wanted additional information to confirm Mr. Nureddin’s “association
with criminal extremism” and substantiate an application for court-authorized
search warrants.
8. In early February 2003, the RCMP’s CID sent a fax to the RCMP liaison officer in Washington indicating that Mr. Nureddin had recently become a subject
of interest to Project O Canada, and requesting that a U.S. agency provide any
information that would assist the RCMP with its investigation. On the same day,
CID directed the RCMP liaison officer in Washington to provide U.S. authorities
with a copy of a Project O Canada SITREP from late January 2003. This SITREP
reported that Mr. Nureddin had travelled to Paris, France en route to the Hajj
in January 2003 and that he had declared that he was carrying approximately
$6,000 in U.S. and Canadian currency. At the bottom of the SITREP was a caveat
prohibiting dissemination of the document without the RCMP’s consent.
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO MUAYYED NUREDDIN
9. In late May 2003, Project O Canada provided a U.S. agency with information
about Mr. Nureddin’s current status and residence. Project O Canada stated that
Mr. Nureddin was “an active target” of its investigation.
Sharing information about Mr. Nureddin’s September 2003 travel
plans
10. In July 2003, the Service advised a U.S. agency and two foreign intelligence
agencies that Mr. Nureddin might travel to Iraq via Turkey at some point in the
coming weeks. In its message to one of the foreign agencies, the Service stated
that while Mr. Nureddin’s trip might be for legitimate reasons, the Service had
reason to believe that it might be an opportunity for him to courier money to
members of the AAI. In its communication to the U.S. agency and one of the
foreign intelligence agencies, the Service stated that Mr. Nureddin might be
acting as a human courier and facilitator in the transfer of money to Islamic
extremist causes. The Service did not, in this latter communication, indicate
that Mr. Nureddin’s trip might be for legitimate reasons. All of the Service’s
communications were accompanied by two caveats.
11. In early September 2003, the Service and a U.S. agency exchanged further
correspondence regarding Mr. Nureddin’s possible travel to Iraq. The messages and discussions that followed led to the sharing of information regarding
Mr. Nureddin’s possible travels with two other foreign agencies. Neither of the
agencies was Syrian. CSIS’ messages were accompanied by the same caveats.
12. In mid-September 2003, the Service advised the same U.S. agency and
multiple foreign intelligence agencies (not including any Syrian agencies) that
Mr. Nureddin planned to travel to Iraq, via Germany, on September 16, 2003.
The Service advised the agencies that Mr. Nureddin might be acting as a courier
in the transfer of money to the AAI. This information was accompanied by the
same CSIS caveats.
13. The Inquiry found no evidence that the Service advised or permitted disclosure to the Syrian authorities of Mr. Nureddin’s travel plans.
Mr. Nureddin’s departure for Iraq; interviews and searches at the
airport
14. On September 16, 2003, RCMP Integrated National Security Enforcement
Team (INSET) investigators learned that Mr. Nureddin was scheduled to travel
from Toronto to Turkey the same day. INSET investigators subsequently made
inquiries about Mr. Nureddin’s itinerary and learned that he would be returning
to Canada from Damascus, Syria on December 13, 2003.
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Internal Inquiry
15. Prior to Mr. Nureddin’s departure, INSET investigators and Canada
Customs officers at Pearson International Airport interviewed and searched
Mr. Nureddin. According to handwritten notes from the INSET interview, investigators asked Mr. Nureddin for information about the money he was carrying
and Mr. Nureddin declared that he was carrying approximately US$12,000 and
EUR4,000, most of which he told them was destined for friends and family in
Iraq. The notes indicate that Mr. Nureddin was also asked about the number
of times he had visited Iraq and the amount of money he had carried with him
on previous trips. The notes also report that Mr. Nureddin told the investigators that his brother would be meeting him in Germany and that they would
then drive together to the Middle East. The INSET investigators also questioned Mr. Nureddin about his relationship to three individuals, all of whom,
Mr. Nureddin told the Inquiry, he was later questioned about during his interrogations in Syria.
16. According to notes from the interview by Canada Customs officers,
Mr. Nureddin told the officers that he was carrying US$12,000 and EUR4,000,
and that the money had been given to him by three different friends to carry
to his final destination. The notes indicate that the Canada Customs officers
subsequently counted Mr. Nureddin’s currency, and found a total of US$10,020
and EUR4,000. The notes also indicate that one of the officers examined
Mr. Nureddin’s telephone book, and copied several of the phone numbers into
her notes.
17. Canada Customs shared the report of its September 16, 2003 interview/
search of Mr. Nureddin with CSIS on October 8, 2003 and with the RCMP at
some point in September or October 2003. The Inquiry found no evidence that
Canada Customs, CSIS or the RCMP shared this report with any foreign agency.
As discussed below at paragraph 24, the RCMP shared the results of the search
and interview, along with some of Mr. Nureddin’s travel information, with U.S.
authorities later in September 2003.
Sharing the itinerary
18. In the days following Mr. Nureddin’s departure from Canada, CSIS and the
RCMP provided various foreign agencies with information about his scheduled
travel plans, as follows.
CSIS shares Mr. Nureddin’s full itinerary
19. On September 16, 2003, CSIS provided a U.S. agency and two other
foreign intelligence agencies with Mr. Nureddin’s travel itinerary, including
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO MUAYYED NUREDDIN
his scheduled return from Damascus, Syria on or about December 13, 2003.
Along with the itinerary, CSIS advised the agencies of its suspicions about
Mr. Nureddin, noting that he was known to the Service for his involvement in
Islamic extremist causes and that he might be acting as a human courier in the
transfer of money to the AAI.. The messages containing Mr. Nureddin’s itinerary were accompanied by one CSIS caveat. The use of this one caveat alone
was considered sufficient by the Service to instruct the receiving party not to
disseminate the information further without the Service’s consent.
Decision not to send the itinerary to Syria
20. The Service considered, but decided against, sending a copy of
Mr. Nureddin’s itinerary to the Syrian authorities. The decision was made after
a CSIS official expressed concerns about the sensitivities surrounding the Arar
affair. The official was concerned about “the political storm [that was] brewing”
and about the strained relations between Canada and Syria. The CSIS official
was also concerned that if the itinerary was passed to Syria, Mr. Nureddin might
be inadvertently detained, and he did not want the Service to take the risk of
causing an incident.
Decision to send the itinerary to a U.S. agency
21. Jack Hooper, then CSIS’ Assistant Director Operations, explained that
sending Mr. Nureddin’s itinerary to a U.S. agency was simply good faith and
reflected the Service’s obligation to advise allied services of any terrorists,
affiliates or operatives moving around the international arena. Further, he said
that withholding the itinerary from the U.S. agency might have had an adverse
impact on this important relationship, particularly given the U.S.’s interest in
Iraq, Mr. Nureddin’s destination.
22. Inspector Rick Reynolds of the RCMP recalled having asked a senior CSIS
official not to send the itinerary to any other agency, as the RCMP wanted
Mr. Nureddin to continue his journey uninterrupted and possibly carry out
activities that could form the basis of a criminal charge. According to Inspector
Reynolds, the CSIS official told him that the Service had an obligation to notify
other agencies of Mr. Nureddin’s departure and if they failed to do so, the other
agencies would not, in turn, warn the Service of the travels of individuals who
might be a threat to the security of Canada. The senior CSIS official could not
recall this conversation, but indicated that he would not have agreed to withhold the itinerary in any case.
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Internal Inquiry
23. CSIS has no information indicating that the U.S. agency passed on
Mr. Nureddin’s travel itinerary provided to it by CSIS to Syria, or to any other
country. Mr. Hooper expressed doubt that the U.S. agency would compromise
its relationship with CSIS by passing on information protected by caveat. The
Inquiry heard evidence from Mr. Hooper and other witnesses that they believed
that the U.S. agency could have obtained the travel information itself through
other means.
RCMP shares Mr. Nureddin’s travel information
24. The RCMP shared the results of its September 16, 2003 INSET interview
of Mr. Nureddin, as well as some of his travel information, with the FBI (on
September 24) and the CIA (on September 25). The U.S. authorities were provided with a copy of a Project O Canada SITREP, which said that Mr. Nureddin
was scheduled to travel to Turkey from Toronto, that he was flying on KLM
flight 692, and that he and his brother would meet in Germany and drive
from there to the Middle East. The SITREP also included other information
that INSET investigators had obtained during their interview of Mr. Nureddin,
including information about the amount of money he was carrying and about
his relationship to the three individuals about whom he had been questioned
by INSET investigators. At the bottom of the SITREP was a caveat preventing
dissemination of the information without the RCMP’s consent.
25. According to Inspector Reynolds, though Mr. Nureddin’s travel information was shared with the CIA and FBI, it was shared so late that it could not have
been connected to Mr. Nureddin’s detention. Moreover, Inspector Reynolds
stated that the information shared with the CIA and the FBI did not state that
Mr. Nureddin was going to return to Canada via Syria.
Foreign agency refuses permission to share information with Syria
26. In early October 2003, the Service learned that, in late September,
Mr. Nureddin had been stopped, searched and questioned while en route to
Syria. The Service asked the originator of the information for permission to
share it with the RCMP and other foreign agencies, including Syria. The originator granted the Service permission to share the information with several
foreign agencies, but not with Syria. The Service did not share the information
with Syria.
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO MUAYYED NUREDDIN
Foreign agency advises Syria of Mr. Nureddin’s travel plans and asks
Syria to question him
27. In October 2003, CSIS learned that one of the foreign agencies to which
CSIS had sent Mr. Nureddin’s itinerary on September 16 was searching for
Mr. Nureddin, and that it intended to arrange for him to be detained for interview purposes. In communications to the agency, the Service acknowledged
that Mr. Nureddin might be arrested or detained in one of the countries through
which he travelled, and requested that, if he was detained, he be treated in
accordance with international conventions and due process.
28. On December 11, 2003, the same foreign agency notified CSIS that it felt
obliged to advise Syrian authorities that Mr. Nureddin was on his way to Syria.
CSIS did not object because, according to the CSIS official who communicated
with the foreign agency, the foreign agency was not asking if it could advise
Syria of Mr. Nureddin’s travel plan, but telling CSIS that it was going to do
so. However, CSIS requested that the agency seek assurances with respect to
Mr. Nureddin’s treatment.
29. The following day, CSIS learned that Syrian authorities had been advised
of Mr. Nureddin’s travel to Syria, had been asked to question him when he
arrived there, and had been provided with questions for this purpose. Syrian
authorities had not, to CSIS’ knowledge, been asked to arrest Mr. Nureddin or
detain him other than for interview purposes. The Service was advised that
reasonable assurances with respect to Mr. Nureddin’s treatment and respect
for his human rights would be sought from Syrian authorities. However, the
Service never received or sought specific confirmation that these assurances
had, in fact, been obtained.
Mr. Nureddin detained in Syria
30. Mr. Nureddin was detained by Syrian officials on the afternoon of
December 11, 2003 when he tried to cross the border from Iraq into Syria.�
DFAIT learns of the detention
31. On December 18, 2003, a friend of one of Mr. Nureddin’s brothers contacted Myra Pastyr-Lupul, a consular case management officer in the DFAIT
Consular Affairs Bureau, and informed her of Mr. Nureddin’s detention at the
Syrian border. Ms. Pastyr-Lupul immediately opened a file for Mr. Nureddin,
and notified the then-Director General of the Consular Affairs Bureau, Konrad
See chapter 9, paragraphs 3 to 8 for Mr. Nureddin’s account of his arrival and detention at the
Syrian border.
�
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Internal Inquiry
Sigurdson, that another Canadian had been detained in Syria. Ms. Pastyr-Lupul
explained that by the time Mr. Nureddin was detained, DFAIT was seeing “a pattern of Canadians detained in Syria who disappear.” Case management officers
were therefore instructed to inform their superiors as soon as such a case was
brought to their attention.
CSIS learns of the detention
32. On December 19, 2003, the Service learned (from a source other than
DFAIT) that Mr. Nureddin had been detained in Syria on December 11. The
Service immediately advised DFAIT’s Foreign Intelligence Division (ISI) of the
possible arrest (unaware that DFAIT had already learned of the arrest). A CSIS
official stated that at that time, it was standard operating practice to notify DFAIT
when the Service learned that a Canadian citizen had been detained abroad.
33. On December 22, 2003, the Service sent a message to three foreign agencies, including Syrian authorities, asking if they had any information pertaining
to Mr. Nureddin’s arrest and detainment. The message described Mr. Nureddin
as having recently come to the attention of the Service for his involvement in
“Islamic extremist causes” and stated that he might be acting as a human courier in the transfer of money to the AAI. The message was followed by caveats. This was the first time that the Service directly shared information about
Mr. Nureddin with Syrian authorities.
RCMP learns of the detention
34. On December 22, 2003, CSIS sent a message to Inspector Reynolds at
RCMP CID advising that the Service had learned that Mr. Nureddin had been
detained in Syria on December 11.
Consular actions
35. DFAIT sent a diplomatic note to Syria on December 21, 2003, the first business day after it learned of Mr. Nureddin’s detention. On December 22, consular
officials contacted the friend of Mr. Nureddin’s brother. They informed him of
their efforts to obtain consular access to Mr. Nureddin and said that they would
apprise him of any developments. The friend advised that the family was worried about torture.
36. By December 30, 2003, the Canadian Embassy in Damascus had followed
up with the chief of the consular section of the Syrian Ministry of Foreign Affairs
to indicate that it was still waiting for a response to the December 21 diplomatic
note. The consul from the Canadian Embassy in Damascus, Léo Martel, met
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO MUAYYED NUREDDIN
with the chief of the consular section on January 3, 2004. During their meeting, Mr. Martel was informed that the Syrian Ministry of Foreign Affairs does
not have much power in situations involving security services, and in some
cases the Vienna Convention on Consular Relations and Optional Protocols
is not followed.
37. As Mr. Nureddin’s detention continued, Mr. Sigurdson expressed a concern that the case could escalate seriously, and requested to be kept up to date
of any news on the file.
Possible release / CSIS’ inquiries of Syria
38. In early January 2004, the Service learned that Mr. Nureddin was to be
released “immediately.” The Service reported this information to the Canadian
Embassy in Damascus the same day.
39. Around the same time, the Service communicated with the Syrian Military
Intelligence (SyMI) regarding Mr. Nureddin. The Service wanted to know why
Mr. Nureddin had been detained and whether he had been formally charged
with any offence. The Service, aware that the Syrians were upset about allegations that they had tortured Mr. Arar, also wanted the SyMI to respond to these
allegations and to advise if it had made any “extra-ordinary efforts” to ensure the
fair treatment of Canadian citizens detained in Syria. A senior CSIS official told
the Inquiry that the Service did not have any concern that sending these inquiries to Syria would in some way affect Mr. Nureddin’s treatment. He described
them as “fairly benign.”
40. The Service received information that Syrian authorities were astonished
by the hostile media campaign launched by those who were demanding the
release of Mr. Arar, and that they hoped other cases did not cause the same
media uproar. With respect to the treatment of detained Canadians, the Service
received information that the prisoners were detained under “normal” prison
conditions and that health care was provided to them. The Service also learned
the reasons for Mr. Nureddin’s detention.
41. Several days later, the Service learned that Mr. Nureddin was still detained,
but that he would be released in a day or two because there were no charges
against him. CSIS reported this information to a consular official at the
Canadian Embassy.
42. CSIS did not know why Mr. Nureddin was still detained, but one CSIS official guessed that the Syrians had transferred him to a detention centre with better conditions in order to prepare him for his release. The official understood,
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based on discussions with consular officials, that this had happened in the
Arar case.
RCMP Briefing Notes regarding Mr. Nureddin
43. On January 5, 2004, the RCMP’s Anti-Terrorist Financing Group (ATFG)
drafted a briefing note for the RCMP Commissioner regarding Mr. Nureddin’s
situation. The note advised that Mr. Nureddin had been detained in Syria and
that media reports had drawn a parallel between Mr. Nureddin’s situation and
that of Mr. Arar. The note also said that at the time of Mr. Nureddin’s travel, the
RCMP had not consulted with any other foreign or domestic agency.� The note
went on to say, however, that because Mr. Nureddin was known to Project O
Canada, information about him had been shared in the past with U.S. authorities, and that a report of Mr. Nureddin’s travel had been forwarded to these
authorities in the weeks following his departure from Canada.
44. In October 2006, a second briefing note drafted by the RCMP’s National
Security Offences Branch stated that the RCMP had had “no communication
with any agency besides CSIS regarding Nureddin’s travel and detention”. The
omission of any reference to the sharing of the RCMP SITREP with U.S. authorities in late September 2003 was, according to the RCMP, merely an oversight.
Mr. Nureddin’s release and return to Canada�
45. On the morning of January 13, 2004, CSIS learned that Mr. Nureddin
had been released and was awaiting consular assistance. CSIS immediately notified Brian Davis (Canada’s Ambassador to Syria) and Mr. Martel of
Mr. Nureddin’s release.
Mr. Nureddin released to Mr. Martel
46. Mr. Martel arrived at the prison at 11:00 a.m. and was taken to the SyMI
headquarters for a one-hour discussion with General Khalil, the head of the
As discussed above at paragraph 22, Inspector Reynolds recalls having a discussion with a CSIS
official, around the time of Mr. Nureddin’s departure for Iraq in September 2003, about CSIS’
decision to share Mr. Nureddin’s itinerary with U.S. authorities. According to the RCMP, neither
Project O Canada investigators in Toronto, nor the author of the briefing note, were privy to the
discussion between Inspector Reynolds and the CSIS official, and therefore information about
this discussion was not included in the January 5 briefing note. Moreover, according to Inspector
Reynolds, this conversation was not at the time considered to be critical to the briefing of the
RCMP Commissioner.
�
This section of this chapter and the sections that follow it contain a discussion of events that
occurred after Mr. Nureddin’s release. The Terms of Reference do not require any examination
of actions of Canadian officials in this post-release period, and no findings have been made in
respect of them. A discussion of the post-release period has been included to provide context
and for the sake of completeness.
�
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO MUAYYED NUREDDIN
SyMI. Following this discussion, Mr. Nureddin was brought by the guards with
all his belongings to see Mr. Martel. After confirming that Mr. Nureddin was
free to go and that he would not have any problems at the airport, Mr. Martel
brought Mr. Nureddin directly to the Embassy.
Mr. Nureddin recounts his experience in detention
47. Mr. Martel and Maha Kotrache (a Consular Officer at the Canadian Embassy
in Damascus) took Mr. Nureddin for lunch, where he recounted in detail
the events that had taken place while he was detained, while Ms. Kotrache
took notes.
48. Mr. Nureddin described his arrest at the Yaarouba Iraq/Syrian border,
where he was told by authorities that he was wanted for terrorist activities.
The next day, December 12, 2003, he was transferred to Damascus Military
Intelligence detention centre where he was placed in a room close to the interrogation rooMs. On December 14, Mr. Nureddin was interrogated on his past
and accused of being a member of AAI, which he denied. He was interrogated
about the cash he had with him when he left Canada. He explained that he was
carrying money for three friends in Canada in order to carry out transactions
for them, but the interrogators did not believe him.
49. Mr. Nureddin described being told to remove his clothes and lie face-down
on the floor. His interrogators then poured cold water on him and directed
a fan to blow on him. He was then beaten on the soles of his feet with black
rubber cables. Mr. Nureddin recalled receiving approximately 45 lashings on
the first day.
50. On approximately the eighth day of detention, Mr. Nureddin told the
officials, he was interrogated again, this time about two individuals residing in
Canada. Mr. Nureddin explained that he suspected this information came from
Canada because he had been questioned about these same two individuals at
Pearson airport prior to leaving Canada. Mr. Nureddin also told the Inquiry that
he was questioned by SyMI about two of the individuals he was asked about by
Canadian officials before he left Canada on September 16, 2003.
51. On December 23, 2003, Mr. Nureddin told Mr. Martel and Ms. Kotrache,
he was brought to see the director of the detention centre and questioned about
whether he had been beaten. When Mr. Nureddin answered that he had, the
director stated that this had been a mistake. On this same day, Mr. Nureddin
was offered coffee and tea and questioned casually about the money he had
been carrying.
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52. On January 6, 2004, Mr. Nureddin recounted, he was forced to write a
false declaration about his life, the money he had been carrying, as well as the
two individuals he had been questioned about. He was then forced to sign a
declaration to the effect that he had not been mistreated or tortured.
53. Mr. Martel told the Inquiry that he considered Mr. Nureddin’s allegations
of torture to be very credible, because he had described his experience in very
fine detail.
Mr. Nureddin’s medical examination
54. Prior to Mr. Nureddin’s release, Mr. Martel received instructions from the
Consular Affairs Bureau to arrange a medical examination of Mr. Nureddin to
determine whether he was fit to travel. Mr. Martel arranged for a full medical
examination, and accompanied Mr. Nureddin to the appointment. Mr. Martel
did not advise the doctor that Mr. Nureddin had just been released by the
Syrian security services; he did not want the doctor to be afraid of the local
authorities or tempted to provide a medical report that would be favourable to
the Syrians.
55. During the appointment, Mr. Martel saw Mr. Nureddin undressed and
did not observe any evidence of torture. Following the examination, the
doctor provided a written report stating that Mr. Nureddin was “fit to work
without prescription.”�
56. In Mr. Martel’s view, the medical report (stating that Mr. Nureddin was “fit
to work”) and Mr. Martel’s observations of Mr. Nureddin (suggesting no evidence
of torture) were not inconsistent with Mr. Nureddin’s allegations of torture,
because the alleged torture had occurred at the early stage of Mr. Nureddin’s
detention and some torture techniques do not leave a trace.
Concerns about publicity
57. Following Mr. Nureddin’s release, and before he returned to Canada,
Ambassador Davis expressed to the Minister’s office some concerns about publicizing Mr. Nureddin’s release. He noted that any involvement of the Canadian
government in publicizing Mr. Nureddin’s release could give the appearance
that the Canadian government was trying to embarrass Syria, and affect Syria’s
willingness to cooperate in other consular cases, including Mr. Almalki’s.
He suggested that Canada’s handling of Mr. Nureddin’s release might have
�
The doctor wrote that Mr. Nureddin was “fit for work” even though Mr. Martel told him to
determine whether Mr. Nureddin was fit for travel. Mr. Martel attributed the doctor’s language
to possible miscommunication (the business of the doctor’s office was conducted in Arabic) and
to a possible misunderstanding on the part of the office staff who typed up the report.
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO MUAYYED NUREDDIN
a direct impact on the timing of the release of Mr. Almalki, and expressed a
strong preference for the Canadian government’s involvement to be as low key
as possible.
Mr. Nureddin returns home
58. On January 15, 2004, Mr. Nureddin travelled home to Canada,
accompanied by Mr. Martel. (DFAIT had instructed Mr. Martel to escort
Mr. Nureddin home.)
59. On January 18, 2004, Mr. Nureddin sent an email to Ms. Kotrache and
Mr. Martel expressing his appreciation for their efforts in his case.
Sharing of consular information with CSIS
60. On several occasions, DFAIT officials shared consular information regarding Mr. Nureddin with CSIS officials. For example, on January 13, 2004, after
learning that Mr. Nureddin would be released that day, Mr. Martel and a CSIS
official discussed Mr. Nureddin’s situation. During this discussion, Mr. Martel
advised the CSIS official that Mr. Nureddin was to undergo medical examinations that afternoon and that he and Mr. Nureddin might depart for Canada in
the evening. The CSIS official asked Mr. Martel if someone from CSIS could
question Mr. Nureddin once he was in Mr. Martel’s custody. Mr. Martel refused,
but, according to the CSIS official, agreed to provide the Service with any relevant security-related information that he might learn from Mr. Nureddin during
their time together. The CSIS official understood this to mean that, if there was
any relevant security-related information, it would be passed between DFAIT
and CSIS headquarters. In his interview, Mr. Martel disputed the CSIS official’s
characterization of his comment. He said that while he might have told the CSIS
official that he would keep him posted, he did this just to be polite and had no
intention of doing so.
61. In their interviews, both Mr. Martel and the CSIS official with whom he
had discussed Mr. Nureddin on the morning of January 13 were asked about
the propriety of exchanging consular information about Mr. Nureddin. Though
the CSIS official understood that discussions between a consular officer and
a citizen were presumptively confidential, he stated that, if security-related
information is provided, the Service will accept it. Mr. Martel stated that he
did not initiate the conversations with CSIS about Mr. Nureddin, but he agreed
that he told CSIS about Mr. Nureddin’s medical examination and about their
possible departure that evening. Mr. Martel stated that he did not know why
he gave CSIS this information. He went on to say that, at times, he felt pressure
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to divulge information to CSIS because, as a consular official, he might need
the assistance of CSIS in the future. When asked whether sharing the information about Mr. Nureddin with CSIS was consistent with consular practice,
Mr. Martel agreed that it was not and that in retrospect he should not have
shared this information.
62. On January 15, 2004, the day that Mr. Nureddin returned home to Canada,
the Service sent a message to DFAIT requesting any significant information
exchanged between Mr. Nureddin and Mr. Martel during their trip from Syria
to Canada. The senior CSIS official who approved this message understood
that the relationship between a consular official and a Canadian citizen was
privileged, but accepted what she understood to be Mr. Martel’s offer to provide
the Service with any security-related information.
63. Also on January 15, Ambassador Davis discussed with a CSIS official a
meeting he had had with Mr. Nureddin the day before. When the CSIS official
asked whether Mr. Nureddin had talked about his treatment by the Syrians,
Ambassador Davis responded that he would only discuss that in person and
not over the telephone. He also suggested to the CSIS official that Mr. Martel,
to whom Mr. Nureddin had spoken openly about his treatment in Syria and his
journey to Iraq, would be in a better position to discuss the treatment issue.
64. On February 8, 2004, after Mr. Nureddin had returned to Canada, Mr. Martel
and a CSIS official discussed matters related to Mr. Nureddin (among other
things). The CSIS official had been asked by his superiors to meet Mr. Martel
because the Service understood that Mr. Martel would be able to provide security-related information. According to the CSIS official, Mr. Martel advised that
Mr. Nureddin had spoken openly about his incarceration and that Mr. Nureddin
had said that he had not been treated too badly and did not consider his punishment to be serious. Mr. Martel told the CSIS official that the information about
Mr. Nureddin was consular-related and therefore privileged.
RCMP briefing note regarding Mr. Nureddin’s release
65. On January 14, 2004, the RCMP’s National Security Intelligence Branch
drafted a briefing note for the RCMP Commissioner stating that Mr. Nureddin had
been released from Syrian custody on January 13 and was due to arrive in Canada
on January 14. The briefing note advised that, because of Mr. Nureddin’s association with several of the subjects of Project O Canada, RCMP members would
observe Mr. Nureddin’s arrival and note who, if anyone, arrived to meet him.
The note also said that the RCMP’s Media Relations Unit had been advised.
�ACTIONS OF CANADIAN OFFICIALS IN RELATION TO MUAYYED NUREDDIN
Post-release interviews of Mr. Nureddin
66. On February 12, 2004, two CSIS agents interviewed Mr. Nureddin at his
home. Mr. Nureddin was hesitant to discuss his incarceration in Syria without
his lawyer present, so they scheduled a second interview to be held the following day at his lawyer’s office.
67. On February 13, 2004, the same agents met with Mr. Nureddin and his
lawyer, Barbara Jackman. Ms. Jackman supplied the agents with a draft document outlining Mr. Nureddin’s travel to Iraq and incarceration in Syria. The
draft document suggested that Mr. Nureddin had been detained on the basis
of a report that the Syrians had received on November 14, 2003. According to
the Service, it had no knowledge of this report. The Inquiry did not find any
evidence of a November 2003 report regarding Mr. Nureddin or of any other
report about Mr. Nureddin sent by Canadian officials to Syrian authorities or
anyone else.
Sharing of DFAIT email message regarding Mr. Nureddin
68. In late March 2004, DFAIT provided CSIS with the text of an email message that contained information about Mr. Nureddin. The message, dated
March 23, 2004, reported details of a meeting between Daniel McTeague, then
Parliamentary Secretary to the Minister of Foreign Affairs with a special emphasis on Canadians abroad, and officials from Far Falestin. According to the message, these officials spoke to Mr. McTeague about Mr. Nureddin, indicating that
they believed he was connected to Ansar al Islam, that Syrian authorities had
treated him carefully and responded to his requests, that he had received new
clothes and had been permitted to move around the prison, that he had asked
to speak honestly about his experiences in Syria prior to his release, and that
Syrian authorities had been unpleasantly surprised by Mr. Nureddin’s “lies” following his return to Canada.
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��7
AHMAD Abou-ELMAATI’S Experience
IN SYRIA AND EGYPT
1. The following is a summary of information provided by Mr. Ahmad
Abou-Elmaati in the interview of him that I conducted with assistance from
Inquiry counsel and Professor Peter Burns (special advisor to the Inquiry), on
December 6–7, 2007.
Arrival in Damascus and detention at the airport
2. Mr. Elmaati arrived at the Damascus airport at approximately 3:00 p.m. on
November 12, 2001. His wife and father-in-law were waiting for him, but he
never saw them and they never saw him. Mr. Elmaati’s wife and father-in-law
telephoned Mr. Elmaati’s mother that night to report that he had not showed
up at the airport, and his father-in-law later visited his mother in Cairo and told
her the same thing.
3. When Mr. Elmaati arrived at the airport’s immigration booth and passed the
officer his passport, the officer entered his name into the computer and told him
that there was “something about [his] name” and asked him to go to an office
that was located beside the immigration line. Mr. Elmaati went to the door of
this office (he could not recall whether there was a name on the office door)
and, within a few seconds, four or five big men in plain clothes came out of
the office and surrounded him. These men were “huge…like body builders.”
Mr. Elmaati had felt that something like this would happen because he had been
stopped in Toronto and interrogated by the OPP, stopped by the German Border
Police, and been accompanied by two people throughout his plane journey.
4. The men told Mr. Elmaati to come with them, and escorted him to the luggage area, where they made him pay 50 liras (equivalent to US$1) of his own
money for a trolley to pick up his luggage. He had brought a minimal amount
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of Syrian currency with him, left over from a previous trip to Syria, as well as
approximately US$3,500, which was to be half the dowry for his wife. After
collecting his three big bags, the men escorted Mr. Elmaati through Customs,
where they were not stopped, and outside the airport.
Transfer to Far Falestin
5. The moment they were outside the airport, a four-door unmarked car pulled
up. Mr. Elmaati’s hands were handcuffed behind his back and he was put inside
the back seat of the car with a man on either side. Once he was inside the
car, a black bag was put over his head. In addition to the men on either side
of him, there was a driver and a person in the front passenger seat. The man
in the passenger seat would become known to Mr. Elmaati as the General; the
other men referred to him as Amid (which means Brigadier).
6. The man in the front passenger seat asked Mr. Elmaati for his name.
When Mr. Elmaati provided it, the man responded, “No, tell me your other
names.” Mr. Elmaati stated that he did not know what that meant, and the
General responded, “Okay, we’ll see, we’ll see.” Mr. Elmaati understood this
as a threat.
7. Shortly after the car left the airport, it stopped by the side of the road.
Mr. Elmaati heard the men in the car saying to each other that they needed to
“wait for the other car.” After waiting for some time, the car sped up again;
Mr. Elmaati assumed the other car had arrived. Mr. Elmaati was never informed
where they were going. The trip to what he later learned was Far Falestin took
approximately 30 minutes, including the stop to wait for the other car.
Arrival at Far Falestin
8. Mr. Elmaati heard the car go through what he assumed to be a gate, and
heard the guards saluting each other (by stamping their feet and clicking their
heels together). The car then stopped and he was taken out, with his hands
still handcuffed behind his back and the bag still over his head. One man was
on each side of him, guiding him up two flights of stairs into an office. There,
a man whom Mr. Elmaati assumed was sitting behind a desk, said, “Ahmad, tell
us everything.” From the sound of his voice, Mr. Elmaati assumed that the man
was approximately two or three metres away. Mr. Elmaati responded: “What
do you want to know? Everything about what?” The man replied, “We will
teach you how to speak,” and then directed the guards to “take him.” They
took Mr. Elmaati down the same flights of stairs he had ascended, outside for a
few metres and then into another room.
�AHMAD Abou-ELMAATI’S Experience IN SYRIA AND EGYPT
9. The room that he entered would later become known to him as the prison
manager’s office. The room was about three metres wide, with a small desk,
two or three beds and one small window. It was very old and dirty inside. The
man who would become known to Mr. Elmaati as the prison manager took
Mr. Elmaati’s money and passport.
10. Mr. Elmaati was then taken to an interrogation room. His handcuffs were
removed and the bag taken from his head. The room looked like a small,
very dirty classroom. There were approximately four plainclothes guards.
They searched his luggage, asking him, “Where are the documents?” When
Mr. Elmaati responded, “What documents?,” they said they would teach him
“how to speak,” and began punching him (with fists) in the face. The punching
went on for several rounds. During this time the interrogators stole what they
liked from Mr. Elmaati’s luggage.
Cell number 5
11. Mr. Elmaati was then taken down two flights of stairs to the basement
of the prison. At the bottom of the stairs was a long hallway (approximately
25 metres long) with a number of common cells on either side that could house
a number of detainees. At the end of the hallway was another hallway, perpendicular to the first, which contained 10 solitary confinement cells. Mr. Elmaati
was pushed into solitary confinement cell number 5. It was “like a grave.” The
cell was approximately 1 metre wide, 4.6–4.8 metres high, and not quite long
enough for Mr. Elmaati to keep his legs fully extended when lying down. There
was a grate in the ceiling and a window in the metal door. Both were covered
with metal or wire mesh and neither was ever opened; it was therefore always
completely dark in the cell. The two blankets in the cell smelled very badly of
urine. On this first day, Mr. Elmaati was in his cell alone for a few hours, and
was very afraid because he thought that something very bad was going to happen to him based on the way he had been treated.
Interrogation and treatment on the first day
12. After a few hours in his cell, Mr. Elmaati was taken upstairs to the interrogation room. Before entering the room, the guard took a rubber blindfold (possibly made out of a tire) out of the bucket to his left and put it on Mr. Elmaati.
Some interrogators entered the room, and told Mr. Elmaati, “Tell us your
story.” Mr. Elmaati thought, based on his experiences with CSIS in Canada,
that the Canadians had probably sent questions they wanted to ask him. In
response to “Tell us your story,” Mr. Elmaati told the Syrian interrogators what
he thought the Canadian authorities wanted to know about: that he had been to
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Afghanistan, that his brother had called him once from Afghanistan, and that he
had taken flying lessons. He also gave his explanation for the map of Tunney’s
Pasture. (During his interview, Mr. Elmaati told the Inquiry that he kept a copy
of the letter written by Anne Armstrong, Manager of Highland Transport, which
explained that the map did not belong to him, in his pocket at all times when he
travelled because he was afraid of being stopped. The letter was in his pocket
when he arrived in Syria, but was taken from him upon arrival at Far Falestin
when all his belongings were confiscated.) The interrogators told Mr. Elmaati
that this was not the story they wanted to hear, and accused him of not telling
the truth.
13. The interrogators then began beating Mr. Elmaati. They repeatedly
punched him in the face and head, kicked him in his abdomen and thighs, and
continued to tell him that he had to say something else. After a while, the interrogators left the room. They returned some time later and began making the
same demand (“Tell us your story”). Mr. Elmaati answered in the same manner
as before and was beaten in the same manner. This occurred three times before
Mr. Elmaati was returned to his cell.
14. After a few hours in his cell, Mr. Elmaati was brought back up for a second
interrogation. Before entering the room he was blindfolded and his hands were
handcuffed behind his back. He was told to take off his clothes, and when he
asked why, he was beaten. His handcuffs were briefly removed; Mr. Elmaati
took off his shoes and all his clothes with the exception of his boxer shorts. He
was told to lie down on his stomach with his knees bent. His hands were again
handcuffed behind his back and his feet were then tied to his hands. Once he
was in that position the interrogators poured very cold ice water all over his
body and then started whipping and slashing him with a black electrical cable.
Mr. Elmaati described the cable as braided and approximately an inch thick.
The interrogators hit him on his feet, legs, knees, and back. The lashes came
very hard and very quickly, and were administered for several minutes at a time.
Mr. Elmaati screamed, cried and begged for it to stop.
15. While Mr. Elmaati was being beaten, several interrogators continued to
demand that he tell them “his story.” Mr. Elmaati gave them the same answers he
had given previously. The interrogators laughed at his screaming and begging,
and told him that they did not accept his story and he would have to change it.
From the voices in the room, Mr. Elmaati understood that the General, another
high-ranking officer, and several guards were in the room during the interrogation. Mr. Elmaati recalls that those who hit him also swore and cursed him,
using filthy words. At one point during this interrogation, the interrogators told
�AHMAD Abou-ELMAATI’S Experience IN SYRIA AND EGYPT
him that they were going to bring in his wife and rape her in front of him. He
was not aware of it at the time, but Mr. Elmaati would later learn that his wife
was called for interrogation several times; he does not know whether she was
ever physically abused.
16. At some point, the beating stopped, the handcuffs were taken off and the
interrogators told Mr. Elmaati to jump up and down in one place; Mr. Elmaati
assumed this was for the purpose of circulation, although the interrogators
never told him the reason. He was then tied up again, and the interrogation
and beatings continued.
17. At some point in the night, several hours after he was first detained,
Mr. Elmaati told the interrogators that he could not say anything other than
what he had already said. The beatings stopped and they returned him to his
cell. Mr. Elmaati could barely walk because his feet were severely beaten and
swollen. He was given nothing to eat or drink during the first 24 hours.
Interrogation and treatment over the next 48 hours
18. Over the next 48 hours Mr. Elmaati was called back to the interrogation
floor for three or four more interrogation sessions identical to those of the first
day: he was blindfolded; forced to remove all his clothes; had his hands and
feet tied behind his back; had cold water poured over his body; and was beaten
very badly with black electrical cables. The interrogators, believed to be the
same individuals as the previous day, continued to ask the same questions, and
Mr. Elmaati continued to deliver the same answers.
19. After three or four interrogation sessions, Mr. Elmaati begged the interrogators to stop, and agreed to say whatever they wanted him to say. The
beatings then stopped, and his handcuffs were removed but not his blindfold.
The officer told Mr. Elmaati that the Syrian authorities had a report that he
had been planning to blow up the U.S. Embassy in Ottawa. When Mr. Elmaati
heard that accusation, it was “one of the longest moments” of his life, because
he concluded that the Syrian authorities were probably planning to hand him
over to the Americans. He said he thought that this was something “very huge”
and they were trying to implicate him in something false that he had never
done. He was concerned about being handed over to the Americans because
he felt he would not have any rights in American custody, and wanted to be
handed over to the Canadian authorities instead. Although he had never heard
of Guantanamo, he had heard about the “terrorist hype” in the U.S. and did
not know what would happen to him there. He assumed the accusation about
the U.S. Embassy was because of the map of Tunney’s Pasture, and therefore
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decided to select another target in Ottawa, a Canadian target, to satisfy his
interrogators. He chose the Parliament Buildings because they were the biggest
target he could think of.
20. The Syrian authorities seemed to accept Mr. Elmaati’s story about the
Parliament Buildings being the target; they instructed him to give them the
outline of the attack. The officer told Mr. Elmaati that his brother had given
him the instruction for the attack and that it was going to be done with a truck
bomb; Mr. Elmaati agreed. When the officer asked for other names, Mr. Elmaati
told him that he did not have any other names because his brother had been
going to take care of everything.
21. The interrogators then took Mr. Elmaati’s blindfold off and asked him to
write this all down. Mr. Elmaati had great difficulty writing because of the treatment he had received, and wrote very slowly. The interrogators let him return
to his cell for a break and then brought him back up to finish writing out his
confession. It took a couple of days to finish the first draft of this statement.
Drafting the alleged confession
22. Despite his instructions to do so, Mr. Elmaati did not draft the version of
events he had discussed with his interrogators during his interrogation. He felt
that he could not implicate himself in a plot to blow up the Parliament Buildings
in writing and, instead, wrote down “exactly what happened.”
23. Once the interrogators discovered what Mr. Elmaati had written, approximately four men dragged Mr. Elmaati out of his cell during the night and immediately began beating him very hard. They punched, kicked, and slapped him,
and pulled his beard and hair. They took Mr. Elmaati upstairs, blindfolded him,
handcuffed his hands behind his back, and brought him into an interrogation
room. The interrogators cursed him and told him that he needed to change his
story. One interrogator was smoking a cigarette; he told Mr. Elmaati that he
was going to burn his eyes. Mr. Elmaati felt very scared. He was lying on the
ground and the interrogators kicked him and burned his shin with a cigarette.
(During his interview, Mr. Elmaati showed Inquiry counsel that he has a round
scar on his left shin about 1.3 centimetres in diameter.) Mr. Elmaati screamed
for them to stop and promised to write whatever they wanted him to write.
The man with the cigarette said: “Okay, now we teach you how to behave.”
24. From then on Mr. Elmaati wrote down whatever the interrogators told
him to: that he wanted to blow up the Parliament Buildings; that his brother
had instructed him to do so; and that he was going to drive the truck. He had
�AHMAD Abou-ELMAATI’S Experience IN SYRIA AND EGYPT
trouble writing and wrote very slowly, sometimes getting his interrogators to
dictate the story or write it out themselves.
25. Approximately four or five days after Mr. Elmaati’s second statement was
completed, he was brought back up from his cell and told to sign official
papers. These papers had the words “Syrian General Intelligence” and an official
stamp. Mr. Elmaati signed the papers without reading them and administered
his thumbprint.
Remaining time in Syria
26. After Mr. Elmaati signed these papers, he spent most of his remaining time
in Syria in his cell. He would occasionally be called up and asked questions
about photographs of people, or names of people, or to verify his answers to
some of the other questions that he had been asked. There was no pattern to
when he would be brought up for questioning.
27. In one session, he was asked a series of questions in which the interrogators read from papers and asked him to confirm biographical facts about himself:
the licence plate of his car, the colour of his car, his address, and the addresses
of certain relatives. Mr. Elmaati was not blindfolded during this interrogation,
but he did not see what the papers looked like or read the papers himself. He
could not recall whether this questioning occurred before or after he signed
the official papers.
28. On one occasion, Mr. Elmaati was called up to the prison manager’s room
for a meeting with the General. He was not blindfolded. The General addressed
him by name and told him that they wanted him to work for them, and to send
him to Afghanistan to bring back his brother. He immediately responded that
even if they kept him “in this graveyard cell for 20 years” he was not going
to work for them; he would rather die than do that. The General responded
by calling Mr. Elmaati names, but did not slap him or beat him in any way.
Mr. Elmaati was returned to his cell. The Syrian authorities never asked him to
work for them again.
29. During this time, Mr. Elmaati was not beaten as he had been during the initial week to 10 days of interrogations. From time to time when he was brought
up for questioning the guards would slap him or punch him on the way by. One
day the guards wanted to shave his beard. Mr. Elmaati pleaded with the guards
not to do so because his beard had religious significance for him and shaving it
would cause him humiliation. The guards ignored his plea, and beat him while
they shaved off his beard.
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Prison conditions at Far Falestin
30. Mr. Elmaati was provided with food for the first time 24 to 48 hours after
his arrival at Far Falestin. In the normal course, prisoners received three meals a
day. For breakfast they were given a loaf of pita bread, tea, and one hard-boiled
egg; for lunch, rice or bulgur and sometimes, although not usually, a very small
piece of chicken such as a wing; and for dinner, lentil soup which was too bad
to drink and tasted like dirty dishwashing water. Mr. Elmaati was given two
one- or two-litre bottles, one to drink from and one for urine.
31. The food was distributed by other prisoners in buckets. A guard would
come to his cell, open the door, and the prisoner carrying the bucket of food
would pour it into Mr. Elmaati’s containers. Whenever he went to the washroom, he would have to clean and empty his food containers and bottles, if he
had the chance. On two occasions, Mr. Elmaati was given the opportunity to
purchase provisions such as soap and food items (sardines, halva, and vegetable
oil) with the money he had when he arrived at Far Falestin.
32. The process of going to the washroom at Far Falestin was “another torture by itself.” He was allowed to go to the washroom only twice a day, and
had to be very quick or he would get badly beaten. He only had two to three
minutes to wash his dishes, fill up his water bottle, clean out his urine bottle,
and relieve and wash himself. If he took any longer, the guard would swear at
or hit him.
33. Mr. Elmaati’s cell was very cold, “like a freezer.” It was wintertime, and
approximately a month into his detention Mr. Elmaati heard people in other
cells screaming from the cold. Living in the cell for over two months was
“like a grave and you are a dead man…you are living in a grave but you are
still alive.”
34. Mr. Elmaati found it very difficult to keep track of time while at Far Falestin.
His only markers of time were a man in cell number 10 who was able to keep
track of time and announced the daily prayer, and the guards’ announcement
only three or four days after he arrived at the prison that it was Ramadan. He
did, however, develop a system for counting the days by telling himself every
morning: “Today is this date, tomorrow is this date and yesterday was this date.”
Mr. Elmaati was later able to confirm these dates with his Egyptian guards.
35. Mr. Elmaati could hear the screams of people being interrogated in the
interrogation rooms from his cell; this, he said, was a torture by itself.
36. Mr. Elmaati shared a cell wall with the women’s cell, and occasionally he
would communicate with the women prisoners. In one of these conversations
�AHMAD Abou-ELMAATI’S Experience IN SYRIA AND EGYPT
he was told the story of a 17-year-old girl who had been detained when she was
16, newlywed and pregnant. The prison officials did not want to care for her
medically, and beat her until she lost the baby. He was “out of this world” with
grief when he heard this story.
37. Mr. Elmaati also communicated with the man in cell number 10, who had
been at the prison for over two years and knew the system. Mr. Elmaati told
this man that he had been tortured into giving a false confession and wanted
to recant. The man told him not to recant because the guards would likely kill
him if he did.
38. It was through a covert communication with a fellow detainee that
Mr. Elmaati first learned that the place of his detention was called Far Falestin,
or Palestine Branch.
Transfer to Egypt
39. On approximately January 25, 2002, Mr. Elmaati was taken from his cell.
The guards shaved his head and his beard, and then brought him upstairs to
an interrogation room. This time he was not blindfolded. They brought him
his suitcase, instructed him to change into clean clothes, and took him to the
prison manager’s office. The prison manager returned all of the money that
had been confiscated on his arrival, US$3,500. He was then escorted out of
the prison and into a dark-coloured (probably blue) unmarked station wagon.
The guards waited with Mr. Elmaati for some time for the General to arrive at
the car. When the General arrived, he told the guards to handcuff Mr. Elmaati’s
hands behind his back. The guards placed a black hood made of fabric over his
head, and he was then driven to an airport. He assumed, based on the sound
of a chain being moved, that the car entered through a side entrance.
40. The guards removed Mr. Elmaati from the car, marched him forward a
few metres, and then removed the hood from his head. He saw that he was
standing in front of a plane, with a lot of people around. A Syrian guard showed
Mr. Elmaati both his Canadian and expired Egyptian passports and asked him to
confirm his identity, which he did. He counted Mr. Elmaati’s money, replaced
the hood over his head, and escorted him up the staircase onto the plane. He
was able to see out from the bottom of the blindfold, and noted that he was
taken 10 or 12 rows back through the plane before he was seated, still handcuffed and hooded. Based on the number of stairs he had climbed and the size
of the rows, Mr. Elmaati understood that this was a large plane.
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41. From the sounds of the voices on the plane, and his observations on the
walk to his seat, Mr. Elmaati noticed that the plane was empty except for the
approximately 10 people who were escorting him. He was not told what
was happening or where he was going. The pilot made no announcements,
and relied on a bell to alert the men that the plane was taking off and landing.
Although he could hear voices, Mr. Elmaati could not make out the language
spoken or the accent. At one point during the flight Mr. Elmaati asked the guard
if he could get up and use the washroom, but the guard denied his request.
Arrival in Egypt
42. When the plane landed, Mr. Elmaati was taken from his seat, still blindfolded and handcuffed. When they reached the doors to the plane, he screamed
in fear that he was going to be thrown from the plane. He had no idea where
he was. He assumed it was around 3:00 a.m. because he had asked a Syrian
guard for the time while still at Far Falestin, and it took approximately an hour
to get to the airport and the flight was approximately two hours.
43. Once removed from the plane, Mr. Elmaati was forced onto the floor of
a vehicle, which he recognized from the sound of the sliding side door was a
van. He suspected that he was in Egypt because the guard who instructed him
to get into the van spoke with an Egyptian accent.
44. Mr. Elmaati had asked the Syrian authorities many times to be transferred
to Canada. He suspects that he was sent to Egypt because it is the country of
his other citizenship. He had no idea why the Syrian authorities did not just
keep him in Syria.
General Intelligence headquarters in Abdeen
45. Mr. Elmaati was taken to General Intelligence headquarters (Mukhabarat
Alama) in the Abdeen area of Cairo. He would spend the next four and a half
months there. On arrival at the prison, he was escorted from the van into a
rectangular-shaped room. Several plainclothes men removed the handcuffs and
the hood, photographed him, and made him change into a blue prison uniform
that consisted of a slip-on shirt and trousers. He was then handcuffed with his
hands behind his back. The hood was placed back on his head, and he was
taken to another room where he was asked to lie down while his pulse and
blood pressure were taken. He was then immediately taken to what he would
come to learn was an interrogation room.
�AHMAD Abou-ELMAATI’S Experience IN SYRIA AND EGYPT
Interrogations on the first day at Abdeen
46. The room smelled smoky. Mr. Elmaati was kept blindfolded, but from the
sounds of voices he noted there were many people present. (In Egypt it is not
permitted to see an officer. Mr. Elmaati was therefore always blindfolded when
he was brought up for interrogation.) One of the officers immediately started
swearing at Mr. Elmaati using very filthy words. In a mocking tone, he asked
Mr. Elmaati to tell them his story. Mr. Elmaati had been waiting for the opportunity to recant his confession in Syria, and so he told the Egyptian authorities that
what he had told the Syrian authorities was false and that he had been forced
to say it under torture. One of the officers immediately kicked Mr. Elmaati very
hard in the chest, sending him flying into the wall behind him. The officer
continued punching him in the face and kicking him, sending him flying around
the room. The kicks felt like “martial arts” types of kicks. While he was being
beaten, the officer asked, “You want to change your story now?”
47. When the beating stopped, the officer told Mr. Elmaati that his sister was
in the room next door. The officer then called his guards and instructed them
to go next door and take off her clothes because he would be coming to rape
her. Mr. Elmaati screamed as he had never screamed before in his life, because
he thought they might really do something to his sister. He told his interrogators
that he was willing to do anything that they wanted if they would refrain from
doing anything to her. He told them that what he had said in Syria was the truth,
and began telling the same story that he had told his Syrian interrogators.
48. The interrogators forced Mr. Elmaati to squat for several minutes. Each
time he began to fall or tried to stand up because of the pain in his knees, the
guards would beat him very hard. The Egyptian interrogators told him that they
did not believe him and that they wanted him to “say the truth.” Mr. Elmaati
responded that he was telling them the truth but they did not want to hear it.
At some point the interrogators stopped the beating and took Mr. Elmaati to
his cell.
49. Once Mr. Elmaati was in his cell, his blindfold and handcuffs were removed.
The cell was approximately two metres wide by two metres long, with high
ceilings. The walls were solid concrete and the door was solid metal. The door
had a window that the guards could open if they wished to speak to Mr. Elmaati
without opening the door. Inside the cell there was a concrete bench, a thin
sponge-like mattress and approximately three blankets. The temperature was
a bit on the cool side, but bearable, and the cell was generally clean. It was
cleaned every Friday. Approximately 3 of the 16 available solitary confinement
cells were occupied while he was there.
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50. After approximately one hour in his cell, Mr. Elmaati was brought back
upstairs for another session of interrogation. A guard came to his cell, handcuffed his hands behind his back (later, they would begin handcuffing his hands
in front), and blindfolded him before escorting him to the interrogation room.
This blindfold was very different from the Syrian blindfold. It was not made
from a rubber tire, but from a stretchy fabric that could be pulled over his face
and head.
51. The same officer who had interrogated him earlier asked questions again,
but in a much softer tone. He called Mr. Elmaati by his first name and told
him that he wanted to know the truth. Mr. Elmaati explained what had happened to him in Syria, and asked his interrogators to read the letter written
by Highland Transport. The officer instructed his guards to retrieve the letter
from Mr. Elmaati’s papers. The officer then read the letter aloud in an educated
English accent, and cursed the Syrians, stating that they had no idea how to
interrogate, and if they had just read this letter they would have understood
everything. Mr. Elmaati requested that his interrogators contact Canada and ask
them to verify his story; he told them that if he were lying they could hang him.
The officer told Mr. Elmaati that he would verify this information with Canada,
and then Mr. Elmaati was returned to his cell.
52. Approximately one hour later, Mr. Elmaati was again handcuffed and blindfolded. This time he was escorted upstairs to a different interrogation room,
where a different person asked him the same questions as in his second session.
Mr. Elmaati was again told that they would verify his story with Canadian authorities. The interrogation sessions occurred approximately three or four times
over the course of Mr. Elmaati’s first day at Abdeen. Each time, Mr. Elmaati was
taken from his cell and brought to a different room, where a different person
asked the same questions and concluded the interrogation in the same way.
Only the third interrogation ever involved going upstairs.
53. At the end of these initial interrogations, Mr. Elmaati was told to write his
entire life story. The interrogators brought a small table, some papers and a
pen to his cell. It took him a very long time to write the approximately 80-page
story, but eventually he finished it and gave it to his interrogators. He never
heard about it again.
Subsequent interrogations at Abdeen
54. Over the next four and a half months there were a series of interrogations.
In all but one instance, Mr. Elmaati was pushed around and cursed by the guards
but not beaten. The exception occurred when he was interrogated about
�AHMAD Abou-ELMAATI’S Experience IN SYRIA AND EGYPT
whether he had lost or ruined his Canadian passport. Mr. Elmaati explained to
his interrogators that he had accidentally put his passport through the washing
machine (because it was in the pocket of his pants), but they did not believe
him. They accused him of having deliberately tried to ruin his passport, and
hit and kicked him repeatedly. Mr. Elmaati then agreed that he had done it on
purpose; his interrogators made him write that down. When he did, the beatings stopped.
55. On other occasions, Mr. Elmaati was questioned in detail about the time
he had spent in Afghanistan and whether he knew any Egyptians while he was
there. He was often shown pictures and asked about specific names, none of
which he knew or recognized. When his blindfold was removed so that he
could look at the pictures, Mr. Elmaati could also observe the room, but he never
saw the guard, who remained behind him, with his hand on his shoulder.
56. On one occasion, Mr. Elmaati was escorted by a guard into an interrogation
room, where he heard a voice over a microphone call his name and instruct the
guard to remove his blindfold. In front of him was a television screen that apparently contained a microfilm picture of a map. The voice on the microphone
asked Mr. Elmaati if it was his map. Mr. Elmaati did not recognize it, and told
the guard so. When the voice insisted that it was his, Mr. Elmaati requested to
see the actual map. When the guard brought the map back to the interrogation
room, Mr. Elmaati recognized it right away and screamed in relief that this was
indeed the map of Tunney’s Pasture.
57. Mr. Elmaati was also interrogated about why he had bought a remote
control in Toronto. When he explained that the remote control for his sister’s
television was broken and he wanted to replace it, his interrogators accepted
this answer, and he was not physically beaten. He thought it very obvious that
the interrogators had obtained the information about his buying the remote
control from those who had been following him in Toronto.
Prison conditions at Abdeen
58. Abdeen was “180 degrees” from what Mr. Elmaati had experienced in Syria
in terms of cleanliness. Even the interrogation rooms were very clean; in some
instances, they had wall-to-wall carpet. The cells formed an L-shaped wing with
one washroom in the middle. Next to the washroom was a tiny cell that was
used as a “torture chamber;” it had an oven-like door too small to walk through.
A person could be pushed through on a stretcher; the room had a basin and
water pipes that suggested it was used for torture involving water.
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59. Mr. Elmaati was allowed to use the washroom whenever he liked, as long
as the guard on duty could escort him. The washroom consisted of a sink,
a Turkish toilet (which also functioned as the shower), and a regular toilet.
Mr. Elmaati was permitted to take a bath or shower once a week, usually on a
Friday, and was also permitted to change his uniform once a week.
60. The food was very good. Although there were usually four meals a day,
Mr. Elmaati would fast during the day and therefore only consume one meal daily,
which consisted of a quarter-chicken, rice, salad, and yogurt. Approximately
once a week Mr. Elmaati would break his fast and have breakfast, which would
consist of a fava bean sandwich. He fasted to raise his spirits and feel strong
on the inside, and the guards did not object.
61. While at Abdeen, Mr. Elmaati was never permitted to go outside or engage
in physical exercise.
Markaz Amen El Dawla (State Security headquarters) in Nasr City
62. Near the end of May 2002, the guards at Abdeen brought Mr. Elmaati some
fresh clothes they had taken from his luggage and told him to change. They
handcuffed his hands behind his back, placed a hood on his head, took him
outside and made him lie down on the floor of a van. Approximately 30 minutes
later they arrived at what Mr. Elmaati would come to know as Markaz Amen
El Dawla (State Security headquarters) in Nasr City.
63. When he entered the prison, the guards removed his hood. He saw that
he was standing in a room that was being used as a check-in for the prison. He
was instructed to remove his clothes and put on a blue prison uniform, like the
uniform at Abdeen, while the guards (in plain clothes) completed his paperwork. It was crowded; there were a number of people sitting on the floor in
the hallway with hoods over their heads.
Prison Conditions in Nasr City
64. Mr. Elmaati was then taken to a solitary confinement cell where he would
spend the next 10 days. The cell was about two metres wide and three metres
deep and had a high ceiling from which water was constantly dripping. There
was a Turkish washroom inside the cell, as well as a tap, a cement bench and
one or two very dirty blankets. The hood over Mr. Elmaati’s head was made
from a piece of rotten blanket.
65. Mr. Elmaati said that he endured the most severe treatment of his whole
ordeal in this cell. His hands were handcuffed behind his back 24 hours a day.
�AHMAD Abou-ELMAATI’S Experience IN SYRIA AND EGYPT
This was severely painful. The guards would move his handcuffs from behind
his back to the front for about 10 minutes a day to allow him to eat and go to the
washroom. Being handcuffed from the front felt like a huge relief. Occasionally
the guards would bring him food, which consisted of a loaf of bread with some
rice and sometimes beans. When he wanted something to drink he would
open the tap with his leg, kneel down like an animal and suck from the tap.
The handcuffs were so painful that Mr. Elmaati could not sleep at all during this
period, and he felt that he was losing his mind as a result. For the 45 days that
Mr. Elmaati was detained in Nasr City, his hands remained handcuffed behind
his back in this manner, including when he was sent for interrogation. There
was no light inside his cell, so that he could not tell day from night.
66. By the summer of 2002, Mr. Elmaati felt that he was “literally rotting away”
in Nasr City. Because the handcuffs were only removed once a day for ten minutes, Mr. Elmaati sometimes had to urinate on himself. The urine, combined
with his sweat, left him smelling “very, very bad.” At one point, when he was
brought up for interrogation, the officer ordered the guards to wash him. They
took him to the showers, removed his handcuffs and permitted him to pour
water on himself. Afterwards, however, he was forced to wear the same rotten
clothes. This was the only time that he was permitted to wash in his 45 days
at this facility. The rotten blindfold gave Mr. Elmaati a rash on his face.
67. When the guards delivered the food, they would toss it onto the floor of
Mr. Elmaati’s cell. However, the food did not come during the 10-minute period
when his handcuffs were moved from back to front. Cockroaches and rats (the
size of his hand to just past his wrist) that lived in the Turkish toilet would eat
his food until his hands were freed.
Interrogations in Nasr City
68. From his cell, Mr. Elmaati could hear the sounds of electric shock and
screams. He spent the first 10 days imagining that he would be next. At the end
of 10 days, Mr. Elmaati was brought to the interrogation room. He was questioned about whether he had known any Egyptians in Afghanistan, and asked
to tell his whole story from the beginning. The interrogations lasted for several
hours at a time, and occurred over many days. Occasionally he was slapped,
punched in the face and kicked in different parts of his body. The interrogators
kept asking him to verify the same information over and over again, and kept
writing down his answers.
69. On one occasion, his interrogator told him that he had prayed beside him
at the Salahedeen Mosque, and asked Mr. Elmaati whether he recognized him.
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He could not see his interrogator because of his blindfold, and he did not know
whether the man was bluffing or telling the truth. On another occasion, his
interrogators kept prompting him to try and remember something odd that had
happened to him. In response to this question, Mr. Elmaati told his interrogators
two very odd stories that he had not shared with the Syrian authorities because
he did not think they were relevant or significant.
70. The first story involved a man who had expressed a great deal of interest
in Mr. Elmaati and his brother, had travelled to Afghanistan, and had permitted
Mr. Elmaati’s brother to call Mr. Elmaati in Canada from Afghanistan using his
special satellite phone. Mr. Elmaati was of the view that this man had tried to
set him up. The second story involved a man whom Mr. Elmaati had known
when he was in Pakistan. This man contacted Mr. Elmaati when he was in Syria
in early 2001 and requested Mr. Elmaati’s assistance in finding a Canadian wife.
Mr. Elmaati made some efforts, both in Syria and back in Canada, to find a wife
for him, but was unsuccessful. Subsequently, this man requested $500 from
Mr. Elmaati. Mr. Elmaati refused and this was their last contact. A year later, the
man was killed in Syria.
71. In response to both of these stories, the Egyptian interrogators told
Mr. Elmaati that “they were playing games on you;” “they were trying to entrap
you;” and “they were trying to set you up.” Mr. Elmaati was not sure who “they”
referred to—it might have been the Canadians, or the Americans, or another
government. Mr. Elmaati also did not know why they were asking him to tell
them odd stories, but it appeared that they expected him to do so. The interrogations in Nasr City ended after Mr. Elmaati told these stories.
Lazogley State Security branch
72. At some point in late June or early July 2002, Mr. Elmaati was given new
clothes from his luggage, handcuffed and blindfolded and thrown on the floor
of a van, this time with a spare tire and some blankets thrown on top to hide
him. After approximately 30 minutes through a lot of traffic, Mr. Elmaati arrived
at what he would later learn was the Lazogley State Security branch in Cairo.
73. Mr. Elmaati was initially taken to a long hallway where he was kept for
approximately two weeks, blindfolded and his hands handcuffed in front of
him. Initially Mr. Elmaati was happy to be there: it was a “smaller hell” than
Nasr City and his hands were handcuffed in the front rather than the back.
However, Mr. Elmaati said that having to sit on a tiled floor for two weeks with
his hands in handcuffs and a blindfold over his head, prohibited from sleeping,
standing, or speaking, was another torture. As a result of sitting on the tiles for
�AHMAD Abou-ELMAATI’S Experience IN SYRIA AND EGYPT
two weeks straight, Mr. Elmaati developed an inflammation problem that made
it very painful to defecate. Upon his return to Canada he had surgery to try to
correct this problem.
74. There were many prisoners seated in the hallway. Twice a day, the guards
would bring them food, which consisted of bread, rice, and occasionally a small
piece of meat. The guards would also allow them to use the washroom twice a
day. Whenever he started falling asleep, the guards would come and kick him
to remind him to stay awake. Aside from a brief initial interview upon arrival,
Mr. Elmaati was not interrogated during these first two weeks at Lazogley.
Before he was transferred to the common cell, one of the officers warned him
that he was not permitted to speak about his case to anyone and that they would
be watching him.
75. After the first two weeks, Mr. Elmaati was transferred downstairs to a
common cell where he spent a further two weeks. There were two common
cells, each with a washroom including a toilet and a tap, that were joined by a
hallway. Mr. Elmaati’s cell was approximately four metres by four metres, and
the hallway was about two metres wide and three or four metres long.
76 This was the first time that Mr. Elmaati had had open contact with other
detainees since his detention. In the beginning there were approximately 10 or
12 detainees in his cell, but the number quickly grew to 60 or 70. Conditions
were very bad. It was the summer and the ceiling was made of iron. People,
including Mr. Elmaati, were having difficulty breathing, and some were fainting in the heat. (Mr. Elmaati later learned that he has sleep apnea, which also
affects breathing.) Eventually the guards opened up the hall and allowed the
detainees to use both the cell and the hallway. At one point the other cell was
also opened. However, it contained as many people as Mr. Elmaati’s cell, and
space remained very tight. A head count indicated that there were approximately 120 people in the two cells.
77. The other detainees were all Egyptian nationals who were being held as
political prisoners. They were not charged with criminal offences and they
were not handcuffed or blindfolded when they were in the common cells. They
would sleep on blankets on the floor in shifts because there was not enough
room for everyone to lie down at once. Since the washroom was in the cell,
Mr. Elmaati was able to use it whenever he liked, subject to the long lineups.
The guards would bring food to the cell and the prisoners would then distribute
it among themselves.
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78. During the two weeks that Mr. Elmaati spent in this common cell, he was
not interrogated. At the end of the two weeks, he was brought upstairs and
asked to verify his belongings, including his luggage, money and passports.
When he returned to the common cell and reported what had occurred, he was
informed that it was probable that a detention letter was about to be issued for
him and he would be sent to jail.
Tora Prison
79. On approximately July 31, 2002, a police officer (in a white police uniform), accompanied by a number of uniformed soldiers, arrived at Lazogley,
took Mr. Elmaati’s fingerprints, handcuffed him and loaded him into a police
van. Mr. Elmaati was wearing clothes from his own luggage and was not blindfolded. This was the first time since his detention that Mr. Elmaati had seen the
sunlight. As the truck made its way from Lazogley to what Mr. Elmaati would
come to learn was Tora Intake Prison, he saw the Nile for the first time since
he was a teenager, and saw people on the streets.
80. When Mr. Elmaati arrived at Tora, he was taken into a large intake area
where prison intelligence officers in plain clothes sorted through his luggage.
They removed anything that was white and gave it to Mr. Elmaati to wear,
because political prisoners in Egypt had to wear white. Mr. Elmaati changed
into his white clothes and was permitted to keep his Syrian money with him;
the rest of his luggage and his passports were taken from him. Mr. Elmaati
had rarely seen his money or his identity documents while he was in Egypt,
although both had moved with him from detention centre to detention centre.
At each detention centre, an individual would take custody of his belongings,
and that custody would be transferred when he was transferred. His U.S. money
was eventually transferred to his mother. Neither the Syrian nor the Egyptian
authorities stole his money or his passports, although both stole his other valuables and possessions. By the time he arrived at Tora, he was down to two
suitcases from his original three.
81. While waiting for the state security officer to assign him to a wing,
Mr. Elmaati was taken to Ward A, where he was introduced to a young
Canadian citizen of Egyptian origin who was being detained there. The man
told Mr. Elmaati that he received regular visits from the Canadian Embassy.
Mr. Elmaati gave the man his passport number and his father’s phone number
in Canada and asked him to contact either his family or the Canadian Embassy
as soon as he got the chance, to advise them of his location. The man promised
�AHMAD Abou-ELMAATI’S Experience IN SYRIA AND EGYPT
that he would do so, and Mr. Elmaati later found out that someone from this
man’s family did in fact telephone Mr. Elmaati’s father.
82. Approximately 15 minutes later, Mr. Elmaati met with the state security
officer, who assigned him to Ward D of the prison. Mr. Elmaati was then
escorted past the offices of the prison manager and state security officer, down a
hallway and into his cell. Mr. Elmaati’s cell was approximately 4.6 by 6.0 metres
and housed between 8 and 10 people at a given time. There was a washroom
inside the cell. Each detainee was assigned four blankets that could be used
for sleeping. Mr. Elmaati was neither handcuffed nor blindfolded while in this
cell. The prisoners were given three meals a day, consisting of fava beans and
bread in the morning, rice and vegetables at lunch, and rice and the occasional
piece of meat at night. The atmosphere was more relaxed, and Mr. Elmaati no
longer felt that he needed to fast in order to have the strength to survive. He
was never questioned by security officials while in this cell.
Consular visits at Tora prison
83. On August 12, 2002, Mr. Elmaati received his first consular visit. A guard
came to his cell and escorted him to the state security officer’s office where
consul Stuart Bale, interpreter Mira Wassef and another embassy official were
waiting for him. The state security officer and two other Egyptian officials
(oddly, wearing huge sunglasses) were also present. Mr. Elmaati told Mr. Bale
that he had been tortured in Syria and forced to provide a false confession.
Mr. Bale seemed stunned by this information. All three Canadian officials took
notes of everything that Mr. Elmaati said. Mr. Bale asked Mr. Elmaati about his
allegation of torture, and requested details about his false confession, which
Mr. Elmaati was unwilling to discuss.
84. Mr. Elmaati could not recall whether Mr. Bale asked him about his treatment in Egypt, but stated that he had no choice but to say that he was being
treated well, since the Egyptian officials could hear and understand everything
that was being said (at least one of them spoke English) and they remained in
the room throughout the visit. Mr. Elmaati could not recall Mr. Bale asking the
Egyptian officials to leave the room so that they could talk in private. Mr. Bale
asked Mr. Elmaati if he would be willing to meet with a Canadian security
official. Mr. Elmaati responded that he would only do so on Canadian soil
(meaning at the Canadian Embassy or back in Canada). Mr. Bale apologized to
Mr. Elmaati and said that the Embassy had been trying hard to find him. This
angered Mr. Elmaati. He told Mr. Bale that, in his opinion, CSIS had known from
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A to Z where he was being detained and therefore he did not believe that the
Canadian government had experienced difficulties in trying to find him.
85. Mr. Elmaati could not recall whether Mr. Bale had explained at the outset
the purpose of the consular visit and what services and assistance he could
provide. However, Mr. Elmaati did request that the Embassy contact his family
and tell them that he was okay. He also asked to see his family as soon as possible, and requested that his family provide him with underwear, undershirts,
shorts, a robe and some other personal items. Mr. Elmaati also advised the
embassy officials that he had been experiencing some breathing problems such
as asthma, and that the colour of his skin was bad because he had had no fresh
air or sunshine since he had first been detained.
86. A few days later, the prisoners in Ward D started getting access to a closed
courtyard for thirty minutes a day. Many of the other prisoners had not seen the
sun in years and were very happy to go outside. The guards tried to intimidate
Mr. Elmaati by telling him that the outdoor privilege was being provided especially for him since he had made a complaint to the Canadian Embassy about
the prison. Mr. Elmaati believes that his subsequent transfer to the Abu Zaabal
jail in Cairo was, at least in part, designed to punish him for these complaints.
87. Around September 1, 2002, Mr. Elmaati received his second consular visit.
Mr. Elmaati’s sister and brother-in-law attended, along with consular officials
Stuart Bale and Mira Wassef. This meeting was very emotional. It took place
in the prison manager’s office in the presence of the prison manager and one
or two other Egyptian officials. This room was similar in size and set-up to the
security officer’s office in which the first consular visit had been conducted.
The Egyptian officials never left the room, and sat close enough that nothing
could be said without them hearing.
88. When Mr. Bale again asked Mr. Elmaati whether he would be willing to
meet with Canadian security officials, Mr. Elmaati again responded that he
would only do so on Canadian soil. Mr. Elmaati could not recall Mr. Bale asking
any questions about Mr. Elmaati’s treatment in the jail or asking for a private
meeting, but stated that maybe Mr. Bale knew that he could not meet privately.
The family members could tell from his face that he had been badly treated, but
never asked him about it because they knew better than to do so in front of the
Egyptian authorities. He thought it very odd that his jailers brought his family
tea when they came to visit.
�AHMAD Abou-ELMAATI’S Experience IN SYRIA AND EGYPT
89. Several weeks after this visit, around mid-September 2002, Mr. Elmaati
was told to pack up his things because he was being transferred to Abu
Zaabal prison.
Abu Zaabal prison in Cairo
90. Mr. Elmaati recognized the name Abu Zaabal. It was a place that he had
feared as a child because it was known as “a very scary place.” As Mr. Elmaati
was about to board the large prison truck to go there, he realized that all he
had were some clothes and four prison blankets, but not his other luggage.
He requested that his luggage be transferred with him; however, the prison
manager convinced him to leave his luggage behind because it would be taken
from him if he brought it to Abu Zaabal, and it was safer to keep it at Tora for
the time being. Mr. Elmaati’s hands were handcuffed in front of him throughout the journey, but he was not blindfolded. When they arrived, the prisoners
were taken into a large courtyard so that the guards could search through their
belongings. The guards seized Mr. Elmaati’s clothes and blankets, including a
cashmere blanket that Mr. Elmaati had asked to keep for his cell.
91. Mr. Elmaati was kept in a solitary confinement cell, which he shared with
another man whom he believed to be an informant for the Egyptian authorities.
This man threatened to beat him and made his stay in solitary confinement “very
bad.” This shared solitary confinement cell was approximately two by three
metres and contained a Turkish toilet and a tap. The tap often did not work
and therefore Mr. Elmaati had a plastic container that he could fill with water
when it was working. He was unable to clean the container, and noticed over
time that it developed a green film, but he still had to drink from it. Breakfast
at Abu Zaabal consisted of fava beans, which were infested with black insects
that looked like flies.
92. Mr. Elmaati was not permitted to leave the cell for several weeks, but
he was not blindfolded or handcuffed while there. From this point, in midSeptember 2002, until his release in January 2004, Mr. Elmaati would spend the
bulk of his time at Abu Zaabal prison, but would be periodically transferred to
other facilities for interrogation or as a result of a court-ordered “release.”
Court-ordered “release”
93. On October 15, 2002, Mr. Elmaati gathered his belongings and was transferred by prison truck to Lazogley state security branch because the Egyptian
court had ordered that he be “released.” Mr. Elmaati understood, from speaking with other political prisoners who had been in this cycle for years, that he
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would not in fact be released. According to the provisions of the Emergency
Law, state security could detain political prisoners without explanation unless
and until their case was put before the Supreme Court. Once a case was
brought before the Court, the Court would usually order the person to be
released immediately. The court order would be sent to the prison where the
person was being detained; prison authorities would have no choice but to grant
the release. However, instead of releasing the prisoner to the public, the prison
would release the prisoner to the local state security branch. It would act under
the pretext that the prisoner had on his “release” immediately returned to his
previous political activities and therefore had to be re-arrested. A detention
letter would then be issued and the prisoner would be sent back to jail.
94. For approximately five days, Mr. Elmaati was kept in a common cell at
Lazogley pending the issuance of a new detention letter. During this time, he
was not interrogated. On October 20, 2002, Mr. Elmaati was returned to the
same cell he had previously occupied at Abu Zaabal prison. He continued to
share it with the man he believed was an informant.
95. On November 3, 2002 Mr. Elmaati was again transferred to Lazogley state
security branch as a result of a second release order from the court. The same
process occurred as that which followed the first order: Mr. Elmaati was again
returned to the cell he had previously occupied at Abu Zaabal, which he continued to share with the informant. Mr. Elmaati recalls that, at some point, he
could no longer tolerate sharing such a small space with this man. He went on
a hunger strike for several days until prison officials agreed to move him. The
suspected informant was then transferred to a different ward at Abu Zaabal;
Mr. Elmaati never saw him again.
96. On August 20, 2003, a third judicial release order was issued for Mr. Elmaati.
This time, Mr. Elmaati was transferred to Giza state security branch, where he
stayed for three or four days in a common cell without being interrogated,
before being returned to Abu Zaabal.
Intermittent transfers to Nasr City for interrogation
97. On three or four separate occasions during Mr. Elmaati’s detention at Abu
Zaabal, he was transferred to Nasr City for interrogation. Each time the transfer was done in the same way: he would be sent in a prison truck from Abu
Zaabal to Tora prison, where he would spend a few hours in Ward D waiting
for nightfall; once it got dark a plainclothes guard would handcuff his hands
behind his back, put a hood over his head, and put him on the floor of a van
covered with blankets and a spare tire; he would then be transported from Tora
�AHMAD Abou-ELMAATI’S Experience IN SYRIA AND EGYPT
prison to Nasr City. After interrogation, he would be returned to Abu Zaabal,
through Tora prison, in the same way. Mr. Elmaati understood that because
he was under the care of the prison system there was no legal means by which
state security could take possession of him. Since Tora prison was more connected to state security than other prisons, state security could keep control of
him unofficially in this manner.
Interrogation in November/December 2002
98. This transfer to Nasr City for interrogation happened for the first time
around the end of November 2002. There was no significant questioning; they
simply reviewed old information with him and did not ask him anything new.
The style of interrogation was similar to that of his previous interrogation at Nasr
City, although not as severe. He was blindfolded, but there were no physical
beatings (other than the rough treatment of the guards pushing and kicking him
as they escorted him to and from his cell) and his hands were handcuffed from
the front. After 10 days of interrogation and solitary confinement, Mr. Elmaati
was returned to his cell at Abu Zaabal.
Interrogation and mistreatment in March 2003
99. At some point in March 2003, Mr. Elmaati was transferred in the usual
manner to Nasr City and, upon arrival, taken directly to interrogation. As soon
as he entered the interrogation room, the guards began slapping and punching
him in the face and telling him that he had been hiding his will. Mr. Elmaati
did not know what they were referring to and told them that he did not have a
will. This simply made the beating more severe. The interrogators then held
Mr. Elmaati down so that he could not move and used a metal rod of some kind
to deliver electric shocks to Mr. Elmaati’s hands, back and genitals. Mr. Elmaati
screamed and begged them to stop. He had prepared a will before his travels
regarding money that he had borrowed from friends, but his interrogators told
him that was not the will they were referring to. It never crossed Mr. Elmaati’s
mind, until his interrogators gave him a hint, that they could be referring to the
Hajj will that he had written in 1999. Mr. Elmaati told his interrogators that he
had created it when he went to the Hajj in 1999 and it did not mean anything.
They accepted this explanation and the beating stopped.
100. The interrogators switched back to asking him questions about the same
kinds of topics he had been asked about in the past. They also questioned him
about why he was refusing to cooperate with the Canadian Embassy by not
agreeing to meet with Canadian security officials. Mr. Elmaati explained that he
did not want to meet with Canadian officials for fear that it would antagonize
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Egyptian officials. His interrogator told him that should not be his concern, and
that in the future he should agree to meet with them. When the interrogation
ended, Mr. Elmaati was brought to a solitary confinement cell.
101. In the 10 days that Mr. Elmaati remained at Nasr City in March 2003, he
was subject to further interrogation. At some point after the first interrogation
with the electric shock, he endured an interrogation session that lasted for
about 10 hours. Mr. Elmaati was taken to an interrogation room, allowed to
sit in a chair, and the hood was removed from his head, although he remained
handcuffed from the front. A man, in plain clothes, sat across the desk from
Mr. Elmaati, asking him questions “from the beginning.” Mr. Elmaati felt as
though this man was reviewing the whole file and whole history of the interrogation. Mr. Elmaati thought that he recognized his interrogator from the
news and that he might be Omar Soleiman, the head of Egyptian Intelligence.
The interrogator had a pile of papers in front of him and wrote down the
answers that Mr. Elmaati gave. On one side of the room there was one-way
glass; Mr. Elmaati assumed there were people observing from the other side. It
was also very significant that they brought him tea during this interrogation. He
assumed that the tea was provided only because there were people watching
from behind the one-way glass. Periodically they would send Mr. Elmaati back
to his cell for 15-minute breaks, and then bring him back for more questioning. By the end of the 10 hours he was exhausted. Mr. Elmaati does not think
that the guards placed the hood back on his head when he was returned to
his cell.
102. Mr. Elmaati was returned to Abu Zaabal in the same manner as he was
taken, except that on this one occasion he was returned to a different part of
the prison, referred to as Liman Abu Zaabal. Mr. Elmaati was detained overnight in a solitary confinement cell that measured approximately 1.8 metres by
3.0 metres and was very old. The cell contained a bucket so that Mr. Elmaati
could relieve himself; he was only allowed to go to the washroom for one hour a
day. Mr. Elmaati assumed that he was sent to this part of the prison as some form
of punishment. He was not interrogated while at Liman Abu Zaabal. After one
night, he was returned to his regular cell at Abu Zaabal maximum security.
Interrogation in October 2003
103. Sometime in October 2003, Mr. Elmaati was again transferred in the usual
manner to Nasr City. He spent a week in a solitary confinement cell, followed
by a 30-minute interrogation, during which he was handcuffed and blindfolded.
On this occasion, the interrogator spoke in a very soft tone. He told Mr. Elmaati
�AHMAD Abou-ELMAATI’S Experience IN SYRIA AND EGYPT
that they (the Egyptian authorities) knew that the Canadians were responsible
for what had happened to him. The interrogator advised Mr. Elmaati that
he would soon be released and that he should return to Canada, stick to his
Canadian citizenship, retain a lawyer, and fight back. Mr. Elmaati promised that
he would do so. In his view, the Egyptians, unlike the Syrians, were very smart
and knew how to interrogate people.
Further consular visits
104. Mr. Elmaati received periodic consular visits throughout 2003. At each
visit, Egyptian officials remained in the room, seated very close to Mr. Elmaati
and the Canadian officials. At no time was Mr. Elmaati ever alone with Canadian
consular officials while in detention in Egypt. Mr. Elmaati could not recall
whether the Canadian officials ever requested a private meeting. Nor could he
recall whether he was asked about his treatment in Egypt. However, he recalled
being regularly asked whether he would be willing to meet with Canadian
security officials. While he appreciated the visits from Mr. Bale, he thought
that as a consular official Mr. Bale should have been more concerned about
his well-being than with whether he was willing to meet with a Canadian
security official.
105. In January 2003, Mr. Elmaati received a visit from his mother at Abu
Zaabal. The visit took place in the prison manager’s office; the prison manager
was present, as well as several other Egyptian officials. He felt very lucky to be
able to meet with his mother free from the mesh barriers that usually separate
prisoners from their visitors. The meeting was very emotional. Mr. Elmaati’s
mother commented that he was blue in colour. When the guards were not
paying much attention, Mr. Elmaati was able to whisper to his mother that
he had been treated very badly in Syria and in Egypt. At the end of this visit,
Mr. Elmaati’s mother took possession of his money, his two passports, and his
luggage. The rest of his identity cards (Canadian citizenship card, credit cards,
driver’s licence, and other cards) were never returned. He had brought his
Egyptian passport with him to Syria because he had intended to get married in
Syria and thought that he might need Arab-language identification.
106. After one of the consular visits from the Embassy, Mr. Elmaati was called
to meet with the security officer, who understood English and wanted to
know why Mr. Elmaati was refusing to meet with Canadian security officials.
Mr. Elmaati explained that he did not want to antagonize the Egyptian officials
by meeting with foreign officers without their permission. The security officer
responded that he wanted Mr. Elmaati to agree to meet with them the next time
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he was asked. The officer also asked Mr. Elmaati to act as an informant for the
Egyptian authorities, but Mr. Elmaati refused. It was shortly after this sequence
of events that he was interrogated with electric shocks at Nasr City.
107. After having been instructed by the state security officials to do so, he
agreed to meet with Canadian security officials and advised consul Roger Chen
accordingly at a consular visit in the fall of 2003. Mr. Elmaati also advised
Mr. Chen that he was experiencing pain in his knee as a result of a fall that he
had sustained while at Nasr City. Since Mr. Elmaati’s return to Canada, he has
had several operations on his right knee, including a knee reconstruction.
108. Mr. Elmaati was angry about the long delay between consular visits and
his inability to request a visit. In the long interval between visits, he wrote his
name and prison location on a piece of paper. While being transferred in the
prison truck, he threw it to a passenger in a nearby car, whom he asked to call
the Canadian Embassy. Mr. Elmaati stated that in Egypt people are sympathetic
to political prisoners and will help them when they can. He believes that an
anonymous caller did call the Embassy on his behalf.
Ministerial release
109. On January 11, 2004, the Ministry of the Interior ordered Mr. Elmaati’s
release. The Ministerial release was a true release, as compared to the courtordered release that simply resulted in re-arrest and subsequent detention. After
packing his belongings, he was transferred to Giza state security branch. When
he arrived, he was handcuffed in the front and hooded, and was then interrogated for four days. There were several sessions every day, accompanied by the
usual punching and kicking that was part of harsh interrogations. The interrogators reviewed all of the information that Mr. Elmaati had been asked about over
the preceding two years, and also asked many questions about Mr. Elmaati’s
brother. The interrogators called Mr. Elmaati’s mother and told her that they
would release him if she would disclose the location of her other son. On
his last day at Giza, the interrogator got very angry that Mr. Elmaati could not
answer any questions about his brother and pulled Mr. Elmaati’s beard very
hard, to the point where a chunk of the beard came out in the interrogator’s
hand. Thirty minutes after this incident, Mr. Elmaati was released.
110. His interrogators told him to retrieve his belongings and change into his
own clothes. Then they removed the hood from his head, offered congratulations, and told him he could go home. Mr. Elmaati took a taxi to his mother’s
home. Approximately every four days, Mr. Elmaati had to report to state security and inform them of everything that he had done and everyone to whom
�AHMAD Abou-ELMAATI’S Experience IN SYRIA AND EGYPT
he had spoken. After his release, Mr. Elmaati did not communicate with any of
the other detainees that he had met while in detention in Egypt, either while
he was still in Egypt or after his return to Canada.
111. Mr. Elmaati was hesitant to board a plane because he was afraid that
something would happen to him again. He had been informed (through articles
in the newspaper and reporters who had called him from Canada) that Mr. Arar
and Mr. Nureddin had received a Canadian escort back to Canada, and he
requested the same from the Embassy in Cairo. The Canadian Embassy refused
his request but gave him a letter to ensure that if anything happened to him in
Frankfurt while he was in transit, the Canadian Embassy would be notified.
Departure from Egypt
112. On March 7, 2004, Mr. Elmaati attempted to leave Egypt but was stopped
at airport Immigration. Mr. Elmaati understood that this was because of a conflict between the General Intelligence Service and the State Security Service.
On March 29, 2004, Mr. Elmaati successfully left Egypt.
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��8
ABDULLAH ALMALKI’S
Experience IN SYRIA
1. The following is a summary of information provided by Mr. Abdullah Almalki
in the interview of him that I conducted with assistance from Inquiry counsel
and Professor Peter Burns (special advisor to the Inquiry), on December 4, 5
and 17, 2007.
Decision to travel to Syria
2. In May 2002, Mr. Almalki, a dual Syrian-Canadian citizen, travelled to Syria
to visit his sick grandmother. It was his first visit to the country in 15 years.
3. Mr. Almalki was not particularly concerned about the prospect of travelling
to Syria, even though he had had several encounters with intelligence agencies
in Canada and Malaysia. In January 2002, Mr. Almalki had been interrogated by
Malaysian officials at the Singapore/Malaysia border. He told his interrogators
that he did not like being treated like a criminal and that if he was not welcome
in Malaysia, he would cut his trip short and go back to Canada. His interrogators
responded by saying that the Canadian government had asked the Malaysians
to stop and interrogate him. At some later date, Mr. Almalki contacted the
Malaysian authorities to try to clear his name and was told that the Canadians
had asked the Malaysians to arrest him and hand him over to the Canadians.
4. Mr. Almalki’s main concern about travelling to Syria, though one that he did
not consider especially significant, was his military service obligations, which
he had successfully deferred when he was in Canada. With the assistance of
his father, Mr. Almalki had completed and sent to Syria the necessary papers,
and had obtained a deferral that was valid for three years.
5. Before Mr. Almalki travelled to Syria, friends and relatives told him that
everything had changed in Syria, and that the circumstances prevailing in the
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1980s (when Mr. Almalki had lived there) had given way to a more liberal and
open society.
Arrival in Damascus and detention at the airport
6. Mr. Almalki arrived at the Damascus airport at approximately 4:00 p.m. on
May 3, 2002. His mother and a cousin were waiting for him in the airport’s
VIP lounge. Shortly after he joined his mother and cousin in the VIP lounge,
a uniformed officer approached his cousin and advised him that Mr. Almalki
would have to go with the officer to the security office. Mr. Almalki and his
cousin followed the officer to what Mr. Almalki understood to be the airport’s
Office of the Head of Security.
7. When they arrived at the Office of the Head of Security, there were several
uniformed officers in the room. His cousin started speaking with the officers
about why they were interested in Mr. Almalki. When his cousin demanded
information about what was going on and why Mr. Almalki had been stopped,
the officers insisted that his cousin leave the room.
8. Mr. Almalki saw the officers reviewing a list, on which his name apparently appeared. He also overheard one of the officers refer to a report that
had been received from “the Embassy” on April 22. Mr. Almalki did not know
which Embassy the officer was referring to, but he assumed it was the Canadian
Embassy. This assumption was based on his prior interactions with intelligence
and police agencies in Malaysia and Canada.
9. Mr. Almalki was then taken to what he thought was a detention room in the
airport, where two officials in airport uniform asked him questions about where
he had travelled from, when he had last been in Syria, his parents’ names and
his profession and business. The officials told him that he was wanted by the
Far Falestin intelligence branch, and they explained that the branch was probably interested in seeing him because he had been away from Syria for such a
long time.
10. Mr. Almalki did not, at that time, ask if he could contact a lawyer. When
he asked if he could see his cousin to tell him where he was being taken, the
officers refused, and told him that his cousin already knew where Mr. Almalki
was going.
11. Though Mr. Almalki was aware that the Far Falestin branch was not a very
nice place, he assumed that his family would try to find out where he was going
and take care of things. He also thought that since he had nothing to hide and
�ABDULLAH ALMALKI’S Experience IN SYRIA
had done nothing wrong, he would be able to sit down with any logical person
and clear up any problems.
Transfer to Far Falestin
12. At approximately 5:00 or 6:00 p.m. that same day, the two airport officials took Mr. Almalki from the airport detention room to a bus headed for
Far Falestin (and other unknown destinations). Prior to boarding the bus,
Mr. Almalki was instructed to exchange some of his money into Syrian lira,
and the airport officials escorted him to the airport exchange booth so that he
could do so. The airport officials told him that he would need the money to
pay for a cab from Far Falestin to wherever he would be staying in Damascus.
Mr. Almalki believed that the officials might also be expecting him to give them
some money.
13. The bus ride to the gates of Far Falestin took approximately 30-45 minutes.
The two airport officials accompanied Mr. Almalki on the bus. When he arrived
at Far Falestin, Mr. Almalki was taken to an interrogation room. He was told
that he would probably be staying for a few days, and was directed to take the
things he needed from his luggage. He removed a pair of pants, a fleece vest,
underwear, a toothbrush, toothpaste, a comb, a handkerchief and a sarong from
his bag. He also removed some Tums and Tylenol, but was not allowed to have
them until the next day. The rest of his luggage and possessions, including
the laptop computer and PalmPilot that he used in his business, were taken
from him.
Interrogation and treatment on the first day
14. Mr. Almalki was then blindfolded and taken to another interrogation room.
He was told by an interrogator that he was not in Canada anymore, that he
would not have a lawyer and that he had to speak. Mr. Almalki’s Syrian interrogator then asked him a question to the effect of “Which treatment do you prefer?
Do you prefer the friendly treatment or the other one?” Mr. Almalki responded
that he preferred the friendly way. Mr. Almalki then said that if the interrogator
gave him 15 minutes, he could explain things. He began to speak, referring to
one of his Muslim-Canadian friends, and the concerns that CSIS had expressed
to him when they interviewed him shortly after 9/11. The interrogator did not
want to hear his explanation however, and cut him off before he could finish.
The interrogator began to question him about various individuals, including
the Muslim-Canadian friend Mr. Almalki had already told them about, as well as
others called “Wadah” or “Mamdouh” and “Ahmad Abou-Elmaati.” Mr. Almalki
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insisted that he did not know these other individuals. (Though Mr. Almalki
knew Mr. Elmaati, he knew him by the name “Ahmad Badr” and did not recognize the name “Ahmad Abou-Elmaati.”) The situation then escalated very
quickly and the interrogator slapped Mr. Almalki across his face. Mr. Almalki
still remembers that slap very clearly. He said that with that slap, everything
changed; the slap crushed his humanity and destroyed his dignity.
15. Over the next seven to eight hours, Mr. Almalki was interrogated while
being severely beaten. He was told to take off his shoes, socks and jacket, and
lie down on his stomach with his legs at 90 degrees to the floor and his hands
behind his back. Once he was in that position, the interrogators started hammering the soles of his feet with an electrical cable. It felt like they were pouring lava on the soles of his feet or immersing his legs in fire. It was unbelievably
painful, and the pain caused him to flip over onto his back and grab his legs.
When he did so, the interrogators started shouting at him to turn over. When
he turned back onto his stomach, someone stepped on his head and another
person stepped on his back, so that he could not flip over again. While one
interrogator lashed him with the cable, others kicked him with their woodensoled shoes. The lead interrogator threatened Mr. Almalki with other forms of
mistreatment, including the tire (or “dulab”, described in more detail below),
the chair, electricity, and fingernail-pulling. Periodically throughout the interrogation session, Mr. Almalki was forced to stand up and jog in place while his
interrogators poured cold water on his hands and feet. He later learned that
the purpose of this was to restore feeling to his legs and ensure that he would
continue to feel pain.
16. While Mr. Almalki was being beaten, several interrogators asked him questions. They asked him what he sold to the Taliban and to al-Qaeda, where he
trained, what he did when he was in Pakistan, what kind of plot he had been
planning in Canada, and what sort of relationship he had with Osama bin Laden
and Khadr. They insisted that he was Osama bin Laden’s right-hand man. When
Mr. Almalki answered these questions truthfully, the interrogators continued to
beat him; so, in an effort to stop the beating, he lied and told them that he met
Osama bin Laden in Pakistan and that he was bin Laden’s left-hand man. When
he gave those answers, the beating stopped.
17. The interrogators left Mr. Almalki, blindfolded and in pain, in the interrogation room. When they returned sometime later, they swore at him, and insulted
and humiliated him. They accused Mr. Almalki of lying about meeting Osama
bin Laden in Pakistan (they said that Osama Bin Laden had not been in Pakistan
at the same time as Mr. Almalki), and started to beat him again, this time more
�ABDULLAH ALMALKI’S Experience IN SYRIA
intensely than before. The beating continued until he passed out. When he
came to, a man was checking his blood pressure, and one of the interrogators
brought him half a sandwich.
18. Around dawn, one of the prison guards removed Mr. Almalki’s blindfold.
Mr. Almalki saw that he had blood all over his legs. The guard told Mr. Almalki
to take off all his clothes, and he stood in his underwear as the guard searched
his body. At one point, the guard told Mr. Almalki to pull down his underwear
so that he could search that part of his body as well. Mr. Almalki then put his
clothes back on and the guard took him to cell number 3 in the basement of
the Far Falestin prison.
19. Months after this first day of interrogation and torture, Mr. Almalki’s interrogators told him that he had received over a thousand lashes that day.
Interrogation on the second day
20. Following his interrogation on the first day, Mr. Almalki lay on the floor of
cell number 3 for a few hours until he was called back to the interrogation floor.
When he arrived, he was immediately blindfolded and then interrogated, though
not beaten or tortured, for almost 19 hours without any break. The Syrian
interrogators asked him about his family, certain people in Canada (including
one of his Muslim-Canadian friends, Ahmed Said Khadr, and Mr. Elmaati) and
his business activities. The interrogators wanted to know everything about his
life. During the entire 19-hour interrogation, Mr. Almalki was seated on the floor
with his legs crossed and was not permitted to get up from this position or to
go to the bathroom. He drank almost nothing that day, and was not offered any
food, but was too exhausted to care about food and drink.
21. Following his interrogation, Mr. Almalki was sent back to his cell and, for
the first time since he arrived at Far Falestin, was permitted to use the washroom. Mr. Almalki described the washroom as torture by itself. It was about
one square metre large, and about 190 centimetres high, and had a tap and a
Turkish toilet. When the door to the washroom was shut, it was almost totally
dark. Outside the washroom were two broken sinks. Generally, Mr. Almalki
was permitted only two minutes, three times each day, to use the washroom. In
that short time, he had to wash the urine bottle that he kept in his cell, fill up his
water bottle, clean his food containers and do everything else he needed to do
in the washroom. If he did not emerge from the washroom after two minutes,
the guards would start calling him names, humiliating him, and pushing the
door inwards so as to crush him. On Fridays at noon, Mr. Almalki was usually
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allowed 10 minutes to use the washroom, during which time he would do all of
his regular washroom activities, and take a bath and wash his clothes.
Interrogation and treatment on the third day
22. On the third day of his detention at Far Falestin, Mr. Almalki was called
to the interrogation floor at about 8:00 a.m., blindfolded, interrogated and tortured. When he got to the interrogation room, the lead interrogator from the
first day told Mr. Almalki to strip down to his shorts. He was forced into a car
tire, his neck shoved against an inner rim, his back bent double and the backs
of his knees against the other side of the inner rim, to be subjected to a torture
method known as “dulab.” Once in this position, he was questioned while his
interrogators lashed his feet, head and genitals and kicked him. Throughout
this session, the interrogators poured cold water on most of his body. The
questions on that day focused on one of Mr. Almalki’s Muslim-Canadian friends.
The interrogation and torture continued for about three or four hours, and only
stopped when Mr. Almalki falsely agreed, under torture and at the interrogators’
insistence, that his Muslim-Canadian friend had a “jihadi mentality.”
23. When the interrogation was finished, and Mr. Almalki was removed from
the tire, he could not move his body from the waist down. The interrogators
poured cold water on him (as they had on the first day) but he was not able
to stand up and jog in one place. Someone brought him lunch, consisting of
chicken, bulgur and an orange. He found it extremely painful to eat the orange;
it felt as if the screaming had stripped the skin off his mouth.
24. After lunch, the interrogators returned and Mr. Almalki was interrogated until approximately midnight. At midnight, the interrogators removed
Mr. Almalki’s blindfold, helped him stand up and walk, and sent him back to
his cell. Mr. Almalki could not walk to the cell on his own; he had to lean up
against the wall for support.
25. While Mr. Almalki was left in the tire for several hours that day, he later
learned that interrogators in Far Falestin usually did not leave a prisoner in the
tire for more than 15 minutes. When Mr. Almalki asked an interrogator, in June,
“Why did you do all that?,” the interrogator showed him a report and suggested
that Mr. Almalki had been tortured and interrogated based on that report and
the manner in which it characterized him. While the interrogator covered up
most of the report, Mr. Almalki could see that it was in Arabic. He also saw a
line that referred to him as an “active member of al-Qaeda” with the code name
“Abu Wafa”, and he recalls the interrogator saying something to the effect of :
“We got that you are even an active member of al-Qaeda.”
�ABDULLAH ALMALKI’S Experience IN SYRIA
26. “Abu Wafa” was a nickname that Mr. Almalki’s father had given to him
when he was born, and Mr. Almalki believed that the only place where that
name was written was the inside cover of a Koran that Mr. Almalki stored in
his home in Ottawa. Mr. Almalki told the Syrians about the name “Abu Wafa”
early in his detention, because the Syrians had asked him for every name he had
ever been called.
Late May and June: less interrogation, less mistreatment
27. As time passed, Mr. Almalki’s treatment improved and his interrogation
sessions became shorter. He was interrogated without the blindfold; the interrogators stopped calling him names; and he was able to speak with his interrogators more freely, and ask them why he was detained, when he might be
released and whether they had contacted his family.
28. During an interrogation session in late May or early June 2002, a person
whom the interrogators claimed was from Canada and knew Ottawa, entered
the interrogation room. Mr. Almalki had his back to this person and so could
not see him. The man spoke Arabic with an accent that Mr. Almalki could not
recognize, and he told Mr. Almalki that he knew him from Ottawa. Mr. Almalki
asked the man whether he could name Ottawa’s most important building, but
the man could not.
29. On the 40th day of Mr. Almalki’s detention (in the middle of June 2002), he
was called up to the interrogation floor and blindfolded. He became worried
because he had come to associate the blindfold with torture. When he arrived in
the interrogation room, a voice that Mr. Almalki had not heard before started to
ask him questions about his business, companies he dealt with, names of relief
organizations and bank accounts. At one point during the interrogation, the
interrogators removed Mr. Almalki’s blindfold and showed him a typed report,
which was written in Arabic but contained an English acronym. Mr. Almalki
believes that this was the same report as the one discussed in paragraph 25,
above. The report was about 10 to 20 pages thick and the interrogators referred
to it as “Questions.” It included information about companies that Mr. Almalki’s
business had shipped to, and that CSIS had asked him about during an interview in 2000. Mr. Almalki had not, during previous interrogations, provided
the names of these companies to his Syrian interrogators because they were
not names that he remembered at the time; nor had he stored these names in
his laptop computer or PalmPilot. The report also referred to the name of a
Toronto resident. This was a name that Mr. Almalki had not mentioned to the
Syrians in earlier interrogations (because the name did not cross his mind at
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that time) or stored in his laptop or PalmPilot. The interrogators did not tell
Mr. Almalki where this report came from, but one of them said, “This is what
they are sending to us about you.”
30. On the 45th day of Mr. Almalki’s detention, one of Mr. Almalki’s interrogators told him that he would be released before the end of the summer
of 2002.
31. At points during his interrogation at Far Falestin, Mr. Almalki heard several
of his interrogators say that they had no evidence to suggest that he had done
anything wrong. For example, he heard one interrogator say something to
the effect of “Oh, he’s a good guy. There is nothing against him.” Mr. Almalki
asked the interrogator why, if they had nothing against him, he was still being
detained. He was told that Canadians said he had escaped from Canada and that
the Canadians wanted him. Mr. Almalki asked if the Canadians gave them any
proof that he was wanted in Canada or evidence of the accusations against him,
and was told not to worry, and that the Syrian officials did not take anything at
face value.
Interrogation and treatment in July
32. In mid-July 2002, after almost a month and a half of improved treatment,
shorter interrogation sessions and indications that release was imminent,
everything changed. On the evening of July 17, an interrogator blindfolded
Mr. Almalki, and then spent two hours slapping him and calling him a liar before
returning him to his cell for the night.
33. The next morning (July 18), he was summoned to an interrogation room
where he was interrogated, beaten and verbally abused until past midnight. The
interrogators forced him to stand on one leg facing the wall with his arms up in
the air. They slapped, punched and kicked him while calling him a liar, questioning him about his “training” in Afghanistan and membership in al-Qaeda,
and insisting that he tell them what he had not told them. They beat him until
he bled from his mouth and ear and lost his balance. When he could not regain
his balance, the interrogators forced him into the same position he had assumed
on the first day—lying flat on his stomach with his legs at 90 degrees to the
floor—and they took turns lashing him with a cable, while continuing to insist
that he had attended a training camp and that his company supplied al-Qaeda
and financed Osama bin Laden. To make the beating stop, Mr. Almalki finally
falsely told his Syrian interrogators that he had gone to a training camp. The
interrogators then questioned him about the training camp, asking him the name
of the camp, and the names of the individuals who had attended the camp with
�ABDULLAH ALMALKI’S Experience IN SYRIA
him and trained him. Mr. Almalki made up answers to some of their questions
about the training camp; when he could not come up with answers, he was
tortured. Eventually, he told his interrogators that he did not actually attend a
training camp, and that he had only admitted to attending a camp in order to
stop the torture.
34. The interrogators continued to question Mr. Almalki until after midnight.
They threatened to starve him, keep him awake and beat him so badly that he
would be hospitalized. They also forced him to write out and then sign a document containing all the information that he had not already shared with them.
In order to fill a page with writing, Mr. Almalki wrote several untrue statements
that he believed would convince his interrogators that he had done something
illegal during his life.
35. On the morning of July 19, Mr. Almalki was called back to the interrogation
floor. He was forced to remove his shirt and hang backwards by his hands from
a metal rail affixed to the wall. His interrogators then questioned him, lashing
him with a belt if he did not answer a question immediately. Mr. Almalki’s hands
kept slipping from the metal rail, causing him to fall to the ground and his interrogators to intensify their beating. Eventually, Mr. Almalki’s interrogators tied
his hands to the metal rail so that he was suspended and could not slip to the
floor, and continued to question and lash him. Mr. Almalki’s hands became so
raw that he could not see skin, only blood and flesh. During the interrogation,
the interrogators gloated about the situation Mr. Almalki was in; they said that
though he had left Syria to go to Canada for a better life and better human rights,
the Canadian government was behind what he was going through in Syria.
36. Mr. Almalki remained suspended from the metal rail for at least two hours,
until he was so drained of energy that he could not speak or move any part of
his body. His interrogators cut him free and he fell, semi-conscious, to the floor.
The pain in his hands was unbearable. While he lay in a heap on the floor, one
of the interrogators sat with him, forcing him to stay awake, and threatening
to put him in “the chair.” The interrogator told him that had it not been for a
new report that the Syrians had received, he would have been a free man.
37. The following morning (July 20), Mr. Almalki was called to the interrogation floor and questioned about a list of flights that a “computer guy” at
Far Falestin had allegedly found in Mr. Almalki’s computer. The interrogator
accused him of being a member of al-Qaeda and using the flight lists to plan
another 9/11 terrorist attack. No flight list was ever shown to Mr. Almalki, and
he told his interrogator that there was no such list on his computer. The interrogator also referred to the pictures of Mr. Almalki’s children that were stored
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on the laptop and told him that if he confessed to being al-Qaeda, he would see
his children.
38. Some months later, Mr. Almalki asked one of his interrogators why he
had been treated so brutally in July. The interrogator responded by showing
him portions of a report that, according to the interrogator, had been provided
by Canada. The report was in Arabic, and said that a search of Mr. Almalki’s
parents’ home in Canada had turned up weapons and proof of links to al-Qaeda
and Osama bin Laden. It also said something to the effect of “we hope that he’s
handed over to us.”
Interview by the Malaysians
39. During the month following the July 2002 torture and interrogation sessions, Mr. Almalki was regularly interrogated, threatened with torture and humiliated, but was not physically beaten. This relatively uneventful period ended on
the morning of August 24, 2002, when Mr. Almalki was taken to an interrogation
room, questioned and beaten with a cable. The next morning (August 25), a
guard told him to get dressed and cleaned up. He was taken to a white car
waiting outside, handcuffed and driven, along with one of the lead interrogators
and the prison manager, to what Mr. Almalki later learned was Far’ Ma’alount,
or the Branch of Information. When they arrived, Mr. Almalki was blindfolded
and led to what he understood to be the office of the director of the Branch
of Information. Several people whom Mr. Almalki believed to be Malaysian
officials were in the office, including one who was seated behind a table. The
man behind the table asked Mr. Almalki questions about his wife (who was
from Malaysia), his business, Pakistan, Afghanistan and Malaysia. At one point,
the interrogator asked him something to the effect of: “Why did you do 9/11?”
Some of the Malaysian interrogator’s questions implied that Mr. Almalki was a
member of al-Qaeda; when Mr. Almalki corrected him and told him that he was
not a member of al-Qaeda, the interrogator seemed surprised.
40. During the interrogation, Mr. Almalki could see that the Malaysian interrogator had two reports—one in English marked “Secret” and the other in
Malay. He observed that one page of one of the reports listed several trade
names that Mr. Almalki had tried (unsuccessfully) to register in Canada, and
that Mr. Almalki believed could only have been obtained from his filing cabinet
in Ottawa; they had not been stored on his laptop or PalmPilot and he had not
shared them with Malaysian authorities or with his Syrian interrogators. (He
had not mentioned them to his interrogators because they were not so important as to be at the forefront of his mind, and he did not believe that they were
�ABDULLAH ALMALKI’S Experience IN SYRIA
relevant.) Mr. Almalki believes that this information linked the reports and the
Malaysian interrogation to the Canadian government, and that the Malaysian
officials questioned him in Syria at the request of the Canadian government,
or at least based on information that the Malaysian officials received from the
Canadian government.
41. At the end of the Malaysian interrogation, Mr. Almalki asked his interrogator why the Malaysian authorities had come to Syria to interview him rather
than asking him these questions when he was in Malaysia. He was told that
the Malaysian authorities only became interested in him after he was captured
by the Syrians. Also at the end of the interrogation, Mr. Almalki’s blindfold was
removed and the Malaysian officials asked him to smile before taking a photograph of him.
42. Mr. Almalki believes that had the Malaysian officials not come to Syria to
interview him on August 25, he would not have been tortured on August 24.
43. Following the Malaysian interrogation, Mr. Almalki was taken back to Far
Falestin, and was called for interrogation. His interrogator told him that the
Canadians had asked if they could see him and question him directly, but that it
was up to the kiada (or leadership) to decide whether to grant the Canadians
access to him.
Interrogation in early October
44. For about one week between September 30 and October 9, 2002,
Mr. Almalki was intensely interrogated about Maher Arar and threatened with
torture. Mr. Almalki’s interrogators told him that Mr. Arar was detained and
would be transferred to Syria soon, and that Mr. Arar would be asked to confirm all of the information that Mr. Almalki had provided. They threatened to
torture Mr. Almalki if they found out that any of the information he provided
was inaccurate.
Interrogation in November and December
45. On November 24, 2002, Mr. Almalki was called to the interrogation floor
and questioned by an interrogator he had never seen before. The interrogator asked him about Ahmed Said Khadr, one of Mr. Almalki’s Muslim-Canadian
friends and someone named Fadel. The interrogation was not hostile, and
Mr. Almalki was not tortured or threatened with torture.
46. Mr. Almalki was interrogated again on November 28, and the questions
that day focused on his alleged visits to Internet cafes in Ottawa and his business
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shipments. When asked if he visited Internet cafes in Ottawa, Mr. Almalki told
his interrogators that he did not know of any in Ottawa, but that he might have
gone to a library or bookstore once or twice when the Internet connection at
home was malfunctioning. He was asked to tell his interrogators about all the
items that he shipped by sea during the entire life of his business. His interrogators were especially interested in his practice of shipping equipment from one
country to another country without first shipping the equipment to Canada,
and insisted that Mr. Almalki had used this shipping technique in order to hide
something. Mr. Almalki explained to them that that such shipping techniques
were part of international business practice, and also tried to explain to them
how business practices in Syria differ from business practices in Canada. Upon
hearing Mr. Almalki’s explanation, one of his interrogators insisted that it was
not true “because the information that we have from the Canadian consul
says otherwise.”
47. For several days, Mr. Almalki’s interrogators continued to ask him about
his business’ shipping practices. At one point, after his interrogator asked him
several times about what he had shipped by sea, Mr. Almalki observed that the
interrogator was looking at or reading from a document, and suggested that the
interrogator read aloud from the document so that Mr. Almalki could provide
a specific explanation. The interrogator read a passage about the American
army searching a ship for equipment that Mr. Almalki had allegedly sold to
terrorist groups. The passage said that this would be proof of Mr. Almalki’s
guilt. Mr. Almalki told the interrogator that this passage clearly acquitted him
and could not possibly be true. He said to the interrogator: “Why would they
need proof of my guilt if they have…evidence?” He also pointed out to the
interrogator that he had been detained for the past eight months and could not
have bought or sold anything, transferred any money, or made arrangements
to have anything shipped. His interrogator responded, “Maybe they messed up
in the translation,” but did not tell Mr. Almalki what the document had been
translated from.
48. At some point in late November or early December 2002, Mr. Almalki
observed one of his interrogators reviewing a typed report entitled “Meeting
with the Canadian delegation November 24th 2002” and addressed to the head
of intelligence and head of Far Falestin. The report was written in Arabic, and
said something to the effect of “…has been under surveillance since 1998.”
Mr. Almalki believed that this was the same report from which his interrogator
had read the passage about the American army. He also believed that all of his
interrogations in November and December had been based on this report.
�ABDULLAH ALMALKI’S Experience IN SYRIA
49. At another point in November or December, Mr. Almalki asked his interrogators when they were going to release him. He was told that he would be
released when the Canadians wanted him to be released.
50. At some points during his interrogations in November and December,
Mr. Almalki was threatened with torture.
Interrogations in January, February and March
51. On January 16, 2003, Mr. Almalki was called to the interrogation floor
and questioned on the basis of what Mr. Almalki observed to be a two-page
typed list of questions and a half-inch thick report. According to Mr. Almalki,
the interrogator told him that the questions were provided by Canada, and that
Mr. Almalki had to answer them so that the interrogators could send the answers
to Canada. The questions asked that day included questions about where he had
been trained and what he had been trained on. There were also a lot of questions about names of people, most of which Mr. Almalki did not recognize.
52. Mr. Almalki was not beaten during the interrogation session on January 16;
the interrogator did not touch him. However, throughout the interrogation session, the interrogator was going into adjacent interrogation rooms to interrogate
and torture other prisoners. Mr. Almalki could hear the screams of the prisoners
being tortured, and the sound of slaps and the cable hitting their flesh. When
the interrogator returned from these adjacent interrogation rooms, Mr. Almalki
was frightened because the interrogator’s face “spelled trouble.”
53. About two days later, Mr. Almalki was called back to the interrogation
floor. He was told that the Canadians said he was very smart and that there was
no evidence against him because he knew how to cover his tracks. The interrogator threatened him that day—he said that if he ever found out that Mr. Almalki
had lied to him, everything that Mr. Almalki had experienced would be nothing
compared to what the interrogator would do to him. The interrogator also said
that he would never trust another detainee again and that Mr. Almalki would
“cause a huge amount of misery for everyone downstairs.”
54. During an interrogation in February 2003, an interrogator observed that
Mr. Almalki looked very weak. Mr. Almalki told the interrogator that he had had
diarrhea for weeks, but the prison staff would not give him any medication for
it. During the same interrogation, the interrogator said that the Canadians were
still asking to see him, but that the decision to grant access had to be made by
the leadership.
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55. Following this February interrogation session, the prison nurse visited
Mr. Almalki and gave him some medication for his diarrhea. The prison nurse
observed that Mr. Almalki had many large pimples on his back, but did not do
anything to treat the pimples.
56. In March 2003, Mr. Almalki was called to the interrogation floor and
asked only one question: “Did you fund terrorist organizations in Canada?”
Mr. Almalki said he did not, and told his interrogators that they had asked him
this question before. His interrogators responded that they had not yet asked
this question officially. On the same day, Mr. Almalki’s interrogators told him
that a person from the Canadian Embassy, whom the interrogator had met many
times, wanted to see him and see how he was doing. The interrogator described
the man as a nice man in his 60s, short and bald with some grey hair.
57. Mr. Almalki had always hoped that someone from the Embassy would visit
him in prison. He thought that regular visits from a foreigner would cause the
prison officials to treat him better or even release him. On the other hand, he
did not want to ask his interrogators if he could meet with an Embassy official,
out of fear that they would get the impression that he was “dissing” the Syrians
and then retaliate or punish him in some way. He was afraid to give the Syrians
any impression that he was less Syrian than Canadian or that he valued his
Canadian citizenship more than his Syrian citizenship.
58. Mr. Almalki continued to be detained at Far Falestin from March until
August 2003, but was not interrogated during that period. At one point in the
spring or summer of 2003, one of the prison guards beat Mr. Almalki and threatened to take him to the jail manager. In August 2003, Mr. Almalki was transferred to the Far’ ‘al-Tahqia al-‘Askari branch and then to Sednaya branch.
Life at Far Falestin
59. Mr. Almalki lived alone in Far Falestin’s cell number 3 for approximately
482 days. According to one of Mr. Almalki’s interrogators, this was an unusually long time for a person to be kept in solitary confinement in Far Falestin;
most prisoners were in solitary confinement for only a few weeks or months.
Mr. Almalki described the cell as dark and extremely small. It was approximately 1.75 metres deep, 85 centimetres wide and two metres tall, and was
separated from the corridor by a steel door. Near the top of the steel door was
a small opening onto the corridor, through which a few rays of artificial light
entered the cell. Mr. Almalki could not see the corridor through the pocket.
Between the bottom of the steel door and the floor was a gap large enough to
�ABDULLAH ALMALKI’S Experience IN SYRIA
permit rats to enter the cell. Mr. Almalki had to use some of his belongings and
a blanket to block the gap and stop the rats from entering.
60. The floor of the cell was covered by filthy, lice-infested blankets. During
much of Mr. Almalki’s detention, the cell was filled with cockroaches, some as
long as 10 centimetres.
61. The back wall of cell number 3 was shared with the women and children’s
cell. Mr. Almalki could hear voices from that cell, and always paid careful attention to the voices out of fear that his interrogators might follow through with
their threats to detain and interrogate his mother or somehow lure his wife from
Malaysia to a Syrian prison.
62. In addition to hearing the voices of women and children in the neighbouring cell, Mr. Almalki constantly heard screams from the interrogation floor.
He said that hearing these screams was sometimes harder than certain types
of torture.
63. The cell was extremely cold in the winter and hot in the summer. During
the winter Mr. Almalki took baths in icy cold water, which he found extremely
painful. To keep warm in the winter, he would wear his underwear on his head,
even though he considered this to be humiliating, and his socks on his hands.
64. Mr. Almalki was given food containers to hold the food that the prison
guards distributed, a few water bottles and a one and a half-litre urine bottle.
Mr. Almalki cleaned his food containers, filled his water bottle and emptied his
urine bottle in the washroom. Since this left him little time to do other business
in the washroom, he told one of the guards that he was going to stop eating.
That guard, whom Mr. Almalki described as one of the nicer guards, said that if
Mr. Almalki agreed to eat, he would, during his shift at least, give him an extra
minute in the washroom.
65. Breakfast was distributed to detainees between 7:00 a.m. and 7:30 a.m.
daily, lunch at 1:00 p.m. daily, and dinner at 4:00 p.m. daily. Breakfast usually
consisted of tea, olives, a spoon of jam, yogurt or sesame seed paste and, about
once per week, a boiled egg. At lunchtime, the prisoners were offered rice or
bulgur, some boiled vegetables, a piece of seasonal fruit and, occasionally, some
chicken or red meat. When chicken or red meat was served, the guards would
typically take most of the good meat, and leave only the fat, skin or bony pieces
for the prisoners. Dinner usually included three loaves of pita bread, one vegetable piece (such as cucumber or tomato), a piece of boiled potato and lentil
soup. Mr. Almalki avoided the lentil soup, the chicken and the olives, because
he found that they caused him diarrhea.
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66. As noted above, Mr. Almalki filled water bottles with water from the prison
washroom. He drank this water and used it to wash some of the food that he
received. For a long period of time, he had only one water bottle to drink from.
This posed a problem in the summer of 2002, when the water supply to the
washrooms was cut off for as long as 20 hours at a time. During those long
periods without running water, he survived on only one bottle of water.
67. Very occasionally, Mr. Almalki was given an opportunity to purchase provisions such as soap, clothing, clothing detergent, a toothbrush and toothpaste,
and food (such as sesame paste, cheese, sardines, tuna, cooking oil and zatar),
and pay for them using the money that he had with him when he arrived at Far
Falestin as well as money he was later given by his family. This opportunity was
not offered on a regular basis, but usually only after he pleaded, sometimes for
several months, with the prison guards. The quantity of goods that he could
buy at any one time was limited to what he could store in his small cell.
68. Because Mr. Almalki’s clothes became infested with lice, he had to wash
and change them regularly. He changed his underwear and undershirt once per
day. He washed his clothing by soaking it with soap in a food container and
then hanging it to dry from a string which he affixed to the ceiling of his cell.
69. Mr. Almalki at first kept track of his detention and relevant dates by markings on the cell wall. When this became impossible (in about June 2002), he
printed a calendar onto a piece of Kleenex. He recorded important events, such
as days on which he was interrogated or tortured, by marking the date with a
dot. Mr. Almalki stored the Kleenex calendar in the pocket of his cargo pants.
Mr. Almalki managed to preserve this Kleenex through his detention. When he
was released he took the Kleenex back to Canada and photocopied it, but has
since lost the original. He provided a copy of the Kleenex to the Inquiry.
70. On at least two occasions, Mr. Almalki observed what he believed to be
a prison inspection. In each case, he heard the guards frantically and quickly
cleaning up the prison, followed by a visit from a person who inspected and
asked questions of the prison manager about parts of the prison. For example,
the inspector asked whether the women had access to hot water. Mr. Almalki
also heard one of the inspectors ask whether the cells he saw were washrooms, and the prison manager responded that they were solitary confinement
cells. The inspector then asked the prison manager how long prisoners typically stayed at the prison, to which the prison manager responded that prisoners stayed only two or three weeks until their interrogation was over. This
frustrated Mr. Almalki, because by that time he and other prisoners had been
detained in Far Falestin for over one year.
�ABDULLAH ALMALKI’S Experience IN SYRIA
71. Very rarely, Mr. Almalki and his fellow prisoners would be allowed to go
outside to the prison’s “breathing yard” for 5 to 20 minutes at a time. The guards
escorted the prisoners out to the yard one at a time so that they could not see
each other or interact with one another. When Mr. Almalki went to the breathing yard, which he was permitted to do only four times during his detention at
Far Falestin, he took the blankets from his cell floor along with him in order to
shake the dust out of them and expose them to the sun.
72. Once per week, the guards shaved the prisoners’ beards. Mr. Almalki
said that being shaved was frightening because some guards would deliberately
cut and bruise him with the clipper, and make shaving as hard and painful
as possible.
Family visits to Far Falestin
73. Mr. Almalki believes that his mother and cousin, who greeted him at the
airport on May 3, 2002, learned that day that he had been taken to Far Falestin
and then immediately left the airport and drove to the prison. Mr. Almalki
believes that his cousin tried to speak with the Director of Far Falestin, but
that there was nothing much his family could do because his situation was an
international issue.
74. During his detention at Far Falestin, Mr. Almalki received five family visits.
Mr. Almalki did not, at the time of the visits, know who arranged them or how
they came about, but he later learned that his uncle’s friend, who was a Lewa’a
(General) in the army, had, at the family’s request, asked officials in the intelligence branch to permit family members to visit him.
75. Mr. Almalki’s first visit, on July 7, 2002, was from the same cousin who
had met him at the airport. The two men spoke for about 15 minutes in the
prison manager’s office, while the prison manager sat about two metres away
and listened to their conversation. During the visit, Mr. Almalki’s cousin asked
Mr. Almalki how he had been treated. Mr. Almalki told him that while it was
rough at the beginning, he was being treated fine and everything was good.
Mr. Almalki did not want to tell his cousin about the torture because he thought
he was going to be released soon and did not want to jeopardize his release. His
cousin offered Mr. Almalki money, but Mr. Almalki refused it, again because he
thought his release was imminent. His cousin told Mr. Almalki that he would
have to be patient because his situation was an international issue and because
the Canadians wanted him. Mr. Almalki did not ask his cousin whether the
family had contacted the Canadian Embassy. He reasoned that because his
cousin was not Canadian, he would not expect him to have contacted the
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Embassy. He also believed that the Canadian government was behind his detention and mistreatment.
76. The day after the July 7 visit, one of the guards told Mr. Almalki that it
was very rare for a person in solitary confinement to receive a visit, and that
Mr. Almalki should consider the visit as a sign that the investigation was over
and that things were looking very good.
77. At some point after the July 7 family visit, Mr. Almalki’s family sent him a
package of items (including clothes and some food) and deposited some money
in his account with the prison manager.
78. Mr. Almalki received his second family visit in November 2002. Once again,
he and his cousin met in the prison manager’s office while the prison manager
monitored the meeting. Over the prison manager’s objections, Mr. Almalki told
his cousin that he had been beaten severely, and described the conditions of his
cell. His cousin politely criticized the prison manager for subjecting Mr. Almalki
to mistreatment, and said that Mr. Almalki looked like he was not getting food.
Mr. Almalki told his cousin that he wanted blankets and warm clothes for the
winter, but the prison manager said that there was no need for his relatives to
provide these items because the prison was going to provide them. The prison
never did provide Mr. Almalki with these items, however. Mr. Almalki did not
ask his cousin to contact the Canadian Embassy. He reasoned that since the
Canadian government was allegedly behind his detention in Far Falestin, he
should not trust the government to assist him. He felt betrayed by the Canadian
government, because he had hoped they would protect him. He also hoped
that his cousin would work harder to get him released.
79. At one point during the November visit, his cousin told Mr. Almalki and
the prison manager that he had been to the prison director’s office, where
he had looked at Mr. Almalki’s file. He also told him that he believed that the
Canadians were behind Mr. Almalki’s detention. Mr. Almalki does not know
how his cousin was able to get access to the prison director or to his file, but
he believes it was generally known at the time that, in Syria, a person could get
anything from anyone if he knew the right people.
80. About two weeks after the second family visit, Mr. Almalki’s family sent
him a shipment of food.
81. In December 2002, Mr. Almalki received a third family visit, this time from
an uncle, and another cousin who was a lawyer in Syria. Prior to the visit, a
guard came to Mr. Almalki’s cell, cut his hair and told him to wash himself and
dress well. During the visit, guards sat with Mr. Almalki and his cousin and
�ABDULLAH ALMALKI’S Experience IN SYRIA
uncle, and listened to their conversation. Mr. Almalki’s uncle told him that the
prison director had advised that Mr. Almalki had a foot injury from Afghanistan.
Mr. Almalki was shocked to hear this; he told his uncle that it was not true and
that his injury resulted from being tortured. Mr. Almalki did not go into further
detail about how he had been treated, because he was concerned about frightening his uncle, and about the information getting to his father and mother. He
did not want his parents to find out about the torture because the well-being
of his parents was more important to him than anything else and he thought
that knowing of his torture would kill them. Mr. Almalki also considered it a
big risk to talk about torture within earshot of the guards; he thought that it
could result in his being mistreated. Mr. Almalki acknowledged that holding
back information about his treatment from his family might have affected the
family’s ability to put pressure on the Canadian government to take action on
his behalf.
82. Mr. Almalki received his fourth family visit, from his father and the cousin
who had met him at the airport, in April 2003. Mr. Almalki’s father brought him
some food. Once again, the visit took place in the office of the prison manager,
who monitored the conversation. Mr. Almalki observed his father to be very
emotional, and tried to comfort him by telling him not to worry and that he
was treated well. He told his cousin to do something because he was “rotting
in here;” his cousin told him to be patient. Mr. Almalki did not ask his father or
his cousin to contact the Canadian Embassy because he did not want the prison
officials to think that he felt more Canadian than Syrian. In addition, as noted
above, he believed that the Canadian government was behind his detention in
Far Falestin, and that he should therefore not trust the Canadian government
to assist him.
83. The same cousin returned to Far Falestin in June 2003, this time with
Mr. Almalki’s mother. Once again, the prison manager was present for the
entire visit, and there was no opportunity for Mr. Almalki to speak privately
with his family. Mr. Almalki told his mother that everything was fine and not to
worry about him. He did not ask his mother or cousin to contact the Canadian
Embassy. His cousin and mother left him food and a copy of the Koran.
Transfer to the Far’ ‘al-Tahqia al-‘Askari branch
84. At the end of August 2003, Mr. Almalki’s interrogators told him that they
had found nothing against him and that the court was going to release him,
but that he would first be transferred to a better place. Mr. Almalki asked if he
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would need a lawyer, and was told that he would not need a lawyer because
he had not done anything illegal.
85. The night before Mr. Almalki left Far Falestin, he was called up to the
interrogation floor and forced to sign and thumbprint three documents. One
was a summary, dictated to and written by him, of all the information he had
given to prison officials during his time at Far Falestin; the second document
contained information about his family; and the third was a document he was
not permitted to read.
86. On the morning of August 28, 2003, Mr. Almalki was given back his luggage (which had been taken from him when he arrived at Far Falestin) and
driven a short distance from Far Falestin to the Far’ ‘al-Tahqia al-‘Askari branch
(the military interrogation branch), where he stayed for the next 10 days. He
was met there by several officials who insulted him, called him names and then
left him alone for several hours in a basement interrogation room before taking
away most of his belongings and transferring him to Room 12.
87. Room 12 was a 25-square-metre communal cell. When Mr. Almalki arrived,
it had about 25 inhabitants, many of whom could not believe that he had spent
16 months in solitary confinement at Far Falestin. Each of the inhabitants occupied a space measuring about 20–25 centimetres in width; they had to sleep
on their sides because space was so limited. Room 12 had a washroom with
a Turkish toilet, a tap, a very small sink and a limited amount of hot running
water. Mr. Almalki had a hot shower for the first time in 16 months. The food
served to prisoners in Room 12 was similar to what was served in Far Falestin,
but the prisoners were permitted to buy food almost daily.
Transfer to Sednaya branch
88. Mr. Almalki spent 10 days in Room 12 at the Far’ ‘al-Tahqia al-‘Askari branch,
but was never interrogated or tortured. On the 10th day, he was blindfolded,
handcuffed and escorted along with about 14 other prisoners to a bus headed
for Sednaya branch, where he would spend the next six months. The prisoners
were accompanied on the bus by several guards carrying AK‑47 guns.
89. When he arrived at Sednaya branch, Mr. Almalki was threatened with
torture. He was told something to the effect of, “Once we hook you…to the
electricity we will get things out of you.” Mr. Almalki was then taken to a large
(approximately 20 by 30 metres) room. The guards searched his things, took
his money and passport, made sarcastic statements about him, and then partially
shaved his head, leaving small random patches of hair. Mr. Almalki found the
�ABDULLAH ALMALKI’S Experience IN SYRIA
head-shaving to be extremely painful, because the guard who did it was ordered
to jam the clipper into his head and pull out the hair. At one point, he was told
to “take stuff from your bag.” He did so, and set the items aside.
90. The guards left, but returned a short time later and beat Mr. Almalki
severely. They slapped him, punched him and lashed him with what he later
learned was called a “tank belt.” When they were finished, another guard
approached Mr. Almalki, asked the other guards if he was “the Canadian” and,
when he received a positive response, beat him.
91. After the guards beat him, Mr. Almalki was taken to a solitary confinement
cell. The cell was much bigger than his cell in Far Falestin but it was very dark,
cold and dirty and smelled like human waste. While the cell had a small washroom, there was no running water in the washroom.
92. After 10 days of solitary confinement, Mr. Almalki was taken upstairs to
meet with the “Musyad Awar” (or first assistant) who asked him about the
accusation that he was linked to al-Qaeda and about Adnan Al-Malki, a relation
of Mr. Almalki’s who had been assassinated in the 1950s or 1960s.
93. Following their meeting, the Musyad sent Mr. Almalki to one of the “wings”
or “wards” of Sednaya where Mr. Almalki would live until he was transferred out
of Sednaya on March 1, 2004. The wing comprised 10 communal cells, each
measuring approximately 48 square metres, and the prisoners were allowed to
choose which cell they wanted to stay in. Each cell had its own washroom,
where the detainees bathed, and used the Turkish toilet. Prisoners in the wings
were allowed to buy various supplies, such as food, pencils, notebooks, glue,
razors and light bulbs.
94. Mr. Almalki met Maher Arar in Sednaya; they spent about two to three
weeks in the same cell. During that time, they discussed their experiences. They
agreed that the first one of them to be released from Syrian prison would tell the
Canadian public and Canadian government about the other one. Mr. Almalki
was aware that Mr. Arar had received consular visits and so asked him, during
one of his visits, to tell the Embassy officials that another Canadian was also
detained in Syria. Mr. Almalki did not, however, ask the prison staff whether
he could see someone from the Canadian Embassy. He was afraid of what the
consequences might be.
95. In October or November 2003, about one or two months into his stay in
the “wing” of Sednaya, Mr. Almalki was beaten because he smiled at a guard.
He had been going to retrieve a bucket of water, part of the daily routine at
Sednaya, when a guard congratulated him on his recent release from solitary
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confinement. Mr. Almalki replied to the guard with a smile and a second
guard saw the smile and insisted that the other guards “bring that person who
was smiling.” Mr. Almalki was brought to the second guard, who slapped and
kicked him. The guard then took him to a room, where he was forced to his
knees and kicked by several guards. Mr. Almalki said it felt like a circle of 10
people was surrounding him and kicking him everywhere. At one point, the
Musyad (an official with a military rank) entered the room. The Musyad pulled
on Mr. Almalki’s ears, slapped him, insulted him, and accused him of beating a
guard. Mr. Almalki was then forced into a tire, and the individuals in the room
took turns hammering his legs and the soles of his feet with the tank belt. When
the beating was finished, Mr. Almalki was forced to confess that he had beaten
a guard and therefore deserved the beating that he had received.
96. When Mr. Almalki returned to the wing after the beating, his fellow
detainees took care of him by cleaning his wounds and washing his clothes.
Mr. Almalki’s foot was seriously injured in the beating, and some days after
the beating, the injury became so serious that he could not stand on his own
at all; his fellow detainees had to carry him to the washroom. At one point,
Mr. Almalki’s fellow prisoners took him to see a detainee at Sednaya who was
also a doctor. Upon looking at Mr. Almalki’s foot, he told the Musyad that
Mr. Almalki should see a doctor or go to the hospital. Mr. Almalki was eventually sent to the prison doctor, but only after his family made a big fuss at one
of the family visits. The prison doctor looked at his foot (from some distance
away), but refused to send him to the hospital.
97. On February 25, 2004, two interrogators from Far Falestin travelled to
Sednaya to interrogate Mr. Almalki. They asked him about a family from Canada
and threatened him with torture.
Family visits to Sednaya
98. Mr. Almalki received three family visits while he was detained at Sednaya
branch. The first visit, in September 2003, was from his mother and the cousin
who had met him at the airport. Like all of the visits at Far Falestin, the visit
was monitored by several prison officials who listened to their conversation.
Though Mr. Almalki was afraid of the possible consequences of discussing his
treatment, he told his mother and cousin that he had been beaten. He felt that
by this point there was absolutely no hope, that he might never get out of jail,
and that he therefore had nothing to lose by telling them about the beating.
99. Mr. Almalki did not tell his mother and cousin to contact the Canadian
Embassy; he was still afraid that doing so would give prison officials the
�ABDULLAH ALMALKI’S Experience IN SYRIA
impression that he was “dissing” Syria. He had also learned from Maher Arar
that, even if he got a consular visit, he would not be free to say everything he
wanted to during that visit; nor (he believed) would he have the courage to
say everything. Mr. Almalki told his mother and cousin about the April 22 and
November 24 reports, which he had seen or heard about during his detention
and believed originated with Canada, and told them to tell his brothers and other
people in Canada about the reports so that they might be able to push for his
release. Mr. Almalki believes that his family ultimately passed this information
to Michael Edelson, an Ottawa lawyer, and that Mr. Edelson used this information as part of his efforts to get the letter from the RCMP described at paragraph
101 below. At the end of the visit, Mr. Almalki asked his mother and cousin for
money so that he could buy provisions for himself and for others in his cell.
100. Some time after the visit in September 2003, Mr. Almalki’s cousin
returned to Sednaya and brought him money and a long coat. Mr. Almalki
met with his cousin in the office of the Musyad, the prison official who had
beaten Mr. Almalki for smiling at a guard. When his cousin arrived, Mr. Almalki
embraced him and whispered in his ear, “They tortured me.” As they sat down,
his cousin repeated aloud, “You told me they tortured you.” The Musyad heard
this comment and cautioned them to speak about important things and that they
did not have much time. Mr. Almalki did not during this visit ask his cousin to
contact the Canadian Embassy; he was terrified of the Musyad and did not want
to say anything that might set him off again.
101. Mr. Almalki received his last family visit, from his mother, father and his
cousin who had visited him previously at Sednaya, in January 2004. They met in
the Musyad’s office. His father told him that a court hearing had been scheduled
for February, that the family had appointed a lawyer for him, and that the family
had obtained from Canada and submitted to the Syrians a letter saying that he
had no criminal record and was not the subject of an arrest warrant in Canada.
Mr. Almalki did not ask his family to contact the Canadian Embassy, again out of
fear that doing so could have negative consequences for his treatment. While
Mr. Almalki’s family was hopeful about his release and court hearing, he felt
that he would have to stay at Sednaya for years and so made a long list of things
for his family to send to him.
Release of Mr. Almalki
102. On February 29, 2004, Mr. Almalki was ordered to be released on bail.
However, he was not released that day. On the morning of March 1, he was
called up to an office and forced to sign papers, including a paper acknowledging
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that he was to appear in court on April 25. He was then put into a car, handcuffed and taken to the office of the head of the military police. The head of
the military police asked Mr. Almalki several questions, including about his
father, where he used to live in Damascus, and how he was treated in prison.
With respect to his treatment in prison, Mr. Almalki responded that “there are
people Syria would be proud of and other people they would be ashamed of”
and then named a prison official who had treated him very poorly. Following
this meeting, Mr. Almalki was taken back to the car and driven to Far’ ‘al-Tahqia
al‑‘Askari branch and then to Far Falestin, where a guard searched his belongings, took his documents and then escorted him downstairs to a communal cell
in which approximately 20 other prisoners were detained. Mr. Almalki spent
10 days in that communal cell but was not interrogated or tortured.
103. On March 10, 2004, Mr. Almalki was taken upstairs to meet an Amid
(Brigadier) whom he had never seen before. The Amid told him that the whole
world had been looking for him and that the Syrians had to do their work and
find the truth. Mr. Almalki reminded the Amid that he had told everyone from
day one that he had not done anything illegal. To this, the Amid responded
that the Americans and Canadians were “after [him]” and wanted Syria to hand
him over to Canada, but that Syria does not under any circumstances hand over
Syrian citizens to other countries. Mr. Almalki referred to the letter that his family had obtained from the RCMP (which said that he had no criminal record and
was not the subject of an arrest warrant in Canada) but the Amid was not aware
of the letter and said something to the effect of, “If they issued such a letter
then it’s because of our reports which cleared you of any terrorism charges…”
Finally the Amid advised him not to “say anything in Canada which [he] could
not say [in Syria].”
104. Following his meeting with the Amid, Mr. Almalki was taken to the
office of the Lewa’a (General) who had supposedly facilitated Mr. Almalki’s
family visits. When Mr. Almalki arrived at the Lewa’a’s office, the Lewa’a and
Mr. Almalki’s cousin who had met him at the airport were waiting for him.
The Lewa’a apologized to Mr. Almalki for what he had gone through and said
that he wished that he could have been released earlier, but explained that
the Syrians were under a lot of pressure to cooperate in the war on terror.
Mr. Almalki left the office of the Lewa’a with his cousin, who drove him to his
parents’ house.
�ABDULLAH ALMALKI’S Experience IN SYRIA
Post-release interrogation
105. Following his release on March 10, 2004, Mr. Almalki spent four and a half
months in Syria, waiting for the trial that cleared him of all charges. At some
point in late March or early April 2004, one of Mr. Almalki’s Far Falestin interrogators called him and asked him to return to Far Falestin to retrieve his laptop,
which the prison officials had not yet returned to him. While Mr. Almalki was
afraid to go back to Far Falestin, he wanted to get his laptop back. He also
thought it would be better to cooperate with the prison officials than to be
dragged back to Far Falestin. As well, his cousin told him that he had received
assurances from a Syrian official that Mr. Almalki would not be re-detained.
106. Mr. Almalki returned to Far Falestin in mid-April, and was told that there
were Independence Day celebrations going on and that he should come back
later. When he returned, he was taken to the second floor of the branch, where
the interrogators’ offices were located. An interrogator showed him a small part
of a faxed report in Arabic containing photographs of individuals, and then told
him that all the interrogators were busy downstairs, and that he would have to
come back another day. When Mr. Almalki returned some days later, he was
again taken to the second floor of the branch. His interrogators had the same
faxed report, which contained photographs of individuals, a list of names and
at least one birthdate. Mr. Almalki observed that the report had been faxed on
March 29, 2004, but he could not see what number it had been faxed from and
his interrogators did not tell him where the report had come from. Mr. Almalki
did not recognize any of the pictures and only recognized one of the names
on the list, the name of a man who used to work in Mr. Almalki’s company.
When he told his interrogators this, two of them said he was “not cooperative”
and threatened to torture him with the tire if he did not talk. One of the interrogators questioned why Mr. Almalki did not know the individuals listed in the
report; he said that, according to the report, the individuals were members of
“The Prayers Group” in Ottawa, and that Mr. Almalki was their spiritual leader.
Mr. Almalki told the interrogator that this was just another inaccurate report; he
noted that the men listed in the report were children when Mr. Almalki was in
Canada, reminded the interrogator that he had been detained in Syria for two
years, and emphasized that it was therefore implausible that he would be their
spiritual leader. Mr. Almalki asked the interrogators, “When are these reports
going to stop?” The interrogators responded that the Canadians did not want
him to be released and wanted him back in jail, and that the reports would stop
once he left the country.
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108. When the interrogation was finished and Mr. Almalki started to leave,
one of the interrogators asked him when he was going to return to Canada, and
Mr. Almalki responded, “Once you allow me.” His interrogator told him that
the intelligence officials had no problem with his leaving the country.
Departure from Syria
109. On July 28, 2004, Mr. Almalki left Syria.
�9
MUAYYED NUREDDIN’S
Experience IN SYRIA
1. The following is a summary of information provided by Mr. Nureddin in
the interview of him that I conducted with assistance from Inquiry counsel and
Professor Peter Burns (special advisor to the Inquiry), on December 13, 2007.
Decision to travel to Syria
2. In the fall of 2003, Mr. Nureddin travelled to the Middle East for business
and to visit his family in Kirkuk, Iraq. Mr. Nureddin was scheduled to take a
flight from Damascus, Syria to Toronto on December 13, 2003. He planned to
stay in Damascus for two days and one night and explore the city before taking
his flight to Toronto.
Arrival at the Syrian border
3. On December 11, 2003, Mr. Nureddin, his mother, two sisters and two
brothers drove from Kirkuk to the Syrian border. At 1:00 p.m., the Nureddin
family reached the Al-Yahroubia border crossing.
4. While Mr. Nureddin’s mother and two sisters stayed with the car,
Mr. Nureddin and two brothers, Ahmed and Aydin, went to the Iraqi side of the
border crossing. Ahmed planned to wait at the border until his brothers crossed
safely into Syria and then return to his mother and sisters. Aydin planned to
accompany Mr. Nureddin to Damascus to familiarize himself with the city and
learn the car import/export business.
5. Mr. Nureddin and Aydin crossed the Iraqi side of the border without any
difficulty. At the Syrian side, the border official took their passports and told
them to wait. After a two-hour wait, the border official permitted Aydin to
enter Syria but detained Mr. Nureddin. The border official told Mr. Nureddin
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that he was “wanted.” He handcuffed Mr. Nureddin to a bed in a building at
the border crossing.
6. The border officials searched Mr. Nureddin. They asked him if he had a
bomb and why he was going to Syria. They also asked him if he knew that he
was “wanted.” Mr. Nureddin said he had a plane to catch on December 13,
2003 and showed them his ticket and passport. The officials started to ask him
questions about his date of birth, his education and his military experience.
7. During the search, Mr. Nureddin overheard a border official question why
Mr. Nureddin had not been detained when he crossed the Syrian border on
September 27. Another border official answered that “the report” had only been
received on November 14. Mr. Nureddin believed that the report directed that
he be arrested, but acknowledged that he did not have any basis for his belief
other than this overheard conversation.
8. After the interrogation, Mr. Nureddin saw Aydin in the waiting area and told
him to continue on to Damascus and wait for him there. He asked him to phone
a friend in Canada if he did not see him in two days, but said that it would be
safer to make the call from Iraq. Aydin asked the border officials where they
were taking his brother. One official told him to leave with Mr. Nureddin’s
luggage and said, “He will not see the sun again.”
General Security Department in Al Qamishli
9. Mr. Nureddin was taken to the General Security Department in what he
believed to be Al Qamishli. Mr. Nureddin believed it was Al Qamishli because
it is the closest major city to the Syrian border and he could see lights from
the front of the car. At the detention centre, Mr. Nureddin was sent to
solitary confinement.
10. The solitary confinement cell was one metre by two metres, and four
metres in height, with an iron door. The cell was made of concrete and had
one blanket on the floor. Mr. Nureddin was given bread with falafel and he was
able to use the washroom for two minutes. During the night, Mr. Nureddin
was very cold and asked a guard for a second blanket. Even with two blankets,
Mr. Nureddin was still cold and he could not sleep. He remained in a seated
position all night to keep warm.
Transfer to Far Falestin
11. At 7:00 or 7:30 p.m. the next day (December 12, 2003), Mr. Nureddin was
transferred to what he would soon learn was Far Falestin prison in Damascus.
�MUAYYED NUREDDIN’S Experience IN SYRIA
The car trip to Damascus took approximately six to seven hours. On arrival
he was told that he was at Far Falestin prison. He was also told that the director was away and he would not be assigned a cell until the director returned.
Mr. Nureddin and two other prisoners were sent to an interrogation room to
sleep for the night. They slept on a tiled floor and shared two blankets.
12. The next morning (December 13), Mr. Nureddin and the two other prisoners were taken to the director’s office. The director had Mr. Nureddin’s
passport, money, airline ticket, and watch in his hands (the first three having
been taken on his arrest in Syria and the last on his arrival at Far Falestin). The
director asked Mr. Nureddin to verify his name and the amount of money he
was carrying when he was arrested, and to state his nationality. Mr. Nureddin
replied that he was Canadian. The director said he wanted to know his original nationality and he replied Iraqi. The director also wanted to know why he
had come to Syria. Mr. Nureddin said that he had a flight to catch. After the
interview, the director sent him to cell number 8.
Cell number 8
13. Cell number 8 was a communal cell that housed 30 people. As soon as
Mr. Nureddin entered the cell, other prisoners approached him and asked him
for news from the outside. Mr. Nureddin learned at a later date that some of
the prisoners had been imprisoned for over a year. The cell was five metres by
six metres. The prisoners slept in shifts because of the cramped quarters.
14. There was a washroom in the corner of the cell with an electric water
boiler, a small sink and a Turkish style toilet. While the washroom was used
by all 30 inhabitants of the cell, the water boiler boiled only enough water for
three or four showers a day. To shower, Mr. Nureddin took an oil bucket and
filled it with hot and cold water and doused himself while standing on the toilet.
There were cockroaches larger than 2.5 centimetres that crawled on him when
he showered.
15. The prisoners shared the food provided by the guards. Breakfast consisted
of three loaves of bread with jam and one additional item—yogurt, boiled eggs
or tahini. The prisoners were also provided with one bucket of tea for the
day. Lunches alternated between bean soup and bulgur. Once a week, the
prisoners shared a chicken. The prisoners ate boiled potatoes for dinner every
night, but there were never enough potatoes to share. The prisoners used
communal plates; five or six prisoners shared one large plate. The food was
very dirty, the meat smelled bad and the rice was either not properly cooked
or too “mushy.”
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16. The prisoners could buy goods (including cigarettes, clothes and drinks)
from the guards at a marked-up price. At one point, Mr. Nureddin wanted to
buy a pair of pants and a sweater because his clothes were full of lice, but the
director gave him clothes free of charge. Otherwise, Mr. Nureddin did not buy
anything from the guards.
17. Mr. Nureddin was able to keep track of the date and time by using the
Casio watch that hung on the wall of the cell.
First interrogation
18. After spending one day in the cell, Mr. Nureddin was brought to an interrogation room at approximately 10:30 p.m. on December 14. Two interrogators
entered the room. One interrogator sat down in a chair and asked Mr. Nureddin
to kneel on the floor next to him. The interrogator asked Mr. Nureddin for
his name and his mother’s name and background information about his life,
his employment and his nationality. After Mr. Nureddin answered his questions, the interrogator screamed at him, called him a liar and said, “I show you
our way.”
19. Next, the interrogator asked Mr. Nureddin questions about the amount
of money he had in his possession when he left Canada. Mr. Nureddin replied
that he had approximately US$10,000. The interrogator said he had a report
which stated Mr. Nureddin had US$10,500� and €4,000 when he left Canada.
The interrogator did not indicate where this report had come from or if it contained any other information about Mr. Nureddin. Mr. Nureddin replied that
he was telling the truth.
20. The interrogators left Mr. Nureddin alone in the room to think about
whether he had anything else to tell them. After six or seven minutes, they
returned. Mr. Nureddin did not have anything new to add. One of the interrogators brought in a cable and Mr. Nureddin’s passport and photos. The cable
resembled a hose and was 2.5 centimetres thick and 60 centimetres long. One
of the interrogators put the cable on the desk and looked at Mr. Nureddin’s
passport and photos. The photos included shots of a car that Mr. Nureddin had
sent to Iraq through Jordan, which he had taken for insurance purposes. The
interrogator questioned why Mr. Nureddin was in Iraq for three months and
�
The transcript states this amount as US$500. However, Mr. Nureddin told the Inquiry that either
he misspoke at the interview or there was an error in the translation or the transcript because
he has always maintained that the report in the possession of the Syrian authorities on which he
was questioned accurately stated the amount of U.S. money he had when he departed Canada:
US$10,500.
�MUAYYED NUREDDIN’S Experience IN SYRIA
asked where he had gone other than to Kirkuk. Mr. Nureddin replied that he
had only travelled to Jordan and Kirkuk.
21. The interrogator asked Mr. Nureddin if he was linked to an Islamic organization and he said no. The interrogator called him a liar. Mr. Nureddin said
that he was telling the truth. The interrogator told him to take off his shoes
and all of his clothes except his underwear. After Mr. Nureddin took off his
clothes, the interrogator ordered him to stand under a ceiling fan that was on
full power while the other interrogator poured cold water on his head. The
interrogators left Mr. Nureddin alone in the room, shaking from the cold, for
5 to 10 minutes.
22. The interrogators returned and asked him if he had anything new. They
told him to lie on his stomach, then poured cold water on him. Mr. Nureddin
was again left alone in the interrogation room for five minutes before the interrogators came back in. The interrogators turned off the ceiling fan and told
Mr. Nureddin to lie on his stomach and bend his knees at a 90 degree angle to
the floor with his feet close together. One of the interrogators started to beat
the soles of his feet with the black cable. This was very painful and felt as if
fire was touching the soles of his feet. The interrogator beat him continuously
for 10 to 15 minutes and repeatedly asked him if he had anything new. The
interrogator also asked about his whereabouts during the last three months,
the people he had met during his travels and the people who had given him
money. Mr. Nureddin screamed for the interrogator to stop and shouted, “Oh,
my God.” The interrogator continued to beat him, and hit him more when he
invoked Allah.
23. The interrogator stopped beating Mr. Nureddin with the cable and told
him to stand up and run on the spot. The other interrogator brought in more
cold water and poured it on his feet while he ran on the spot. Mr. Nureddin
felt relief from the pain of being beaten by the black cable. He ran on the spot
for five minutes and then was permitted to have a drink in the washroom.
24. When he came back from the washroom, the interrogator asked him again
if he had anything new. He was told to lie on the floor with his knees bent at a
90-degree angle. One interrogator hit the soles of his feet with the black cable
while the other asked him the same questions: “Do you have anything new? Did
you meet anyone? Did you give the money to someone? What organization do
you belong to?” Mr. Nureddin answered no to all of the questions and pleaded
with the interrogators to stop beating him.
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25. At one point, when Mr. Nureddin almost lost consciousness, the interrogator stopped beating him. Mr. Nureddin was ordered to stand up and run on
the spot. One of the interrogators poured water on his feet as he did so. The
interrogators repeated the same process of beating Mr. Nureddin on the soles of
his feet, but this time the interrogators did not ask any questions. Mr. Nureddin
screamed and asked the interrogators to stop, but the interrogator said that he
would only stop if Mr. Nureddin had something new.
26. After 15 minutes, the interrogator stopped beating him and told him that
he would call for him the next morning. The interrogator threatened to hang
Mr. Nureddin from the hooks on the wall of the interrogation room if he did not
say anything new. The interrogator warned Mr. Nureddin not to tell anyone in
the cell what had happened in the interrogation room. The interrogator also
threatened him with the chair frame and said he would have to spend one year
in prison if he did not speak. The interrogator did not elaborate on what he
would do with the chair or the hooks.
27. After the interrogation, Mr. Nureddin could not touch his feet for four
days. He found it difficult to use the washroom because he could not stand up
longer than two minutes. That night, Mr. Nureddin could not sleep because
any sound made him think that the guards were coming to take him to the
interrogation room.
Subsequent interrogations in December 2003
28. Mr. Nureddin was not interrogated again until December 21, 2003. At
10 a.m. that day, Mr. Nureddin was taken from cell number 8 to the interrogation room and asked if he had anything new. When he responded that he did
not, the interrogator asked for the names of his friends in Iraq and Canada. He
was specifically asked about two individuals. Mr. Nureddin said that he saw
the first individual when he was leading the prayer during Ramadan, and that
the second individual had left Canada with his family. The interrogation lasted
5 to 10 minutes, after which Mr. Nureddin returned to his cell.
29. At approximately 7:00 or 8:00 p.m. on December 23, Mr. Nureddin was
brought to the director’s office. The director asked him if anyone had touched
or beaten him. Mr. Nureddin replied that he had been tortured. The director
told him that no one would touch him again, and Mr. Nureddin understood from
their conversation that he was to receive special treatment. In Mr. Nureddin’s
view, the director was being nice to him because “something happened from
Canada.” Mr. Nureddin was then taken back to his cell.
�MUAYYED NUREDDIN’S Experience IN SYRIA
30. About two hours later, Mr. Nureddin was taken to the interrogation room.
A Colonel entered the room and called Mr. Nureddin “Abdul.” Mr. Nureddin
told him his name was Muayyed, and the Colonel shook his hand. The Colonel
asked Mr. Nureddin if something bad had happened to him, and Mr. Nureddin
said yes. The Colonel said, “Mistakes happen.”
31. One of his interrogators entered the room and apologized to Mr. Nureddin
and said, “This is our job.” A second interrogator then came into the room. All
three men asked Mr. Nureddin questions about the amount of money in his possession when he left Canada, who the money was for, where the two individuals
about whom he had been asked were located, the job of a third individual in
Canada, and if that individual had sent or received money. One of the interrogators took notes of Mr. Nureddin’s answers. One of the interrogators also
told Mr. Nureddin that the reason he was not taken to the interrogation room
on the second day was because he had a “gut feeling” that he was telling the
truth. The interrogation ended around 1:00 a.m. They told Mr. Nureddin that
he would be released in two or three days.
Other incidents in prison
32. On December 24, 2003, the guards gave the prisoners less food than usual
and some of the prisoners protested. One prisoner harmed himself to avoid
being tortured by the guards; the guards took him away. The guards later
brought the prisoner back to the cell unconscious and badly beaten.
33. After this incident, Mr. Nureddin was moved to a larger cell with eight
other prisoners. The cell was 4 metres by 5 metres with no washroom. The
prisoners had washroom breaks three times a day for about 15 or 20 minutes.
34. Mr. Nureddin learned from other prisoners that the room had been used
as a holding area for prisoners transferred from Sednaya prison who had served
their sentence and were about to leave. Mr. Nureddin was told that once a
foreigner left the cell, he was sent to the immigration centre and then handed
over to a representative of his country. Mr. Nureddin was not informed how
the other prisoners had come to learn this information.
35. At one point, an English-speaking professor from India was brought into
the cell. Mr. Nureddin acted as his translator. The professor requested the
guards to contact the Indian Embassy, but the guards refused because it was
forbidden. The guards told Mr. Nureddin that the professor was not allowed
to ask for consular services and no one was allowed to know that he was in the
prison. During his incarceration, Mr. Nureddin did not ask the Syrian officials to
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contact his family or the Canadian Embassy because he feared that they would
torture him and because he believed that they would refuse.
Interrogations in January 2004
36. On January 6, 2004, Mr. Nureddin was taken to an interrogation room,
where he was asked questions about his family. The interrogator asked for
the names of Mr. Nureddin’s father, his mother and his brothers and sisters, as
well as the names of their spouses and children. This was the first time he had
been asked about his brothers and sisters. He was told to write down all the
information he could about his brothers, and it took him approximately one
hour to do so. Mr. Nureddin was also asked whom he would call in case of
emergency and he replied the Canadian Embassy. Mr. Nureddin thought that
it was safer to have the Syrian officials contact the Canadian Embassy than his
family. The interrogator asked Mr. Nureddin where he would want to go if he
was released, and Mr. Nureddin told him Canada.
37. Over the next few days, Mr. Nureddin was repeatedly taken to the interrogation room and the director’s office to drink coffee or tea.
38. On January 8, an interrogator and the Colonel asked Mr. Nureddin to sign
three documents. Mr. Nureddin was not permitted to read the first document,
but he signed and put a thumbprint on it. The second document was the report
Mr. Nureddin had written about his brothers on January 6. The third document
was a letter dictated by an interrogator that stated: “I … Muayyed Nureddin,
was treated nicely. I never been tortured and they were very nice to me.”
Release from prison
39. On January 13, the guards told Mr. Nureddin that he was going to be
released and advised him to get ready. Mr. Nureddin was taken to the office
of the Colonel, who told him that if anyone asked about his treatment in
prison, he should say that he was treated “nicely” and not mention torture.
Next, Mr. Nureddin was brought into the General’s office, where Léo Martel
was waiting for him. Mr. Martel introduced himself as the consul from the
Canadian Embassy and gave Mr. Nureddin his card. The General then greeted
Mr. Nureddin and, in the presence of Mr. Martel, asked him how he had been
treated. Mr. Nureddin said that he was treated “nicely” and did not disclose
that he had been tortured.
40. Mr. Nureddin left the prison with Mr. Martel. Once they arrived at
the Canadian Embassy and were seated in Mr. Martel’s office, Mr. Nureddin
described his experiences since the day of his arrest, including the mistreatment.
�MUAYYED NUREDDIN’S Experience IN SYRIA
Mr. Martel took Mr. Nureddin to a medical centre in Damascus where he was
treated for scabies. The next day Mr. Nureddin met with the Ambassador and
described how he had been beaten and tortured while in detention.
Departure from Syria
41. On January 15, 2004, Mr. Nureddin left Syria.
331
��10
TESTS FOR ASSESSING
THE ACTIONS OF CANADIAN OFFICIALS
Introduction
1. Having reviewed the process followed in this Inquiry, set out certain background facts and summarized the evidence that I reviewed, I will now deal with
the important question of the tests that I should apply in assessing the actions
of Canadian officials, as the Inquiry’s Terms of Reference mandate me to do.
This task principally involves interpreting the Terms of Reference in light of the
meaning of the words used, the purpose of the Inquiry, and the context that
surrounds it.
2. The mandate of the Inquiry calls on me to ascertain a number of factual
issues. We know that Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed
Nureddin were detained in Syria and that Mr. Elmaati was also detained in Egypt.
I must determine whether these detentions “resulted, directly or indirectly,
from actions of Canadian officials, particularly in relation to the sharing of
information with foreign countries.” I must also determine whether Mr. Almalki,
Mr. Elmaati and Mr. Nureddin suffered any mistreatment in Syria or Egypt and,
if so, whether any mistreatment “resulted, directly or indirectly, from actions
of Canadian officials, particularly in relation to the sharing of information with
foreign countries.”
3. In addition to making these key factual determinations, the mandate of the
Inquiry requires me to evaluate the actions of Canadian officials. I must determine whether any actions taken by Canadian officials that resulted, directly or
indirectly, in the detention or any mistreatment of Mr. Almalki, Mr. Elmaati or
Mr. Nureddin were deficient in the circumstances, and whether there were any
deficiencies in the consular services provided to the three men while they were
detained in Syria or Egypt.
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4. There is obviously some potential overlap between the determination of
the role played by actions of Canadian officials, and the evaluation of these
actions. For instance, a finding that mistreatment or torture resulted from
certain actions (a factual determination) would very likely lead to a conclusion
that these actions were deficient in the circumstances (an evaluative conclusion). Similarly, a finding that actions of Canadian officials created a serious risk
of detention or mistreatment might be relevant both in assessing whether it is
reasonable to infer that detention or mistreatment resulted from those actions
and in evaluating the actions (because creating this risk could itself amount to
a deficiency). Nonetheless, the factual role played by actions of officials must
be kept analytically separate from an evaluation of the actions.
5. Accordingly, the discussion in this chapter is divided into two main sections.
First, I will discuss the test I intend to apply in determining whether detention or
mistreatment resulted, directly or indirectly, from actions of Canadian officials.
I will then discuss the meaning to be ascribed to the terms, “deficient in the
circumstances” and “deficiencies.”
Determining whether detention or mistreatment resulted, directly or
indirectly, from the actions of Canadian officials
6. The question whether the detention and mistreatment of Mr. Almalki,
Mr. Elmaati or Mr. Nureddin resulted, directly or indirectly, from the actions
of Canadian officials must be addressed within the specific context of this
Inquiry and on the evidence that has been presented before it. The premise
of this report is that I have had access to all the relevant evidence of Canadian
officials and all relevant documents in the possession, control or power of the
Attorney General, as well as all relevant information and documents from the
individuals who testified before the Inquiry. As noted in Chapter 2 above, the
Attorney General has at my request provided a certificate confirming that he
has made full production to the Inquiry of all relevant documents. However,
I have not had the benefit of any evidence from the police forces, intelligence
services or other government officials of Syria, Egypt, Malaysia or the United
States. Although invited to do so, these countries all failed to participate in the
Inquiry and to provide the Inquiry with access to relevant evidence.
7. As a consequence, there is no evidence from Syria, Egypt, Malaysia or the
United States of the role that actions of Canadian officials might have played in
decisions and actions of the police forces, intelligence services or other government officials of those countries relating to the three men. I have heard no testimony and seen no documentary evidence from the officials of those countries
�TESTS FOR ASSESSING THE ACTIONS OF CANADIAN OFFICIALS
that would help me determine whether the detention or any mistreatment of
the three men had some connection to actions of Canadian officials.
8. In their final written submissions, both the Attorney General and other
participants addressed the implications of the absence of evidence from foreign
officials on my ability to carry out my mandate to determine whether the detention and any mistreatment of the three men resulted, directly or indirectly, from
the actions of Canadian officials.
9. In his final submissions, the Attorney General argued that I can conclude
that the detention or mistreatment of the men “resulted, directly or indirectly”
from actions of Canadian officials only if the evidence establishes that the detention or mistreatment would not have occurred “but for” actions of Canadian officials. On the evidence presented to the Inquiry, the Attorney General argued,
the sequence of events is simply unknowable. The Attorney General went on
to submit that, in these circumstances of uncertainty, I must refrain from making any findings concerning the role played by actions of Canadian officials
in the detention or any mistreatment of the three individuals. The Attorney
General’s position was that any findings in these circumstances would amount
to speculation, and that speculating as to the causal sequence of events would
take the Inquiry beyond its Terms of Reference. The Attorney General added
that speculation would serve no useful purpose, that the Government would
gain no guidance from conclusions drawn on that basis, and that in the absence
of direct and conclusive evidence that actions of Canadian officials played a
causal role in the detention and any mistreatment of the men, I am foreclosed
from characterizing those actions as deficient.
10. Counsel for Mr. Almalki, Mr. Elmaati and Mr. Nureddin argued in their final
submissions that the test I should apply to determine if the detention or mistreatment of the individuals resulted, directly or indirectly, from actions of Canadian
officials was whether those actions “created a serious risk of the events that
befell the three men.” In their final and reply submissions, they argued that
the Terms of Reference do not require a strict “but for” test, and that this test
is inappropriate in addressing possible violations of human rights, particularly
when the violations might have come about through the actions of officials of
more than one state. They submitted that any conduct that contributed to the
detention or mistreatment of Mr. Almalki, Mr. Elmaati or Mr. Nureddin could
properly be regarded as having “resulted in” the mistreatment or detention.
11. Amnesty International also argued for an interpretation of the Terms
of Reference that would not limit me to making findings that detention or
mistreatment resulted from actions of Canadian officials only where I can find
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it conclusively proven that the actions of Canadian officials were the sole and
direct cause. While recognizing that the non-involvement of the United States,
Syria and Egypt makes it more difficult to identify the impact of actions of
Canadian officials, Amnesty International submitted that it was nonetheless possible and appropriate for me to draw inferences based on established facts.
12. I find the submissions on this issue of counsel for the individuals and for
some of the Intervenors helpful. For a number of reasons, I am not prepared to
accept that I should apply a “but for” test or that I am precluded from making
findings concerning the role played by the actions of Canadian officials in the
detention or any mistreatment of Mr. Almalki, Mr. Elmaati or Mr. Nureddin.
13. First, given the Terms of Reference for this Inquiry and the strictures that
apply generally to public inquiries, I must be careful not to draw any conclusions that would be tantamount to a finding of legal liability on the part of
Canadian officials. My mandate requires me to determine whether the detention
or mistreatment of the men “resulted, directly or indirectly, from” actions of
Canadian officials, without resorting to the notion of causation that would be
operative in a court of law. However, the “but for” test for determining causation is drawn directly from the conceptual structure of tort law and criminal
law. Assuming that I were able to state unequivocally that the men would not
have been detained or suffered mistreatment “but for” the actions of Canadian
officials, unlikely as that would be in light of the absence of testimony from
foreign officials, doing so would bring me dangerously close to making an
explicit finding of legal liability, and that is not the purpose or jurisdiction of
this Inquiry.�
14. Second, the causation standard proposed by the Attorney General is too
strict, because the detention or mistreatment of Mr. Almalki, Mr. Elmaati or
Mr. Nureddin may be said to have “resulted, directly or indirectly” from actions
of Canadian officials even though those actions were not shown to have been
the sole factor, or even the determining factor, that led to the detention or
mistreatment. The ordinary meaning of “result” includes not only “arise as the
actual consequence” of, but also “follow as a logical consequence” from, an
action or cause. The ordinary meaning of “direct” includes “without intermediaries or the intervention of other factors,” and that of “indirect” includes “not
�
I nonetheless observe that, even in the legal context, the strict “but for” test does not invariably
apply; a less definitive “material contribution” test applies where, among other things, application
of the “but for” test is unworkable because it is impossible to prove what a particular person
in the causal chain would have done had the defendant not engaged in the actions in question:
Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 15; Resurfice Corp. v. Hanke, 2007 SCC 7 at paras.
24-28.
�TESTS FOR ASSESSING THE ACTIONS OF CANADIAN OFFICIALS
directly sought or aimed at.”� In other words, an action may be said to have
resulted indirectly in a state of affairs even though there were other intermediaries or factors.
15. On the ordinary meaning of “resulted directly or indirectly,” therefore, I am
entitled to draw inferences based on the evidence before the Inquiry as to the
consequences of actions of Canadian officials. I also need not find that actions
of Canadian officials were the sole or even the predominant factors leading
to detention or mistreatment. The detention or mistreatment of Mr. Almalki,
Mr. Elmaati or Mr. Nureddin may still be said to have resulted indirectly from
actions of Canadian officials even though other factors, such as actions or decisions of foreign officials, combined with those actions to produce the result.
In view of the purpose of this Inquiry, I do not consider it either necessary or
appropriate that I weigh the role played by the actions of Canadian officials
relative to other factors. The Government of Canada would no doubt be quick
to confirm that it has an interest in knowing whether actions of its officials contributed to any degree to the detention or mistreatment of Canadian citizens.
16. Third, if it is correct that I am precluded by the Terms of Reference from
making any findings as to whether the detention or mistreatment of Mr. Almalki,
Mr. Elmaati or Mr. Nureddin resulted, directly or indirectly, from actions of
Canadian officials in the absence of evidence from foreign officials, then the
Inquiry was bound from the outset to be a largely hollow exercise. When the
Terms of Reference for this Inquiry were first set, it must have been known to
be very likely that foreign officials would decline to participate, in view of the
decisions by Syria and the United States (and also Jordan) not to act on requests
that they participate in the Arar Inquiry.� There was from the very inception
of this Inquiry only a remote possibility at best that I would be able to rest
my factual conclusions on full and direct evidence of the chain of events as it
unfolded. I cannot accept that the drafters of the Terms of Reference intended
that the absence of evidence from foreign officials would foreclose me from
carrying out my mandate.
17. I agree with the Attorney General that it would be inappropriate for me
to speculate as to the sequence of events that led to the detention and mistreatment of the men in Syria and Egypt. But drawing reasonable inferences
from the evidence before me is not speculation. Speculation involves making guesses in the absence of evidence. Drawing inferences involves making
�
�
The Concise Oxford Dictionary of Current English (9th ed., 1995), pp. 1175, 381, 692.
Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Report
of the Events Relating to Maher Arar: Analysis and Recommendations (Ottawa: Public Works
and Government Services Canada, 2006), p. 11.
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rational connections between facts in evidence and other facts for which direct
evidence is not available. Inference drawing of this kind is well accepted in
both legal and non-legal settings. Indeed, the Attorney General himself relied on
inferences to urge me to conclude that the actions of Canadian officials did not
result in detention or mistreatment of Mr. Almalki, Mr. Elmaati or Mr. Nureddin.
Leaving aside the fact that this position is inconsistent with the argument that
the sequence of events is simply “unknowable,” it confirms my conclusion
that I can and should base the determinations that I am mandated to make on
inferences where I am in a position to draw reasonable inferences based on the
evidence before me.
18. For these reasons, I conclude that the “but for” test is inappropriate, that
the connection between the action of Canadian officials and the detention or
mistreatment of Mr. Almalki, Mr. Elmaati or Mr. Nureddin can be established on
the basis of rational inferences, and that the role played by these actions need
not have been predominant in the sequence of events for me to find that there
was a connection. I am not called upon to determine whether these actions
were the principal cause of the detention and mistreatment, but rather to determine whether the detention and mistreatment resulted, directly or indirectly,
from the actions of Canadian officials. Accordingly, I interpret the Terms of
Reference as mandating me to determine the relationship between the detention or mistreatment of Mr. Almalki, Mr. Elmaati or Mr. Nureddin and the actions
of Canadian officials by assessing whether, considering all of the evidence and
the rational inferences to be drawn from it, actions of Canadian officials can be
said to have likely contributed to the detention or mistreatment.
19. I now proceed to address the relationship between any findings as to
whether the detention or mistreatment resulted, directly or indirectly, from
actions of Canadian officials and any findings that I might make that certain
actions were “deficient in the circumstances.” This question arises because two
of the three subparagraphs of paragraph (a) of the Terms of Reference—the part
of the Terms of Reference that sets out what I am to determine—expressly state
that I am to determine whether the detention (in subparagraph (i)) or the mistreatment (in subparagraph (iii)) of Mr. Almalki, Mr. Elmaati and Mr. Nureddin in
Syria or Egypt resulted, directly or indirectly, from actions of Canadian officials,
particularly in relation to the sharing of information with foreign countries “and,
if so, whether those actions were deficient in the circumstances” (emphasis
added). The other subparagraph mandates me to determine “whether there
were deficiencies in the actions taken by Canadian officials to provide consular
services,” without any link to the result that any deficiencies might have had.
�TESTS FOR ASSESSING THE ACTIONS OF CANADIAN OFFICIALS
20. I accept that on the literal meaning of the words used in the Terms of
Reference, I may not make a finding that any actions of Canadian officials other
than their actions in providing consular services were “deficient in the circumstances” unless I can first find that either the detention or the mistreatment of
Mr. Almalki, Mr. Elmaati and Mr. Nureddin resulted, directly or indirectly from
the actions. The “and, if so” language of subparagraphs (i) and (iii) of paragraph
(a) of the Terms of Reference, particularly when contrasted with the language
of subparagraph (ii), appears to compel this conclusion. Accordingly, except
with respect to actions of Canadian officials in providing consular services,
before making a finding that their actions were deficient, I must first determine
that the detention and mistreatment of Mr. Almalki, Mr. Elmaati or Mr. Nureddin
resulted, directly or indirectly, from these actions.
21. However, I am not prepared to accept that I may not comment on the
nature and quality of these actions unless this prerequisite is met. The purpose
of an inquiry is to investigate and report on matters connected with “the good
government of Canada or the conduct of any part of the public business.”� The
public has made a considerable investment in the Inquiry. Inquiry counsel and I
have devoted substantial efforts to the assembly and review of evidence. Inquiry
Participants and Intervenors have worked diligently to provide me with helpful
submissions on all issues.
22. While I do not wish to overestimate the contribution that my evaluation
of the actions of Canadian officials might make to the good government of
Canada and the conduct of the public business, I believe that my comments
on how Canadian officials conducted the public business might be instructive
even where I am unable to conclude that detention or mistreatment resulted
directly or indirectly from these actions. I believe it reasonable to assume that
the Government would always want to be made aware of—in part so that it can
learn from—actions of its officials that might fall below the expected standard.
I am also confident that the Government would want to know if actions of its
officials might have exposed Canadian citizens to the risk of detention involving loss of liberty, with all that entails, or the risk of mistreatment and possibly
torture, with all that entails, even though I am unable to conclude that these
risks did in fact materialize. That is especially so when the main reason that I
am unable to reach a conclusion is that governments of other countries have
refused me access to relevant information that they no doubt possess. In my
view, not only the Government of Canada, but also Inquiry Participants and
Intervenors and the public, would not derive full value from the Inquiry if I
proceeded on the basis that I can say nothing about the nature and quality of
�
Inquiries Act, R.S.C. 1985, c. I-11, s. 2.
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any actions of officials (other than in providing consular services) that I cannot
conclude resulted, directly or indirectly, in detention or mistreatment of one
or more of Mr. Almalki, Mr. Elmaati and Mr. Nureddin.
23. I therefore intend in setting out my findings to comment on actions of
Canadian officials where I consider it appropriate to do so, whether or not
the detention or mistreatment of Mr. Almalki, Mr. Elmaati and Mr. Nureddin
resulted, directly or indirectly, from these actions.
24. This brings me to the test by which I intend to determine whether the
actions of Canadian officials were deficient in the circumstances.
Determining whether the actions were “deficient in the
circumstances”
25. Two subparagraphs of paragraph (a) of the Terms of Reference direct me
to determine whether the actions of Canadian officials were “deficient in the
circumstances.” The other subparagraph directs me to determine whether
there were “deficiencies” in the actions taken by Canadian officials to provide
consular services. I take the meaning of the two variants of the concept of
“deficiency” to be the same: under all three subparagraphs I will consider the
relevant circumstances in determining whether the actions of Canadian officials
were deficient.
26. On the ordinary meaning of the term, an action may be said to be deficient
if it falls short of an appropriate norm. The dictionary definition of “deficiency”
includes “a thing lacking,” and that of “deficient” includes “incomplete; not
having enough of a specified quality or ingredient” and “insufficient in quantity,
force, etc.”�
27. An essential starting point in assessing whether the actions of Canadian officials were deficient in the circumstances is therefore to identify the applicable
norms or standards against which these actions can be assessed. As discussed
in Chapter 2 above, in November 2007 I called on Participants and Intervenors
to submit written representations regarding those standards, and a two-day
public hearing to receive oral submissions was held in January 2008. I found
the written and oral submissions concerning standards of great assistance.
28. I wish to make five observations concerning the standards for assessing
officials’ actions.
29. First, I must repeat that the mandate of this Inquiry is limited by its nature.
It does not lie within my mandate to draw conclusions about civil, criminal or
�
The Concise Oxford Dictionary of Current English (9th ed., 1995), p. 353.
�TESTS FOR ASSESSING THE ACTIONS OF CANADIAN OFFICIALS
constitutional responsibility. The standards that I intend to apply are not legal
standards; despite the very able submissions concerning these standards offered
by many Inquiry participants, I do not intend to make findings about whether
torts, or crimes, or breaches of the Canadian Charter of Rights or other constitutional and international norms might have occurred. Nonetheless, the basic
principles that emerge from legal sources including Canadian law, the Charter,
and various international instruments are helpful in informing my determinations as to whether Canadian officials acted properly in the circumstances.
30. Second, a further comment concerning the source of applicable standards
or norms is warranted. Many of the standards or norms governing Canadian
officials will be found in internal policies, mandate, legislation, ministerial directions and other like instruments of DFAIT, CSIS, and the RCMP. Departmental
practice or convention may provide appropriate standards, subject to what I
say below about deficient norms and so-called “settled practices.”
31. Third, I am of the view that the actions of Canadian officials should be
characterized as deficient only if they fell short of the norms that would have
been followed by a reasonable person placed in comparable circumstances.
Officials should not be expected to act with extraordinary or superhuman
care, insight or skill. We expect much from our officials, but they can only
be faulted for failing to meet a standard of reasonable behaviour, even taking
into account the extraordinarily high stakes involved in the matters that I have
been mandated to review, from national security to the right to life, liberty and
security of the individual.
32. Fourth, in my view there are a number of bases on which it is open to me
to find that actions of Canadian officials were deficient: (1) they were in breach
of the relevant standards that existed at the time; (2) they were pursued in the
absence of an applicable standard, in a context in which a proper standard
should have been set and followed; or (3) they were pursued in accordance
with a standard that was itself deficient. I recognize that the actions of Canadian
officials must be assessed in relation to standards as they stood at the relevant
time, but these standards do not necessarily correspond with whatever “settled
practices” were in place at the time. I intend to assess the actions of Canadian
officials on the basis of an objective standard that may well be different from
the established practices of the agencies involved. Nonetheless, this objective
standard should be the one that would have been operative during the period
of 2001 to 2004, when the relevant events occurred, and not a new standard
developed with the benefit of hindsight.
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33. Indeed, with the benefit of hindsight, it may be possible today to conclude
that Canadian officials should have acted differently, but that would not be a
sufficient basis on which to conclude that their actions were deficient. Among
other things, in the aftermath of the Arar Inquiry we now know much more
about the possible consequences of labelling and of the sharing of information
with foreign countries. Commissioner O’Connor has formulated recommendations in this respect, which the federal government has accepted. Changes have
been and are being implemented in Canadian intelligence, investigative and
consular practice. Those recommendations and changes, and the standards of
behaviour which they set, cannot by themselves be determinative of whether
there were deficiencies in the actions of Canadian officials that took place
before the publication of the Report of the Events Relating to Maher Arar.
34. On the other hand, the fact that standards may have evolved, and that new
standards are being developed, should not be taken to mean that there were
no standards at the relevant time, or that the failure to establish standards at
the time was appropriate. While it is true that the sharing of information with
foreign authorities and the provision of consular services to Canadian citizens
detained in the Middle East on security grounds raised unprecedented challenges, it is also true that the officials involved in those activities were required
to meet the expectation of Canadians that they would act with care and caution
and that they would respect the fundamental rights of Canadian citizens. These
principles of care, caution and respect for human rights were in effect at the relevant time, and will necessarily inform the appropriate standards of conduct.
35. Fifth, I have been urged by the Attorney General of Canada to consider the
climate that existed in the 2001 to 2004 period, and to take account of the fact
that the actions that I am called upon to evaluate took place in the aftermath
of the September 11th attacks in the United States and of the recognition that
Islamist terrorism posed a great threat to Canada’s national security. I recognize
that the actions of Canadian officials must now be examined within the particular context in which they took place. However, I do not take the Attorney
General of Canada to be suggesting, and I do not accept, that this context
would provide a justification for engaging in behaviour that would otherwise
be deficient.
Summary
36. Before I turn to my findings on the question whether the detention or any
mistreatment of Mr. Almalki, Mr. Elmaati and Mr. Nureddin resulted from actions
of Canadian officials, and on any deficiencies in these actions and the provision
�TESTS FOR ASSESSING THE ACTIONS OF CANADIAN OFFICIALS
of consular services to them, it might be helpful to summarize my interpretation
of the salient elements of the Terms of Reference set out above.
1. In determining whether the detention or mistreatment of the three men
resulted, directly or indirectly, from the actions of Canadian officials, I
have asked whether, on a consideration of all of the evidence and the
rational inferences to be drawn from it, the actions can be said to have
likely contributed to the detention or mistreatment of the individual
concerned.
2. The term “deficiency” in the Terms of Reference should be given its
ordinary meaning of conduct falling short of a norm. In the context of
this Inquiry, any of the following three types of actions can constitute
a deficiency:
(a) failing to meet a standard or norm that existed at the time;
(b) ailing to establish a standard or norm when there should have been one;
f
and
(c) maintaining a standard or norm that was itself deficient.
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FINDINGS REGARDING THE ACTIONS OF
CANADIAN OFFICIALS IN RELATION TO
AHMAD ABOU-ELMAATI
Overview
1. Ahmad Abou-Elmaati, a dual Canadian-Egyptian citizen, travelled to Syria in
November 2001 to be married. When he arrived at the airport in Damascus,
he was immediately taken into Syrian custody and transferred to Far Falestin
detention centre, where he would remain for over two months. In January
2002, for reasons that the Inquiry has been unable to determine, Mr. Elmaati
was transferred from Syria to Egypt, where he would spend another 24 months
in detention. While in detention in Syria and Egypt, Mr. Elmaati was held
in degrading and inhumane conditions, interrogated and mistreated. During
his time in Egyptian detention Mr. Elmaati received eight consular visits from
Canadian Embassy officials in Cairo and was visited periodically by his family. I
have described the actions of Canadian officials with respect to Mr. Elmaati in
Chapter 4, and summarized Mr. Elmaati’s evidence about his mistreatment in
Syria and Egypt in Chapter 7.
2. In this chapter, I set out my findings concerning the actions of Canadian
officials as they related to Mr. Elmaati. I will first provide an overview before
setting out in more detail my findings and the basis on which they are made.
For the reasons discussed in Chapter 2, my findings are directed to the actions of
the institutions of the Government of Canada. It is neither necessary nor appropriate that I make findings concerning the actions of any individual Canadian
official, and I do not do so.
3. The Terms of Reference call upon me, first, to consider whether the detention of Mr. Elmaati resulted directly or indirectly from actions of Canadian
officials and, if so, whether those actions were deficient in the circumstances.
For the reasons set out below, I conclude that three instances of sharing of
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information by Canadian officials in the period leading up to Mr. Elmaati’s detention—the RCMP’s description of Mr. Elmaati as an “imminent threat to public
safety and the security of Canada,” CSIS’ description of Mr. Elmaati as, among
other things, an individual “involved in the Islamic extremist movement,” and
the sharing of Mr. Elmaati’s travel itinerary with U.S. agencies—likely contributed to his detention in Syria. I go on to conclude that these actions of Canadian
officials were deficient in the circumstances. I do not find that any actions of
Canadian officials resulted, directly or indirectly, in Mr. Elmaati’s detention
in Egypt.
4. The Terms of Reference also direct me to assess whether any mistreatment
of Mr. Elmaati resulted directly or indirectly from actions of Canadian officials
and, if so, whether those actions were deficient in the circumstances. Before
making any findings in this regard, it was necessary for me to determine whether
Mr. Elmaati was mistreated in Syria or Egypt. Based on a careful review of the
evidence available to me, I conclude below that, while in Syrian and Egyptian
detention, Mr. Elmaati suffered mistreatment amounting to torture. For the
reasons set out below, I conclude that two actions of Canadian officials—the
failure to advise DFAIT’s Consular Affairs Bureau of Mr. Elmaati’s detention and
interrogation and the sending of questions to be asked of him in detention—
likely contributed to Mr. Elmaati’s mistreatment in Syria and were deficient in
the circumstances. I go on to assess several actions of Canadian officials during
Mr. Elmaati’s detention in Egypt—requesting an interview of Mr. Elmaati while
in detention, sharing information about Mr. Elmaati’s suspected past or future
activities with Egyptian authorities and sharing the RCMP Supertext database,
failing to elevate allegations of torture to the Commissioner, and relying on
information derived from torture—and conclude that certain of these actions
likely contributed to mistreatment of Mr. Elmaati in Egypt and were deficient
in the circumstances. In my confidential report, I discuss certain other actions
of Canadian officials and conclude that these actions likely contributed to his
mistreatment and were deficient in the circumstances. Because the responsible
Minister is of the opinion that disclosure of this information would be injurious
to national security, national defence and/or international relations, I am unable
to refer to these actions and my assessment of them in this report. As set out at
paragraph 42 of Chapter 2, if it is ultimately determined that further information
can be publicly disclosed, I intend to take the necessary steps to supplement
the public version of my report.
5. Finally, the Terms of Reference direct me to consider whether there were
any deficiencies in the actions of Canadian officials to provide consular services
to Mr. Elmaati in Syria and Egypt. Below I examine eight aspects of the consular
�FINDINGS IN RELATION TO Ahmad Abou-Elmaati
efforts made in Mr. Elmaati’s case. I examine DFAIT’s initial efforts to locate and
obtain access to Mr. Elmaati after learning that he had been detained in Syria
and then learning that he had been transferred to Egypt, and conclude that, in
both cases, DFAIT officials failed to act sufficiently promptly and effectively. I
also examine the conduct of consular officials in providing consular services
to Mr. Elmaati and conclude that, in certain instances, consular visits were not
provided sufficiently frequently, that consular officials were not given sufficient
training to assess whether Mr. Elmaati was being mistreated, and that they were
not directed to ask for private visits. I examine whether DFAIT should have
informed the Minister of Foreign Affairs about Mr. Elmaati’s allegation of torture,
and conclude that, in these circumstances, it should have. I then turn to examine whether DFAIT consular officials should have repeatedly asked Mr. Elmaati
whether he would be willing to meet with CSIS and the RCMP and conclude
that they should not have done so. Finally, I address the disclosures by DFAIT
officials to other Canadian officials of information collected in the course of
providing consular assistance to Mr. Elmaati, and conclude that this information
should not have been disclosed.
Did the detention of Mr. Elmaati result directly or indirectly from
actions of Canadian officials and, if so, were those actions deficient in
the circumstances?
Did the detention of Mr. Elmaati in Syria result directly or indirectly from actions of
Canadian officials?
6. On November 11, 2001, Mr. Elmaati embarked from Pearson International
Airport for Damascus, with stopovers in Frankfurt and Vienna. Mr. Elmaati
travelled to Syria of his own accord for the purpose of getting married. When
he arrived at the airport in Damascus, Mr. Elmaati was immediately taken into
custody by Syrian officials.
7. Without evidence from Syrian or U.S. authorities, I am unable to determine
exactly how Mr. Elmaati came to be detained. In the Report of the Events relat‑
ing to Maher Arar, Justice O’Connor found that it was reasonable to assume
that Syria was informed of Mr. Elmaati’s arrival by U.S. authorities. From the
evidence I have been able to review, I agree.
8. While the American role in Mr. Elmaati’s detention might well have been
important, my mandate is to assess whether the actions of Canadian officials
resulted directly or indirectly in Mr. Elmaati being detained in Syria and, if so,
whether they were deficient. I examine below the potential link between three
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instances of sharing of information by Canadian officials about Mr. Elmaati and
Mr. Elmaati’s detention:
(a) In September 2001, the RCMP described Mr. Elmaati to various
foreign law enforcement authorities, including Syrian authorities, as
“linked through association to al Qaeda” and an “imminent threat to
public safety.”
(b) In 2000 and 2001, CSIS described Mr. Elmaati to foreign intelligence
agencies as, among other things, “involved in the Islamic extremist
movement” and “an associate” of an Osama Bin Laden aide.
(c) On November 10, 2001, the RCMP notified the FBI and CIA of
Mr. Elmaati’s intended departure the following day and provided
them with his itinerary. Handwritten notes on a briefing note dated
November 15, 2002 suggest that the CIA was unaware of Mr. Elmaati’s
travel plans until advised by the RCMP. Although it may well be that
the CIA would have been able to obtain Mr. Elmaati’s itinerary through
its own sources, the fact is that the itinerary was provided by the RCMP
to the CIA.
9. The Inquiry found no evidence to suggest that Canadian officials requested
that Mr. Elmaati be detained or advised Syrian authorities that Mr. Elmaati was
travelling to Syria. To the contrary, the evidence before me demonstrates that
Canadian officials expressly decided not to share Mr. Elmaati’s travel itinerary
with the Syrian authorities.
10. However, in my view, the three actions described above, considered in
combination, likely contributed to Mr. Elmaati being detained in Syria. The sharing by the RCMP of Mr. Elmaati’s itinerary with the FBI and CIA is more proximate to Mr. Elmaati’s detention than the sharing of descriptions of him with
foreign law enforcement and intelligence agencies. However, it is reasonable
to infer that the risk that Mr. Elmaati might be detained as a result of Canadian
officials sharing his travel itinerary was increased by the fact that Canadian
officials had previously used labels such as “imminent threat” in describing
Mr. Elmaati to their foreign partners. Accordingly, I conclude on the evidence
available to me that these actions of Canadian officials resulted indirectly in
Mr. Elmaati being detained by Syrian authorities. I need not, and cannot on the
evidence available to me, go farther and determine the role that these actions
played relative to other factors.
�FINDINGS IN RELATION TO Ahmad Abou-Elmaati
Were these actions of Canadian officials deficient?
11. Having concluded that these actions of Canadian officials resulted indirectly in Mr. Elmaati’s detention in Syria, I consider now whether those actions
were deficient in the circumstances. I do so below by examining each of these
actions in some detail.
RCMP’s description of Mr. Elmaati as an “imminent threat”
12. On September 28, 2001, based on the information it received from CSIS
and U.S. authorities, rather than any independent information of its own, the
RCMP sent a request for information to the FBI and to a number of the RCMP’s
liaison offices abroad. In its requests, the RCMP stated that it had received
“current and reliable information” that a group of individuals linked through
association to al Qaeda, including Mr. Elmaati, were currently engaged in activities in support of politically motivated violence and which posed “an imminent
threat to public safety and the security of Canada.”
13. The following day, in response to a request for information about the
identified individuals, the RCMP’s Rome liaison office sent an urgent request
for information to law enforcement officials in several countries including Syria
and Egypt, in which it repeated the message from headquarters stating that the
RCMP had reliable information that a group of individuals, including Mr. Elmaati,
posed “an imminent threat to public safety and the security of Canada.”
14. To describe an individual as an “imminent threat” is a very serious matter.
One RCMP member interviewed by the Inquiry said that describing an individual
in this way was somewhat unusual. Further, this description was shared at a
time that made it particularly significant—it was sent less than one month after
the events of September 11, 2001, when governments around the world were
under intense pressure to cooperate and collaborate in what has been described
as the war on terror. As discussed above, several witnesses told the Inquiry
that U.S. agencies were exerting pressure on intelligence and law enforcement
agencies everywhere to detain and question individuals who might in some
way be implicated in or supportive of another round of attacks. At this time,
being labelled a member or associate of al-Qaeda potentially entailed serious
consequences for an individual’s rights and liberties. Justice O’Connor found
that inaccurate information can have grossly unfair consequences for individuals, and the more often it is repeated, the more credibility it seems to assume.
I agree with this view.
15. The RCMP appears to have described Mr. Elmaati in this way without
taking steps to ensure that the description was accurate or properly qualified.
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The description of Mr. Elmaati as an individual who was linked through association to al Qaeda and “an imminent threat to public safety and the security
of Canada” did not originate from the RCMP’s own investigation; in fact, the
RCMP’s investigation of Mr. Elmaati did not even begin until late September
2001 when Project O Canada was formed. The descriptions appear to have
originated from another source; when it sent the requests, the RCMP had very
little independent information about Mr. Elmaati.
16. While the RCMP’s requests stated that the information was “believed reliable,” in view of the timing the “belief” could not have been that of the RCMP.
The RCMP liaison officer in Rome told the Inquiry that he believed the information was reliable because RCMP headquarters had indicated that it was reliable
information, no doubt because of the source of that information. In my view,
it is at a minimum problematic simply to relay these kinds of characterizations
without more.
17. In addition, the RCMP Operational Manual in effect at the time required
RCMP members to consider the human rights record of a country before sharing information with the country’s government. RCMP officials were aware, or
should have been aware, of Syria and Egypt’s reputations for serious human rights
abuses, particularly against individuals detained on security-related grounds.
Officials should have considered that describing a dual Egyptian-Canadian citizen as an imminent threat in a communication to Syrian and Egyptian police
might expose that individual to the risk of being detained and mistreated in
those countries if he were to travel there.
18. Yet there is no evidence that the RCMP considered these factors before
sending to Syria and Egypt a letter describing Mr. Elmaati as linked to al-Qaeda
and engaged in activities that posed an “imminent threat” to Canada. There
is no evidence that any consideration was given to how these countries might
interpret an inflammatory label like “imminent threat” and what that could mean
for Mr. Elmaati. Even when RCMP headquarters became aware that the letter
was sent, it did not raise the issue of human rights or the possibility of adverse
consequences for the individuals named in the letter.
19. I should note that the RCMP followed its policy on the control of information by attaching written caveats to the letters that were sent to law enforcement officials in several countries including Syria and Egypt. However, caveats
are not guarantees. They cannot ensure that the information shared will not be
shared in breach of the caveats. In my view, the inclusion of caveats also did
not relieve the RCMP of its obligations to test the accuracy of information before
�FINDINGS IN RELATION TO Ahmad Abou-Elmaati
sending it to foreign agencies and to consider potential adverse consequences
to the individual involved.
20. As a result, I find that the RCMP’s use of the term “imminent threat” in
correspondence shared with foreign agencies, especially countries like Syria and
Egypt, without taking any steps to ensure that the description was accurate or
justified, and without considering the potential consequences for Mr. Elmaati,
was deficient in the circumstances.
CSIS’ labelling of Mr. Elmaati
21. During 2000 and 2001, CSIS shared information about Mr. Elmaati with
the RCMP and foreign intelligence and law enforcement agencies, including
U.S. agencies. CSIS described Mr. Elmaati in quite definitive terms, variously
referring to him as:
• an individual of Egyptian descent who had recently arrived in Canada
from Afghanistan where he spent approximately seven years involved in
jihad-related activities;
• an individual with links to local religious and Islamic extremists;
• an associate of Osama Bin Laden aide Ahmed Said Khadr; and
• an individual involved in the Islamic extremist movement.
22. I note that CSIS did not describe Mr. Elmaati as a person “suspected” or
“believed” to be involved in the Islamic extremist movement, but a person
involved in the Islamic extremist movement. This description, which appears
to be an assertion of fact rather than a suspicion, was sent to foreign agencies
in early October 2001. While I recognize that the weeks following 9/11 posed
unprecedented challenges for those involved in national security investigations,
it is precisely this environment that made a factual assertion about someone’s
involvement in the Islamic extremist movement particularly serious at this time.
As I have already stated in discussing the labels used by the RCMP, in my view,
the use of these kinds of labels, without proper qualification where appropriate,
not only can be misleading, but can also create serious consequences for the
individual so described.
23. The Attorney General submitted that the level of certainty attached to
descriptions depends on the nature and sources of the information and the
degree to which it is corroborated or refuted. CSIS witnesses told the Inquiry
that the Service categorizes people in order to give the receiving agency the
proper perspective and inform them of how the Service views a particular person. Terms used such as “suspected” or “believed” frame CSIS assessments and
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put the information into context for the receiving agency. However, in the case
of Mr. Elmaati, terms such as “suspected” or “believed” were sometimes not
used. Omitting to say that a particular piece of information is only “suspected”
or “believed” can lead to what Justice O’Connor identified as the danger that
inaccurate information becomes credible the more often it is repeated. The
Supreme Court of Canada has endorsed Justice O’Connor’s conclusion that
“[i]naccurate information or mislabelling, even by a degree, either alone or taken
together with other information, can result in a seriously distorted picture.”�
24. The evidence from the CSIS witnesses was that there are no guidelines
or policies about how people are described in communications with foreign
agencies: what descriptions are applied depends on what is in the mind of the
analyst who drafts the communication (and the CSIS officials who approve it), as
well as the information currently available, and the description can change daily
as new information surfaces. One CSIS witness also told the Inquiry that characterizations are sometimes used to elicit information from the foreign agency.
He said that the Service will characterize an individual, at least in part, to prompt
a response from the receiving agency that will confirm or deny the assessment
that the characterization reflects. In my view, this is a very dangerous practice,
one that puts the person labelled in this manner at risk, and increases the possibility that inaccurate information will be treated as credible. In my opinion,
CSIS’ approach to labelling, as explained to me, is not adequate. It appears to
me to be desirable that the Service have a clear policy concerning the manner
in which people are described in communications with foreign agencies. This
policy should extend not only to the use of appropriate qualifiers as discussed
above, but also to the use of certain labels (as discussed below at paragraphs 81
to 85). This is an example of the type of deficiency that can arise when there
is a complete absence of a norm.
25. Justice O’Connor found that information sharing with domestic and foreign
agencies is necessary to effectively investigate threats to the national security of
Canada. I agree with that finding. Several CSIS witnesses told the Inquiry that
Canada is a net importer of intelligence and that, in order for it to effectively
investigate terrorist threats, it must obtain as much information as possible
from domestic and foreign sources. I accept the evidence of the Service that in
order for it to receive information, it must be prepared to provide information
in return.
26. I can also conclude, based on my review of Service communications with
foreign agencies, that the Service followed its policy concerning the control of
�
Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38 at para. 41.
�FINDINGS IN RELATION TO Ahmad Abou-Elmaati
information by attaching the required caveats to all of the information shared
with foreign agencies about Mr. Elmaati. However, as noted above, the use of
caveats in descriptions shared with foreign agencies is not a panacea. Caveats
are an important tool in the control of information; they are intended to limit
what use can be made of the information by the foreign agency. As described
in Chapter 3, paragraphs 22 to 28, at the time relevant here, the Service was
using several types of caveats. Each was designed to ensure that the agency
receiving the information would not share the information, or use the information for any purpose other than its own internal purposes, without first seeking
and obtaining consent of the Service. But caveats are not guarantees. They
cannot ensure that the information shared will not be shared in breach of the
caveats. For that reason, the inclusion of caveats does not detract from the need
for agencies such as CSIS to use care in describing individuals in their dealings
with others, including foreign agencies, and to consider the consequences that
may arise where an individual is mis-described.
27. I therefore conclude, for the reasons described above, that the sharing of
information by CSIS that used language such as “involved in the Islamic extremist movement” and “an associate” of an Osama Bin Laden aide, was deficient in
the circumstances.
RCMP’s sharing of Mr. Elmaati’s travel itinerary
28. On November 8, 2001, the RCMP received information that a foreign
agency believed that Mr. Elmaati’s brother, Amr Elmaati, had recently entered
Canada for the purpose of boarding a flight in Canada and diverting it to a target in the United States. The RCMP believed this information to be reliable.
The following day, the RCMP learned that Mr. Elmaati was intending to travel
from Toronto to Syria on November 11. The RCMP became concerned that
Mr. Elmaati might be intending to carry out his brother’s plan. A decision was
made to notify U.S. authorities.
29. On November 10, 2001, the RCMP advised the CIA and FBI of Mr. Elmaati’s
travel plans and itinerary. According to the RCMP members interviewed by the
Inquiry, the RCMP had an obligation to advise the U.S. agencies of Mr. Elmaati’s
travel plans because of the potential threat to a U.S. target.
30. The Attorney General submitted that sharing travel information is one
of the most important forms of information sharing with authorities of other
countries to combat global terrorism. According to the Attorney General, it
is common practice for security intelligence and law enforcement agencies
to share travel information with foreign authorities. I was told that the RCMP
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may share travel plans of a Canadian citizen to prevent the commission of a
criminal act, advance an investigation or assist the RCMP in investigating any
threats to national security. I accept that there is an obligation on Canada, and
therefore on Canada’s law enforcement agencies, to share travel information
of individuals suspected of involvement in criminal acts or threats to national
security. Justice O’Connor strongly endorsed the importance of information
sharing, recognizing that information sharing across borders is essential for protecting Canada’s national security interests. This is especially important where
one country has information that it reasonably believes constitutes a threat to
another country. However, like Justice O’Connor, I do not accept that this
obligation is without limits.
31. In the case of Mr. Elmaati, the RCMP believed that there was a credible and imminent threat to the United States that necessitated that it share
Mr. Elmaati’s travel itinerary with U.S. authorities. Arguably, the RCMP would
have been remiss if it had not shared this information. By contrast, the RCMP
did not share Mr. Elmaati’s travel itinerary with the Syrian authorities because
it understood that the alleged threat was directed at the U.S. not at Syria, and
because the RCMP did not have a working relationship with the Syrian authorities. In my view, it was reasonable, based on the circumstances that existed at
the time, including the nature of the perceived threat and intended target, for
the RCMP to share Mr. Elmaati’s itinerary with U.S. authorities. However, even
in circumstances where information is shared to prevent what is believed to
be a credible threat from materializing, appropriate controls must be attached
to the information and the potential consequences of sharing the information
must be considered.
32. In the public hearing on standards, the Attorney General advised the
Inquiry that RCMP policies require all sensitive information collected or received
by the RCMP to be either “designated” or “classified” with caveats attached.
As described in Chapter 3, most of the RCMP information of concern to this
Inquiry is “classified” information, which means that it is considered sensitive
to the national interest. The RCMP Administrative Manual states that when
the RCMP shares classified information with other domestic or foreign law
enforcement agencies, it must attach one of two standard RCMP caveats (also
discussed in Chapter 3, at paragraphs 71 to 76). As Justice O’Connor stated,
the “reasons behind the need for the RCMP to control shared information are
obvious.” According to Justice O’Connor, “Recipients may wish to use information in unacceptable ways, ways that would lead the RCMP to refuse to share
the information if it knew about them in advance.” I agree with this statement.
It is very important for the RCMP to control, to the extent that it can, how its
�FINDINGS IN RELATION TO Ahmad Abou-Elmaati
information is used by foreign agencies. As found by Justice O’Connor, caveats
are “a means of attempting to ensure that Canadian information is not used in
a way that would be inconsistent with Canadian values and objectives.”�
33. In sharing Mr. Elmaati’s itinerary with the U.S. agencies, the RCMP did not
expressly include any caveats about how the information could be used. The
evidence of RCMP witnesses included the suggestion that there is an unwritten
rule in intelligence that an implied caveat always attaches to information that
is shared. An implied caveat means an unwritten understanding between law
enforcement agencies that information that is shared will not be disseminated or
used without first obtaining the originator’s consent. The RCMP Administrative
Manual does not address the use of implied caveats. In my view, an implied
caveat is not an adequate substitute for an express caveat.
34. Several members of the RCMP testified at the Arar Inquiry that, in the
months following the events of September 11, 2001, it was not practical or
desirable to adhere to policies on screening information and using caveats when
information was shared with U.S. authorities. Similarly, in his final submissions
to this Inquiry, the Attorney General acknowledged that, given the time, nature
of events and operational requirements, some members of Project A‑O Canada
shared information with the U.S. authorities without express caveats, but stated
that they did so on the understanding that a caveat was always implied. Justice
O’Connor did not accept this justification and concluded that there was no need
to depart from established policies with respect to screening of information and
the use of caveats. I adopt this conclusion.
35. In sharing Mr. Elmaati’s travel itinerary with the U.S., the RCMP should
have taken steps to ensure there were adequate controls as to how that information could be used and by whom. Relying on an implied understanding
was not sufficient to ensure that the information shared would be adequately
protected. Even if, as happened here, the information is shared orally, express
caveats must be communicated. In my view, the RCMP’s failure to abide by
established practice and include express caveats when sharing Mr. Elmaati’s
travel information with U.S. authorities was deficient in the circumstances.
36. Counsel for the individuals and certain Intervenors submitted that the
sharing of travel information creates a unique risk that requires added care
and consideration. They submitted that a Canadian citizen who travels abroad
leaves behind the protections of Canadian law and becomes vulnerable to the
�
Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Report of
the Events Relating to Maher Arar: Analysis and Recommendations (Ottawa: Public Works and
Government Services Canada, 2006), p. 105 [Arar Inquiry, Analysis and Recommendations].
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whims of other regimes. I accept this submission. During this Inquiry, I heard
evidence that DFAIT will not interfere with the lawful administration of foreign
law. Once a Canadian citizen is detained abroad, DFAIT will request that he or
she be provided with due process but will not request the individual’s release or
any other remedy that would conflict with the laws of the detaining state. This
leaves Canadians vulnerable to the justice systems of other states, whether or
not they follow norms that would be acceptable in Canada. This is of increased
concern when Canadians travel to countries with a poor human rights record,
such as Syria.
37. In my view, the RCMP failed to consider adequately the possible consequences for Mr. Elmaati of sharing his itinerary with the CIA and FBI. The
RCMP provided the American authorities with Mr. Elmaati’s travel itinerary on
November 10, 2001. This was two months after September 11 and one month
after the RCMP had sent a letter to the FBI that characterized Mr. Elmaati as an
“imminent threat to public safety and the security of Canada.” Counsel for the
individuals submitted that providing the travel information of a person who has
been labelled in this way creates a serious and palpable risk that this information
will be used by foreign agencies to orchestrate his detention, interrogation and
torture. While the itinerary was not provided at the same time that Mr. Elmaati
was labelled an “imminent threat,” in my view the two communications were
sufficiently close in time and context that the RCMP should have considered
the possible consequences for Mr. Elmaati of sharing his itinerary with U.S.
authorities at a time when it knew that they had been told that he was an
“imminent threat.”
38. The RCMP also should have considered, before providing Mr. Elmaati’s
travel itinerary to the U.S., that U.S. authorities might take steps to have
Mr. Elmaati detained and questioned. Less than two months earlier, the RCMP
had received letters from the FBI and another U.S. agency requesting that it
provide further information about the individuals identified in the letters, and
if possible, detain them for interviews. The evidence of the RCMP regarding
those letters was that it was reasonable to conclude that U.S. authorities were
making these kinds of requests to other countries as well. These earlier requests
to have individuals detained for questioning should have been an indication to
the RCMP that the U.S. might use travel information to have a person detained
and questioned. A senior RCMP member told the Inquiry that he knew that
Mr. Elmaati was on a watch list and that, in retrospect, it was reasonable to
assume that the Americans would take steps to detain and question him; however, this was not something that was considered at the time. Another RCMP
member stated that it did not cross his mind at the time that passing on this
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information might lead to Mr. Elmaati’s detention and questioning. In my view,
the failure of the RCMP to consider the possible consequences for Mr. Elmaati
of sharing his travel information, and take steps to share the relevant portions of
this travel information in a manner and with controls that lessened the likelihood
that these consequences would occur, was deficient in the circumstances.
39. A year after Mr. Elmaati was first detained in Syria, on November 21, 2002,
the RCMP drafted a briefing note to the Commissioner that stated that the
RCMP could be considered “complicit” in Mr. Elmaati’s detention in Syria based
on the information that it had passed to the U.S. agencies regarding his travel
to Syria. I find this note troubling. The RCMP members interviewed by the
Inquiry uniformly stated that this briefing note was drafted in response to media
scrutiny of the RCMP, and it did not mean that the RCMP was in fact complicit.
However, immediately following the statement about the RCMP’s complicity
in Mr. Elmaati’s detention, the note states that there was no RCMP complicity or involvement in Mr. Almalki’s detention. Also, handwritten notes on an
earlier draft of the briefing note suggest that the briefing note was amended
to better capture the fact that the CIA had been directly advised by the RCMP
of Mr. Elmaati’s travel plans, and that the CIA was previously unaware of this
information. The language used in the note with respect to Mr. Elmaati and
Mr. Almalki, combined with the notes on the earlier draft, leave me questioning whether the note was, as I was told, simply a reaction to media scrutiny, or
whether it was intended to acknowledge that the RCMP was in fact complicit
in the detention.
Did the detention of Mr. Elmaati in Egypt result directly or indirectly from actions
of Canadian officials?
40. Without evidence from Syria and Egypt, I am unable to determine how
or why Mr. Elmaati came to be transferred from Syria to Egypt. However, the
evidence satisfies me that Canadian officials had no involvement in, or knowledge of, Mr. Elmaati’s transfer. Indeed, the evidence before me indicates that
at the time Mr. Elmaati was transferred, and for several weeks after the transfer,
Canadian officials had no knowledge of Mr. Elmaati’s whereabouts and did not
even know that he had left Syria. I do not find that any actions of Canadian
officials resulted, directly or indirectly, in Mr. Elmaati’s detention in Egypt.
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Did any mistreatment of Mr. Elmaati result directly or indirectly from
actions of Canadian officials and, if so, were those actions deficient in
the circumstances?
Was Mr. Elmaati mistreated in Syria and Egypt?
41. As described in Chapter 2, at the outset of this Inquiry, I determined
that the words “any mistreatment” in the Inquiry’s terms of reference should
be interpreted broadly. The word “mistreatment” is broader than torture.
Mistreatment includes any treatment that is arbitrary or discriminatory or results
in physical or psychological harm, as well as denial of properly entitled assistance and other forms of treatment that would normally be included in the
meaning of mistreatment. “Mistreatment” may also include detention itself,
where that detention is arbitrary, or where the detainee is held under conditions
that cause him serious physical or psychological harm. The Attorney General
acknowledged in his submissions at the hearing on the Terms of Reference, and
again in his final submissions, that for the purposes of the Inquiry, the detention
of Mr. Elmaati under the conditions in Syria and Egypt constituted mistreatment.
To the extent that certain actions of Canadian officials directly or indirectly
prolonged his detention under such conditions, I will consider these actions to
have also resulted directly or indirectly in mistreatment.
42. In my ruling on the Terms of Reference, I determined that it would be
both appropriate and important for the Inquiry to try to ascertain whether
Mr. Elmaati, Mr. Almalki and Mr. Nureddin suffered mistreatment that amounted to torture. The nature and extent of any mistreatment, and whether that
mistreatment amounted to torture, is, at a minimum, relevant to whether the
actions of government officials were deficient in the circumstances.
43. Article 1 of the United Nations Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment sets out the generally
accepted definition of torture. It provides that:
torture means any act by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person for such purposes as obtaining from
him or a third person information or a confession, punishing him for an act he or
a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination
of any kind, when such pain or suffering is inflicted by or at the instigation of or
with the consent or acquiescence of a public official or other person acting in an
official capacity. It does not include pain or suffering arising only from, inherent
in or incidental to lawful sanctions.
�FINDINGS IN RELATION TO Ahmad Abou-Elmaati
44. Based on a careful review of the evidence available to me, which as I have
emphasized does not include information from Syrian or Egyptian authorities, I
conclude that while in Syrian and Egyptian detention Mr. Elmaati suffered mistreatment amounting to torture. Using the words of the Convention Against
Torture, I find that both Syrian and Egyptian officials intentionally inflicted
physical and mental pain and suffering on Mr. Elmaati in order to obtain information from him. Mr. Elmaati’s account of his treatment while in Syrian and
Egyptian custody is set out in detail in Chapter 7; I will not repeat that description here.
45. I find Mr. Elmaati’s account of his mistreatment by Syrian and Egyptian
officials to be credible. I base this assessment on a number of factors. The most
important of these factors are the nature and particularity of the information that
Mr. Elmaati provided during the thorough interview that Inquiry counsel and I
conducted of him, with assistance from Professor Peter Burns, former Chair of
the United Nations Committee against Torture, concerning the conditions under
which he was detained and the manner in which he was treated while in detention, and his demeanour during the two-day interview. In addition, Mr. Elmaati’s
account of what happened to him has been consistent over time, since he first
alleged in August 2002 that he was tortured while in Syrian detention.
46. I have also taken into account in coming to my conclusion the fact that
Mr. Elmaati’s evidence is consistent with the evidence of other individuals
who have been held in Syrian detention, including Mr. Almalki. The Attorney
General has asked that I consider the possibility of collusion among the three
individuals. Although Mr. Elmaati and Mr. Almalki acknowledged to the Inquiry
that since their return to Canada, they had discussed their experiences in detention with one another, I do not find it surprising or troubling that they would
do so. In any event, their accounts are far too detailed, and far too different
in important ways, to support a finding of collusion. I have, in addition, used
publicly available reports and other background information concerning the
treatment of detainees in Syria and Egypt as context in assessing Mr. Elmaati’s
account of events.
47. As mentioned in Chapter 2, the Inquiry received certain medical records
from Mr. Elmaati, which I considered in making my determination. I also considered it desirable to obtain current medical assessments of Mr. Elmaati from a
psychologist and a psychiatrist retained by the Inquiry. While I recognize the
limitations of these kinds of assessments as evidence of what actually occurred,
and in distinguishing between types of trauma that an individual might have
suffered, particularly when the events in question took place some years ago, I
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nonetheless thought it desirable to ensure that the current medical assessments
of Mr. Elmaati were not inconsistent with his account of his mistreatment. As
I indicated in Chapter 2, the assessments that I obtained were from a psychologist and a psychiatrist with experience in assessing victims of torture. I have
reviewed their reports with the assistance of my medical advisor, Dr. Lisa
Ramshaw. I found no inconsistency between their reports and Mr. Elmaati’s
account of his mistreatment.
48. Having concluded that Mr. Elmaati suffered mistreatment amounting to
torture in Syria and Egypt, I now turn to the question of whether this resulted
directly or indirectly from the actions of Canadian officials and, if so, whether
these actions were deficient in the circumstances.
Actions of Canadian officials in relation to Mr. Elmaati’s mistreatment
in Syria
49. In this section, I analyze the actions of Canadian officials during the time
that Mr. Elmaati was detained in Syria to assess whether Mr. Elmaati’s mistreatment in Syria resulted directly or indirectly from those actions and, if so,
whether those actions were deficient. I am concerned in this section with the
following two actions (or in one instance, an omission to act) on the part of
Canadian officials:
(a) the failure of Canadian officials to advise DFAIT’s Consular Affairs
Division that they were aware that Mr. Elmaati had been detained and
interrogated in Syria; and
(b) the sending of questions by CSIS to be asked of Mr. Elmaati by his interrogators in Syria.
Failure of Canadian officials to advise DFAIT Consular Affairs Division of
Mr. Elmaati’s detention and interrogation in Syria
50. On November 19, 2001, CSIS and the RCMP received unsolicited information from a foreign agency that was said to have been obtained from Mr. Elmaati
while in detention in Syria. This information included the existence of an
alleged plot by Mr. Elmaati to blow up the Canadian Parliament Buildings with
a truck bomb, and the existence of an alleged terrorist cell in Canada. This
information was of concern to CSIS and the RCMP. Both agencies set about
analyzing it.
51. It is unclear on what date DFAIT’s Foreign Intelligence Division (DFAIT ISI)
was made aware that Mr. Elmaati had been interrogated in Syria. Although it
appears from the notes of a DFAIT ISI official dated November 19, 2001 (the
�FINDINGS IN RELATION TO Ahmad Abou-Elmaati
same date that CSIS and the RCMP received the unsolicited information) that
he was made aware of the interrogation, this official’s recollection was that
he learned of the interrogation only later. Another DFAIT ISI official told the
Inquiry that he was not informed of the interrogation until January 2002, when
he was informed by a foreign intelligence partner. The Inquiry obtained no
evidence, other than the notes described above, to suggest that CSIS or the
RCMP promptly advised DFAIT of this interrogation.
52. The Attorney General submitted that, based on the note described above,
DFAIT had been informed of the interrogation on the same day that CSIS and
the RCMP were advised of it. Regardless of when DFAIT ISI learned of the
interrogation, we know that the Consular Affairs Bureau was never informed,
at the relevant time, of the interrogation.
Did any mistreatment result directly or indirectly from this omission?
53. Based on the evidence available to me, it is reasonable to infer that mistreatment of Mr. Elmaati in Syria resulted indirectly, at least in some part, from
the failure of Canadian officials to inform DFAIT’s Consular Affairs Bureau of
Mr. Elmaati’s detention.
54. A senior Consular Affairs Bureau official told the Inquiry that while there
would not have been an expectation that this kind of information would necessarily have been shared with the Consular Affairs Bureau by CSIS or the RCMP, it
would have been beneficial to have received it. The official told the Inquiry that
if he had known that Mr. Elmaati had been interrogated, he would have been
more definitive in his communications with the Syrian authorities. As described
above in Chapter 4, at the time CSIS and the RCMP learned that Mr. Elmaati had
been interrogated, on November 19, 2001, DFAIT’s Consular Affairs Bureau was
still seeking to establish whether Mr. Elmaati was detained in Syria or Egypt.
This same senior Consular Affairs Bureau official stated that, in his experience,
the worst treatment for detainees in countries such as Syria always occurs in the
first few hours or days of detention. As I state at paragraph 124 below, in my
view it is implicit in the seriousness with which the international community,
including our government, regards consular access, that a failure by Canadian
officials to effectively pursue consular access will increase the risk that mistreatment may occur. In light of this evidence, it is reasonable to infer that the failure
of Canadian officials to notify DFAIT’s Consular Affairs Bureau likely contributed
to his mistreatment.
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Was this omission a deficiency?
55. In my view, CSIS, the RCMP and DFAIT ISI have a responsibility to
inform DFAIT’s Consular Affairs Bureau when they learn that a Canadian is
being detained abroad and when they learn that this person is being interrogated. Although the Consular Affairs Bureau has the responsibility within the
Government of Canada to make representations on behalf of Canadian citizens
detained in foreign countries, it can carry out that mandate effectively only if
it has the cooperation of other departments and agencies, such as CSIS and
the RCMP, which are likely to have information respecting detainees such as
Mr. Elmaati. A senior CSIS official told the Inquiry that it was standard operating practice for the Service to advise DFAIT whenever a Canadian citizen is
detained overseas. The same practice should apply for both CSIS and the RCMP
when they become aware that a Canadian citizen has been interrogated in a
foreign jail.
56. This is especially important where the jail is located in a country with
respect to which there have been credible reports that torture is used in interrogation. The evidence of both CSIS and RCMP witnesses suggested that neither
agency considered whether the information it received about Mr. Elmaati’s
alleged confession might have been the product of torture. According to CSIS
witnesses, the Service would evaluate all information received in fundamentally
the same way, to determine validity and whether it was capable of corroboration. In the case of Mr. Elmaati, CSIS never considered that the statements might
have been the product of torture. Similarly, according to RCMP witnesses, in
analyzing the information received, no consideration was given to the conditions
under which the information might have been provided to Syrian authorities.
57. Justice O’Connor found that CSIS officials had or likely had during the
relevant time knowledge of Syria’s poor human rights reputation, including
reports that Syrian security agencies used torture to interrogate detainees. He
also found that CSIS officials were familiar with the Amnesty International
and U.S. State Department reports on Syria and assessed these documents as
credible. He noted, however, that the Director of CSIS testified that, without
knowing the evidence on which these reports relied, CSIS could not conclude
absolutely that Syria engaged in torture.
58. The RCMP Operational Manual refers to post profiles that can be obtained
from the Criminal Operations (CROPS) officer. According to the RCMP, these
post profiles consist of the human rights reports prepared by DFAIT. The RCMP
therefore had access to publicly available reports regarding Syria’s human rights
�FINDINGS IN RELATION TO Ahmad Abou-Elmaati
reputation, such as the reports prepared by Amnesty International, as well as
the annual human rights reports prepared by DFAIT.
59. Despite the availability of these reports, investigators for Project A‑O Canada
and the RCMP’s Criminal Intelligence Directorate (CID) told the Arar Inquiry
that, while they were aware that Syria operated under different standards from
Canada, they were not aware that Syria might use torture to elicit information
through interrogation of detainees. In an email to DFAIT in mid-November
2001, the RCMP’s Rome liaison office stated that, if Mr. Elmaati were arrested
in Syria, he would be interrogated “Syrian style.” When interviewed by Inquiry
counsel, the RCMP’s liaison officer told the Inquiry that he simply meant that
Syrian police and intelligence do not interview people in the same way Canadian
authorities would and that he had no indication of torture occurring in Syria
at the time.
60. In my view, the officials from CSIS and the RCMP who received and analyzed Mr. Elmaati’s alleged confession knew or should have known about Syria’s
human rights record and therefore should have considered the possibility that
Mr. Elmaati’s alleged confession might have been the product of torture. They
should have advised DFAIT that Mr. Elmaati had been interrogated, and possibly
tortured, in Syria. If, in fact, CSIS and the RCMP had advised DFAIT ISI of this,
DFAIT ISI should have provided this information promptly to DFAIT’s Consular
Affairs Bureau. Whether responsibility ultimately rests with CSIS, the RCMP
or DFAIT ISI, the Consular Affairs Bureau was not made aware of this crucial
information and the actions of Canadian officials were therefore deficient in
the circumstances.
CSIS’ sending of questions to be asked of Mr. Elmaati in Syria
61. After CSIS received Mr. Elmaati’s alleged confession (as described above),
the Service became concerned about how much information might have been
passed to the Syrian authorities by foreign agencies before the interrogation
began and how much prompting might have been provided. The Service
was concerned that the alleged confession might be the product of “circular
reporting.” The Service therefore sent a number of clarification questions to a
foreign agency to try to determine the extent of involvement, if any, of other
intelligence or law enforcement agencies in Mr. Elmaati’s interrogation. Based
on the results of these clarification questions, the Service concluded that Syrian
authorities had relied on their own information.
62. When it sent these clarification questions, the Service did not ask any questions about Mr. Elmaati’s treatment during the interrogation or the conditions
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under which he was being detained. The Inquiry was told that questions of this
kind were not asked because, at the time, the Service did not have any information to indicate that Mr. Elmaati’s treatment should be a subject of inquiry.
63. In early December 2001, CSIS sent questions to a foreign agency to be sent
to Syrian authorities to be put to Mr. Elmaati. The questions addressed various
topics, including Mr. Elmaati’s background, his move to Canada, the places he
had lived, his training in Afghanistan, his flight training, his known and unknown
associates, his communications with his brother, and the alleged plan to bomb
the Parliament Buildings. According to the Service, the questions were sent for
the purpose of testing the accuracy and reliability of the information contained
in Mr. Elmaati’s alleged confession and seeking to clarify certain information that
would be of use to the Service in its investigations. According to the Attorney
General, the Service was required to seek additional information and test the
veracity of the information it had received about a threat to Canadians.
Did any mistreatment result directly or indirectly from the sending of the
questions?
64. In my view, it is reasonable to infer that Mr. Elmaati’s mistreatment by
Syrian officials resulted indirectly, at least in part, from sending questions to be
asked of Mr. Elmaati by Syrian officials. As stated above, I accept Mr. Elmaati’s
evidence that he was subjected to mistreatment amounting to torture during his interrogation by Syrian officials. I also accept that the conditions of
Mr. Elmaati’s detention in Syria constituted mistreatment. It appears from his
evidence that this mistreatment continued in the period after the questions were
sent by CSIS in early December 2001. In my opinion, it is reasonable to infer
that the provision of additional, follow-up questions by CSIS through a foreign
agency to the Syrian interrogators led to further questions and further mistreatment. It is also reasonable to infer that the sending of additional questions by
CSIS, in light of the topics addressed in those questions, would be perceived by
his interrogators as legitimizing the interrogation that they had conducted and
the way in which they had elicited the information that the Service was seeking
to clarify.
65. Put simply, I infer from all the evidence that I have heard and reviewed
that Syrian officials would likely have viewed these additional questions sent by
Canadian officials as a “green light” to continue their interrogation and detention of Mr. Elmaati, rather than a “red light” to stop. While I acknowledge that
Mr. Elmaati’s interrogation and detention would likely have continued and
the Syrians might well have asked many of these same questions regardless of
whether CSIS had sent the questions, I find that the sending of these questions
�FINDINGS IN RELATION TO Ahmad Abou-Elmaati
by CSIS likely contributed to mistreatment of Mr. Elmaati in Syria. I need not,
and cannot on the evidence available to me, assess the degree to which this
was so.
Was sending the questions deficient in the circumstances?
66. I also consider that the sending of the questions was deficient in the
circumstances. In light of what I have said above regarding what the Service
knew, or should have known, about the treatment of political detainees in
Syria, the Service failed to give adequate consideration to how Mr. Elmaati
would be treated when he was interrogated on the basis of its questions. The
Service knew, from its previous correspondence with the foreign agency that
it sent its questions to, that it was not the foreign agency that would be conducting the interviews. Yet it did not request any information as to how the
interrogation would be conducted or under what conditions the questions
would be asked. The Service did not even ask any questions about the prison
conditions generally.
67. In sending the questions to Syria, the Service not only failed to make inquiries about how Mr. Elmaati would be treated during subsequent interrogations
but, as discussed above, also legitimized the manner of interrogation that had
already taken place. The Service knew, or should have known, that the information contained in Mr. Elmaati’s alleged confession could have been obtained
by torture. By sending questions about that information, the Service created a
risk that the Syrians would not only torture Mr. Elmaati into providing answers
to the Service’s follow-up questions, but would also think that it was an acceptable means of eliciting information.
68. The sending of questions to be asked of Mr. Elmaati in Syria also created
a risk that his detention could be prolonged. When the Service sent these
questions, it had an expectation that some of the questions would be put to
Mr. Elmaati. However, according to one CSIS official, it had not reflected on
whether this would require Mr. Elmaati to continue to be detained or whether
the sending of questions would prolong Mr. Elmaati’s detention. These are
potential consequences that the Service should have considered. In my view,
as set out above, detention in these circumstances constitutes mistreatment. By
sending these questions to be asked of Mr. Elmaati in Syria, the Service increased
the risk that Mr. Elmaati’s detention might be prolonged and thereby created a
further risk of mistreatment.
69. The Attorney General submitted that the Service would have been remiss
in fulfilling its mandate if it had not pursued information regarding a possible
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threat to national security. I was referred to the testimony of one CSIS official
who stated that the Service was looking for answers to very specific questions
and did not want to feed the Syrian authorities additional information to pursue.
I accept that the Service must take investigative steps that are consistent with
its mandate. However, I do not accept that the Service should be permitted to
do so without adequate consideration for the consequences of its actions.
70. As stated by the Canadian Arab Federation, Canadian Council on American
Islamic Relations and the Canadian Muslim Civil Liberties Association in their
submissions for the Inquiry’s public hearing on standards, sending questions to
the authorities of a foreign state to be posed to a Canadian detainee “can only
be considered in the context of the nature of the foreign state, the urgency
and relevance of the information being sought and the likely result in terms of
the human rights of the detained Canadian.” Before a Canadian agency such as
CSIS should send questions to a foreign agency, it must assess the human rights
record of the detaining state and risk of mistreatment to the detainee against
the urgency of the information being sought.
71. A senior CSIS official who did not participate in the drafting of these questions acknowledged that sending these questions could have made Mr. Elmaati’s
situation worse, but stated that in every case it is a balancing of interests and one
hopes that the questions can be crafted to mitigate the adverse consequences to
the individual. I agree that there should be a balancing of interests. However,
in this case, the Service appears to have sent the questions without consideration for who would be asking them, under what conditions they would be
asked, and what message the sending of the questions might convey to the
Syrian authorities.
72. In contrast to the deliberations that took place prior to the sending of
questions to be asked of Mr. Almalki (as discussed in Chapter 5), the Service
did not consult with or even advise DFAIT prior to the sending of questions
to be asked of Mr. Elmaati. The Attorney General submitted that the Service
was not required to consult DFAIT before sending questions to be asked of
Mr. Elmaati. I was told that, when the Service engages in operational activity
outside of Canada in the investigation of threats to the security of Canada, the
Service is required to consult with DFAIT when the operational activity has been
assessed by the Director as high risk. Factors that constitute high risk include
a clear risk to human life, grave damage to Canada’s international reputation
or severe damage to the reputation of the Service. In my view, this standard is
inadequate in these circumstances. The Service should consult DFAIT not only
�FINDINGS IN RELATION TO Ahmad Abou-Elmaati
when there is a clear risk to human life, but also where there is a serious risk
of mistreatment, as there was in Mr. Elmaati’s case.
73. The Service knew or should have known about the human rights record
of Syria and the possibility that Mr. Elmaati could be subjected to torture while
in detention. The Service knew that Mr. Elmaati had already been interrogated
and provided an alleged confession, and it did not know who was going to be
asking the questions or under what conditions. In light of what it knew and did
not know, the Service should have assessed the sending of questions to be asked
of Mr. Elmaati in detention as creating a serious risk that Mr. Elmaati would be
mistreated, and consulted DFAIT about the risks associated with sending the
questions. The Service’s failure to consult DFAIT was therefore deficient in
the circumstances.
74. Where a Canadian agency such as CSIS or the RCMP is engaging in operational activity that involves interaction with the detaining state, such as sending
questions, that agency must consider and weigh the effect those actions might
have on the human rights of the detainee. While consular officials may have
primary responsibility for monitoring the health and well-being of the Canadian
detainee, it must at least be an incidental function of the RCMP and the Service,
when engaging in these types of activities, to consider the potential effect of its
actions on the detainee and adjust its actions to minimize those effects. As stated
by Justice O’Connor, “Conflicts between the investigative interests of Canada
and the need to respect the consular and human rights of Canadians held abroad
must be resolved on a case-by-case basis, but I would think that officials would
strive to ensure the greatest possible respect for human rights.”� No Canadian
officials should consider themselves exempt from this responsibility.
Actions of Canadian officials in relation to Mr. Elmaati’s mistreatment
in Egypt
75. In this section, I examine actions of Canadian officials as they relate to the
mistreatment, amounting to torture, that I have concluded Mr. Elmaati suffered
during his detention in Egypt. I assess whether any mistreatment of Mr. Elmaati
in Egypt resulted directly or indirectly from those actions and, if so, whether
they were deficient in the circumstances. I consider the following actions of
Canadian officials in this section:
(a) the May 2003 sharing by CSIS of a statement of concern with Egyptian
authorities about Mr. Elmaati and his activities if he were to be
released;
Arar Inquiry, Analysis and Recommendations, p. 351.
�
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(b) the RCMP’s requests to interview Mr. Elmaati while he was detained in
Egypt;
(c) the sharing of information by the RCMP with foreign officials;
(d) the RCMP’s failure to advise the RCMP Commissioner of the allegations
that Mr. Elmaati had been mistreated in Syria and Egypt; and
(e) the RCMP’s reliance on Mr. Elmaati’s alleged confession in Syria to
obtain search warrants.
76. In my confidential report, I have also identified another action that, in
my view, likely contributed to mistreatment of Mr. Elmaati in Egypt and was
deficient in the circumstances. As described above at paragraph 4 of this chapter and at paragraph 42 of chapter 2, because the responsible Minister is of
the opinion that disclosure of this information would be injurious to national
security, national defence and/or international relations, I am unable to refer to
these actions and my assessment of them in this report.
Sharing by CSIS in May 2003 of statements of concern about Mr. Elmaati
77. In May 2003, the Service sent a request to the Egyptian authorities for a
status update on Mr. Elmaati’s continued detention and whether it was expected
that he would be released. The request included a statement of concern about
Mr. Elmaati and about his activities if he were to be released.
78. To provide the statement of concern that it did was, as acknowledged by
one CSIS witness, serious. Several CSIS witnesses testified that they believed the
labels used in this communication were accurate and represented the Service’s
institutional assessment at the time. Similarly, the Attorney General submitted
that the descriptions and terminology used by CSIS in its communications with
foreign agencies regarding Mr. Elmaati were accurate, reliable and appropriate
at the times they were provided to domestic and foreign agencies.
Did any mistreatment result directly or indirectly from sending this statement of
concern?
79. I conclude that it is reasonable to infer that the sending by CSIS to the
Egyptian authorities of this statement of concern likely contributed to mistreatment of Mr. Elmaati. I reach this conclusion bearing in mind the Attorney
General’s acknowledgement that detention in these circumstances is a form of
mistreatment, and my view that the prolongation of detention is a form of mistreatment. Mr. Elmaati remained in detention for many months after the statement was sent. In view of the nature of the concern that was communicated
(the details of which I cannot disclose, as set out in paragraph 299 of Chapter 4),
�FINDINGS IN RELATION TO Ahmad Abou-Elmaati
in my view the statement of concern likely contributed to Mr. Elmaati’s prolonged detention and thereby his mistreatment.
Was sending this statement of concern deficient?
80. The sending of this communication was also deficient in the circumstances. It was deficient because the Service sent the communication without
taking adequate steps to ensure the accuracy of the information or to consider
the potential consequences for Mr. Elmaati.
81. As I stated above at paragraph 24, it appears to me to be desirable that the
Service should have a clear policy containing standards governing the use of
labels in communications with foreign agencies. For example, communicating
a statement of concern about an individual, or about an individual’s activities
if released, should be based on more than the discretion of particular CSIS
officials. In my view, the Service did not take adequate measures to ensure the
accuracy or qualification of these labels. I have come to this conclusion for
several reasons.
82. Based on the evidence available to me, it appears that this communication
to the Egyptian authorities was the first time that the Service expressed these
concerns about Mr. Elmaati to Egyptian authorities. On the evidence available
to me, I am not aware of any credible new information obtained by CSIS that
would merit the use for the first time in May 2003 of such inflammatory language. This inaccuracy is exactly the kind of inaccurate and imprecise information that Justice O’Connor identified as being particularly serious in terrorism
investigations in the post-9/11 environment. As Justice O’Connor stated, “The
use of loose or imprecise language about an individual or an event can have
serious and unintended consequences.”�
83. The evidence of CSIS witnesses about the consequences for Mr. Elmaati
of sending these statements of concern varied. One CSIS official stated that he
had never considered whether this communication would have an effect on the
length of Mr. Elmaati’s detention. Two other CSIS officials stated that they were
not concerned that this characterization would affect Mr. Elmaati’s continued
detention and treatment in Egypt because, in their view, the Service had already
shared its information about Mr. Elmaati with the Egyptians and this was not
anything new. A fourth CSIS official stated that regardless of the language used,
or whether this assessment had been sent to the Egyptian authorities, the detaining authorities always had but two options: continue to detain Mr. Elmaati, or
release him.
�
Arar Inquiry, Analysis and Recommendations, p. 337.
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84. In February 2004, a senior CSIS official obtained information from a foreign
agency regarding Mr. Elmaati which, in my view, contradicts the perception
of several CSIS witnesses that the communications CSIS sent to Egypt would
not have any effect on Mr. Elmaati’s detention and treatment. In the circumstances, it seems reasonable to conclude that the Egyptian authorities did consider the information it received from the Service. It is also consistent with
my conclusion above that the statement of concern provided by the Service in
May 2003 likely contributed to Mr. Elmaati’s prolonged detention and thereby
his mistreatment.
85. In my view, sending the statement of concern about Mr. Elmaati and his
activities if released to the Egyptian authorities created a risk that the Egyptian
authorities would continue to keep Mr. Elmaati in custody. I consider that CSIS’
failure to give adequate consideration to the fact that the communication of this
assessment might prolong Mr. Elmaati’s detention or lead to physical mistreatment was deficient in the circumstances.
RCMP’s requests to interview Mr. Elmaati in Egypt
86. Throughout the period of Mr. Elmaati’s detention in Egypt the RCMP
continued to make efforts to obtain access to interview him there. The RCMP
made efforts through a foreign agency, through its liaison officer in Rome and
through DFAIT. However, the RCMP was never granted access and never did
conduct an interview of Mr. Elmaati in Egypt.
87. As soon as the RCMP was advised by a foreign agency that Mr. Elmaati had
been transferred to Egypt, the RCMP requested that the foreign agency make
inquiries about an interview in Egypt on its behalf. The Inquiry was told that
the RCMP immediately sought assistance from the foreign agency because it
had a relationship with the Egyptian authorities that the RCMP did not have.
88. In March 2002, the RCMP was advised that the foreign agency had been
given limited access to Mr. Elmaati and had made efforts to interview him.
The foreign agency told the RCMP that Mr. Elmaati’s level of cooperation had
apparently declined and those conducting the interviews were having difficulty
because they did not have sufficient knowledge of the investigation. The RCMP
was unable to identify for the Inquiry what the foreign agency might have meant
by the apparent decline in cooperation. Nor was it able to identify who at this
time was conducting the interrogations—whether the Egyptian authorities or
the foreign agency. The evidence of the RCMP was that it believed that any
interview conducted by the foreign agency would be conducted in a similar
fashion to an interview conducted by the RCMP.
�FINDINGS IN RELATION TO Ahmad Abou-Elmaati
89. In the spring of 2002, the primary objective of Project A‑O Canada was
to interview Mr. Elmaati in Egypt on the basis that he had allegedly confessed
to a plot to bomb the Parliament Buildings in Canada and the RCMP wanted to
investigate that threat. The RCMP therefore directed its liaison officer in Rome
to meet with representatives of Egyptian law enforcement and intelligence to
find out where Mr. Elmaati was being held and whether it could get access to
him. According to one RCMP member, there were no discussions at this time
about whether it would be appropriate to interview a detainee in Egypt given
its poor human rights record, because it was thought that the RCMP would
discuss this subject with DFAIT. Based on the evidence before me it seems
DFAIT ISI was aware, as early as June 2002, that the RCMP wanted to interview
Mr. Elmaati in Egypt, although it is not clear what discussions, if any, took place
at that time about any human rights concerns.
90. Efforts to interview Mr. Elmaati continued throughout the winter and
spring of 2003. The RCMP’s liaison officer had meetings with Egyptian police
and intelligence officials regarding access to Mr. Elmaati. At certain points in
time, first in February 2002 and later in 2003, the Egyptian authorities seemed
willing to allow access to the RCMP based on certain conditions that the
RCMP felt compelled to reject. These conditions ranged from having to keep
Mr. Elmaati’s location a secret (in February 2002) to agreeing to an indirect
interview by use of one-way glass (in July 2003). The RCMP was unwilling to
conduct an interview under these conditions because of a concern that the
evidence would be inadmissible in a Canadian court. According to several witnesses, a direct interview of a detainee is desirable because the interviewer can
control the circumstances in which the questions are posed.
91. In the fall of 2003, Project A‑O Canada managers met with the Canadian
Ambassador to Egypt to discuss the RCMP’s requests for access to Mr. Elmaati.
The RCMP requested the Ambassador’s assistance in facilitating access to
Mr. Elmaati. At this meeting, the Ambassador stated that he would wait for a
letter from DFAIT before approaching the Egyptian government. As described
in detail in Chapter 4, at paragraphs 322 to 325, consultations then took place
at DFAIT regarding whether it should be requesting access on behalf of the
RCMP at the same time that it was considering sending a letter from the Minister
requesting that Mr. Elmaati be given due process. It was decided that the
Minister would send a letter and DFAIT ISI would advise the RCMP that it should
pursue its interview back in Canada under more favourable conditions. In the
end, the letter was never sent. Nor was the interview ever conducted. Shortly
after these events, Mr. Elmaati was released.
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Did any mistreatment result directly or indirectly from the RCMP’s requests to
interview Mr. Elmaati in Egypt?
92. In my view, it is reasonable to infer that the repeated requests by the RCMP
to interview Mr. Elmaati in Egypt resulted indirectly in mistreatment. The fact
that Canada’s national law enforcement agency was making repeated requests to
meet with him, on the basis that he was a potential threat to Canada’s national
security, increased the risk that the Egyptian authorities would see Mr. Elmaati
as a dangerous individual and that, at the least, his detention would be prolonged. Among the various factors that resulted in his mistreatment, I believe
it reasonable to infer that these actions of the RCMP were a likely contributor.
As I have said in relation to other similar findings, I need not go further.
Were the RCMP’s actions deficient?
93. Although there may be cases in which it is reasonable for the RCMP to
request to interview a Canadian detained in a foreign country, there were deficiencies in the manner in which the RCMP approached Egyptian authorities
with respect to Mr. Elmaati.
94. First, the RCMP initially sought access to Mr. Elmaati through a foreign
agency when it had uncorroborated reports that Mr. Elmaati had been detained
in Egypt but did not know where he was detained, for what reason or under
what conditions. In my view, it is problematic for a Canadian agency to seek
access to a detained Canadian through another foreign agency when so little is
known about the circumstances of the detention. Engaging the foreign agency
without first determining where and how Mr. Elmaati was being detained, why
the foreign agency was involved and what interest it had in Mr. Elmaati, was
deficient in the circumstances.
95. Second, the RCMP did not give adequate consideration to the potential
consequences of its requests for Mr. Elmaati, and to how it might take steps to
address them. The RCMP knew or ought to have known about the treatment
of political detainees in Egypt. Although the RCMP does not produce human
rights assessments of countries as DFAIT and CSIS do, a senior RCMP official
testified before the Arar Inquiry that dealing with countries with poor human
rights records is an extremely important issue, and RCMP policy provides guidelines regarding respect for human rights and dealing with countries with a poor
human rights record.
96. As described in detail in Chapter 4, paragraphs 186 to 195, in July 2002
the RCMP became concerned that Mr. Elmaati might have been exposed to
“extreme treatment” in Egypt. A briefing note to the Commissioner stated that
�FINDINGS IN RELATION TO Ahmad Abou-Elmaati
“indications are that Elmaati has been exposed to extreme treatment while in
Egyptian custody.” The Inquiry questioned a number of RCMP members closely
about the briefing note. However, none of them, including the member who
was identified as the author of the briefing note and those who approved and
signed it, recalled any discussion about Mr. Elmaati’s treatment in Egypt and
none could recall what might have been the intended meaning of “indications”
of “extreme treatment.”
97. Furthermore, the RCMP failed to take the information about “extreme
treatment” into account in pursuing access to Mr. Elmaati in Egypt. One RCMP
member told the Inquiry that the RCMP continued to persist in seeking an
interview of Mr. Elmaati in Egypt even after it became known that there were
indications that he had been exposed to “extreme treatment” there because
the RCMP was compelled to pursue its investigation of the alleged threat to
Parliament Hill.
98. The treatment that Mr. Elmaati was receiving while in Egyptian custody
was a factor that the RCMP should have taken into account in deciding whether
to pursue requests for an interview. At the time it received information that
suggested “extreme treatment,” the RCMP did not know which agency was
holding Mr. Elmaati, but it did know, through its discussions with the foreign
agency, that Mr. Elmaati was being interrogated. In my view, the RCMP should
not have continued to pursue an interview of Mr. Elmaati until it had properly
investigated these “indications” of “extreme treatment” and satisfied itself that
its actions in pursuing an interview with Mr. Elmaati in Egypt would not contribute to the likelihood that he would suffer further “extreme treatment.”
99. In August 2002, in response to Mr. Elmaati’s allegation that he had been
tortured in Syria, the RCMP convened a meeting to discuss the allegation of torture, the impact on his alleged confession and the investigative options available
to the RCMP. It was decided that despite Mr. Elmaati’s allegation of torture in
Syria, the RCMP would continue to try to corroborate the information contained
in Mr. Elmaati’s alleged confession by seeking to interview him in Egypt. In my
opinion, the RCMP failed to properly consider the significance of Mr. Elmaati’s
torture allegation before it continued to pursue an interview of Mr. Elmaati in
Egypt. I say this for two reasons. First, the purpose of the RCMP’s proposed
interview of Mr. Elmaati was to try to corroborate the information contained
in his alleged confession—information that the RCMP now knew was alleged
to be the product of torture. Second, the torture allegation should at the least
have alerted the RCMP to the possibility that asking questions could lead to
mistreatment in Egypt as well.
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100. Finally, even assuming the RCMP was unaware of Egypt’s human rights
record, the Memorandum of Understanding between DFAIT and the RCMP
and the ministerial directive discussed above at Chapter 3, paragraphs 59 to 61
require the RCMP to consult with DFAIT before embarking on certain acts that
may have an international dimension. I have found no evidence that the RCMP
consulted with DFAIT before requesting immediate access through the foreign
agency. Unlike its efforts in the fall of 2003, when the RCMP requested the assistance of, and consulted with, DFAIT about its desire to interview Mr. Elmaati, its
efforts to obtain access to Mr. Elmaati through the foreign agency in the spring
and summer of 2002 occurred without the advice of DFAIT.
101. It was suggested to me that by taking steps that would allow the results of
the interview to be admissible in Canadian courts, RCMP investigators selected
the method of attaining their investigatory objective that would be the least
intrusive to the interests of the individual. However, this submission ignores the
possibility that a detainee could be mistreated in preparation for or as a result of
an interview. It bears repeating that, whether in crafting questions to be sent
to a foreign agency or requesting an interview, it is difficult, as the Intervenor
Human Rights Watch has submitted, to take into account all the antecedent
or subsequent risks of mistreatment that can arise in a context where torture
may be a part of interrogation. Requesting an interview of a detainee creates a
risk that a detainee will be tortured before or after the scheduled interview. A
detainee might be tortured before the interview in order to “soften him up” or
ensure that he provides “the right answers” to the visiting agents. A detainee
might be tortured after the interview if the local interrogators are dissatisfied
with something the detainee says or because the local interrogators conclude
that the detainee has lied or concealed something from them earlier.
102. It is not sufficient, in my view, for the RCMP to have considered the
consequences of any interview from the perspective of the admissibility of
the evidence obtained. The RCMP should have also considered the potential
consequences for Mr. Elmaati and the treatment that he would receive while
in Egypt.
RCMP’s sharing of information with foreign agencies
Inaccurate or imprecise labels
103. I have discussed at paragraphs 32 to 35 of this chapter the risks associated with sharing information without caveats and sharing information, even
with caveats, that is inaccurate or imprecise. I will not repeat those points here.
�FINDINGS IN RELATION TO Ahmad Abou-Elmaati
However, I would like to comment on two examples of such sharing during
Mr. Elmaati’s detention in Egypt.
104. First, in the spring of 2002, when attempts were being made to locate and
interview Mr. Elmaati, the RCMP gave a presentation to American authorities
in which it characterized Mr. Elmaati as the primary target of Project O Canada
and as a “confessed terrorist/conspirator.” The presentation was oral and did
not include any caveats.
105. Second, in June 2003, in a communication to the Egyptian authorities, the
RCMP’s liaison office in Rome described Mr. Elmaati as the “terrorist detained
in Egypt.” There were no caveats attached to this communication either.
106. Both of these characterizations are examples of the imprecise or inaccurate labelling that I have discussed in detail above. In both cases, Mr. Elmaati
was definitively identified as a terrorist without qualification. In the first case,
there was also no comment on the way in which the confession might have
been obtained. In the second case, although the label used by the RCMP’s
liaison office in Rome was not created by its officers stationed in that office
but was based directly on descriptions of Mr. Elmaati derived from previous
correspondence from the RCMP, CSIS and other agencies, the RCMP should
not have used this label without taking steps to ensure that it was accurate or
justified. While I am unable to infer in these circumstances that the use of these
labels likely contributed to Mr. Elmaati’s mistreatment, I find it troubling for the
reasons I have expressed above.
Sharing of the RCMP Supertext database with U.S. authorities
107. As discussed in detail in Chapter 4, paragraphs 131 to 133, in April
2002 Project A‑O Canada provided U.S. agencies with three CDs containing the
RCMP’s Supertext database. The CDs were provided without caveats. They
contained all of the documents relating to the Project A‑O Canada investigation,
including the documents seized during the January 2002 searches.
108. Justice O’Connor made extensive findings about the sharing of the
Supertext database. As I explain in greater detail in my findings relating to
Mr. Almalki (Chapter 12, paragraph 23), consistent with my Terms of Reference
and the evidence that I have reviewed, I adopt these findings for the purpose of
this Inquiry. To summarize, Justice O’Connor found several problems with the
transfer of documents contained in the three CDs sent by the RCMP: the information on the CDs should not have been provided to the U.S. agencies without written caveats; the portion of the documents not related to the executed
searches should have been reviewed for relevance, reliability, and personal
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information; and third-party materials to which caveats were attached, such
as letters received from CSIS and documents received from Canada Customs,
should not have been transferred without the originator’s consent. Justice
O’Connor found that this departure from established policies with respect to
screening and the use of caveats was not justified.
Did any mistreatment result from the sharing of the database?
109. There is a correspondence between the substance of certain of
Mr. Elmaati’s interrogations in Egypt as he described them to the Inquiry and
the information contained in the RCMP Supertext database, which (as discussed above) was shared with U.S. agencies in early April 2002, approximately
six months after Mr. Elmaati came to be detained in Syria (in November 2001)
and two to three months after Mr. Elmaati was transferred to Egypt (in late
January 2002). Mr. Elmaati told the Inquiry that while in detention in Egypt he
was questioned about certain facts that he said must have come from Canada:
• Mr. Elmaati told the Inquiry that his Egyptian interrogators showed him
a copy of the map of Tunney’s Pasture; a copy of this map, originally
provided to CSIS and the RCMP by U.S. authorities, was included in the
Supertext database.
• Mr. Elmaati told the Inquiry that his Egyptian interrogators asked him
about a remote control that he had purchased in Toronto; several
documents, including surveillance reports, regarding Mr. Elmaati’s
purchase of a remote control in Toronto were included in the
Supertext database.
• Mr. Elmaati told the Inquiry that he was severely beaten and subjected
to electric shocks during an interrogation at Egyptian State Security
headquarters regarding his Islamic will; a copy of Mr. Elmaati’s Islamic
will was included in the Supertext database.
110. I found no evidence that Canadian officials shared any of this information with Egyptian officials at any time prior to, or during, Mr. Elmaati’s detention in Egypt. Nor did I find any evidence that the RCMP gave permission to
U.S. agencies to share any of this information with Egyptian authorities. To
the contrary, the evidence before me demonstrates that the RCMP expressly
denied the U.S. requests to share information about Mr. Elmaati’s will with the
Egyptian authorities. I am also satisfied that neither the RCMP nor CSIS told the
Egyptian authorities that they could get access to Mr. Elmaati’s will through the
U.S. agencies.
111. However, based on the common elements described above and the fact
that the database was provided without caveats at a time when Mr. Elmaati was
�FINDINGS IN RELATION TO Ahmad Abou-Elmaati
detained in Egypt and when foreign agencies were interested in him, I believe
it is reasonable to infer that documents provided in the Supertext database, or
information from or corroborated by those documents, made their way into the
hands of Egyptian officials, and were then used by those officials, together with
other information, to interrogate Mr. Elmaati in Egypt. On this basis, I conclude
that the actions of Canadian officials in sharing the Supertext database likely
contributed in some measure to, and therefore resulted indirectly in, mistreatment of Mr. Elmaati in Egypt.
Was the sharing of the database deficient?
112. As I discuss in paragraph 108 above, the sharing of the Supertext database
without proper screening or caveats was a departure from RCMP policy and was
deficient in the circumstances. In addition, the RCMP appears to have made this
exceptional disclosure of information without adequate, if any, consideration
of the possible consequences for the individuals whose information was being
shared. At the time the RCMP shared the database, it knew that Mr. Elmaati
was already in detention in Egypt. It also knew that the American agencies had
a very strong interest in Mr. Elmaati and had been at least partly responsible
for his detention in Syria. At the time the RCMP shared the Supertext database
it was engaged in discussions with a foreign agency about getting access to
Mr. Elmaati in Egypt and had been informed, in March 2002, that the foreign
agency had been given “limited access” already and that Mr. Elmaati’s cooperation had apparently been on the decline. In my view, sharing the Supertext
database with U.S. agencies was deficient in these circumstances.
RCMP’s failure to advise the RCMP Commissioner of the allegations that
Mr. Elmaati was mistreated in Syria and Egypt
113. Former Commissioner Zaccardelli told the Inquiry that he did not recall
reviewing the briefing note stating, or having otherwise been advised, that there
were indications that Mr. Elmaati had been subjected to “extreme treatment.”
He said that he could not recall having been informed of Mr. Elmaati’s allegation of torture in Syria while he held the position of RCMP Commissioner. He
stated that whether information of this nature should have been brought to
his attention depended on the circumstances of the investigation. He added
that he would expect the investigator who received this information to take
the appropriate steps to deal with the situation, including making a decision
regarding whether it should be brought to the attention of the Commissioner.
He confirmed that no one put this issue in front of him for discussion, guidance
or direction.
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Did any mistreatment result, directly or indirectly, from the RCMP’s failure
to advise the RCMP Commissioner of the allegations that Mr. Elmaati was
mistreated in Syria and Egypt?
114. I cannot conclude that the RCMP’s failure to advise the RCMP
Commissioner of Mr. Elmaati’s allegation that he had been tortured in Syrian
detention or that the RCMP had received information that Mr. Elmaati had been
exposed to “extreme treatment” while in detention in Egypt, resulted directly
or indirectly in mistreatment (including prolonged detention) of Mr. Elmaati. I
found no evidence that would permit me to infer a direct or indirect link.
Comments on the RCMP’s failure to advise the RCMP Commissioner of the
allegations that Mr. Elmaati was mistreated in Syria and Egypt
115. In my view, the RCMP nonetheless should have ensured that the
Commissioner was advised both when the RCMP received information that
Mr. Elmaati had been exposed to “extreme treatment” in Egypt and when it
learned that Mr. Elmaati had alleged he had been tortured in Syria. An allegation of torture of a subject of an RCMP investigation is a very serious matter. It
is the kind of allegation of which the Commissioner must be made aware if he
is to be in a position to discharge his responsibilities.
116. As set out in Chapter 3, paragraph 40, former Commissioner Zaccardelli
told the Inquiry that he briefed the Minister on the investigations of Mr. Almalki,
Mr. Elmaati and Mr. Nureddin but that the briefings did not include operational
matters or details of the investigation. Former Commissioner Zaccardelli also
told the Inquiry that he was never apprised of any concerns about torture and
that, as a result, he never briefed the Minister on that issue. The Attorney
General submitted that, even if the RCMP had informed the Commissioner, it
would not have made any difference since the practice of the Commissioner at
the relevant time was not to brief the Minister on what the Attorney General
referred to as operational details. It was also pointed out that a Ministerial
Directive implemented in November 2003 now requires the Commissioner to
inform the Minister of all “controversial cases.” In my opinion, for the reasons
expressed above, Mr. Elmaati’s case was a controversial matter that should
have been brought to the attention of the Minister. Even before the Ministerial
Directive came into force, given the seriousness of Mr. Elmaati’s allegations of
torture and the information received by the RCMP about “extreme treatment,” I
believe it is reasonable to infer that had the Commissioner been informed about
these allegations, he likely would have informed the Minister.
�FINDINGS IN RELATION TO Ahmad Abou-Elmaati
RCMP’s reliance on Mr. Elmaati’s alleged confession in Syria to obtain search
warrants
117. As described in detail in Chapter 4, paragraphs 122 to 128, in January
2002 the RCMP applied for and obtained search warrants to conduct searches
of various locations in furtherance of its investigation. Project A‑O Canada
investigators were of the view that Mr. Elmaati’s alleged confession would be
useful in obtaining search warrants and therefore used this information in the
Information to Obtain (ITO).
118. Project A‑O Canada did not, however, raise the possibility that the confession could have been obtained by torture. Nor did the RCMP address, in
its ITO, Syria’s reputation for engaging in human rights abuse and torture. In
addition, as found by Justice O’Connor, no assessment of the reliability of the
information was made or included in the ITO.
Did any mistreatment result, directly or indirectly, from the RCMP’s reliance on
Mr. Elmaati’s alleged confession to obtain search warrants?
119. I cannot find that the RCMP’s reliance on Mr. Elmaati’s alleged confession to obtain search warrants resulted directly or indirectly in mistreatment or
prolonged detention of Mr. Elmaati. I found no evidence that would permit me
to infer a direct or indirect link between Mr. Elmaati’s treatment and the RCMP’s
use of the alleged confession in its application to obtain search warrants.
Comments on the RCMP’s reliance on Mr. Elmaati’s alleged confession to obtain
search warrants
120. Nonetheless, I find the RCMP’s reliance on information obtained by torture to be troubling. The Attorney General submitted that the RCMP had no
information at the time it first applied for the search warrants that Mr. Elmaati
might have been mistreated while detained in Syria. The Attorney General
pointed out that Mr. Elmaati made his allegation of torture in August 2002 and
the search warrants were obtained in January 2002. However, as discussed in
my findings at paragraph 60 of this chapter, in my view the RCMP ought to have
known that Mr. Elmaati’s alleged confession could have been the product of
torture: it knew or ought to have known about Syria’s human rights record and
it knew that this information had been obtained by interrogation. Like Justice
O’Connor, I am of the view that when information is received from countries
that have questionable human rights records, the source of the information
should be identified and steps taken to assess its reliability.
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121. I understand that the current policy on National Security Criminal
Investigations requires the RCMP to assess the reliability of information received
from countries with questionable human rights records to evaluate “the risk
that the country may provide misinformation or false confessions induced by
torture, violence or threats.” The current policy also requires that all national
security criminal investigators and analysts be trained on the risk of dealing with
countries with poor human rights records, including the risk of torture and the
impact of the recommendations made by Justice O’Connor. Although these standards had not been formally articulated as RCMP policy in 2002 when it applied
for the search warrants, these standards are in my view the same standards that
existed or, if they did not, ought to have been applied by the RCMP in 2002.
For the reasons set out above, the RCMP’s actions in 2002 did not meet those
standards and were therefore deficient in the circumstances.
Were there deficiencies in the actions of Canadian officials to provide
consular services to Mr. Elmaati?
122. Mr. Elmaati was detained in Syria for over two months and detained
in Egypt for approximately two years. During the time that Mr. Elmaati was
detained in Egypt, he received eight consular visits. In this section, I consider
whether there were any deficiencies in the actions of Canadian officials in the
provision of consular services to Mr. Elmaati in Syria and in Egypt. I discuss
below the following issues:
(a) whether DFAIT acted sufficiently promptly and effectively after learning
that Mr. Elmaati had been detained in Syria;
(b) whether DFAIT acted sufficiently promptly and effectively after learning
that Mr. Elmaati had been transferred from Syria to Egypt;
(c) whether DFAIT provided consular visits to Mr. Elmaati in Egypt sufficiently frequently from the date on which DFAIT was able to make
those visits to the date he was released;
(d) whether the DFAIT consular officials who visited Mr. Elmaati had sufficient training to assess whether he was being mistreated;
(e) whether the DFAIT consular officials who visited Mr. Elmaati should
have asked for private visits;
(f) whether DFAIT should have told the Minister of Foreign Affairs about
the allegations that Mr. Elmaati had been tortured in Syria and Egypt;
(g) whether DFAIT officials should have repeatedly asked Mr. Elmaati during consular visits whether he was willing to meet with RCMP and CSIS
officials; and
�FINDINGS IN RELATION TO Ahmad Abou-Elmaati
(h) whether the sharing of consular information by DFAIT officials with
CSIS and the RCMP was deficient.
123. As I have noted above, the portion of my Terms of Reference that specifically addresses the actions taken by Canadian officials to provide consular services to Mr. Almalki, Mr. Elmaati and Mr. Nureddin directs me to assess whether
there were any deficiencies in these actions, without calling on me to determine
whether any mistreatment of any of the individuals resulted directly or indirectly
from them. For that reason, in the section that follows, as well as in the consular services sections in the chapters that set out my findings concerning the
actions of Canadian officials in relation to Mr. Almalki and Mr. Nureddin, I do
not attempt to determine whether there was a link between the nature of the
consular services provided by Canadian officials and any mistreatment of the
three individuals.
124. Nonetheless, in my view it is implicit in the seriousness with which the
international community, including our government, regards consular access,
that a failure by Canadian officials to effectively pursue consular access will
increase the risk that mistreatment may occur.
125. A state’s obligation to grant consular access to a detained national of
another state is a core obligation that states owe to one another under international law. The Vienna Convention on Consular Relations, which contains
this obligation, has been ratified by the vast majority of states. The consular
access obligation, set out in Article 36 of the Vienna Convention, requires the
detaining state, at the request of the state of which the detainee is a national,
to inform the requesting state’s consular officials without delay of the arrest
or detention of the detainee and to grant the requesting state consular access
to the detainee. It is noteworthy that the detaining state’s obligation under
the Vienna Convention to inform the requesting state of the detention and
grant consular access is triggered only at the request of the requesting state—a
requirement that highlights the importance for each state to vigilantly assert its
rights to obtain information about and access to its detained nationals.
126. While the Vienna Convention makes no link between the right of consular access and the risk that a foreign detainee will be mistreated, that link has
in my view been made by the United Nations Committee against Torture, which
oversees compliance with the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment. In its 2005 conclusions
and recommendations in respect of Canada, the Committee expressed concern
about the Arar case and reports that Mr. Arar had been tortured in Syria. It
recommended that Canada “should insist on unrestricted consular access to its
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nationals who are in detention abroad, with the facility for unmonitored meetings and, if required, appropriate medical expertise.” The Committee was not
explicit in saying that a failure to insist on unrestricted consular access would
lead to mistreatment. However, given the Committee’s express mandate to
deal only with matters involving torture, this statement in my view confirms
the reasonable inference that if a state does not vigorously exercise its rights
to consular access—particularly in a state where there are credible reports that
detainees are mistreated—there is an increased likelihood that the detainee will
suffer mistreatment, and possibly mistreatment amounting to torture.
127. As set out in detail in Chapter 3, paragraph 89, the actions of consular
officials, both at the Consular Affairs Bureau and at missions abroad, are guided
by the Manual of Consular Instructions. The Manual provides guidelines
on many aspects of consular assistance that are relevant to Mr. Elmaati’s case,
including the steps to be taken upon notification of a detained Canadian, the
sharing of consular information, conducting consular visits and the frequency of
those visits. According to the Manual, one of the primary functions of Canadian
missions is to “protect the lives, rights, interests, and property of Canadian citizens…when these are endangered or ignored in the territory of a foreign state.”
This includes providing services to Canadian citizens who have been arrested
or detained in a foreign country.
Did DFAIT act promptly and effectively after learning Mr. Elmaati was detained
in Syria?
128. The Manual of Consular Instructions directs that, when a Canadian
citizen has been arrested and detained abroad, consular officials should investigate the circumstances of the arrest and detention to determine whether
there was unlawful discrimination, denial of justice or due process or harsh
treatment during arrest. DFAIT’s Service Standards, which are provided to
employees and available to all overseas offices, set out guidelines for consular
services. According to the Service Standards, the first contact with the detainee
should be made within 24 hours of notification of the detention, though it
is acknowledged that the response time might be subject to factors beyond
DFAIT’s control.
129. On November 13, 2001, DFAIT ISI advised the Consular Affairs Bureau
that it had received information that Mr. Elmaati had been detained by Syrian
authorities in Damascus and suggested that inquiries be made regarding whether
he had sought consular access. A CAMANT file was opened for Mr. Elmaati on
November 16 and the first diplomatic note sent to the Syrian government on
November 22—nine days after DFAIT first learned of his detention.
�FINDINGS IN RELATION TO Ahmad Abou-Elmaati
130. In my view, DFAIT should have sent a diplomatic note immediately rather
than waiting a full nine days to do so. In reviewing the evidence before me,
I can understand why DFAIT’s Service Standards acknowledge that response
time is sometimes subject to factors beyond DFAIT’s control. As is clear from
all three cases that are the subject of this Inquiry, DFAIT can only obtain access
to a detainee in a foreign country when it is permitted to do so by the detaining state. I also accept that the exceptional nature of security-related cases,
in which a foreign security service controls the detention, may compromise
DFAIT’s potential effectiveness. However, it is precisely because there are so
many factors that are beyond DFAIT’s control that DFAIT must be vigilant about
acting promptly when it is within its power to do so.
131. On December 2, 2001, consular officials met with officials from Syria’s
Ministry of Foreign Affairs (MFA). They confirmed that Syria had received the
diplomatic note. On December 24, the Canadian Ambassador to Syria met with
Deputy Minister Haddad and provided him with proof that Mr. Elmaati had
travelled to Damascus. On December 30, the Syrian MFA confirmed to DFAIT
that Mr. Elmaati had entered Syria, and on December 31 it confirmed that he
was being detained by Syrian authorities. In response to this confirmation,
DFAIT sent two diplomatic notes, on January 3 and February 5, 2002, requesting
consular access. It received no response to either note. By the end of January
2002, Mr. Elmaati had been transferred to Egypt.
132. In my view, DFAIT failed to make adequate efforts to ascertain the location of Mr. Elmaati and assess how he was being treated once it learned that
he was being detained in Syria. DFAIT also failed to make effective representations to the Syrian government on Mr. Elmaati’s behalf. Two meetings with
Syrian government officials and a total of three diplomatic notes (one of which
was sent after Mr. Elmaati had already been moved to Egypt) do not represent
the satisfactory investigation of the circumstances surrounding the detention
required by the Manual of Consular Instructions. I acknowledge that part
of the delay can be attributed to the fact that DFAIT was receiving conflicting
information from Mr. Elmaati’s family about where he was being detained,
and at one point believed it was possible that he was being detained in Egypt.
However, on November 28, 2001, DFAIT was advised by Egypt that Mr. Elmaati
was not in the country. This factor therefore cannot explain the month’s delay
between diplomatic notes and the fact that consular officials did very little to
follow up on the diplomatic notes that went unanswered by the Syrian Ministry
of Foreign Affairs.
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133. In coming to these conclusions, I am not suggesting that DFAIT should
necessarily have succeeded in ascertaining Mr. Elmaati’s location and making
contact with him right away; I acknowledge that there were many obstacles that
were outside of DFAIT’s control. However, I am of the view that DFAIT should
have made more persistent efforts to get access to Mr. Elmaati and should have
done so in a more timely manner. As submitted by counsel for the individuals,
DFAIT’s efforts to locate Mr. Elmaati were not robust.
134. I note that a large part of this delay could have been avoided had there
been effective communication within DFAIT, and among DFAIT, CSIS and the
RCMP. As discussed at paragraphs 50 to 60 above, officials from CSIS, the RCMP
and apparently DFAIT ISI were aware as of November 19, 2001 that Mr. Elmaati
had been interrogated while in Syrian detention but the Consular Affairs Bureau
was not made aware of this crucial information at the time.
Did DFAIT act promptly and effectively after learning Mr. Elmaati had been
transferred to Egypt?
135. As described in detail in Chapter 7, paragraphs 39 to 41, on approximately January 25, 2002 Mr. Elmaati was transferred from Syria to Egypt.
136. On February 12, 2002, DFAIT ISI received information that Mr. Elmaati
had been moved to Egypt. However, DFAIT did not send a diplomatic note to
Egyptian authorities in response to receiving this information until March 18,
2002—more than one month later. It is not clear what caused this delay, or
exactly when the Consular Affairs Bureau learned from DFAIT ISI that Mr. Elmaati
had been transferred to Egypt. A senior consular affairs official told the Inquiry
that the delay could be attributed to a number of factors, including delays inherent in top secret communications between ISI and the Consular Affairs Bureau
or the fact that DFAIT was awaiting confirmation of the transfer from Syrian
authorities (confirmation that was received on April 4, 2002).
137. DFAIT sent three diplomatic notes to the Egyptian authorities in March
and April 2002. From May through July, the Canadian Embassy in Cairo intensified its efforts, sending four more diplomatic notes, making several follow-up
phone calls and meeting with Egyptian officials. At the same time, DFAIT
kept Mr. Elmaati’s family informed of its efforts and provided Badr Elmaati,
Mr. Elmaati’s father, with a list of Egyptian lawyers at his request. When DFAIT
received confirmation of Mr. Elmaati’s detention on August 4, 2002, it immediately wrote a letter requesting consular access. Mr. Elmaati received his first
consular visit on August 12.
�FINDINGS IN RELATION TO Ahmad Abou-Elmaati
138. Although DFAIT’s efforts to ascertain Mr. Elmaati’s location in Egypt were
more vigorous than they had been in Syria, I am troubled by the length of time
that elapsed before DFAIT sent its first diplomatic note to Egypt after learning
that Mr. Elmaati had been transferred there. In addition, while DFAIT intensified
its efforts after April 2002, I believe the representations it made to the Egyptian
authorities could have been made more effectively by increasing the involvement of the Ambassador or more senior DFAIT officials in the representations
that were made. For example, the Inquiry found no evidence that, when faced
with unanswered diplomatic notes and a refusal by Egypt to admit Mr. Elmaati
was being detained, DFAIT took any steps to address the issue beyond the level
of its consular officials in Egypt and the Consular Affairs Bureau.
139. I am also troubled by the language used in DFAIT’s diplomatic note to
Egypt dated July 17, 2002, in which it advised the Egyptian government that
the RCMP was planning to request access to Mr. Elmaati through the Egyptian
police “in order to further a major investigation in Canada.” At the time of this
diplomatic note, DFAIT did not know who was holding Mr. Elmaati or under
what conditions. By advising the Egyptian authorities that the RCMP was interested in interviewing Mr. Elmaati to further “a major investigation” in Canada,
DFAIT created a risk that it would be seen by the Egyptian authorities to be
acting on behalf of the RCMP, and that access by law enforcement was at least
as important as, if not more important, than obtaining consular access.
140. In finding that DFAIT’s consular efforts should have been more robust,
I note the evidence of DFAIT consular officials who were aware of Egypt’s
problematic human rights record and who knew that the most serious abuse of
detainees often occurs during the early stages of detention. A senior Consular
Affairs Bureau official told the Inquiry that, in light of the long delay between
Mr. Elmaati’s transfer to Egypt in January and the granting of consular access in
August, his working assumption at the time was that Mr. Elmaati was being tortured. In addition, DFAIT ISI received information in July 2002 that, in its view,
suggested that Mr. Elmaati had been tortured during interrogation in Egypt.
Although the senior Consular Affairs Bureau official could not recall whether
ISI shared the memorandum with him, in light of his working assumption at
the time, he was not surprised by the suggestion that Mr. Elmaati was being
tortured in Egypt. The Inquiry obtained no information to suggest that DFAIT
made any specific inquiries in response to the information that Mr. Elmaati had
been tortured in Egypt.
141. It was submitted that, in light of the fact that Egypt did not acknowledge
Mr. Elmaati’s detention until August 2002, any delay by the Consular Affairs
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Bureau would not, in any event, have had any impact on Mr. Elmaati’s case.
I find myself unable to agree with this submission. It is impossible to know,
without the participation of Egypt, whether earlier and more intense efforts by
DFAIT would have prompted an earlier confirmation of his detention or affected
his treatment in the interim. As I have stated above, I believe it is reasonable to
infer that consular efforts do make a difference in cases where Canadians are
detained abroad.
Did DFAIT make consular visits sufficiently frequently?
142. Once consular officials make contact with a detained Canadian, the
Manual of Consular Instructions directs them to provide a number of services.
These include: visiting and maintaining contact with the prisoner; attempting to
obtain case-related information; providing available information on local judicial
and prison systems; liaising with local authorities in order to seek regular access
to the prisoner; verifying that the conditions of detention are at least comparable
to the best standards applicable to nationals of the country of incarceration;
obtaining information about the status of the prisoner’s case; and encouraging
local authorities to process the case without unreasonable delay. The Manual
also states that the frequency of consular visits will vary depending on the location of the prison, the conditions within the prison, the number of Canadians
incarcerated, as well as the size of the consular staff and competing priorities
at the Canadian mission.
143. According to the Attorney General’s submissions on standards, DFAIT will
strive for greater frequency of visits at the outset of incarceration where there
may be concerns about a country’s human rights record and the conditions of
detention. Similarly, several witnesses told the Inquiry that it was generally
recognized among DFAIT officials that the normal interval between consular
visits was three months, with more frequent visits in the beginning. I accept the
evidence of these witnesses that, despite a more intense effort in the beginning,
the standard practice appears to be that consular visits with detained Canadians
should ordinarily occur every three months.
144. During the time that Mr. Elmaati was detained in Egypt, he received eight
consular visits. He received his first three consular visits between August 12
and September 11, 2002 and his next three between November 18, 2002 and
February 27, 2003. During this period, DFAIT acted diligently and promptly in
conducting consular visits and providing other forms of assistance to Mr. Elmaati
and his family, such as arranging for family visits and legal representation.
�FINDINGS IN RELATION TO Ahmad Abou-Elmaati
145. Between February and September 2003, however, for a period of seven
months, Mr. Elmaati received no visits at all from any consular official. In my
view, this seven-month gap in consular visits was too long, and DFAIT’s failure to
provide consular visits during this period was deficient in the circumstances.
146. I acknowledge that Mr. Elmaati was visited by his family during this
period, a fact that may mitigate somewhat the harm caused by the lack of a
consular visit. But family visits are not a substitute for regular consular visits.
Family members are not representatives of the Canadian government and are
not in a position to advise the detainee of his or her rights to consular and other
forms of assistance.
147. I also acknowledge the submission of the Attorney General that the delay
in consular visits was affected by two events—the outbreak of war in the Middle
East, which the Attorney General submitted encroached on consular resources,
and the regular rotation of DFAIT staff posted overseas in May through July. But
Mr. Elmaati’s was a serious case—the first Canadian citizen to be detained in the
Middle East on security grounds following 9/11—that required serious attention. By the time the seven-month gap in consular visits began, Mr. Elmaati had
been detained for more than a year. DFAIT had received information suggesting
he had been tortured. Despite the outbreak of war in the Middle East and the
rotation of Embassy officials, it should have been possible for DFAIT to provide
at least one consular visit in seven months. DFAIT must bear responsibility for
ensuring that sufficient resources are in place so that consular efforts can be
made in a timely way without significant interruption.
Were consular officials adequately trained to assess whether Mr. Elmaati was
being mistreated?
148. As I discuss in detail in Chapter 3, paragraphs 103 to 107, during the relevant time period, consular officials did not receive training to assess whether
Canadians detained abroad had been subjected to torture or other mistreatment.
Both consular officials who visited Mr. Elmaati stated that they had received
no training in assessing whether detainees had been mistreated. In addition,
neither consular official recalled having received any briefings on human rights
in Egypt.
149. While acknowledging they had not received training to assess whether
Mr. Elmaati was being mistreated, the two consular officials stated that when
they visited Mr. Elmaati they considered several indicators to determine whether
Mr. Elmaati was being treated well. The consular official who visited Mr. Elmaati
during the first August 2002 visit said that he assessed several aspects of
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Mr. Elmaati’s physical appearance. He noted that Mr. Elmaati did not appear
to be suffering from malnutrition, did not have any scars or bandages, spoke
rationally, and was coherent. In the consular official’s view, Mr. Elmaati was
fine. According to the consular official who carried out the visits following the
seven month gap, there were no indications that Mr. Elmaati was mistreated.
He stated that Mr. Elmaati provided consular officials with information about
the conditions of his incarceration. In the official’s view, there were no clues
from that information that there was anything out of the ordinary.
150. In his report, Justice O’Connor recommended that consular officials
posted to countries that have a reputation for abusing human rights should
receive training on conducting interviews in prison settings in order to be able
to make the best possible determination of whether torture or harsh treatment
has occurred. I agree with this finding. As set out in Chapter 7, Mr. Elmaati
told the Inquiry that while he was being detained in Egypt he felt that he had
no choice but to tell consular officials that he was being treated well because
the Egyptian officials were in the room and could hear and understand what
was said. In my view, the consular officials who visited Mr. Elmaati would have
been less likely to assume he was being well-treated if they had been properly
trained to detect signs of mistreatment.
151. In response to Justice O’Connor’s recommendation, DFAIT revised a
workshop presentation entitled “Torture and Abuse Awareness,” which had
originally been developed in 2004. According to DFAIT, the publication is
designed to educate consular officials about the protocols for dealing with
cases of torture and abuse and to ensure these protocols are followed. While it
is beyond the scope of my mandate to assess whether DFAIT’s publication has
had widespread application or proven to be a useful tool in detecting torture
abroad, the establishment of this training program is consistent with my conclusion about the essential nature of this training.
Should the consular officials have asked for private visits with Mr. Elmaati?
152. During the time that Mr. Elmaati was detained in Egypt, there was no
DFAIT policy that instructed or required consular officials to request private
visits with individuals being held in detention. Neither of the officials who visited Mr. Elmaati in Egypt ever requested a private visit with him, and no private
visits occurred. Both officials told the Inquiry that, in their experience, a prison
official was always present when they made consular visits in other countries,
and they never expected that Egypt would be any different.
�FINDINGS IN RELATION TO Ahmad Abou-Elmaati
153. One of the consular officials recalled several instances when security
officials were sufficiently distracted or temporarily absent, and when Mr. Elmaati
would have had the opportunity to convey information that he felt he was
unable to provide in the presence of prison officials. However, as discussed at
Chapter 7, paragraphs 84, 87 and 104, Mr. Elmaati’s recollection was that he
was never alone with Canadian consular officials while in detention in Egypt and
did not feel that he ever had the opportunity to share this information. In my
view, it is understandable that an individual being held and tortured by Egyptian
authorities would not be very forthcoming about his complaints in the presence of Egyptian officials. Even if the evidence of the consular official indicates
that the prison guards briefly stepped out of the room, I accept Mr. Elmaati’s
evidence that he did not feel he had the opportunity to share this information
during the visit with consular officials.
154. The Director General of DFAIT’s Consular Affairs Bureau in 2003 told
the Arar Inquiry that a consular official visiting a detainee in a country with a
record of torture should ask prison officials to visit the Canadian detainee in
private. He initially adopted this view in his evidence before this Inquiry, but
subsequently provided a clarification expressing a somewhat different view.
Two witnesses from DFAIT ISI told this Inquiry that, earlier in their careers,
when each occupied consular postings, they had adopted a practice of always
requesting to speak with a Canadian detainee alone. According to one of these
officials, it had to be assumed that answers might well be conditioned by the
presence of someone else in the room. While one of these officials never had
his requests refused, the other official told the Inquiry that his requests were
never granted.
155. In my view, DFAIT should have directed its consular officials when visiting Mr. Elmaati to ask for a private visit with him in order to most effectively
assess whether he was being mistreated. I appreciate that Egyptian authorities
might not have permitted Canadian consular officials to meet with Mr. Elmaati
alone. But in light of the length of time it had taken for Egyptian authorities
to grant consular access to Mr. Elmaati and the information DFAIT had earlier received suggesting he had been tortured in Egypt, DFAIT should have
instructed its officials to ask to meet with Mr. Elmaati alone.
Failure to advise the Minister that Mr. Elmaati might have been tortured in Syria
and Egypt
156. As described in detail in Chapter 4, paragraphs 202 to 209, on August 12,
2002 Mr. Elmaati told consular officials, during his first consular visit in Egypt,
that he had been tortured while in detention in Syria. The Canadian consul
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wrote a detailed report of this meeting that was shared with the Consular
Affairs Bureau, ISI, CSIS and the RCMP. According to a DFAIT witness, there
was no protocol in place at the time for dealing with allegations of torture. The
Consular Affairs Bureau official who received the report stated that she made
her superiors aware of Mr. Elmaati’s allegations of torture and believed that they
would take them up with others at DFAIT. The Inquiry found no evidence that
this information was shared with any others at DFAIT. DFAIT did not brief the
Minister of Foreign Affairs on Mr. Elmaati’s allegations of torture.
157. Justice O’Connor stated in his report that:
Torture is a grave abuse of human rights. Decisions on how to address serious
concerns about a Canadian being tortured must be made in a manner that will
ensure as much transparency and political accountability as possible. The Minister
of Foreign Affairs is, in my view, the appropriate person to inform in all cases
where there is credible information that a Canadian detained abroad is being or
has been tortured.�
158. I agree with this recommendation. It is regrettable that DFAIT did not
inform the Minister of Mr. Elmaati’s allegations that he had been tortured in
Syria. Mr. Elmaati’s case was particularly important because, as stated above,
he was the first Canadian citizen detained abroad on security-related grounds
following 9/11. In addition, his allegations were relevant to the security of
other Canadian citizens detained in Syria. At the time that Mr. Elmaati made
these allegations, Mr. Almalki was already detained in Syria and Mr. Arar would
come to be detained in Syria less than two months later. Even after Mr. Arar was
detained and his case was being dealt with at the ministerial level, the Minister
was not informed of Mr. Elmaati’s allegations.
Should DFAIT officials have repeatedly asked Mr. Elmaati if he would be willing to
meet with CSIS and the RCMP?
159. On almost every occasion that consular officials visited Mr. Elmaati while
in detention in Egypt, they asked him whether he would be willing to meet with
officials from CSIS and the RCMP. According to witnesses from DFAIT, they
put the question to Mr. Elmaati (1) in an attempt to move his case forward and
not at the behest of CSIS or the RCMP; and (2) because Mr. Elmaati had himself
stated during his first consular visit that there were certain aspects of his detention that he would only discuss with CSIS or the RCMP back in Canada.
160. Counsel for the individuals submitted that it was not appropriate for
consular officials to continue to press Mr. Elmaati about meeting with CSIS and
Arar Inquiry, Analysis and Recommendations, p. 353.
�
�FINDINGS IN RELATION TO Ahmad Abou-Elmaati
the RCMP. According to their submissions, doing so created the appearance
that consular officials were taking on an enforcement role that was better left
for CSIS or the RCMP. The Attorney General, on the other hand, submitted that
consular officers were neither relaying messages on behalf of either CSIS or the
RCMP, nor attempting to arrange an interview with Mr. Elmaati to further a law
enforcement or national security investigation.
161. I agree with the submissions of counsel for the individuals. While I
accept the evidence from DFAIT officials that they were not asking the question
at the behest of CSIS or the RCMP, they nonetheless created the appearance that
they were acting as agents of CSIS and the RCMP. Mr. Elmaati told the Inquiry
that he thought consular officials should have been more concerned about
his well-being than whether he was willing to meet with a Canadian security
official. Based on all the evidence before me, I accept that consular officials
were concerned about Mr. Elmaati’s well-being. However, it is reasonable to
conclude that their actions, despite their genuine concern, likely communicated
the wrong message.
162. In his submissions on standards, the Attorney General stated that DFAIT
is obliged to ensure that any conflict between consular and policing/security
programs is avoided both in reality and appearance. I agree. By repeatedly
asking Mr. Elmaati whether he would be willing to meet with a member of the
RCMP or CSIS, consular officials appeared to be acting on behalf of the RCMP
and the Service and in conflict with their consular responsibilities. As set out
in paragraph 139 above, when DFAIT communicates a message concerning the
RCMP, it creates a risk that it will be seen to be acting on its behalf.
163. The Attorney General submitted that DFAIT is responsible for all matters
relating to Canada’s external affairs. This includes playing a role in assisting its
security and policing partners when such matters extend beyond Canada’s borders. According to the Attorney General, the head of mission is responsible for
supervising official activities of the Canadian government abroad. For example,
the Attorney General submitted, it is as much a part of the head of mission’s
role to seek consular access as it is to assist in arranging for CSIS or RCMP questions. I accept the Attorney General’s submissions about the head of mission
and agree that he or she must be a representative of the Government at large.
However, I note the concern expressed by Justice O’Connor in the Arar Inquiry
report that the ambassador’s role as representative of all Canadian departments
and agencies may put him or her in a difficult position of conflict. As I discuss
in Chapter 12, paragraphs 59 to 61, I recognize that DFAIT’s mandate extends
beyond the provision of consular services and may include the provision of
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assistance to CSIS and the RCMP in appropriate circumstances. However, I
believe care must be taken to ensure that this kind of assistance does not conflict with DFAIT’s consular role. This is particularly important in countries such
as Egypt, with a well-known record for human rights abuses, where detainees
face a serious risk of being mistreated, and the need for consular assistance
is acute.
Was sharing consular information with CSIS and the RCMP deficient?
164. On several occasions during Mr. Elmaati’s detention in Egypt, DFAIT
shared consular information with members of CSIS and the RCMP. The first
report containing consular information that was shared was the August 12,
2002 report regarding Mr. Elmaati’s first consular visit in Egypt, when he alleged
that he had been tortured in Syria. Following disclosure of this first report,
CSIS sent a written request to DFAIT, through ISI, requesting copies of the
consular reports from visits with Mr. Elmaati or, if those were not available, any
summaries or assessments of those reports. DFAIT shared five other consular
reports with CSIS and one report with the RCMP. The report sent to the RCMP
and three of the reports sent to CSIS contained personal information about
Mr. Elmaati that had been obtained by DFAIT officials in the course of providing consular visits to Mr. Elmaati in the fall of 2002. Aside from the sharing of
these documents, over the course of Mr. Elmaati’s detention in Egypt, DFAIT
provided consular information to CSIS through informal discussions between
consular officials in Cairo and representatives of the Service.
165. As described in detail in Chapter 3, paragraphs 110 to 114, information
regarding individual Canadians gathered by consular personnel in the performance of their duties is confidential, subject to the provisions of the Privacy
Act. The Manual of Consular Instructions in force at the time specifically
directed that such information was not to be disclosed to representatives of
CSIS or the RCMP, unless the person to whom the information related had given
consent. Similarly, DFAIT’s Guide for Canadians Imprisoned Abroad states
that any information given by a Canadian detainee to a Canadian consular official will not normally be passed on to anyone, other than the consular officials
concerned with the case, without the detainee’s permission.
166. The Attorney General submitted that the information was shared because
these cases engaged issues of national security, because sharing would promote inter-departmental communication and coordination, and because DFAIT
believed sharing this information would prove helpful to Mr. Elmaati. I was told
that the Privacy Act allows sharing for these reasons provided certain administrative steps are completed.
�FINDINGS IN RELATION TO Ahmad Abou-Elmaati
167. The Privacy Act provides for certain exceptions to the confidentiality
of consular information where (1) the person to whom the information relates
consents; (2) the public interest in disclosure clearly outweighs any invasion
of the person’s privacy; (3) disclosure would clearly benefit the individual to
whom the information relates; or (4) an investigative body such as CSIS or the
RCMP requires the information for the purpose of enforcing any law of Canada,
and makes a written request to DFAIT.
168. The violation of an individual’s privacy rights through the sharing of
consular information is a serious matter. While the sharing of consular information could be necessary in certain circumstances, it is important to have a clear
process to govern any sharing of information. In my view, as set out below and
as acknowledged by the Attorney General, the disclosures that occurred in this
case did not fall within the exceptions set out in the Privacy Act.
The consent exception
169. Mr. Elmaati was not informed that the information that he provided to
consular officials during these consular visits would be shared with the RCMP
or CSIS and accordingly did not give his consent to any of the disclosures. In
fact, and as discussed above, on several occasions Mr. Elmaati was asked by
consular officials whether he would like to speak with the RCMP or CSIS and
he expressly declined to do so.
The public interest exception
170. I received no evidence that disclosure was in the public interest or even
thought to be in the public interest. While the prevention of a terrorist attack
in Canada would justify resort to the public interest exception, I heard no evidence that the consular information was shared for that purpose. In addition, to
rely on the public interest exception would have required a balancing between
that interest and the invasion of Mr. Elmaati’s rights. I heard no evidence from
any DFAIT witnesses that they engaged in any balancing of these kinds of public interests against Mr. Elmaati’s interests before disclosing this information.
In addition, I note that DFAIT did not notify the Privacy Commissioner of its
intention to disclose Mr. Elmaati’s personal information pursuant to the public
interest exception, as it is required to do under the Privacy Act.
The benefit to the individual exception
171. A senior Consular Affairs Bureau official told the Inquiry that in October
2002 the Consular Affairs Bureau came to an arrangement with ISI regarding the
sharing of consular information. According to the senior official, DFAIT would
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share the information with CSIS or the RCMP only if it considered it helpful to
the individual involved to do so.
172. When an individual is detained in a foreign country and must rely on
consular officials for assistance, the disclosure of information obtained within
the confines of that consular relationship must only occur after careful consideration of all the consequences. To justify reliance on the exception in the
Privacy Act for disclosure that was for Mr. Elmaati’s benefit, DFAIT should have
considered the potential benefit and potential consequences for Mr. Elmaati
each time it made a decision to share reports with CSIS and the RCMP. In this
case the evidence before me does not indicate that both the benefits for and
consequences to Mr. Elmaati were adequately considered before consular information about him was shared. For example, DFAIT did not make any efforts
to redact or otherwise limit the information that it shared about Mr. Elmaati
but simply provided entire consular reports. I am not satisfied that all of the
personal and confidential information contained in these reports needed to be
shared for the benefit of Mr. Elmaati.
173. Furthermore, there is no evidence that when, as discussed above at
paragraph 164, DFAIT provided consular information to CSIS through informal
discussions between consular officials and representatives of the Service, it
did so for the benefit of Mr. Elmaati. I received no evidence that these disclosures were preceded by any consideration or discussion within DFAIT. There
appear to have been no discussions about how the information was obtained,
whether it was subject to the confidentiality requirement, or whether DFAIT
was required to take other steps before disclosing it. One of these consular
officials told the Inquiry that he did not consult with DFAIT headquarters
before orally disclosing the information to CSIS because he had asked in the
past, had noticed that headquarters was allowing other agencies to view consular information, and therefore did not see anything wrong in it. This same
official acknowledged that, in retrospect, consular information should not have
been shared.
The law enforcement exception
174. Although some of the consular reports discussed above were shared by
DFAIT with CSIS following a brief written request from CSIS, in my view, as
the Attorney General acknowledges, this request was not adequate to justify
DFAIT’s sharing of information under this exception. In any event, neither the
sharing of the August 2002 consular report with CSIS, nor the sharing of the
August 2002 and November 2002 reports with the RCMP, nor the informal dis-
�FINDINGS IN RELATION TO Ahmad Abou-Elmaati
cussions that took place between consular officials in Cairo and representatives
of the Service, were carried out pursuant to the written request.
175. I note that, starting in late 2003, DFAIT began to make changes to its
information-sharing practices with a view to complying with the requirements
of the Privacy Act. Among these changes, the Director General of the Consular
Affairs Bureau prohibited the sharing of CAMANT notes with anyone other than
consular staff. As well, re-stated guidelines for consular officials now emphasize
the importance of consular confidentiality, and provide information regarding
what may be shared, with whom and in what circumstances.
176. While responsibility for the protection of confidential consular information belonged primarily to DFAIT, the recipient agency might bear some responsibility in situations where it requested information that it knew or ought to
have known was confidential. I accept the submission of the Attorney General
that CSIS’ mandate requires it to accept, and consider, any information that is
provided to it. And I recognize that it might not be consistent with this mandate for CSIS officials to reject unsolicited information provided by DFAIT, even
though that information might be confidential. However, where CSIS wishes to
actively seek out information that might be subject to consular confidentiality,
the Privacy Act requires that the request be made in writing. While this procedure might not be practical in all cases (for example, in cases where the CSIS
official does not know that a request seeks confidential information, or in cases
where the information is being sought in connection with the investigation of
an imminent threat), it should be followed whenever reasonably possible.
177. In this case, the Service sent a request for the written consular reports
to ISI. It would therefore not have been difficult or impractical for CSIS to have
made all requests in writing, rather than making informal requests of consular
officials in Cairo. By making requests informally, the Service circumvented a
process whereby officials in DFAIT would have had sufficient time to consider
the request and provide a response in accordance with DFAIT policies about
confidential information, and instead created an atmosphere of pressure for the
consular officials.
395
��12
FINDINGS REGARDING THE ACTIONS OF
CANADIAN OFFICIALS IN RELATION TO
ABDULLAH ALMALKI
Overview
1. Abdullah Almalki, a dual Canadian-Syrian citizen, travelled to Syria in May
2002. The purpose of his trip, according to Mr. Almalki, was to visit his ill
grandmother. When he arrived at the airport, he was immediately taken into
Syrian custody, where he would remain for 22 months. While in Syrian detention, Mr. Almalki was held in degrading and inhumane conditions, interrogated
and mistreated. Though he was visited periodically by family and friends,
Mr. Almalki did not receive any consular visits during his 22-month detention.
I have described the actions of Canadian officials with respect to Mr. Almalki in
Chapter 5, and summarized Mr. Almalki’s evidence about mistreatment in Syria
in Chapter 8.
2. In this chapter, I set out my findings concerning the actions of Canadian
officials as they related to Mr. Almalki. I will first provide an overview before
setting out in more detail my findings and the basis on which they are made.
For the reasons discussed in Chapter 2, my findings are directed to the actions of
the institutions of the Government of Canada. It is neither necessary nor appropriate that I make findings concerning the actions of any individual Canadian
official, and I do not do so.
3. The Terms of Reference call upon me, first, to consider whether the detention of Mr. Almalki resulted directly or indirectly from actions of Canadian
officials and, if so, whether those actions were deficient in the circumstances.
For the reasons I set out below, I find myself unable to determine, on the
record available to me, whether or not the actions of Canadian officials likely
contributed to, and therefore indirectly resulted in, Mr. Almalki’s detention in
Syria. While it is possible that information shared by Canadian officials might
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have contributed in some way to the decision by the Syrian authorities to detain
him, in my judgment that possibility does not meet the threshold of likelihood
required for me to infer an indirect link. Below, I nonetheless identify and comment on three actions that raise concerns for me: the RCMP’s description of
Mr. Almalki as an “imminent threat,” the RCMP’s description of Mr. Almalki as
an “Islamic extremist,” and the sharing of the RCMP’s Supertext database with
U.S. authorities.
4. The Terms of Reference also call upon me to consider whether any mistreatment of Mr. Almalki resulted directly or indirectly from actions of Canadian
officials and, if so, whether those actions were deficient in the circumstances.
Before making any findings in this regard, it was necessary for me to determine
whether Mr. Almalki was mistreated in Syria. Based on a careful review of the
evidence available to me, I conclude below that, while in Syrian detention,
Mr. Almalki suffered mistreatment amounting to torture. I go on to assess
several actions of Canadian officials in the period leading up to his detention,
and during his detention in Syria, and conclude that two of these actions—the
sharing of the RCMP’s Supertext database, and the sending of questions to Syria
to be posed to Mr. Almalki—resulted indirectly in mistreatment of Mr. Almalki
and were deficient in the circumstances.
5. Finally, the Terms of Reference direct me to consider whether there were
any deficiencies in the actions of Canadian officials to provide consular services
to Mr. Almalki in Syria. Below I examine five aspects of the consular efforts
made in Mr. Almalki’s case. I examine the steps that DFAIT took to communicate
information about Mr. Almalki’s detention within the department, and DFAIT’s
initial efforts to provide Mr. Almalki with consular assistance, and conclude that
DFAIT failed to act sufficiently promptly after learning that Mr. Almalki was in
custody in Syria. I also examine the representations that DFAIT made to Syrian
officials with a view to obtaining consular access to Mr. Almalki during several
periods of Mr. Almalki’s detention. I conclude that DFAIT failed to make effective representations to obtain consular access to Mr. Almalki during the period
from August 2002 to November 2003, but made reasonable efforts thereafter.
I then turn to examine the extent to which DFAIT officials considered Syria’s
human rights record, and the possibility of torture, when carrying out their
consular duties with respect to Mr. Almalki. I conclude that DFAIT failed to sufficiently consider the possibility that Mr. Almalki might be mistreated in custody.
Finally, I address the disclosure by DFAIT officials of information collected in
the course of providing consular assistance to Mr. Almalki, and conclude that
in one instance DFAIT should not have disclosed information to CSIS officials.
�FINDINGS IN RELATION TO ABDULLAH ALMALKI
Did the detention of Mr. Almalki result directly or indirectly from
actions of Canadian officials and, if so, were those actions deficient in
the circumstances?
Did the detention of Mr. Almalki result directly or indirectly from actions of
Canadian officials?
6. In large part because the Inquiry has not had access to the information
that Syrian, U.S. and Malaysian authorities could have provided, I find myself
unable to determine, on the record available to me, whether or not the actions
of Canadian officials likely contributed to Mr. Almalki’s detention in Syria. Mr.
Almalki’s circumstances in this respect are different from those of Mr. Elmaati
and Mr. Nureddin. Both Mr. Elmaati and Mr. Nurredin began their trips to Syria
from Canada, were interviewed by Canadian officials at the airport before they
left, and had their travel itineraries shared by Canadian officials with U.S. agencies. In contrast, Mr. Almalki travelled to Syria from Malaysia, where he had
been living for over four months, and Canadian officials were not aware that he
intended to travel to Syria. Canadian officials did not learn until late May 2002
that Mr. Almalki had left Malaysia and that he might be in Syria. It is possible that
information shared by Canadian officials, as discussed in the paragraphs below,
might have contributed in some way to the decision by the Syrian authorities to
detain him. But, in my judgment, that possibility does not meet the threshold of
likelihood required for me to infer that the actions of Canadian officials resulted
in Mr. Almalki’s detention.
Comments on the actions of Canadian officials during the period leading up to
Mr. Almalki’s detention in Syria
7. As discussed above in Chapter 10, I do not believe that, having been unable
to find that Mr. Almalki’s detention in Syria resulted, directly or indirectly, from
actions of Canadian officials, I am precluded from commenting on the nature
and quality of the actions of Canadian officials during the period leading up to
Mr. Almalki’s detention.
8. Below I comment on three instances of Canadian officials sharing information about Mr. Almalki with U.S. and other foreign agencies prior to his detention. In these instances, Canadian officials shared information about Mr. Almalki
without in all cases (1) taking steps to ensure that it was accurate and properly
qualified; (2) attaching necessary caveats; and (3) considering the potential
consequences for Mr. Almalki.
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Internal Inquiry
The RCMP’s description of Mr. Almalki as an “imminent threat”
9. First, in a letter to law enforcement officials in Syria dated October 4, 2001,
the RCMP suggested that Mr. Almalki was linked through association to al-Qaeda
and engaged in activities that posed an “imminent threat” to the public safety
and security of Canada. While the October 4 letter did not explicitly describe
Mr. Almalki this way, it was sent as a follow-up to the RCMP’s September 29
letter to law enforcement officials in Syria (see Chapter 4, paragraphs 16 to 17),
which said that the RCMP had received “current and believed reliable information” that various individuals linked through association to al-Qaeda, not including Mr. Almalki, were engaged in activities that posed an “imminent threat” to
the public safety and security of Canada. The October 4 letter referred to the
September 29 letter and stated that the RCMP was striving to provide Syrian
officials with the information required to conduct complete verification of the
subjects identified in the RCMP’s September 29 letter. It went on to provide
information about several individuals, including Mr. Almalki.
10. In my view, a reasonable recipient of the October 4 communication
would conclude based on the chain of communications that the RCMP considered Mr. Almalki to be among the group of individuals who posed an
“imminent threat.”
11. The RCMP appears to have described Mr. Almalki in this way without
taking steps to ensure that the description was accurate or properly qualified. The descriptions “linked through association to al Qaeda” and “imminent
threat” did not originate in the RCMP’s own investigation; in fact, the RCMP’s
investigation of Mr. Almalki and his business activities did not begin in earnest
until October 5, 2001. The descriptions appear to have originated from another
source; however, this source used these descriptions in respect of other individuals, and not in respect of Mr. Almalki.
12. The words “imminent threat” in particular were inflammatory, inaccurate,
and lacking investigative foundation. While it is outside of my mandate to draw
conclusions about the accuracy of Canadian officials’ investigative conclusions,
I can say that even if all of the officials’ suspicions about Mr. Almalki were correct (that is, that Mr. Almalki engaged in procurement activities for al-Qaeda),
the label “imminent threat” would not have been.
13. The RCMP applied and shared the descriptions “linked through association
to al Qaeda” and “imminent threat” without adequately considering the potential consequences for Mr. Almalki. The description was shared at a time that
made it particularly serious for Mr. Almalki—it was sent less than one month
�FINDINGS IN RELATION TO ABDULLAH ALMALKI
after the events of September 11, 2001, when governments around the world
were under intense pressure to cooperate and collaborate in the U.S.’ “war on
terror.” Several witnesses told the Inquiry that U.S. agencies were exerting
pressure on intelligence and law enforcement agencies everywhere to detain
and question individuals who might in some way be implicated in or supportive
of another round of attacks. At this time, being labelled a member or associate
of al-Qaeda potentially entailed serious consequences for an individual’s rights
and liberties.
14. The RCMP Operational Manual in effect at the time required RCMP members to consider the human rights record of a country before sharing information with the country’s government. RCMP officials were aware, or should
have been aware, of Syria’s reputation for serious human rights abuses, particularly against individuals detained on security-related grounds. Officials should
have considered that describing a dual Syrian-Canadian citizen as an “imminent
threat” in a communication to Syrian police might expose that individual to the
risk of being detained and mistreated in Syria if he were to travel there.
15. Yet there is no evidence that the RCMP considered these factors before
sending to Syria a letter describing Mr. Almalki as linked to al-Qaeda and engaged
in activities that posed an imminent threat to Canada. The letter was sent without any discussion with or approval by more senior RCMP members or RCMP
headquarters. The letter was sent on the basis that it was necessary to send it
to exhaust all avenues of investigation with the countries covered by the Rome
office. Even when RCMP headquarters became aware that the letter had been
sent, it did not raise the issue of human rights or the possibility of adverse consequences befalling Mr. Almalki or other individuals named in the letter.
16. I should note that the RCMP followed its policy on the control of information by attaching a written caveat to the letter sent to Syria. However,
the inclusion of caveats did not relieve the RCMP of its obligations to test the
accuracy of information before sending it to foreign agencies and to consider
potential adverse consequences for the individual involved. I reiterate what I
said above in my findings regarding the actions of Canadian officials in relation
to Mr. Elmaati: caveats are not a panacea; their inclusion does not guarantee
that information will not be shared in breach of those caveats. Therefore, the
inclusion of caveats does not detract from the need for agencies such as the
RCMP to use care in describing individuals in their dealing with others, and to
consider the consequences that might arise if an individual is mis-described.
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The RCMP’s description of Mr. Almalki as an “Islamic extremist”
17. Second, in an October 2001 letter to the U.S. Customs Service, Project
A‑O Canada described Mr. Almalki as an “Islamic extremist individual suspected
of being linked to the Al Qaeda terrorist movement,” and requested that U.S.
Customs issue TECS checks and lookouts on him. The description was provided
without a written caveat. A copy of the RCMP’s letter to the U.S. Customs
Service was also included on the CDs provided to U.S. agencies in April 2002
(discussed below at paragraphs 22 to 24).
18. The RCMP formulated this description without taking adequate measures
to ensure that it was accurate, reliable or properly qualified. The RCMP appears
to have formulated the description primarily based on information from other
foreign and domestic agencies. By October 31, 2001, when the description was
sent, the RCMP had done very little of its own investigative work to verify or
support the description. Furthermore, the information that the RCMP apparently relied on to formulate this description did not describe Mr. Almalki as an
“Islamic extremist individual,” but indicated only that he was believed to be
engaged in procuring equipment on behalf of Islamic extremists. The difference
between qualifying a description as being believed, suspected or alleged, and
stating a description as a matter of fact or as a foregone conclusion is significant.
I am not prepared to assume that words do not carry meaning.
19. In providing this description to the U.S. Customs Service in late October
2001, the RCMP also failed to give adequate consideration to the potential
consequences for Mr. Almalki. Justice O’Connor, when considering the same
description used in respect of Mr. Arar and his wife Dr. Mazigh, found that the
description, and the context in which it was provided to U.S. authorities, created a serious risk for Mr. Arar. He wrote:
Branding someone an Islamic extremist is a very serious matter, particularly in
the post-9/11 environment, and even more so when it is done in information
provided to American agencies investigating terrorist threats. In the world of
national security intelligence and counter-terrorism, anyone viewed as an Islamic
extremist is automatically seen as a serious threat in regard to involvement in terrorist activity.
…
The [letter to the U.S. Customs Service was] sent at a time that made the consequences particularly dangerous to those named: not even two months after 9/11
and two weeks after the invasion of Afghanistan in pursuit of al-Qaeda. It was obvious to Canadian investigators that the threshold for taking steps that might be very
intrusive to an individual’s rights and liberties was lower for American authorities
�FINDINGS IN RELATION TO ABDULLAH ALMALKI
involved in counter-terrorism investigations than for their Canadian counterparts. A
number of witnesses at the [Arar] Inquiry testified that Canadian officials were aware
of the U.S. authorities’ propensity to deal with anyone suspected of terrorist links,
particularly Muslim or Arab men, in ways that were different from what Canadian
authorities would do in similar situations, ways that would be unacceptable under
Canadian law.�
Justice O’Connor also noted that the description provided to the U.S.
Customs Service was for a lookout to be placed in TECS, an information and
communication system to which more than 30,000 U.S. officials had access.�
20. The RCMP also failed to attach a written caveat to its October 31 letter
to the U.S. Customs Service, creating a risk that the unqualified description of
Mr. Almalki as an “Islamic extremist” could be passed on to other U.S. agencies,
and to foreign governments, without the RCMP’s consent.
21. In his final submissions to this Inquiry, the Attorney General argued that
American authorities had reached their own conclusions about the profile of
Mr. Almalki before Canadian agencies became involved. He argued that the
description of Mr. Almalki provided to the U.S. Customs Service in the RCMP’s
October 31 letter did not contain new information, and that “American agencies
had already generated it.” If this were the case (and without the participation
of the U.S. it is impossible to know for certain), I do not agree that it would
render the RCMP’s conduct appropriate. The fact that American agencies might
have been generating, and communicating to Canadian officials descriptions
of Mr. Almalki that might have been inflammatory, unqualified, and potentially
inaccurate would not mean that Canadian officials should send similar communications to American officials. If anything, Canadian officials had a responsibility
to correct any faulty descriptions, and communicate these corrections to their
American counterparts.
Sharing of the RCMP’s Supertext database with U.S. agencies
22. Third, in April 2002, one month before Mr. Almalki was arrested by Syrian
authorities, the RCMP’s Project A-O Canada provided U.S. agencies with three
CDs containing the RCMP’s Supertext database. The CDs were provided without written caveats. The Supertext database contained a considerable amount
of material related to Mr. Almalki, including documents that had been seized
�
�
Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Report
of the Events Relating to Maher Arar: Analysis and Recommendations (Ottawa: Public
Works and Government Services Canada, 2006), pp.. 115–116 [Arar Inquiry, Analysis and
Recommendations].
Arar Inquiry, Analysis and Recommendations, pp. 116–117.
403
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Internal Inquiry
during the January 22, 2002 search of Mr. Almalki’s residence (such as email
messages and business-related invoices) and other documents related to Project
A-O Canada’s investigation of Mr. Almalki. Examples of these documents are
listed in Chapter 5, paragraphs 37 to 38.
23. Justice O’Connor made extensive findings about the sharing of the
Supertext database. He found that: (1) the written information on the CDs
should not have been provided to U.S. agencies without written caveats;
(2) the portion of the documents not related to the searches should have been
reviewed for relevance, reliability and personal information; and (3) third-party
materials to which caveats were attached, such as letters received from CSIS and
documents received from Canada Customs, should not have been transferred
without the originators’ consent.� Justice O’Connor found that the sharing
of information with U.S. agencies in this way reflected Project A-O Canada
members’ understanding that “caveats were down” post-September 11, 2001:
Project A-O Canada members understood that RCMP officers at “A” Division and
RCMP Criminal Intelligence Directorate (CID) had authorized them to conduct
an “open-book investigation” in cooperation with CSIS and the American agencies.� As discussed above in Chapter 3, paragraph 77, Justice O’Connor found
that this departure from established policies with respect to screening and the
use of caveats was not justified. These findings are consistent with the evidence
that I have reviewed. I adopt them for the purpose of this Inquiry.
24. I should add that the Supertext database was transferred without adequate
consideration of the consequences for Mr. Almalki. The failure to attach caveats
to the database created a risk that it would be shared with other foreign agencies. The RCMP knew, at the time it shared the database with U.S. agencies,
that some foreign agencies had an intense interest in Mr. Almalki. One foreign
agency had, several months earlier, asked for the RCMP’s assistance in arresting
Mr. Almalki on his way home from Malaysia and in putting pressure on Malaysian
authorities to arrest Mr. Almalki and extradite him to Syria. The foreign agency
specifically asked the RCMP if it would supply RCMP investigative material that
would assist the foreign agency in convincing Malaysian authorities to make
the arrest. The RCMP also knew, by April 2002, that Mr. Elmaati, also a subject
of the Project A-O Canada investigation, had been detained by Syrian officials,
apparently at the request of U.S. agencies. The RCMP should have considered
these factors before providing such a significant amount of information regarding Mr. Almalki, without express written caveats, to U.S. agencies.
�
�
Arar Inquiry, Analysis and Recommendations, pp. 122–124.
Arar Inquiry, Analysis and Recommendations, p. 119.
�FINDINGS IN RELATION TO ABDULLAH ALMALKI
Other information sharing
25. Aside from the three instances of information sharing discussed above,
there were other occasions during the period leading up to Mr. Almalki’s detention on which Canadian officials shared information about him with foreign
intelligence and law enforcement agencies. Starting in the late 1990s, CSIS
shared information about Mr. Almalki with various foreign intelligence and
law enforcement agencies, including U.S. agencies and Malaysian agencies;
in December 2001, the RCMP advised a foreign agency that Mr. Almalki had
departed for Malaysia; and in early 2002, CSIS granted a foreign agency permission to share background information regarding Mr. Almalki with Singapore
and Bahrain.
26. I have considered these instances of information sharing by Canadian officials, and concluded that they were appropriate in the circumstances. Canadian
officials shared the information in circumstances that made it reasonable for
them to do so. The information shared was generally properly qualified (using
words such as “suspected” or “believed” or phrases such as “reason to believe”),
and had been assessed for credibility and accuracy. In all cases, caveats were
attached to the information. I am satisfied that, on these occasions, Canadian
officials found an appropriate balance between individual liberties and Canada’s
obligations to share information in the national security context.
Did any mistreatment of Mr. Almalki result directly or indirectly from
actions of Canadian officials and, if so, were those actions deficient in
the circumstances?
Was Mr. Almalki mistreated in Syria?
27. As I discussed above in my findings regarding Mr. Elmaati, the word “mistreatment” is broader than torture. It includes any treatment that is arbitrary or
discriminatory or results in physical or psychological harm, as well as denial of
properly entitled assistance and other forms of treatment that would normally
be included in the meaning of mistreatment. “Mistreatment” may also include
detention itself, where that detention is arbitrary, or where the detainee is held
under conditions that cause him serious physical or psychological harm. To the
extent that certain actions of Canadian officials directly or indirectly prolonged
an individual’s detention under such conditions, I will consider these actions
to have also resulted directly or indirectly in that individual’s mistreatment.
28. The Attorney General acknowledged in his submissions at the hearing
on the interpretation of the Terms of Reference that, for the purposes of this
405
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Internal Inquiry
Inquiry, the detention of the three individuals under the conditions prevailing
in Syria and, in Mr. Elmaati’s case, in Egypt, constituted mistreatment.
29. In my ruling on the interpretation of the Terms of Reference, I determined
that it would be both appropriate and important for the Inquiry to try to ascertain whether Mr. Elmaati, Mr. Almalki and Mr. Nureddin suffered mistreatment
amounting to torture. The nature and extent of any mistreatment, and whether
that mistreatment amounted to torture, is, at a minimum, relevant to whether
the actions of government officials were deficient in the circumstances.
30. Article 1 of the United Nations Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment sets out the generally
accepted definition of torture. It provides that:
torture means any act by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person for such purposes as obtaining from
him or a third person information or a confession, punishing him for an act he or
a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination
of any kind, when such pain or suffering is inflicted by or at the instigation of or
with the consent or acquiescence of a public official or other person acting in an
official capacity. It does not include pain or suffering arising only from, inherent
in or incidental to lawful sanctions.
31. Based on a careful review of the evidence available to me, which as I have
emphasized does not include information from Syrian authorities, I conclude
that, while in Syrian detention, Mr. Almalki suffered mistreatment amounting
to torture. Using the words of the Convention Against Torture, Syrian officials
intentionally inflicted physical and mental pain and suffering on Mr. Almalki in
order to obtain information from him. This mistreatment is described in detail
in Chapter 8, and I will not repeat that description here.
32. I find Mr. Almalki’s account of mistreatment by Syrian officials to be credible. I base this assessment on a number of factors. The most important of
these factors are the nature and particularity of the information that Mr. Almalki
provided during the thorough interview of him that Inquiry counsel and I
conducted, with assistance from Professor Peter Burns, former Chair of the
United Nations Committee against Torture, concerning the conditions under
which he was detained and the manner in which he was treated while in
detention, and his demeanour during the three-day interview. In addition, I
am satisfied that Mr. Almalki’s account of his experience in Syria has remained
largely consistent over time. Notably, the account that Mr. Almalki gave to the
�FINDINGS IN RELATION TO ABDULLAH ALMALKI
Inquiry is very similar to the account documented by Alex Neve of Amnesty
International during the interview of Mr. Almalki that he conducted within
months of Mr. Almalki’s return to Canada.
33. I have also taken into account in coming to my conclusion the fact that
Mr. Almalki’s evidence is consistent with the evidence of other individuals who
have been held in Syrian detention, including Mr. Elmaati, who told consular
officials in August 2002 that he had been tortured while being detained and
interrogated at Far Falestin. I cannot accept the submission that there might
have been collusion among the three individuals. Though Mr. Almalki and
Mr. Elmaati told the Inquiry that they had discussed their experiences with one
another, I do not find it surprising or troubling that they would do so. In any
event, their accounts are in my view far too detailed, and different in important
ways, to support a finding of collusion.
34. I have, in addition, used publicly available reports and other background
information concerning the treatment of detainees in Syria as context in assessing Mr. Almalki’s account of events.
35. As mentioned in Chapter 2, the Inquiry received certain medical records
from Mr. Almalki, which I considered in making my determination. I also considered it desirable to obtain current medical assessments of Mr. Almalki from
a psychologist and a psychiatrist retained by the Inquiry. While I recognize the
limitations of these kinds of assessments as evidence of what actually occurred,
and in distinguishing between types of trauma that an individual might have
suffered, particularly when the events in question took place some years ago, I
nonetheless thought it desirable to ensure that the current medical assessments
of Mr. Almalki were not inconsistent with the account of his mistreatment.
As I indicated in Chapter 2, the assessments that I obtained were from a psychologist and a psychiatrist with experience in assessing victims of torture. I
have reviewed their reports with the assistance of my medical advisor, Dr. Lisa
Ramshaw. I found no inconsistency between their reports and Mr. Almalki’s
account of his mistreatment.
36. The Attorney General has not expressly submitted that Mr. Almalki was not
tortured. However, the Attorney General argued, in his final submissions, that
Mr. Almalki’s account of torture was directly contradicted by other evidence
presented to the Inquiry, including: (1) an apparent statement by Mr. Almalki’s
family, at a November 6, 2003 meeting with DFAIT, that “Nobody thought he
was being tortured;” and (2) information suggesting that Mr. Almalki was in
good health, despite his detention, and being treated well by Syrian officials.
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37. I do not agree that this information detracts from Mr. Almalki’s account.
First, while most of the information that CSIS had concerning Mr. Almalki’s treatment suggested that he was in good health and not currently being mistreated,
CSIS also had some information suggesting that he had not been treated fairly
earlier. Second, the fact that Mr. Almalki’s family members might not have
known that he was being tortured (as is suggested by the statement apparently
made by his family on November 6) is consistent with what Mr. Almalki told
the Inquiry about the family visits he received while detained in Syria: he was
reticent to tell his family members about the torture because he did not want to
upset them, and because he feared retribution by his Syrian interrogators (who
were always present at family visits). I did not consider it necessary to confirm
this statement with Mr. Almalki’s family members.
Role of Canadian officials
38. Having concluded that Mr. Almalki suffered mistreatment amounting to
torture in Syria, I now turn to the question whether this resulted, directly or
indirectly, from actions of Canadian officials and whether, if so, these actions
were deficient in the circumstances. I consider in this section the following
actions of Canadian officials:
(a) Prior to Mr. Almalki’s detention, the RCMP shared the Supertext
database, which contained a considerable amount of material regarding
Mr. Almalki, with U.S. agencies.
(b) On July 4, 2002, after Mr. Almalki had been detained in Syria, the
Ambassador and the RCMP liaison officer met with General Khalil of
the Syrian Military Intelligence (SyMI).
(c) In November 2002, CSIS travelled to Syria and met with officials from
the SyMI.
(d) In January 2004, CSIS asked the SyMI if it could interview Mr. Almalki
in detention.
(e) In January 2004, CSIS made various inquiries of the SyMI to obtain information about its intentions in respect of Mr. Almalki, the possibility of
his release, and the treatment of Canadian detainees.
Sharing of the RCMP’s Supertext database with U.S. authorities
Did any mistreatment result directly or indirectly from the sharing of the
database?
39. There is substantial correspondence between the substance of Mr. Almalki’s
interrogations in Syria and the information contained in the RCMP’s Supertext
database, which (as discussed above) was shared with U.S. agencies in early
�FINDINGS IN RELATION TO ABDULLAH ALMALKI
April 2002, approximately one month before Mr. Almalki came to be detained
in Syria (in early May 2002). For example:
• Mr. Almalki told the Inquiry that his Syrian interrogators asked him about
an individual from Canada; the Supertext database contained documents
referring to this same individual as an associate of RCMP targets.
• Mr. Almalki told the Inquiry that his Syrian interrogators showed him a
report, which they said had been provided by Canada, indicating that
a search of Mr. Almalki’s home had turned up weapons; the Supertext
database contained a note indicating that two switchblades had been
found in Mr. Almalki’s residence.
• Mr. Almalki told the Inquiry that Malaysian officials interrogated him in
Syria based on a report that listed several trade names that Mr. Almalki
had tried (unsuccessfully) to register in Canada; the Supertext database
included an email message from Mr. Almalki to Industry Canada
requesting a corporate name change.
• Mr. Almalki told the Inquiry that his Syrian interrogators asked him
about his alleged “training” in Afghanistan, and insisted that he had
attended a training camp; the Supertext database contained documents
concerning the time that Mr. Almalki had spent in Afghanistan.
• Mr. Almalki told the Inquiry that his Syrian interrogators showed him a
report containing photographs of individuals whom Mr. Almalki did not
recognize; the Supertext database contained photographs of Mr. Elmaati
and other targets of or persons of interest to the Project A-O Canada
investigation.
40. I found no evidence that the RCMP provided Syrian or Malaysian authorities with the Supertext database, or with any of the documents contained in
it. Nor did I find any evidence that the RCMP gave permission to U.S. agencies
to share the Supertext database, or any of the information in it, with Syrian or
Malaysian authorities.
41. However, based on the correspondence described above, the fact that the
database was provided without caveats, and the fact that the U.S. had its own
investigative interest in Mr. Almalki prior to the events under review, I believe
it is reasonable to infer that the documents provided in the Supertext database,
or information from those documents, made their way into the hands of Syrian
officials, and were then used by them, together with other information, to
interrogate Mr. Almalki in Syria. On this basis, I conclude that the actions of
Canadian officials in sharing the Supertext database likely contributed to, and
therefore resulted indirectly in, mistreatment of Mr. Almalki in Syria.
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Was the sharing of the database deficient in the circumstances?
42. For the reasons that I discussed in detail above (at paragraphs 22 to 24),
sharing the Supertext database with U.S. agencies was deficient in the circumstances. In summary, the sharing of the Supertext database was deficient in
four main respects: (1) the written information on the CDs was provided to
U.S. agencies without written caveats; (2) the portion of the documents not
related to the searches was not reviewed for relevance, reliability and personal
information; (3) third-party materials to which caveats were attached, such
as letters received from CSIS and documents received from Canada Customs,
were transferred without the originators’ consent; and (4) the database was
transferred without adequate consideration of the possible consequences for
the subjects of the Project A-O Canada investigation, including Mr. Almalki, the
main subject of the investigation.
July 4 meeting between the Ambassador, the RCMP liaison officer and General
Khalil of the SyMI
Did any mistreatment result directly or indirectly from the July 4 meeting?
43. On July 4, 2002, Canada’s Ambassador to Syria and the RCMP’s Rome-based
liaison officer met with General Khalil of the SyMI. Counsel for Mr. Elmaati,
Mr. Almalki and Mr. Nureddin, in their final submissions, suggested that information about Mr. Almalki was shared at this meeting, and that Mr. Almalki was,
as a result, interrogated and mistreated several days later.
44. I found no evidence that the Canadian officials present at the meeting
provided General Khalil with any information about Mr. Almalki. The evidence
I received suggests that Mr. Almalki might have been discussed in passing, but
that the focus of the meeting was on “other priority cases.” As a result, I cannot
conclude that the meeting was in any way directly or indirectly linked to any
mistreatment of Mr. Almalki.
RCMP’s questions for Mr. Almalki
45. As discussed in detail at paragraphs 116 to 162 of Chapter 5, starting in
the summer of 2002, shortly after Mr. Almalki was detained in Syria, the RCMP
began discussing the possibility of interviewing Mr. Almalki in Syria. When
the RCMP’s attempts to set up an interview were not successful, it turned its
attention to sending questions to Syrian officials to be posed to Mr. Almalki. On
January 15, 2003, after extensive discussions with DFAIT, the RCMP transmitted
to Syrian officials, through Canada’s Ambassador to Syria, a two-page list of questions to be asked of Mr. Almalki.
�FINDINGS IN RELATION TO ABDULLAH ALMALKI
Did any mistreatment result directly or indirectly from the sending of
questions?
46. Based on the evidence available to me, I believe it is reasonable to infer
that sending questions to be posed to Mr. Almalki in Syria resulted indirectly in
mistreatment by Syrian officials. I reach this conclusion for three main reasons.
First, Mr. Almalki was being detained on terrorism-related grounds, in a prison
run by one of Syria’s security services. Reports regarding Syria’s human rights
record, prepared by DFAIT, Amnesty International, Human Rights Watch and
other organizations, stated that torture was very likely to occur during the interrogation of individuals detained in these circumstances.
47. Second, though RCMP officials told the Inquiry that they had reason
to believe that the questions they sent to Syrian officials were never put to
Mr. Almalki, Mr. Almalki told the Inquiry that he was interrogated and mistreated on January 16, 2003, one day after the questions were delivered. The
topics about which Mr. Almalki said he was questioned on that day are the same
or similar to many of the topics addressed in the RCMP’s questions. Mr. Almalki
identified the date of this interrogation within months of his return to Canada
in 2004, when he was interviewed by Alex Neve of Amnesty International,
and before information about the questions sent by the RCMP became public
through the Arar Inquiry.
48. Third, as I discuss below, several of the Canadian officials involved in the
decision to send questions for Mr. Almalki were aware that doing so created a
serious risk that Mr. Almalki would be tortured. Where officials determine that
a proposed action is likely to result in a particular outcome, and that outcome
materializes, I believe it is reasonable to infer, in the absence of evidence to the
contrary, that the action resulted, at least indirectly, in the outcome.
Was sending questions deficient in the circumstances?
49. Having determined that the sending of questions to be posed to Mr. Almalki
resulted indirectly in mistreatment of Mr. Almalki in Syria, I now turn to examine
the question of deficiency. For the reasons that follow, I conclude that the conduct of DFAIT and RCMP officials in coming to the decision to send, and then
sending, the questions for Mr. Almalki was deficient in the circumstances.
50. The RCMP members who made the decision to send the questions knew
or should have known about Syria’s human rights record and, specifically, about
the possibility that Syrian officials might use torture to extract answers to the
RCMP’s questions. The RCMP had access to publicly available reports regarding Syria’s human rights reputation, as well as the annual human rights reports
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prepared by DFAIT. The RCMP knew, by August 12, 2002, that Mr. Elmaati had
told consular officials that he had been interrogated and tortured in Syria. Most
significantly, at a meeting on September 10, 2002, at which senior officers of
Project A-O Canada, DFAIT ISI officials and the Ambassador to Syria discussed
sending questions for Mr. Almalki, an official in DFAIT ISI raised the possibility
of torture.
51. Some of the RCMP members involved in the decision to send questions for
Mr. Almalki displayed a dismissive attitude towards the issue of human rights
and the possibility of torture. When torture was raised at the September 10,
2002 meeting, some of the RCMP members present disregarded it as merely a
one-off comment from a junior DFAIT official. Another RCMP member, who did
not attend the September 10 meeting, but played a critical role in facilitating the
preparation and sending of questions, told the Inquiry that the issue of mistreatment was not on his radar screen, and that he assumed a level of professionalism
and a way of operating that would be in keeping with the expectations of a
democratic society. At least two RCMP members suggested that sending questions to be posed to Mr. Almalki might have been beneficial to his treatment.
52. I do not believe that the decision to send questions was warranted by a
need to obtain information about the threat level in Canada, a justification that
was put forward in some of the evidence that I heard. I was told that that while
it was recognized that sending questions for Mr. Almalki could put Mr. Almalki at
risk of being tortured, the importance of gaining access to Mr. Almalki in order
to get information about the threat level in Canada warranted sending questions. This justification was considered, and rejected, by Justice O’Connor—he
found that by January 2003, when the questions were sent to Syria, the threats
being investigated no longer fell within the “imminent” category. He wrote:
“Without diminishing the importance of [Project A-O Canada’s] investigation, I
think it is fair to say that, by that time, the threats being investigated fell short
of being ‘imminent’.”�
53. Furthermore, it appears that the purpose of the questions was not primarily to obtain information about an imminent threat to Canada’s security,
but to open a dialogue and establish cooperation with the Syrians regarding
Mr. Almalki. One Project A-O Canada member said that the RCMP hoped to
establish some cooperation in order to see what the RCMP could get in return.
The Officer in Charge of Project A-O Canada said that the goal in sending the
questions was not to get answers to the questions but to offer something to
Syrian officials in the hope that they would ultimately grant the RCMP access
�
Arar Inquiry, Analysis and Recommendations, p. 213.
�FINDINGS IN RELATION TO ABDULLAH ALMALKI
to Mr. Almalki. In my view, these goals did not, in the face of a serious risk of
human rights abuses, justify sending questions to Syria in January 2003.
54. The nature of the questions and the language used in the cover letter sent
to Syrian officials with the questions increased the risk that Mr. Almalki would
be mistreated. Though the list of questions did not include any information
about, or descriptions of, Mr. Almalki, it suggested that he was involved with
a terrorist cell, that he might be acting as a procurement officer for a terrorist
group, and that he might have knowledge of terrorist threats in Canada. One
Project A-O Canada member suggested that, while the list of questions did not
label Mr. Almalki as an associate of al-Qaeda, someone reading the questions
might draw that conclusion. The cover letter that accompanied the list of questions offered to share with its Syrian recipients “large volumes of highly sensitive documents and information, seized during investigative efforts or obtained
from confidential informants associated to terrorist cells operating in Canada,”
an offer which, in my view, suggested some association between Mr. Almalki
and a Canadian terrorist cell.
55. Responsibility for the risk created by sending questions for Mr. Almalki
does not fall only on the RCMP. In coming to the decision to send questions, the RCMP engaged in extensive discussions with DFAIT ISI and Canada’s
Ambassador to Syria, and was entitled, in my view, to place considerable reliance on their advice.
56. DFAIT determined that sending questions to be posed to Mr. Almalki raised
a serious risk that he would be tortured. At least three memoranda drafted
between August 6 and October 30, 2002 and sent to senior DFAIT officials
indicated that sending questions to be posed to Mr. Almalki in Syria could result
in his being tortured.
57. DFAIT failed, however, to properly communicate its concerns about torture to the RCMP. While the possibility of torture was raised by a junior DFAIT
official at the September 10, 2002 meeting, the overall message communicated
by DFAIT at that meeting was that it supported, or at least did not object to,
the RCMP’s efforts to send questions. The junior official’s comment (to the
effect that sending questions raised the possibility of torture) was interpreted
by other attendees as a casual off-hand remark, and was not supported or even
acknowledged by the official’s senior DFAIT colleagues. In fact, Canada’s
Ambassador to Syria offered at the meeting to facilitate the RCMP’s requests to
Syrian authorities, and suggested to the RCMP attendees that Syrian authorities
would likely expect the RCMP to share information in exchange. As well, while
DFAIT ISI officials proposed in late October that DFAIT send a letter to Assistant
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Commissioner Proulx of the RCMP setting out DFAIT’s concerns about torture,
and indicating that DFAIT would not support or assist the RCMP in its effort to
send questions to Syria, no letter was ever sent. There appears to have been
a breakdown of communication within DFAIT with respect to the proposed
letter: each official involved in discussions about the letter believed that some
other official was taking care of the issue, or that the RCMP had decided not
to send the questions after all, with the result that the proposed letter was not
sent to the RCMP.
58. Having failed to properly communicate to the RCMP its concerns about
torture, DFAIT assisted the RCMP in delivering its list of questions to the SyMI—
conduct that suggested to the RCMP that DFAIT supported its efforts. On
January 15, 2003, Canada’s Ambassador to Syria received from the RCMP’s
liaison officer in Rome an envelope containing the questions. The next day,
the Ambassador arranged for a consular official to deliver the questions to the
SyMI. The Ambassador had received no instructions to consider the possibility
of torture; he was aware of Mr. Elmaati’s August 12 torture allegation, but was
apparently unaware that DFAIT had raised concerns that sending the questions
could result in Mr. Almalki being tortured. The Ambassador stated that he
believed that the questions were being passed on to the Syrians in the context
of what he considered to be the extraordinary cooperation shown by the Syrians
in the Arar case, and that DFAIT officials in Ottawa had sanctioned the RCMP’s
decision to send questions.
59. The role of the Canadian Embassy in Damascus in sending questions for
Mr. Almalki raises questions about the proper role of the head of mission and his
or her consular officers, particularly in countries with records of serious human
rights abuses. In his final submissions, the Attorney General argued that part
of DFAIT’s mandate is to assist Canada’s security and policing agencies when
their work extends beyond Canada’s borders. He argued that it was therefore
appropriate for the head of mission to assist in arranging for CSIS or RCMP
questions to be put to a Canadian detained abroad.
60. Recognizing that DFAIT’s mandate extends beyond the provision of consular services, and may include the provision of assistance to CSIS and the
RCMP in appropriate circumstances, I believe care must be taken to ensure
that such assistance does not conflict with DFAIT’s consular role. This is particularly important in countries such as Syria, with a well-known record of
human rights abuses, where detainees face a serious risk of being mistreated,
and the need for consular assistance is acute. The Embassy’s role in arranging
for the RCMP’s questions to be put to Mr. Almalki in my view created a risk that
�FINDINGS IN RELATION TO ABDULLAH ALMALKI
Syrian authorities would not take the Embassy’s requests for consular access
as seriously as they might have otherwise. By assisting in sending the questions, the Embassy risked compromising its efforts to obtain consular access to
Mr. Almalki, in a situation where consular access might have been extremely
beneficial to Mr. Almalki.
61. I note that Justice O’Connor expressed a similar concern in the Arar
Inquiry report. He acknowledged that an ambassador’s role as representative
of all Canadian departments and agencies may put him or her in a difficult
position of conflict. He recommended that, when a Canadian is detained in a
terrorism-related matter, the ambassador refer any questions about what should
be done with respect to the detainee to a consultation process led by DFAIT.
His recommended consultation process is described in detail in his report.
Justice O’Connor was of the view that this approach would facilitate prompt
communications between DFAIT and the ambassador and lessen any conflicts
the ambassador might face.�
CSIS’ trip to Syria
62. As discussed in Chapter 5, paragraphs 102 to 107, in late November 2002,
a CSIS delegation travelled to Syria to meet with officials from the SyMI. The
trip had several purposes. Among the main ones, it was thought that the trip
would allow CSIS to acquire critical intelligence in support of its Sunni Islamic
terrorism investigation and to receive and evaluate information about Mr. Arar.
However, for various reasons, CSIS also intended to raise with the SyMI the case
of Mr. Almalki.
63. It is not clear from the evidence that I received whether CSIS raised
Mr. Almalki’s case with the SyMI. However, it appears that the CSIS delegation
received information about Mr. Almalki during a meeting on November 23,
2002. The substance of this meeting is discussed at paragraphs 108 to 110 of
Chapter 5.
Did any mistreatment result directly or indirectly from CSIS’ trip to Syria?
64. There is correspondence between the timing of CSIS’ trip to Syria and
some of Mr. Almalki’s interrogation sessions in Syria. Mr. Almalki told the
Inquiry that he was interrogated in November and December 2002 on the basis
of a typed report, in Arabic, entitled “Meeting with the Canadian delegation
November 24th 2002.”
�
Arar Inquiry, Analysis and Recommendations, pp. 349–352.
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65. Despite this correspondence, I cannot infer that CSIS’ trip to Syria, and the
actions of the CSIS delegation while in Syria resulted, directly or indirectly, in
mistreatment of Mr. Almalki in Syria. I say this for two reasons. First, I did not
find any evidence to support Mr. Almalki’s suggestion that CSIS provided any
reports or information about him to the Syrian authorities during the trip. In
fact, one member of the CSIS delegation told the Inquiry that (for reasons that I
am precluded by national security confidentiality from disclosing here) information could not have been shared with Syria. Mr. Almalki was not of course in
a position to observe what occurred at the meeting between the CSIS officials
and the SyMI. The information that he provided about the title of the report
cannot form a proper basis for inferences concerning its content or the source
of its content.
66. Second, I found no evidence to suggest that CSIS took any steps, in advance
of or during the trip to Syria, that might have caused Syrian authorities to mistreat Mr. Almalki or prolong his detention. For example, I found no evidence
that CSIS posed questions for Mr. Almalki, requested an interview of or access
to Mr. Almalki, encouraged the SyMI to further interrogate Mr. Almalki, or suggested to the SyMI that CSIS did not want Mr. Almalki released and returned
to Canada.
Comments on CSIS’ trip to Syria
67. I am satisfied that CSIS’ decision to send a delegation to Syria in November
2002, in part to receive information about Mr. Almalki, was appropriate in the
circumstances. I agree with Justice O’Connor’s finding that there was appropriate consultation among Canadian officials before the trip took place, and that
the CSIS delegation was careful not to encroach on matters that were more
properly the domain of DFAIT’s Consular Affairs Bureau.� Furthermore, CSIS
was pursuing its mandate in meeting with the SyMI. CSIS had reason to believe
that the SyMI might have information relevant to the security of Canada.
68. I am also satisfied that it was appropriate for CSIS not to raise or discuss
with the SyMI the conditions under which Mr. Almalki was being held. I accept
the evidence of one CSIS witness that CSIS had been asked by DFAIT in advance
of the trip to Syria not to become involved in consular issues. While it would
not have been appropriate for CSIS to ignore any indications that Mr. Almalki
had been mistreated, it was not CSIS’ role to discuss Mr. Almalki’s treatment
with the SyMI, or to gain access to Mr. Almalki in order to assess his condition.
This was more properly the domain of trained consular officials. The fact that
consular officials did not have access to Mr. Almalki at this time does not affect
�
Arar Inquiry, Analysis and Recommendations, p. 198.
�FINDINGS IN RELATION TO ABDULLAH ALMALKI
my conclusion. Any failure of DFAIT to diligently seek access to Mr. Almalki
(a subject discussed below) did not, absent some request from DFAIT, shift
responsibility for consular issues to CSIS.
69. Having said that, I agree with Justice O’Connor that, while it may be necessary on occasion for Canadian investigative officials to interact with countries
with poor human rights records, such as Syria, investigative officials proposing
to do so must take great care, particularly when a Canadian is being detained in
that country. Decisions to interact with officials from these countries must be
made on a case-by-case basis, but in accordance with applicable policies, and
following consultation with all Canadian agencies with an interest or expertise
in the area. I also agree that any interactions that do take place must be as controlled as possible, to safeguard against Canadian complicity in human rights
abuses or the perception that Canada condones such abuses. If it is determined
that there is a credible risk that Canadian interactions would render Canada
complicit in torture or create the perception that Canada condones the use of
torture, then a decision should be made that no interaction is to take place.�
CSIS’ request for an interview
70. As discussed in Chapter 5, paragraphs 187 to 197, in early January 2004,
two months before Mr. Almalki was released from Syrian custody, CSIS raised
with the SyMI the possibility of obtaining access to Mr. Almalki in Syria for
the purposes of interviewing him. Ultimately, the Service’s efforts to secure
interview access to Mr. Almalki were unsuccessful. The SyMI never refused
the Service’s request for an interview, but Mr. Almalki was released before any
interview could take place.
Did any mistreatment result directly or indirectly from CSIS’ request for an
interview?
71. I am satisfied that CSIS’ request to interview Mr. Almalki at this time did
not result, directly or indirectly, in mistreatment of Mr. Almalki in Syria. The
CSIS official who made the interview request made it clear to SyMI officials that
the interview would be voluntary, that Mr. Almalki should be made aware of
his right to consular access, and that the request should not delay Mr. Almalki’s
release. I acknowledge that conditions such as these are not always respected,
particularly by countries like Syria with a reputation for arbitrary detention
and prisoner abuse. I acknowledge also that, despite these conditions, CSIS’
request might have nonetheless conveyed to Syria a message that continued
�
Arar Inquiry, Analysis and Recommendations, pp. 198–199.
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detention of Mr. Almalki was necessary or appropriate in order to accommodate
CSIS’ request.
72. However, I did not receive any evidence from Canadian officials or
from Mr. Almalki that CSIS’ request affected either the manner in which
Mr. Almalki was treated between January and March 2004, or the timing of his
release. Nor am I able to draw an inference, based on the evidence available
to me, that the request resulted indirectly in Mr. Almalki’s mistreatment or
prolonged detention.
Comments on CSIS’ request for an interview
73. In my view, CSIS’ request to interview Mr. Almalki in Syria was reasonable
in the circumstances. I say this for three reasons. First, CSIS consulted with
DFAIT about how the interview should be conducted, and DFAIT supported
the proposed interview, subject to recommendations that CSIS accepted. These
recommendations reflected adequate consideration of how a request for an
interview, and the interview itself, might affect Mr. Almalki. Second, at the time
the interview was proposed, DFAIT consular officials had not obtained consular
access to Mr. Almalki, and had not had an opportunity to assess his mental and
physical state. Therefore, among the recommendations agreed to by CSIS was
that the interviewer would evaluate Mr. Almalki’s physical and mental condition, identify any possible signs of torture and report his evaluation to DFAIT.
Though this would not have been an ideal alternative to a consular visit, it would
have been better than no access at all. Third, CSIS believed that Mr. Almalki
might possess information relevant to the security of Canada. The Service also
had reason to believe that Mr. Almalki might be released from Syrian custody
in the near future.
74. In making this finding, I am not suggesting that it would in all cases be
appropriate for Canadian officials to request interviews of Canadians detained in
countries with poor human rights records. Decisions about whether to request
and then conduct interviews must be made on a case-by-case basis, in light of
all the circumstances. A request should only be made after careful weighing of
the reasons for the request against the possible consequences for the detainee.
With respect to the possible consequences for the detainee, several witnesses
told the Inquiry that a direct interview of a detainee is desirable because the
interviewer can control the circumstances in which the questions are posed.
However, I agree with the submission of the Intervenor Human Rights Watch
that this ignores any antecedent or subsequent risks of mistreatment that would
arise in a context where torture is a routine part of interrogation. An interview
by a visiting official might create a risk that the detainee will be tortured before
�FINDINGS IN RELATION TO ABDULLAH ALMALKI
and after the interview. A detainee might be tortured before the scheduled
interview with visiting agents in order to “soften him up” or ensure that he
provides the “right answers” to the visiting agents. A detainee might be tortured
after the interview if the local interrogators are dissatisfied with something the
detainee says or because the local interrogators conclude that the detainee had
lied or concealed something from them earlier.
CSIS’ inquiries of the SyMI
75. Also in early January 2004, as discussed at Chapter 5, paragraphs 187 to
189, CSIS made other inquiries of the SyMI. CSIS asked the SyMI for an update
of Mr. Almalki’s case, including information about what charges he would be
facing, whether a trial was scheduled, whether it was true that he was soon to
be released, and whether there was any new information that would be of relevance to CSIS. CSIS also asked the SyMI to respond to allegations that Mr. Arar
had been tortured while in Syrian detention, and to advise if it had made any
extraordinary efforts to ensure the fair treatment of Canadian citizens detained
in Syria.
Did any mistreatment result directly or indirectly from CSIS’ inquiries of the
SyMI?
76. I am satisfied that these inquiries did not result directly or indirectly in
mistreatment or prolonged detention of Mr. Almalki. I found no evidence that
would permit me to infer a direct or indirect link.
Comments on CSIS’ inquiries of the SyMI
77. For three reasons, I am also satisfied that these inquiries were reasonable
in the circumstances. First, the Service had reason to believe that Mr. Almalki
might be released from Syrian custody in the near future and wanted to obtain
concrete information about Syria’s intentions in respect of Mr. Almalki. Second,
the inquiries themselves were relatively benign, and the CSIS official who put
them to the SyMI had been instructed not to put forth CSIS’ position on the situation or comment on Mr. Almalki’s detention. Third, it was likely in the interest
of Canadian officials at this time to obtain information about Syria’s response to
Mr. Arar’s allegations of torture. This was information that officials required in
order to better manage the cases of Canadian citizens detained in Syria (which
at this time included Mr. Nureddin, Mr. Almalki and others). Among Canadian
government agencies, CSIS was arguably best positioned to obtain this information from the SyMI, a military security organization that was apparently reticent
to deal with police and political officials.
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Reports from Canada
78. Mr. Almalki told the Inquiry that, during his interrogations in Syria, he
observed several reports in the possession of his Syrian interrogators that he
suggested might have originated with Canadian officials. He said that Syrian
officials detained, interrogated and tortured him at least in part based on these
reports. Some of Mr. Almalki’s allegations concerning reports have been
addressed above. I now address the remainder.
• Mr. Almalki told the Inquiry that, shortly after he arrived at the Damascus
airport on May 3, he overheard one of the officers refer to a report that
had been received from “the Embassy” on April 22. I found no evidence
that the Canadian Embassy or any other Canadian officials supplied any
foreign agency with a report about Mr. Almalki on or around this date.
• Mr. Almalki told the Inquiry that, in June 2002, he was interrogated
and tortured based on a 10–20 page report, written in Arabic, which
his interrogators referred to as “Questions.” According to Mr. Almalki,
the report described him as an “active member of al Qaeda” with the
code name “Abu Wafa,” included information about companies that
Mr. Almalki’s business had shipped to, and referred to the name of a
Toronto resident. I found no evidence that Canadian officials supplied
any foreign agency with a report matching this description. Nor did I
find any evidence that Canadian officials described Mr. Almalki to any
foreign agency as an “active member of al Qaeda.” It is difficult to
attribute the name “Abu Wafa” to any specific source. The name was
included in documents that were transferred to U.S. agencies on the
CDs containing the RCMP’s Supertext database; however, according
to CSIS records, Mr. Almalki told CSIS during a 1998 interview that the
name “Abu Wafa” appears on his Syrian birth certificate. The name of
the Toronto resident appeared in documents contained in the RCMP’s
Supertext database. I concluded above that the sharing of this database
with U.S. agencies in April of 2002 resulted indirectly in mistreatment
of Mr. Almalki in Syria.
• Mr. Almalki told the Inquiry that, in July 2002, he was interrogated and
tortured based on a report, written in Arabic, which said that a search
of Mr. Almalki’s parents’ home in Canada had turned up weapons and
proof of links to al-Qaeda and Osama Bin Laden. I found no evidence
that Canadian officials supplied any foreign agency with a report
matching this description. However, as discussed above, as part of the
transfer of its Supertext database, the RCMP provided U.S. agencies with
�FINDINGS IN RELATION TO ABDULLAH ALMALKI
a note indicating that two switchblades were found in Mr. Almalki’s
residence.
• Mr. Almalki told the Inquiry that, on August 25, 2002, he was interrogated
by Malaysian officials, possibly at the behest of Canada or based on
information that Malaysian officials had received from Canada, and that
he was tortured by Syrian officials in preparation for this interrogation.
He stated that the officials had a report listing several trade names
that Mr. Almalki had tried (unsuccessfully) to register with Industry
Canada, and that Mr. Almalki believed could only have been obtained
from his filing cabinet in Canada. I found no evidence that Canadian
officials supplied Malaysian officials or any foreign agency with a report
containing this information. As noted above, however, the Supertext
database shared with U.S. agencies included an email message from
Mr. Almalki to Industry Canada. I also found no evidence to suggest that
Canadian officials asked Malaysian officials to interrogate Mr. Almalki in
Syria, or that Canadian officials supplied questions for this purpose.
• Mr. Almalki told the Inquiry that, in mid-April 2004, after he was
released from Syrian custody, he was asked to return to Far Falestin,
where he was interrogated based on a report that had been faxed on
March 29, 2004. He said that the report contained photographs of
individuals and a list of names and birthdates, and, according to his
interrogator, indicated that the individuals were members of an Ottawabased religious group led by Mr. Almalki. I found no evidence that
Canadian officials supplied any foreign agency with a report matching
this description or containing this information.
Were there any deficiencies in the actions of Canadian officials to
provide consular services to Mr. Almalki?
79. In this section, I consider whether there were any deficiencies in the
actions of Canadian officials to provide consular services to Mr. Almalki in Syria.
I discuss below the following issues:
(a) DFAIT’s failure to act promptly after learning that Mr. Almalki had been
detained;
(b) DFAIT’s failure to make effective representations to Syria between
August 2002 and November 2003;
(c) DFAIT’s effective representations to Syria between November 2003 and
Mr. Almalki’s release in March 2004;
(d) DFAIT’s failure to sufficiently consider the possibility of mistreatment;
and
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(e) the improper disclosure by DFAIT of confidential consular
information.
80. As I discussed above in my findings regarding the actions of Canadian
officials in relation to Mr. Elmaati, the portion of the Terms of Reference that
specifically addresses the actions taken by Canadian officials to provide consular
services to Mr. Almalki directs me to assess whether there were any deficiencies
in these actions, without calling on me to determine whether any mistreatment
of Mr. Almalki resulted directly or indirectly from them. I therefore do not
address this possibility below. However, I should reiterate my view that it is
implicit in the seriousness with which the international community, including
our government, regards consular access, that a failure by Canadian officials to
effectively pursue consular access will increase the risk that mistreatment, and
possibly mistreatment amounting to torture, might occur.
Failure to act promptly after learning of detention
81. As I have set out above in my findings regarding the actions of Canadian
officials in relation to Mr. Elmaati, the standards operative at the relevant time,
including DFAIT’s Service Standards, the Manual of Consular Instructions
and best practices, required DFAIT to respond promptly once it learned that a
Canadian citizen had been detained abroad. The Service Standards indicated
that first contact with the detainee should be made within 24 hours of notification of the detention, though it acknowledged that the response time would
be subject to factors beyond DFAIT’s control. The Manual required DFAIT
officials to, upon learning that a Canadian citizen had been arrested and detained
abroad, investigate the circumstances of the arrest and detention with a view
to determining whether there was unlawful discrimination, denial of justice or
due process or harsh treatment during arrest.
82. In the case of Mr. Almalki, DFAIT failed to meet this standard. It did not
act promptly after learning that he might be detained in Syria.
Failure to promptly advise the Consular Affairs Bureau
83. DFAIT officials who first learned of Mr. Almalki’s detention failed to
promptly share this information with the Consular Affairs Bureau, the DFAIT
bureau charged with providing consular assistance to Canadians detained
abroad. Officials in DFAIT ISI knew by early June 2002 that Mr. Almalki might
be in custody in Syria. However, they did not advise the Consular Affairs Bureau
of the possible detention until late June 2002, and did so through a memorandum dated June 26 that did not reach the Consular Affairs Bureau until late July.
�FINDINGS IN RELATION TO ABDULLAH ALMALKI
Canada’s Ambassador to Syria recalled learning of Mr. Almalki’s detention on
July 4, 2002, at a meeting with the RCMP’s liaison officer in Rome and General
Khalil of the SyMI, but did not notify the Consular Affairs Bureau at that time.
84. I do not believe that the various explanations provided by DFAIT witnesses
are sufficient to justify these delays. The Ambassador told the Inquiry that he
believed that the Consular Affairs Bureau was already aware of the detention on
July 4, 2002. However, his belief was based on his expectation that if the RCMP
was meeting with General Khalil, appropriate consultation had occurred at
DFAIT headquarters. No steps were taken to confirm that this was the case.
85. DFAIT ISI explained the delay by invoking ISI’s policy of passing only
reliable or confirmed information to the Consular Affairs Bureau. According
to two DFAIT ISI officials, the information about Mr. Almalki’s detention was
not sufficiently confirmed and specific in early June 2002 to be shared with
the Consular Affairs Bureau. However, DFAIT ISI did not, upon learning that
Mr. Almalki might be in custody, make inquiries with the source of the information in order to confirm it. In my view, the possibility of detention was sufficiently significant, and the potential consequences for Mr. Almalki so serious,
that DFAIT ISI should have at least made some effort to confirm the information.
Furthermore, when DFAIT ISI finally did receive confirmation of the detention,
in late June 2002, it should have immediately contacted the Consular Affairs
Bureau. Instead, it merely copied the Bureau on a memorandum that mentioned
Mr. Almalki’s detention, a memorandum that DFAIT ISI knew or ought to have
known would not reach officials in the Bureau for some time.
86. What makes these delays particularly troubling is that DFAIT officials were
aware of information that the most serious and intense abuse of detainees in
Syria often occurs during the early stages of detention. This reality was highlighted in several of the public reports regarding Syria’s human rights record,
to which all DFAIT officials had access and which most had read. The Director
General of the Consular Affairs Bureau operated under a “working assumption”
that a political prisoner detained in Syria would be tortured, and his understanding was that torture usually took place early on in the detention. Mr. Almalki’s
treatment appears to have followed the pattern identified by the publicly available reports and by the Director General of the Consular Affairs Bureau. Some
of the most serious and intense abuse took place during the first month of his
detention in Syria.
87. In my view, the fact that serious mistreatment might be occurring is
reason for DFAIT to act as quickly as possible in seeking consular access to
the detainee.
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88. I reiterate what I said in my findings regarding the actions of Canadian
officials in relation to Mr. Elmaati: although the Consular Affairs Bureau has
the responsibility within the Government of Canada to make representations
on behalf of Canadian citizens detained in foreign countries, it can carry out
that mandate effectively only if it has the cooperation of other sections in
DFAIT. Cooperation and coordination between DFAIT ISI and the Consular
Affairs Bureau is particularly important in cases involving individuals detained
on security-related grounds, where DFAIT ISI will often be privy to information
that is of relevance to those who are in a position to provide detainees with
consular assistance.
Failure to promptly ascertain location and obtain consular access
89. Once officials in the Consular Affairs Bureau learned that Mr. Almalki was
detained in Syria, they failed to take prompt steps to ascertain his location and
obtain consular access to him. Officials confirmed on or about July 30, 2002 that
Mr. Almalki was a Canadian citizen and entitled to consular assistance, and one
official made a note on August 2 reminding herself to work on a diplomatic note.
However, the first diplomatic note was not sent until August 15. By this time
Mr. Almalki had already been detained in Syria for over three months. I accept
that in view of the official’s caseload and personal situation it was difficult for
the official who drafted the note to proceed more promptly. However, DFAIT
and its Consular Affairs Bureau bear responsibility for ensuring that sufficient
resources are in place so that consular efforts can be made in a timely way.
Failure to make effective representations to Syria—August 2002 to November 2003
90. As I have set out above in paragraphs 97 to 102 of Chapter 3, and in my
findings regarding the actions of Canadian officials in relation to Mr. Elmaati, the
standards operative at the relevant time required DFAIT to make representations
to the detaining country regarding the whereabouts of the detainee and the
reasons for his arrest and detention, and to make requests for consular access to
the detainee. Once initial consular access was secured, the Manual of Consular
Instructions directed DFAIT to visit and maintain contact with the detainee,
attempt to obtain case-related information, liaise with local authorities in order
to seek regular access, investigate the conditions of detention, and encourage
local authorities to process the case without unreasonable delay. In my view,
more strenuous efforts to obtain and maintain access to the detainee may have
been required where the detainee was detained on terrorism or national security-related grounds in a country with a poor human rights record.
�FINDINGS IN RELATION TO ABDULLAH ALMALKI
91. Between August 15, 2002, when DFAIT sent the first diplomatic note
requesting consular access to Mr. Almalki, and November 2003, DFAIT failed
to make effective representations to Syria regarding Mr. Almalki. DFAIT failed
to make sufficient efforts to ascertain Mr. Almalki’s location and the reasons for
his detention, and to obtain consular access to him.
Diplomatic notes
92. DFAIT sent only one diplomatic note to Syria—to the Ministry of Foreign
Affairs (MFA)—during the first 18 months of Mr. Almalki’s detention. That note,
sent August 15, 2002, requested the reasons for Mr. Almalki’s detention and for
permission to visit him. I found no evidence that the Embassy conducted further follow-up or that the Consular Affairs Bureau instructed it to do so. Syria
responded to the August 15 diplomatic note on April 26, 2003, advising that
Mr. Almalki was Syrian and therefore subject to Syrian laws. DFAIT did not
respond to this note. The Embassy passed it on to the Consular Affairs Bureau
and did not receive instructions to follow up with another note or otherwise
pursue the issue of consular access further. A second diplomatic note regarding
Mr. Almalki was not sent until November 30, 2003.
Meetings with Syrian officials
93. While officials at the Canadian Embassy in Damascus were meeting relatively regularly with officials from the MFA and the SyMI (the agency detaining Mr. Almalki) the issue of consular access to Mr. Almalki was generally not
aggressively pursued with these officials. At a meeting with an MFA official on
October 20, 2002, the Ambassador raised Mr. Almalki’s case and the official told
him that he would look into it. When the Ambassador met with General Khalil
of the SyMI on October 22, Mr. Almalki was not discussed. At a November 3
meeting with General Khalil, the Ambassador raised the issue of Mr. Almalki and
observed that General Khalil seemed disposed to accept that Mr. Almalki could
meet with a Canadian official; however, this appears to have been interpreted
by DFAIT as an invitation addressed to intelligence officials and not consular
officials, and no one in the Consular Affairs Bureau used the invitation as a basis
for pursuing consular access to Mr. Almalki.
94. The one possible exception to this pattern was the meetings between a
consular official at the Canadian Embassy in Damascus and Colonel Saleh of the
SyMI. The consular official told the Inquiry that, during the period of Mr. Arar’s
detention (October 2002 to October 2003), he met regularly with Colonel Saleh,
and unofficially made several requests for information about Mr. Almalki and for
permission to visit him.
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95. I note, however, that these meetings were focused on Mr. Arar, and that
the requests for consular access to Mr. Almalki were not reported in any DFAIT
documents. I also note that because the meetings at which the official made
these requests of Colonel Saleh were focused on Mr. Arar, the requests for
access to Mr. Almalki might well have come across as an afterthought.
Intensity of consular efforts in Elmaati and Arar cases
96. DFAIT’s efforts to obtain consular access to Mr. Almalki between August
2002 and late 2003 were much less intense than the consular efforts undertaken
in the cases of Mr. Arar and Mr. Elmaati. Mr. Arar, who was detained at Far
Falestin starting in early October 2002, received nine consular visits—the first
in late October 2002—before he was released on October 5, 2003. Mr. Elmaati
did not receive any consular visits during his two-and-a-half-months’ detention
in Syria, but received eight consular visits while he was detained in Egypt (from
late January 2002 until mid-January 2004). The Director General of the Consular
Affairs Bureau acknowledged that the level of consular activity in Mr. Almalki’s
case was less than that in the cases of Mr. Elmaati and Mr. Arar, and said that
the Consular Affairs Bureau lost focus. The Attorney General in his final submissions also acknowledged that the level of consular activity in Mr. Almalki’s
case, prior to November 2003, was “not in keeping with that carried out in the
cases of Mr. Arar and Mr. Elmaati.”
Explanations for the failure to make effective representations
97. Several explanations were put forward for DFAIT’s failure to make effective representations with respect to Mr. Almalki. Three main explanations
were advanced: (1) Syria refused to cooperate; (2) Mr. Almalki’s family was not
engaged; and (3) the Consular Affairs Bureau had instructed the Embassy not to
pursue Mr. Almalki’s case as a consular case. For the reasons discussed below,
I do not accept any of these explanations.
98. Syria’s refusal to cooperate. First, the Attorney General argued that
DFAIT’s effectiveness was severely compromised by Syria’s refusal to cooperate in providing consular access to Mr. Almalki. It was submitted that it is
difficult for DFAIT to secure the cooperation of the detaining state in securityrelated cases involving dual nationals (such as Mr. Almalki’s case) because:
(1) detaining states, particularly in the Middle East, do not generally recognize
a dual national’s Canadian citizenship; and (2) these cases are controlled by state
security services, with which DFAIT has no formal connection.
�FINDINGS IN RELATION TO ABDULLAH ALMALKI
99. While I have acknowledged (above at paragraphs 108 to 109 of
Chapter 3) that cases with these characteristics may present challenges for
DFAIT, and that the effectiveness of DFAIT’s representations may be questionable, I do not believe that these challenges were sufficient to explain DFAIT’s
failures in Mr. Almalki’s case. DFAIT did not require Syria’s cooperation to draft
and send a diplomatic note. Nor did DFAIT require Syria’s cooperation to telephone its contacts in the Syrian MFA and the SyMI, or to raise Mr. Almalki’s case
during face-to-face meetings with officials from these agencies. I am not satisfied
that, upon receiving one response to a diplomatic note, in April 2003, advising
that Mr. Almalki was Syrian and subject to Syrian law, DFAIT was justified in
giving up. If anything, the challenges presented by Mr. Almalki’s case required
DFAIT to be especially vigilant. DFAIT should have taken every opportunity to
vigorously advance its case for consular access to Mr. Almalki.
100. DFAIT had several opportunities to advance the case for consular access
with General Khalil of the SyMI. Canada’s Ambassador to Syria met with him
at least three times during the early stages of Mr. Almalki’s detention—in July,
October and November 2002. Evidence given at the Arar Inquiry suggests that
the Ambassador had a close, if informal, working relationship with General
Khalil, who, as head of the SyMI reported directly to the President and was
extremely powerful in the Syrian political framework. The Ambassador testified that he was generally received by General Khalil in a friendly manner, that
he believed that the General’s relationship with him was genuine, and that the
General could always be relied on to keep his word and would respond quickly
to requests for consular access and information.
101. DFAIT was effective in advancing the case for consular access to Mr. Arar,
even though his case raised the same challenges as Mr. Almalki’s—he was a dual
national detained on security grounds in a prison controlled by one of Syria’s
security services. DFAIT’s efforts in respect of Mr. Arar yielded a consular visit
within one month of Mr. Arar’s arrest, and another eight consular visits thereafter. While similar efforts on Mr. Almalki’s behalf might not have yielded the
same results—without evidence from Syrian officials, that is impossible for me
to say—that does not mean that the efforts should not have been made.
102. The role of Mr. Almalki’s family. A second explanation offered by
the Attorney General for DFAIT’s failure to make effective representations with
respect to Mr. Almalki was “the relative lack of engagement by Mr. Almalki’s
family.” It was argued that the participation of a detainee’s family is invaluable,
particularly in cases of dual nationals detained in countries that do not recognize
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an individual’s Canadian citizenship, and that Mr. Almalki’s family, “like other
families, could have been an important source of information and assistance.”
103. While it might have been desirable for family members who did visit
Mr. Almalki in prison to communicate to consular officials that they had done
so, and to provide information regarding his well-being, I find troubling the
suggestion that DFAIT’s failures can be explained by the family’s “relative lack
of engagement.” It certainly provides little assurance to Canadian citizens who
are without close family members. It also does not account for any legitimate
reasons that a family might have for not engaging DFAIT when one family member is detained abroad. The family might not be familiar with the services that
DFAIT provides, or be unable for language or other reasons to contact DFAIT
and explain the situation. A family might also be concerned about possible
adverse consequences of its intervention. While I did not receive any evidence
from Mr. Almalki’s family members, evidence that I received from Canadian
officials suggests that the Almalki family was worried that its intervention might
have some negative impact on the safety of Mr. Almalki or other family members
living in Syria.
104. It is unfair to the Almalki family to suggest that family members were not
engaged in Mr. Almalki’s case. The detention of a close family member is no
doubt a trying and emotional time for a family, and family members may find
it difficult and frightening to visit the detained person or take steps to secure
his or her release. Furthermore, the evidence I received from Canadian officials and from Mr. Almalki suggests that Mr. Almalki’s family was taking steps
to assist him. Members of the Almalki family met with a Senator in August
2002 to discuss Mr. Almalki’s case and ask for the Senator’s help. Mr. Almalki’s
brother told a DFAIT official in December 2002 that the family had been pursuing the matter through its own channel for several months. In October 2002,
Mr. Almalki’s lawyer met with Project A-O Canada managers and Department of
Justice counsel to express concern over Mr. Almalki’s detention. In June 2003,
Mr. Almalki’s brother asked DFAIT for its assistance in obtaining a certificate
stating that Mr. Almalki did not have a criminal record in Canada. Finally, as
noted above, between August 2002 and November 2003, Mr. Almalki received
seven family visits.
105. But even if it could be said that Mr. Almalki’s family members were
not engaged, I do not accept that the efforts of the Consular Affairs Bureau to
secure at least initial consular access to a detainee should be contingent on the
degree of the family’s engagement. If, once access is obtained, the detainee
advises consular officials that (whether because the family is looking after
�FINDINGS IN RELATION TO ABDULLAH ALMALKI
things or for other reasons) further consular visits are not welcome, that might
provide a basis for limiting their efforts. But that did not of course occur in
Mr. Almalki’s case.
106. Not a consular case. When interviewed for this Inquiry, Canada’s
former Ambassador to Syria offered a third explanation for the paucity of
consular efforts between August 2002 and November 2003. He said that the
Consular Affairs Bureau in Ottawa had instructed him that, in accordance with
the wishes of the Almalki family, Mr. Almalki’s case would not be treated as a
consular case.
107. Other DFAIT officials, including a consular official at the Embassy, the
Director General of the Consular Affairs Bureau and the case management officer responsible for Mr. Almalki’s case, disagreed with the Ambassador. They
all agreed that the Almalki family had not instructed DFAIT not to pursue the
matter as a consular case.
108. The Attorney General argued that this apparent difference of opinion had
no bearing on DFAIT’s effort in Mr. Almalki’s case. He submitted that because
the case was managed by the Consular Affairs Bureau, the Ambassador’s view
of whether Mr. Almalki’s case was a consular one was immaterial to the actual
conduct of the case, and emphasized that the Ambassador carried out every
single instruction provided to him in respect of all consular cases in Syria.
109. I am not convinced that the apparent difference of opinion within DFAIT
about the status of Mr. Almalki’s case had no bearing on DFAIT’s efforts to gain
access to him. The Embassy had day-to-day oversight over the consular efforts
in Mr. Almalki’s case, and was in a position to exercise considerable influence
over officials responsible for his fate, including General Khalil of the SyMI.
The belief that Mr. Almalki’s case was not a consular one very likely coloured
the interactions with those officials, and affected the instructions to Embassy
staff. The Ambassador’s own evidence is that his belief about the status of
Mr. Almalki’s case did affect the Embassy’s efforts: he told the Inquiry that as
a result of this belief, the Embassy “desisted almost from the start basically in
pursuing the matter.”
110. Responsibility for the apparent miscommunication about the status of
Mr. Almalki’s case lies with DFAIT, which had an obligation to ensure that all
officials involved in Mr. Almalki’s case were regularly briefed about the status
of Mr. Almalki’s case. During the period of August 2002 to November 2003,
DFAIT’s Consular Affairs Bureau appears to have provided little instruction or
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direction to the Embassy with respect to Mr. Almalki and the actions and efforts
necessary to gain consular access to him.
Family visits
111. I should note that, while DFAIT was not effective in gaining consular
access to Mr. Almalki, his family members did periodically visit him in detention. Between July 2002 and November 2003, he received a total of seven family
visits, which he believed had been arranged by his uncle’s friend, who was a
General in the army. Mr. Almalki’s family also sent him some clothes, food and
money during this period.
112. I think family visits do, and did in Mr. Almalki’s case, fulfill some of the
functions of consular visits. They may reassure the detainee that he has not
been forgotten or neglected, and present some limited opportunity for family
members to assess the detainee’s well-being. Family visits may take the place
of consular visits in situations where a pattern of regular consular visitation has
already been established. Mr. Elmaati’s case is an example.
113. However, family visits are not a substitute for regular consular visits.
Family members are not trained to detect signs of torture or other abuse. Nor
are they representatives of the Government of Canada or in a position to advise
the detainee of his or her rights to consular and other assistance from the
Canadian government.
The submission that “more would have made no difference”
114. The Attorney General argued that, irrespective of the impediments to
DFAIT’s efforts, greater effort would not have produced a different outcome
in Mr. Almalki’s case. He argued that further requests of the Syrian authorities
would have been futile, and that “more would have made no difference.”
115. I observe that “more” did make a difference in the case of Mr. Arar.
Vigorous representations to Syrian officials resulted in nine consular visits over
the course of Mr. Arar’s year-long detention, the first within one month of
his arrest in Syria. DFAIT’s efforts to secure consular access were successful
even though Mr. Arar, like Mr. Almalki, was a dual Syrian-Canadian citizen and
detained in Far Falestin prison on terrorism-related grounds. I also observe that,
in Mr. Almalki’s case, DFAIT’s intensified consular efforts starting in late 2003
and continuing until Mr. Almalki’s release in 2004 yielded positive results.
116. More strenuous efforts by DFAIT to secure access to Mr. Almalki would
have at least sent Syria the message that the Canadian government was concerned
�FINDINGS IN RELATION TO ABDULLAH ALMALKI
about his well-being. Instead, DFAIT’s failure to make such efforts, juxtaposed
against its vigorous representations and concern for Mr. Arar, can reasonably
be regarded as suggesting to Syria that Canada did not want Mr. Almalki back
in Canada, and that Canada was not, or at least not as, concerned about his
prolonged detention.
Effective representations—November 2003 to March 2004
117. I am satisfied that in the period from November 2003 to Mr. Almalki’s
release in March 2004, DFAIT made effective and appropriate representations to
Syrian authorities. DFAIT’s efforts during this period included the following:
• Minister Graham met with Syrian Ambassador Arnous on November 4, 2003
and asked the Ambassador to facilitate consular access to Mr. Almalki.
• Between November 6 and November 13, Embassy staff made at least
five unsuccessful attempts to set up a meeting between the Ambassador
and the Vice-Minister of the Syrian MFA.
• On November 30, the Embassy sent a diplomatic note asking Syria
to investigate the allegations of torture, grant consular access to
Mr. Almalki, and allow Mr. Almalki to have a legal defence at his trial.
• At meetings on December 4, 2003, a Canadian Senator and the
Ambassador met with the former Deputy Minister of the Syrian MFA
and the President of Syria to discuss Mr. Almalki’s case. The Senator
also raised Mr. Almalki’s case with the Syrian Prime Minister.
• Starting in early January 2004, the Ambassador was in regular contact with
the former Deputy Minister of the Syrian MFA regarding Mr. Almalki’s
case.
• In early January 2004, when CSIS officials consulted DFAIT about a
possible interview of Mr. Almalki in Syria, DFAIT requested that CSIS
use the interview as an opportunity to evaluate Mr. Almalki’s physical
and mental condition, identify any possible signs of torture, and report
this evaluation to DFAIT.
• In late January and early February 2004, the Ambassador raised
Mr. Almalki’s case with the Minister and Vice-Minister of the Syrian
MFA.
• The Parliamentary Secretary to the Minister of Foreign Affairs with a
special emphasis on Canadians abroad made plans to travel to Syria to
discuss sensitive cases involving dual nationals, including Mr. Almalki’s
case. For reasons that I do not attribute to Canadian officials, the trip
did not occur until late March, after Mr. Almalki was released.
431
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Internal Inquiry
Failure to sufficiently consider the possibility of mistreatment
118. Exacerbating DFAIT’s failure to act promptly after learning of Mr. Almalki’s
detention, and its failure to make effective representations to Syria between
August 2002 and November 2003, was DFAIT’s failure to sufficiently consider
the possibility that Mr. Almalki was being tortured in Syrian detention.
DFAIT officials’ knowledge of Syria’s human rights record
119. DFAIT officials responsible for Mr. Almalki’s case were generally knowledgeable about Syria’s human rights record. The Director General of the
Consular Affairs Bureau until September 1, 2003 operated under a “working
assumption” that political prisoners detained in Syria would be subjected to
torture. The individual who replaced him in September 2003 told the Inquiry
that he worked under the assumption that there was some mistreatment of
individuals imprisoned in Syrian jails. The consul at the Canadian Embassy in
Damascus, who took up his position in September 2002, told the Inquiry that
he was aware from his reading that political dissidents and opponents of the
regime had been mistreated by the Syrian government, but that when he first
arrived in Syria in September 2002 he did not think that dual nationals would
be treated the same way. Canada’s Ambassador to Syria (until mid-September
2003) testified at the Arar Inquiry that in 2002 and 2003 he knew of the allegations of torture in the U.S. State Department reports.
Conclusions about likelihood of torture in specific cases
120. Though DFAIT officials responsible for Mr. Almalki’s case were generally
knowledgeable about Syria’s human rights record, some of them were reluctant
to draw from that record any conclusions about the possibility that Canadians
detained in Syria were being mistreated.
121. I find this view troubling, particularly since it was a view that was held
by those who oversaw the day-to-day consular efforts in Mr. Almalki’s case. It
is in my view a far too cautious approach given the very serious consequences
for an individual of being tortured or abused. I agree with Justice O’Connor’s
comments about the reluctance of officials to draw conclusions about the likelihood of torture:
Detecting torture in countries such as Syria will always be difficult. It is unrealistic
to expect torturers to admit to their actions or allow outsiders to make observations that would prove conclusively that torture has occurred. Thus, an assessment
that depends solely on “hard facts” is unlikely to ever uncover torture. Canadian
officials must be more sophisticated in their assessments, taking into consideration
�FINDINGS IN RELATION TO ABDULLAH ALMALKI
all of the available information in order to draw reasonable inferences about what
may have happened. The Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment…provides that the human rights record of
a country must be considered in assessing the risk of torture.�
122. Furthermore, as I will discuss below, DFAIT officials had, by August 2002,
relatively “concrete” evidence of torture. On August 12, 2002, Mr. Elmaati told
consular officials in Egypt that he had been tortured while in Syrian custody.
The impact of Mr. Elmaati’s torture allegation
123. At least two officials in the Consular Affairs Bureau in Ottawa concluded, based on Mr. Elmaati’s torture allegation, that Mr. Almalki was at risk
of being tortured. The Director General of the Consular Affairs Bureau said
that Mr. Elmaati’s allegation was the first direct information of a Canadian being
mistreated in Syrian custody, and that his allegation increased the already significant probability that Mr. Almalki was being tortured. The case management
officer responsible for Mr. Almalki’s case said that upon learning of Mr. Elmaati’s
allegation, it crossed her mind that Mr. Almalki might be facing the same risk
of torture.
124. Unfortunately, not all DFAIT officials responsible for Mr. Almalki’s case
were aware of Mr. Elmaati’s torture allegation. The message reporting the
allegation was not immediately sent to the Embassy in Damascus and, as a
result the Ambassador and his staff did not learn about it until much later.
The Ambassador recalled learning of it in late 2002 (possibly November or
December). The consul at the Embassy, who took up the position in September
2002, did not learn of the allegation until September 2005.
125. This delay in communicating Mr. Elmaati’s allegation to the Embassy in
Damascus should not have occurred. The Attorney General acknowledged in
his final submissions that information about the allegation should have been
passed to consular officers who were seeking access to Mr. Almalki. This
information was material to the Embassy’s efforts in respect of Mr. Almalki.
It would not have been difficult for officials at the Consular Affairs Bureau to
immediately forward to the Embassy the email message reporting the allegation,
or to telephone the Ambassador.
126. Furthermore, once the allegation was communicated to the Embassy in
late 2002, it should have immediately been shared with key members of the
Embassy staff, including the consul.
�
Arar Inquiry, Analysis and Recommendations, p. 192.
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Internal Inquiry
Raising possibility of mistreatment
127. It was suggested by counsel for the individuals and by Amnesty
International that DFAIT should have, at points during Mr. Almalki’s detention,
reminded Syrian officials of the prohibition on torture and arbitrary arrest and
detention, and that DFAIT’s failure to do so was a deficiency in the provision
of consular services to Mr. Almalki.
128. While DFAIT must take all appropriate steps to ensure that Canadian citizens detained abroad are not being tortured, and that international obligations
regarding the treatment of detainees are being respected, I do not believe that
it will be appropriate in all cases to raise with the detaining state the possibility
of torture, or remind the state of its international obligations. Decisions to do
so will necessarily be context-specific, and informed by past experience with
the detaining state. In some cases, DFAIT officials will reasonably conclude
that it would not be in the interest of the detainee to make representations
with respect to his or her treatment. There is some evidence that DFAIT was
concerned that raising with Syria the possibility of mistreatment would worsen
the situation of Canadians detained there, including Mr. Almalki. According
to the Director of the Consular Affairs Bureau, an important consideration for
DFAIT at that time was the case of William Sampson, a Canadian citizen who was
arrested and detained in Saudi Arabia in December 2000. In that case, shortly
after DFAIT made representations to Saudi Arabia regarding Mr. Sampson’s treatment, Mr. Sampson was summarily tried and sentenced to death. (Mr. Sampson
was ultimately released in August 2003.)
Improper disclosure of confidential consular information
129. On one occasion during Mr. Almalki’s detention, DFAIT disclosed to CSIS
information that it had obtained in the course of providing consular services to
Mr. Almalki. The information that was disclosed consisted of an August 2003
CAMANT note containing the text of a diplomatic note regarding Mr. Almalki
that the Embassy had received from Syria in April 2003.
130. As I discussed at paragraphs 165 to 168 of my findings regarding the
actions of Canadian officials in relation to Mr. Elmaati, information regarding
individual Canadians gathered by consular personnel in the performance of
their duties is confidential, subject to the provisions of the Privacy Act. As I
also discussed, the Privacy Act provides for certain exceptions to this requirement of confidentiality, and allows for disclosure in situations where (1) the
individual has consented, (2) the public interest in disclosure outweighs the
invasion of privacy, (3) disclosure would clearly benefit the individual, or (4) an
�FINDINGS IN RELATION TO ABDULLAH ALMALKI
investigative body such as CSIS or the RCMP needs the information for the purpose of enforcing any law of Canada, and make a written request to DFAIT.
131. The disclosure to CSIS of the diplomatic note regarding Mr. Almalki
appears not to fall within any of these exceptions. Mr. Almalki did not give
his consent to the disclosure of the information. CSIS did not make a written
request to DFAIT, or suggest to DFAIT at any point that it required information
about Mr. Almalki for the purpose of enforcing any law of Canada. I received
no evidence that disclosure was in the public interest. I accept that, by the
time this information was shared, DFAIT ISI and the Consular Affairs Bureau
had come to an arrangement whereby ISI would share consular-related information with CSIS only if it considered it helpful to the individual involved to do
so. I discussed this arrangement above, in my findings regarding the actions of
Canadian officials in relation to Mr. Elmaati. However, I received no evidence
that the possibility of “benefit” to Mr. Almalki was considered before information about him was shared. In any event, I am not satisfied that sharing an
entire CAMANT note containing personal information about Mr. Almalki could
be justified on this basis. It would be more appropriate, in my view, for DFAIT
to share with CSIS some information from this CAMANT note, if it considered
that it was to Mr. Almalki’s benefit to do so.
132. Furthermore, I received no evidence that the disclosure to CSIS was preceded by any consideration or discussion within DFAIT. There appear to have
been no discussions about how the information was obtained, whether it was
subject to the confidentiality requirement, or whether DFAIT was required to
take administrative or other steps before disclosing it.
133. I note that, starting in late 2003, DFAIT began to make changes to its
information sharing practices with a view to complying with the requirements
of the Privacy Act. Among these changes, the Director General of the Consular
Affairs Bureau prohibited the sharing of CAMANT notes with anyone other than
consular staff. As well, re-stated guidelines for consular officials now emphasize
the importance of consular confidentiality, and provide information regarding
what may be shared, with whom and in what circumstances.
435
��13
FINDINGS REGARDING THE ACTIONS OF
CANADIAN OFFICIALS IN RELATION TO
MUAYYED NUREDDIN
Overview
1. Muayyed Nureddin, a dual Canadian-Iraqi citizen, travelled to Syria in
December 2003 on his way home to Toronto from Iraq, where he had been
visiting for approximately two months. When he arrived at the border, he
was immediately taken into Syrian custody, where he would remain for 33
days. While in Syrian detention, Mr. Nureddin was held in degrading and inhumane conditions, interrogated and mistreated. I have described the actions of
Canadian officials with respect to Mr. Nureddin in Chapter 6, and summarized
Mr. Nureddin’s evidence about his mistreatment in Syria in Chapter 9.
2. In this chapter, I set out my findings concerning the actions of Canadian
officials as they related to Mr. Nureddin. I will first provide an overview before
setting out in more detail my findings and the basis on which they are made. For
the reasons discussed in Chapter 2, my findings are directed to the actions of
the institutions of the Government of Canada. It is neither necessary nor appropriate that I make findings concerning the actions of any individual Canadian
official, and I do not do so.
3. The Terms of Reference call upon me, first, to consider whether the detention of Mr. Nureddin resulted directly or indirectly from actions of Canadian officials and, if so, whether those actions were deficient in the circumstances. For
the reasons set out below, I conclude that two actions of Canadian officials in
the period leading up to Mr. Nureddin’s detention—the sharing of information,
by CSIS and the RCMP, about Mr. Nureddin’s suspected involvement in terrorist activities, and the sharing by CSIS of Mr. Nureddin’s travel itinerary—likely
contributed to his detention in Syria. I go on to conclude that, while aspects
of the sharing of information about Mr. Nureddin’s suspected involvement in
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Internal Inquiry
terrorist activities were deficient, CSIS’ decision to share the travel itinerary
was not.
4. The Terms of Reference also direct me to assess whether any mistreatment
of Mr. Nureddin resulted directly or indirectly from actions of Canadian officials
and, if so, whether those actions were deficient in the circumstances. Before
making any findings in this regard, it was necessary for me to determine whether
Mr. Nureddin was mistreated in Syria. Based on a careful review of the evidence
available to me, I conclude below that, while in Syrian detention, Mr. Nureddin
suffered mistreatment amounting to torture. I go on to assess several actions
of Canadian officials in the period leading up to his detention, and during his
detention in Syria, and conclude that the same sharing of information that likely
contributed to Mr. Nureddin’s detention also likely contributed to mistreatment
of Mr. Nureddin there.
5. Finally, the Terms of Reference direct me to consider whether there were
any deficiencies in the actions of Canadian officials to provide consular services
to Mr. Nureddin in Syria. I conclude that the provision of consular services
to Mr. Nureddin during his 33-day detention in Syria was not deficient in the
circumstances. DFAIT responded promptly after learning of Mr. Nureddin’s
detention and, following its initial contact with Syrian officials, DFAIT continued
to follow up with efforts to secure consular access to Mr. Nureddin.
Did the detention of Mr. Nureddin result directly or indirectly from the
actions of Canadian officials and, if so, were those actions deficient?
6. On September 16, 2003, Mr. Nureddin left Toronto and travelled to
the Middle East, through Germany. The purpose of the trip, according to
Mr. Nureddin, was to develop his fledgling car import/export business, and to
visit family in Kirkuk, Iraq. On December 11, 2003, at the conclusion of his trip,
Mr. Nureddin drove from Kirkuk to the Syrian border, on his way to Damascus
to catch a flight back to Toronto. When he arrived at the Syrian border, he was
searched, interrogated and then taken into custody by Syrian officials.
7. The evidence that I received from Canadian officials establishes that officials
took the following actions in the period leading up to Mr. Nureddin’s detention
in Syria:
(a) Starting in November 2002, CSIS and the RCMP shared with several
foreign agencies, including U.S. agencies, information about
Mr. Nureddin’s suspected involvement in terrorist activities. They
advised these agencies that Mr. Nureddin was suspected of couriering
�FINDINGS IN RELATION TO MUAYYED NUREDDIN
money between Islamic extremists, including to a member of the
terrorist group Ansar al-Islam, and that he was associated with several
individuals suspected of involvement in terrorism. In one case, CSIS
advised several foreign agencies, including a U.S. agency, that CSIS’
investigation had “confirmed” that Mr. Nureddin had acted as a money
courier for members of Ansar al-Islam.
(b) On September 16, 2003, CSIS shared Mr. Nureddin’s travel itinerary,
which indicated that he would be returning to Canada from Damascus
on December 13, 2003, with a U.S. agency and two other foreign intelligence agencies. The itinerary was accompanied by a caveat prohibiting
dissemination without the Service’s permission.
(c) The RCMP also shared some of Mr. Nureddin’s travel information,
in late September 2003, but the information shared did not indicate
that Mr. Nureddin would be travelling to Syria or returning to Canada
via Syria.
(d) In early December 2003, one of the foreign agencies that had received
Mr. Nureddin’s itinerary from CSIS advised CSIS that it felt obliged to
inform Syrian authorities that Mr. Nureddin was on his way there. CSIS
did not object, but requested that the foreign agency seek assurances
with respect to Mr. Nureddin’s treatment. Then, on December 12,
2003, the day after Mr. Nureddin was detained in Syria, CSIS learned
that Syrian authorities had been advised of Mr. Nureddin’s travel to
Syria, had been asked to question him when he arrived there, and had
been provided with questions for this purpose.
8. In the two sections that follow, I assess the link between these actions and
Mr. Nureddin’s detention and, to the extent that I determine that there is a link,
examine whether the actions were deficient in the circumstances. Where I am
unable to determine that there is a link, I comment on the nature and quality
of Canadian officials’ conduct.
Did the detention of Mr. Nureddin in Syria result directly or indirectly from the
actions of Canadian officials?
9. Without the evidence of Syrian and U.S. officials, I am unable to conclude
with certainty what role the actions described above played in Mr. Nureddin’s
detention. However, on the evidence available to me, I am satisfied that actions
(a) and (b) described above (the sharing of information about Mr. Nureddin’s
suspected involvement in terrorist activities and the sharing of the itinerary
by CSIS), when taken together, likely contributed to Mr. Nureddin’s detention
in Syria, and that they therefore can be said to have resulted indirectly in that
439
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Internal Inquiry
detention. The sharing by CSIS of Mr. Nureddin’s itinerary with a U.S. agency
is more proximate to Mr. Nureddin’s detention than is the sharing of other
information about Mr. Nureddin. It is reasonable to infer that the risk that
Mr. Nureddin might be detained as a result of CSIS sharing his travel itinerary
was increased by the fact that Canadian officials had previously advised their
foreign partners that, for example, CSIS had confirmed that Mr. Nureddin acted
as a human money courier for members of Ansar al-Islam.
10. I recognize that CSIS provided Mr. Nureddin’s travel itinerary with a caveat
prohibiting dissemination, and I received no evidence that the U.S. agency that
received the itinerary breached this caveat. I recognize that this U.S. agency
might have corroborated the itinerary information from its own sources, and
then passed the information to Syria. Several CSIS officials told the Inquiry that
the U.S. agency could have obtained the travel information itself through other
means. I accept that when a foreign agency corroborates information provided
to it by CSIS, that information is no longer the property of CSIS or protected by
CSIS caveats. Nevertheless, even independent corroboration by a U.S. agency,
if that is what occurred, would not be sufficient to break the link between the
conduct of Canadian officials in sharing the itinerary with this U.S. agency, and
the detention of Mr. Nureddin in Syria.
11. By contrast, I am not satisfied that Mr. Nureddin’s detention resulted
directly or indirectly from the sharing of his travel information by the RCMP.
As I noted above, the information shared did not indicate that Mr. Nureddin
would be travelling to Syria.
12. Nor do I believe that Mr. Nureddin’s detention resulted directly or indirectly from CSIS’ failure to object upon learning that a foreign agency felt
obliged to advise Syria that Mr. Nureddin was on his way there. To conclude
otherwise, I would have to infer on the evidence available to me that, had CSIS
expressed an objection upon learning from the foreign agency that it planned
to tell the Syrian authorities that Mr. Nureddin was on his way to Syria, things
would have been different for Mr. Nureddin. For at least two reasons, the
specifics of which are subject to national security confidentiality, I very much
doubt that the foreign agency would have altered its plans in response to CSIS’
objection. As the CSIS official who was involved in the December 11, 2003
correspondence with the foreign agency stated, “They weren’t asking me. They
were telling me that they were going to tell the Syrians.”
�FINDINGS IN RELATION TO MUAYYED NUREDDIN
Were these actions of Canadian officials deficient?
13. Having concluded that the conduct of Canadian officials in sharing information about Mr. Nureddin’s suspected terrorist involvement, and the conduct of
CSIS in sharing Mr. Nureddin’s itinerary, resulted indirectly in Mr. Nureddin’s
detention in Syria, I now turn to consider whether these actions were deficient
in the circumstances. I also comment on the manner in which CSIS responded
upon learning that a foreign agency planned to advise Syria that Mr. Nureddin
was on his way there.
Sharing information about suspected involvement in terrorist activities
14. CSIS and the RCMP began sharing information about Mr. Nureddin in the
fall of 2002, after receiving information from foreign agencies that Mr. Nureddin
might be linked to terrorist activity in Iraq. Starting in late 2002, and continuing into 2003, CSIS advised several foreign agencies that Mr. Nureddin was
suspected of couriering money between Islamic extremists, including to a supporter of Ansar al-Islam. On one occasion, the Service advised several foreign
agencies that the Service had “confirmed” that Mr. Nureddin acted as a money
courier in the transfer of money to Ansar al-Islam. The RCMP also shared information regarding Mr. Nureddin, though apparently only with U.S. agencies.
The information shared included the results of an interview of Mr. Nureddin
that the RCMP had conducted on September 16, 2003, prior to Mr. Nureddin’s
departure from Canada, and documents indicating that Mr. Nureddin was suspected of acting as a financial courier for people believed to be supporters of
Islamic extremism.
15. In the circumstances, I do not believe it was deficient for Canadian officials
to supply foreign agencies, including U.S. agencies, with information about
Mr. Nureddin’s suspected activities. I am satisfied that, when officials received
information linking Mr. Nureddin to possible terrorist activities taking place in
Iraq, it was appropriate to respond by providing certain foreign agencies with
the information that they had collected.
16. I am also satisfied that the manner in which the RCMP carried out this
sharing of information was not deficient in the circumstances. The information that was shared was properly qualified (using terms such as “suspected” or
“believed” or the phrase “reason to believe”) and in each case was accompanied
by a caveat prohibiting dissemination without the RCMP’s consent.
17. However, the manner in which CSIS shared information regarding
Mr. Nureddin was deficient in two respects. First, CSIS failed to attach caveats
to messages that it sent to a U.S. agency and a foreign agency in November 2002.
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Internal Inquiry
These messages advised that Mr. Nureddin was suspected of couriering money
to a suspected supporter of Ansar al-Islam.
18. In his final submissions, the Attorney General acknowledged CSIS’ failure
to attach caveats to this information, and explained this failure as “inadvertence.” He argued that the exclusion of caveats in this case was inconsequential because: (1) the messages provided background information only; (2) the
messages were disseminated to two trusted partners who respect the third
party rule to not share information without consent; and (3) there has been no
indication that those agencies did not respect the third party rule.
19. Without evidence from the recipients of CSIS’ uncaveated message, I have
no way of knowing whether the failure to attach caveats was “inconsequential.”
However, I do not believe that there is room for inadvertence where individual
rights are at stake. Care must be taken within CSIS to ensure that the proper
written caveats are attached to all outgoing messages, regardless of how reliable
or trustworthy the recipient agency is perceived to be. Clear written caveats
are particularly important where the message expresses a suspicion that an
individual is involved in terrorist-related activity.
20. Second, when CSIS shared information with several foreign agencies,
indicating that its investigation had “confirmed” that Mr. Nureddin acted as
a human courier and facilitator in the transfer of money to members of Ansar
al-Islam in Northern Iraq, it did so without first taking adequate measures to
ensure the accuracy and reliability of the information or qualify it as appropriate. The statement that CSIS communicated to these foreign agencies was a
stronger statement than others that CSIS had communicated previously to some
of the same foreign agencies (which generally indicated only that Mr. Nureddin
was “suspected” of couriering money to members of Ansar al-Islam); for other
foreign agencies, this was the first information they had received from CSIS
about Mr. Nureddin. The Service appears not to have given much consideration to the change from “suspected” to “confirmed.” This message is the only
one in which such conclusive language was employed; I note that subsequent
communications regarding Mr. Nureddin’s activities used more qualified and
tentative language.
21. As I have said above in my findings regarding the actions of Canadian
officials in relation to Mr. Elmaati and Mr. Almalki, the importance of accuracy
in communications to foreign agencies cannot be overstated. I reiterate Justice
O’Connor’s conclusion, recently endorsed by the Supreme Court of Canada, that
�FINDINGS IN RELATION TO MUAYYED NUREDDIN
“[i]naccurate information or mislabelling, even by a degree, either alone or taken
together with other information, can result in a seriously distorted picture.”�
Sharing of Mr. Nureddin’s travel itinerary and travel information
22. As discussed in detail at paragraphs 9 to 23 of Chapter 6, and as noted
above, CSIS shared Mr. Nureddin’s travel itinerary, including information about
his planned return from Damascus on December 13, 2003, with a U.S. agency
and two other foreign intelligence agencies on September 16, 2003, the day on
which Mr. Nureddin departed Toronto for the Middle East. CSIS advised these
agencies that Mr. Nureddin was known to the Service for his involvement in
Islamic extremist causes and that he might be acting as a human courier and
facilitator in the transfer of money to Ansar al-Islam. The itinerary was accompanied by a caveat, which prohibited further dissemination of the itinerary
without the Service’s permission. As I also noted above and discussed at paragraphs 24 to 25 of Chapter 6, in late September 2003, the RCMP shared some
of Mr. Nureddin’s travel information with U.S. agencies, though the information did not indicate that Mr. Nureddin would be returning to Canada through
Syria. The information was accompanied by a caveat prohibiting dissemination
without the RCMP’s consent.
23. I accept the submission of the Attorney General that the Service has an obligation to share the travel information that it collects in the course of investigating the activities of individuals who are reasonably suspected of posing a threat
to the security of Canada or another country, provided that appropriate steps are
taken to safeguard the interests of those individuals. I also recognize that CSIS
relies to a great extent on information provided by its foreign partners, and that
if CSIS does not share information regarding possible threats to the security of
those partner nations, its ability to collect accurate and timely information about
potential threats to Canada’s security will be significantly compromised.
24. With this in mind, I am satisfied that CSIS’ decision to share Mr. Nureddin’s
itinerary on September 16, 2003 was not deficient in the circumstances.
Mr. Nureddin was travelling to Northern Iraq. At the time, the U.S. had a significant military presence in Iraq, and Ansar al-Islam was thought to have been
responsible for the deaths of coalition forces there.
25. CSIS appears to have considered the possible implications for Mr. Nureddin
of sharing the itinerary. This is evident in CSIS’ deliberate decision not to send
the itinerary to Syria, a decision apparently made because of concerns about
�
Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38 at para. 41.
443
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Internal Inquiry
what had happened to Mr. Arar, and about the possibility that Mr. Nureddin
might be detained in Syria.
26. Furthermore, as I have noted above, the itinerary was provided to the
three agencies with a caveat prohibiting dissemination to third parties without
the Service’s permission. In my view, at the time that CSIS shared the itinerary, and subject to the concerns that I discuss below in paragraphs 33 to 34,
CSIS had reason to believe that this caveat would be sufficient to protect the
information in the itinerary from being passed beyond the agencies to which
CSIS sent it. This includes the U.S. agency to which the itinerary was passed.
The evidence available to me suggests that this U.S. agency was not in the habit
of breaching CSIS caveats—I saw several examples of the U.S. agency requesting CSIS’ permission to share CSIS information (including information about
Mr. Nureddin) with another foreign agency. One CSIS official expressed doubt
that the U.S. agency would compromise its relationship with CSIS by passing
Canadian information that it could acquire through other means.
27. For many of the same reasons, I am also satisfied that it was reasonable for
the RCMP to share some of Mr. Nureddin’s travel information with U.S. agencies
in late September 2003. Significantly, the travel information was accompanied
by a caveat, and did not indicate that Mr. Nureddin would be returning to
Canada via Syria.
CSIS’ response upon learning that a foreign agency planned to advise Syria that
Mr. Nureddin was on his way there
28. As I discussed above, in early December 2003, one of the foreign agencies
that had received Mr. Nureddin’s itinerary from CSIS advised CSIS that it felt
obliged to inform Syrian authorities that Mr. Nureddin was on his way to Syria.
CSIS did not object, but requested that the agency seek assurances with respect
to Mr. Nureddin’s treatment.
29. In doing so, CSIS reiterated requests that it had made of the same foreign
agency in October 2003. In late October 2003, after CSIS advised that foreign
agency that it was no longer aware of Mr. Nureddin’s location, the foreign
agency sent CSIS a message saying that it was searching for and would arrange
for the detention of Mr. Nureddin, if he was encountered. In communications
to the agency, the Service acknowledged that Mr. Nureddin might be arrested
or detained in one of the countries through which he travelled, and requested
that, if he was detained, he be treated in accordance with international conventions and due process.
�FINDINGS IN RELATION TO MUAYYED NUREDDIN
30. In my view, the manner in which CSIS responded to the foreign agency,
upon learning in October 2003 that the agency was searching for and would
arrange for the detention of Mr. Nureddin, and upon learning in December 2003
that the agency planned to tell Syria that Mr. Nureddin was on his way there,
was reasonable in the circumstances. Recognizing that it would not be practical to dissuade the foreign agency from its plans, CSIS responded by requesting
assurances with respect to Mr. Nureddin’s treatment.
31. I accept that in many cases assurances such as these are of questionable
effectiveness. In the Arar Inquiry report, Justice O’Connor canvassed the issue
of diplomatic assurances against torture (an analogous form of assurance) rather
extensively, noting that human rights advocates generally regard them as unreliable and unenforceable.� Justice O’Connor referred to a concern expressed by
the current United Nations Special Rapporteur on Torture that it is difficult, if
not impossible, for the country seeking the assurances to ensure that they are
complied with. He also cited a decision of the United Nations Committee against
Torture, in which the Committee held that Sweden’s expulsion of a terrorism
suspect to Egypt violated Article 3 of the United Nations Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
and that obtaining unenforceable diplomatic assurances was insufficient to protect against the manifest risk that the individual would be tortured in Egypt.�
32. Even accepting that assurances against torture are generally unreliable and
unenforceable, I believe that CSIS’ request for assurances in Mr. Nureddin’s case
was reasonable. This was not a situation in which Canada obtained diplomatic
assurances against the torture of an individual it had deported to Syria. CSIS
requested the assurances in a situation where the alternative would plainly have
had no effect. I am satisfied that requesting, and then reiterating its request
for, assurances with respect to Mr. Nureddin’s treatment, was reasonable in
the circumstances.
33. However, one aspect of CSIS’ communications with the foreign agency in
December 2003 does cause me concern: when advised by the foreign agency
that it intended to advise Syria that Mr. Nureddin was on his way there, CSIS
did not make inquiries to confirm that the foreign agency was not passing
information that had originated with CSIS. (As discussed above, CSIS shared
Mr. Nureddin’s itinerary information, including information about his planned
�
�
Though they were not sought in the diplomatic context, I see no principled basis on which to
distinguish the assurances sought by CSIS in Mr. Nureddin’s case from the diplomatic assurances
against torture discussed by Justice O’Connor.
Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Report
of the Events Relating to Maher Arar: Factual Background, Volume II (Ottawa: Public Works
and Government Services Canada, 2006), pp. 525-527.
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return from Damascus, with this foreign agency on September 16, 2003).
The Attorney General argued in his final submissions that the Service was not
required, and had no basis, to inquire into whether the foreign agency was
breaching CSIS caveats in order to advise Syria of Mr. Nureddin’s intention to
travel there. He argued that respect for caveats is a fundamental underpinning
of the intelligence community, and that the Service had no reason to doubt that
its caveats would not be respected.
34. While I do not think it would be practical or appropriate for CSIS to, in all
cases, make inquires to ensure that caveats are being respected, it would be a
reasonable step in a case such as this where an individual’s rights and liberties
are directly at stake, and where the opportunity to raise the issue of respect for
caveats arises. CSIS knew that Mr. Nureddin could be exposed to harsh treatment if arrested and detained in Syria; CSIS’ insistence that the foreign agency
obtain assurances with respect to Mr. Nureddin’s treatment confirms this. With
that knowledge came an enhanced responsibility to ensure that its caveats were
being respected. It would not have been difficult for CSIS to pose the question
to the foreign agency at the time that the foreign agency advised CSIS of its
intention to notify Syria.
Did any mistreatment of Mr. Nureddin result directly or indirectly
from the actions of Canadian officials and, if so, were those actions
deficient?
Was Mr. Nureddin mistreated in Syria?
35. As I discussed above in my findings regarding Mr. Elmaati and Mr. Almalki,
the word “mistreatment” is broader than torture. It includes any treatment that
is arbitrary or discriminatory or results in physical or psychological harm, as
well as denial of properly entitled assistance and other forms of treatment that
would normally be included in the meaning of mistreatment. “Mistreatment”
may also include detention itself, where that detention is arbitrary, or where
the detainee is held under conditions that cause him serious physical or psychological harm. To the extent that certain actions of Canadian officials directly
or indirectly prolonged an individual’s detention under such conditions, I
would consider these actions to have also resulted directly or indirectly in that
individual’s mistreatment.
36. The Attorney General acknowledged in his submissions at the hearing
on the interpretation of my Terms of Reference that, for the purposes of this
Inquiry, the detention of Mr. Nureddin under the conditions prevailing in Syria
constituted mistreatment.
�FINDINGS IN RELATION TO MUAYYED NUREDDIN
37. In my ruling on the interpretation of the Terms of Reference, I determined
that it would be both appropriate and important for the Inquiry to try to ascertain whether Mr. Elmaati, Mr. Almalki and Mr. Nureddin suffered mistreatment
amounting to torture. The nature and extent of any mistreatment, and whether
that mistreatment amounted to torture, is, at a minimum, relevant to whether
the actions of government officials were deficient in the circumstances.
38. Article 1 of the UN Convention Against Torture sets out the generally
accepted definition of torture. It provides that:
torture means any act by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person for such purposes as obtaining from
him or a third person information or a confession, punishing him for an act he or
a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination
of any kind, when such pain or suffering is inflicted by or at the instigation of or
with the consent or acquiescence of a public official or other person acting in an
official capacity. It does not include pain or suffering arising only from, inherent
in or incidental to lawful sanctions.
39. Based on a careful review of the evidence available to me, which as I have
emphasized does not include information from Syrian authorities, I conclude
that while in Syrian detention, Mr. Nureddin suffered mistreatment amounting
to torture. Using the words of the Convention Against Torture, Syrian officials
intentionally inflicted physical and mental pain and suffering on Mr. Nureddin in
order to obtain information from him. This mistreatment is described in detail
in Chapter 9, and I will not repeat that description here.
40. I find Mr. Nureddin’s account of mistreatment by Syrian officials to be credible. I base this assessment on a number of factors. The most important of these
factors are the nature and particularity of the information that Mr. Nureddin
provided during the thorough interview of him that Inquiry counsel and I conducted, with assistance from Professor Peter Burns, former Chair of the United
Nations Committee against Torture, concerning the conditions under which he
was detained and the manner in which he was treated while in detention, as
well as his demeanour during the many hours of the interview. In addition, I
am satisfied that Mr. Nureddin’s account of his experience in Syria has remained
largely consistent over time. Notably, the account that Mr. Nureddin gave to the
Inquiry is very similar to the account that he gave to Embassy officials immediately after his release from Syrian detention in January 2004.
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41. In coming to my conclusion, I have also taken into account the fact that
Mr. Nureddin’s evidence is consistent with the evidence of other individuals
who have been held in Syrian detention, including Mr. Almalki and Mr. Elmaati.
As noted in Chapter 4, Mr. Elmaati told consular officials in August 2002 that
he had been tortured while being detained and interrogated at Far Falestin. I
cannot accept the submission that there may have been collusion among the
three individuals. Mr. Nureddin told the Inquiry that he had not discussed his
experience in detention with Mr. Almalki or Mr. Elmaati. In any event, their
accounts are in my view far too detailed, and different in important ways, to
support a finding of collusion.
42. I have, in addition, used publicly available reports and other background
information concerning the treatment of detainees in Syria as context in assessing Mr. Nureddin’s account of events.
43. As mentioned in Chapter 2, the Inquiry received certain medical records
from Mr. Nureddin, which I considered in making my determination. I also considered it desirable to obtain current medical assessments of Mr. Nureddin from
a psychologist and a psychiatrist retained by the Inquiry. While I recognize the
limitations of these kinds of assessments as evidence of what actually occurred,
and in distinguishing between types of trauma that an individual might have
suffered, particularly when the events in question took place some years ago, I
nonetheless thought it desirable to ensure that the current medical assessments
of Mr. Nureddin were not inconsistent with the account of his mistreatment.
As I indicated in Chapter 2, the assessments that I obtained were from a psychologist and a psychiatrist with experience in assessing victims of torture. I
have reviewed their reports with the assistance of my medical advisor, Dr. Lisa
Ramshaw. I found no inconsistency between their reports and Mr. Nureddin’s
account of his mistreatment.
Did any mistreatment of Mr. Nureddin result from the actions of Canadian
officials?
44. Having concluded that Mr. Nureddin suffered mistreatment amounting
to torture in Syria, I now turn to the question whether this resulted directly
or indirectly from the actions of Canadian officials and whether, if so, these
actions were deficient in the circumstances. Below I examine several actions of
Canadian officials—the sharing of information prior to Mr. Nureddin’s detention,
CSIS’ failure to advise DFAIT that Mr. Nureddin was at risk of being detained and
mistreated, CSIS’ December 22 communication to Syrian authorities, and CSIS’
inquiries of the Syrian Military Intelligence (SyMI) in early January 2003—and
�FINDINGS IN RELATION TO MUAYYED NUREDDIN
assess the link between these actions and the mistreatment that Mr. Nureddin
suffered in detention.
Sharing of information prior to Mr. Nureddin’s detention
45. As I discussed above in paragraphs 14 and 22, starting in approximately
November 2002, CSIS and the RCMP shared information about Mr. Nureddin
with various foreign agencies, including U.S. agencies.
Did any mistreatment result, directly or indirectly, from sharing this information?
46. The same factors that led me to my conclusion that these actions likely
contributed to Mr. Nureddin’s detention in Syria lead me now to conclude that
they also likely contributed to his being mistreated in Syrian detention. I accept
Mr. Nureddin’s evidence that he was subjected to inhumane prison conditions,
and interrogated and tortured from the outset of his detention. On this basis,
it is reasonable to infer that the information sharing that likely contributed to
Mr. Nureddin’s detention also likely contributed to his mistreatment in Syria.
47. Supporting this conclusion is the apparent correspondence between the
substance of Mr. Nureddin’s interrogations and some of the information that
Canadian officials shared with foreign agencies prior to Mr. Nureddin’s detention. For example, Mr. Nureddin told the Inquiry that he was questioned by his
Syrian interrogators about two individuals from Canada. These same individuals
had been identified by Canadian officials, in communications to foreign agencies, as being suspected associates of Mr. Nureddin.
Was sharing this information deficient?
48. I discussed above the deficiencies in the information sharing that took
place prior to Mr. Nureddin’s detention. In summary, while in my view it was
not deficient for Canadian officials to share information about Mr. Nureddin,
including Mr. Nureddin’s travel itinerary, with foreign agencies, the manner
in which CSIS shared information was deficient in two respects: CSIS failed
to attach caveats to all of its outgoing messages about Mr. Nureddin, and CSIS
shared information without in all cases taking adequate measures to ensure the
accuracy and reliability of the information or qualify it as appropriate.
CSIS’ failure to advise DFAIT that Mr. Nureddin was at risk of being detained and
mistreated
49. On December 12, 2003, only days after a foreign agency had advised CSIS
that it felt obliged to inform Syrian authorities that Mr. Nureddin was on his
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way to Syria, and one day after Mr. Nureddin had become detained in Syria,
CSIS learned that Syrian authorities had been advised (at some point prior to
December 11) of Mr. Nureddin’s plan to travel to Syria, had been asked to
question him when he arrived there, and had been provided with questions
for this purpose. CSIS was advised that reasonable assurances with respect to
Mr. Nureddin’s treatment and respect for his human rights would be sought
from Syrian authorities. CSIS appears not to have taken any action upon receiving this information. It did not conduct follow-up to confirm that the assurances
with respect to Mr. Nureddin’s treatment had in fact been sought and obtained.
Nor did CSIS share this information with officials in DFAIT.
Did any mistreatment result, directly or indirectly, from CSIS’ failure to advise
DFAIT that Mr. Nureddin was at risk of being detained and mistreated?
50. While, as I discuss below, I am very troubled by CSIS’ failure to advise
DFAIT that Mr. Nureddin was at risk of being detained and mistreated in Syria,
I find myself unable to draw an inference as to whether the failure to do so
resulted, directly or indirectly, in Mr. Nureddin’s mistreatment. Based on the
evidence available to me, including the evidence concerning the timing of his
mistreatment, I cannot determine whether, if DFAIT had been advised, it would
have been able to interfere so as to prevent what befell Mr. Nureddin following
his detention, or to secure his release any earlier than it occurred.
Comments on CSIS’ failure to advise DFAIT that Mr. Nureddin was at risk of being
detained and mistreated
51. In my view, upon receiving this information, CSIS should have notified
DFAIT that Mr. Nureddin was at risk of being detained and mistreated in Syria.
CSIS officials who received and reviewed the information were clearly aware
of the risks that Mr. Nureddin faced. They had decided in September 2003 not
to provide Syria with a copy of Mr. Nureddin’s itinerary, out of concern about
the sensitivities surrounding the Arar case, and the possibility that Mr. Nureddin
might be detained. They had also requested, in October 2003 and again in early
December 2003, assurances with respect to Mr. Nureddin’s treatment. These
two actions were an acknowledgement on the part of CSIS officials involved in
Mr. Nureddin’s case that Mr. Nureddin was at risk of being detained and, if he
were detained, mistreated.
52. While CSIS officials were aware that Mr. Nureddin faced a serious risk
of detention and mistreatment abroad, CSIS did not have the capacity or the
mandate to address, and take reasonable steps to mitigate, this risk. The responsibility to provide protection to Canadian citizens abroad rests with DFAIT.
�FINDINGS IN RELATION TO MUAYYED NUREDDIN
However, DFAIT cannot address a risk of which it is not aware. It is therefore
essential that when CSIS learns that a Canadian citizen will likely be detained
in a country with a questionable human rights record, it communicate this
information to DFAIT as soon as is reasonably possible.
53. I cannot say precisely what DFAIT would have done had CSIS notified
it of the risk that Mr. Nureddin was facing or whether, if DFAIT had been
notified, any action that it might have taken would have made any difference to Mr. Nureddin’s situation. However, only DFAIT had the expertise
and mandate to take action. Putting DFAIT in a position to take action is an
important element of the coordination to be expected of Canadian officials in
these circumstances.
CSIS’ December 22 communication to Syria
54. On December 22, 2003, approximately three days after CSIS learned that
Mr. Nureddin was in detention in Syria, CSIS sent a message to Syrian authorities asking if they had any information pertaining to Mr. Nureddin’s arrest and
detention. The messages described Mr. Nureddin as having recently come to
the attention of CSIS “for his involvement in Islamic extremist causes” and stated
that he might be acting as a human courier in the transfer of money to members
of Ansar al-Islam.
Did any mistreatment result, directly or indirectly, from CSIS’ December 22
communication to Syria?
55. I am not able to infer based on the evidence available to me that this
communication resulted directly or indirectly in mistreatment of Mr. Nureddin
in Syria. Mr. Nureddin’s account, as well as documents that I received from
Canadian officials, suggest that the gist of the information that CSIS provided in
this December 22 message was already available to Mr. Nureddin’s Syrian interrogators before December 22. I received evidence that Syrian authorities had
been provided, though not by Canadian officials, with very similar information,
at some point in early December. Moreover, Mr. Nureddin told the Inquiry that
he was asked on December 14 and 15, before the CSIS message was sent, about
what organization he belonged to, who gave him money and to whom he gave
the money.
56. The fact that Syrian officials already had access to similar information
prior to December 22, 2003 is not sufficient on its own to support a conclusion that CSIS’ communication to Syria did not result directly or indirectly in
mistreatment of Mr. Nureddin. It is conceivable that, by essentially confirming
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or corroborating information that Syria had received earlier, CSIS’ December
22 message gave Syria another reason to interrogate and mistreat Mr. Nureddin
on the basis of that information. However, Mr. Nureddin’s own account of
mistreatment suggests that the description provided by CSIS on December
22 did not figure in his treatment after that date. Between December 22 and
Mr. Nureddin’s release on January 13, he was apparently interrogated only
briefly, and the manner in which he was treated improved considerably—he
was moved to a more roomy cell, was not physically beaten, and was taken
several times to the director’s office to drink coffee or tea.
57. I also received no evidence to suggest that CSIS’ December 22 communication had any effect on the length of Mr. Nureddin’s detention.
Comments on CSIS’ December 22 communication to Syria
58. I am concerned that CSIS officials did not adequately consider the potential consequences for Mr. Nureddin of sending this message when it did.
CSIS officials knew, if only from their experiences with the Arar, Elmaati and
Almalki cases, about Syria’s reputation for mistreating individuals suspected
of being involved in terrorist activities. CSIS officials were, or ought to have
been, aware of the significance, particularly for the Syrian recipients of their
message, of describing an individual as being involved in “Islamic extremist
causes” and linked to Ansar al-Islam. CSIS’ conduct in the period leading up to
Mr. Nureddin’s departure from Canada, and detention in Syria, confirms that
officials were alive to the possibility of mistreatment in Syria—they made a
conscious decision not to share Mr. Nureddin’s itinerary with Syria, because of
the sensitivities surrounding the Arar case; and when they learned that a foreign
agency planned to advise Syria of Mr. Nureddin’s intention to travel there, they
insisted that the foreign agency seek reasonable assurances that he would be
accorded due process of law, and that he would not be mistreated.
59. Yet despite being aware of the potential consequences of sending this
message to Syrian officials, CSIS sent the message, and apparently with little ceremony. There appears to have been no significant discussion among
CSIS officials, before the message was sent, about what consequences might
befall Mr. Nureddin as a result. While CSIS attached caveats to the message,
these caveats merely prohibited dissemination without CSIS’ permission. By
December 2003, CSIS had developed another caveat, which requested that the
subject of the information being provided be treated fairly within the norms of
international conventions and accorded due process under law. But CSIS did
�FINDINGS IN RELATION TO MUAYYED NUREDDIN
not attach this caveat to its December 22 message to Syria. In my view, this is
the least that CSIS could have done in the circumstances.
CSIS’ early January 2004 inquiries
60. In early January 2004, upon learning that Mr. Nureddin would be set free
“immediately,” CSIS made inquiries of the SyMI regarding Mr. Nureddin. CSIS
asked the SyMI why Mr. Nureddin had been detained and whether he had been
charged with any offence. CSIS also asked the SyMI to respond to allegations
that Mr. Arar had been tortured while in Syrian detention, and to advise if it had
made any extraordinary efforts to ensure the fair treatment of Canadian citizens
detained in Syria.
Did any mistreatment result, directly or indirectly, from CSIS’ early January 2004
inquiries?
61. I am satisfied that these inquiries did not result directly or indirectly in mistreatment of Mr. Nureddin, whether by prolonging his detention or otherwise.
I found no evidence that would permit me to infer a direct or indirect link.
Comments on CSIS’ early January 2004 inquiries
62. For two reasons, I am satisfied that CSIS’ inquiries of the SyMI in early
January 2004 were reasonable in the circumstances. First, the Service had reason to believe that Mr. Nureddin might be released from Syrian custody in the
very near future and wanted to obtain concrete information about the reasons
for his detention, and whether he had been charged with anything. Second,
the inquiries themselves were relatively benign; notably, they did not contain
any information about Mr. Nureddin or suggest to Syrian officials that there was
reason to further interrogate him or prolong his detention. Third, it was likely in
the interest of Canadian officials at this time to obtain information about Syria’s
response to Mr. Arar’s allegations of torture. This was information that officials
required in order to better manage the cases of Canadian citizens detained
in Syria (which at this time included Mr. Nureddin, Mr. Almalki and others).
Among Canadian government agencies, CSIS was arguably best positioned to
obtain this information from the SyMI, a military security organization that was
apparently reticent to deal with police and political officials.
Were there any deficiencies in the actions of Canadian officials to
provide consular services to Mr. Nureddin?
63. I turn now to examine the consular services provided to Mr. Nureddin over
the course of his 33-day detention in Syria. I conclude that the provision of
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consular services in Mr. Nureddin’s case was not deficient in the circumstances.
DFAIT responded promptly upon learning of Mr. Nureddin’s detention and,
following its initial contact with Syrian officials, DFAIT continued to follow up
with efforts to secure consular access to Mr. Nureddin.
Initial response
64. DFAIT responded promptly upon learning that Mr. Nureddin had been
detained in Syria. When DFAIT learned of the detention on December 18,
2003, officials at the Consular Affairs Bureau immediately notified the Director
General, and opened a file for Mr. Nureddin. On the next business day,
December 21, DFAIT sent a diplomatic note requesting the reasons for and
place of Mr. Nureddin’s detention, and permission for consular officials to visit
him as soon as possible. I am satisfied that DFAIT could not have responded
any more quickly in the circumstances.
Follow-up
65. In the two weeks following the first diplomatic note, officials at the
Canadian Embassy in Damascus followed up with Syrian officials on at least
two occasions. In late December, the Embassy contacted the chief of the
consular section of the Syrian Ministry of Foreign Affairs, and was told that the
diplomatic note had been forwarded to the competent authorities but that he
was still waiting for a reply. On January 3, 2004, an Embassy official met with
the chief of the consular section.
66. Between January 6 and January 12, the Embassy had discussions with
CSIS officials and with officials from the SyMI regarding the possible release of
Mr. Nureddin, and received information that he would be released very soon.
Mr. Nureddin was finally released on the morning of January 13.
67. Without the evidence of Syrian officials, I cannot know why Mr. Nureddin
was released when he was, or whether DFAIT’s actions played any role in securing his release. However, I am satisfied that DFAIT made sufficient efforts to
follow up on its December 21 diplomatic note and secure consular access to
Mr. Nureddin.
Coordination of Canadian response
68. Counsel for Mr. Elmaati, Mr. Almalki and Mr. Nureddin urged me to find
that Canadian officials failed to coordinate their response to Mr. Nureddin’s
detention and that, as a result, Canadian officials sent mixed messages to Syrian
officials, creating an unacceptable risk that Mr. Nureddin would be further
�FINDINGS IN RELATION TO MUAYYED NUREDDIN
detained and tortured by the SyMI. They argued that officials’ response was
uncoordinated in two respects. First, they argued, Canadian officials did not
coordinate their response upon learning of Mr. Nureddin’s initial detention—
according to counsel’s submission, CSIS was the first to contact Syrian officials
and DFAIT did not send a diplomatic note until December 21. (As discussed
above, CSIS contacted Syria on December 22, after the diplomatic note was
sent.) Second, they argued, upon learning that Mr. Nureddin was going to be
released “immediately,” CSIS made inquiries of the SyMI while DFAIT continued
to make efforts to secure consular access to Mr. Nureddin.
69. For several reasons, even apart from the incorrect premise about the
relative timing of the communications by DFAIT and CSIS, I do not agree with
this submission. First, I received evidence that CSIS and DFAIT were in fact
coordinating their activities to a certain extent—for example, upon receiving
information that Mr. Nureddin was going to be released soon, CSIS shared this
information with the Embassy, and the Embassy was able to follow up with its
own contacts. Second, with the possible exception of CSIS’ December 22 message which I discussed in detail above at paragraphs 54 to 59, CSIS and DFAIT’s
communications with Syrian officials were relatively consistent in their objective, which was to obtain more information about Mr. Nureddin’s situation.
Third, I believe it is appropriate, and consistent with the very different mandates
of the two organizations, that DFAIT and CSIS would to some degree, and subject to proper coordination and organization, be communicating independently
with their Syrian contacts. CSIS had a responsibility to follow up with its main
contact organization—the SyMI—if it had reason to believe that the SyMI might
possess any security-related information. The main responsibility of DFAIT, on
the other hand, was to coordinate consular access to Mr. Nureddin through its
main contact—the Syrian Ministry of Foreign Affairs.
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Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Commissions of inquiry
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Report of the Internal Inquiry into the Actions of Canadian Officials in Relation to Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin (2008)
Subject
The topic of the resource
Commissions of inquiry
Description
An account of the resource
Report of the commission of inquiry into the role of Canadian agencies in the torture and maltreatment of Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin by Middle Eastern states.
Publisher
An entity responsible for making the resource available
Archived at Library and Archives Canada <a href="http://epe.lac-bac.gc.ca/100/206/301/pco-bcp/commissions/internal_inquiry/2010-03-09/www.iacobucciinquiry.ca/en/documents/final-report.htm">here</a>.
Date
A point or period of time associated with an event in the lifecycle of the resource
2008
CSIS
Foreign cooperation
GAC
information-sharing
Maltreatment
RCMP
Torture