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the courts
Maher Arar
- Canadian loses
bid to sue Jordan
Judge cites State Immunity Act
Arar deported to Mideast in 2002
MICHELLE SHEPHARD, Toronto
Star, STAFF REPORTER, March 1, 2005
Maher Arar has lost his bid
to seek compensation in Canadian courts for his alleged harsh
detainment in Jordan.
Foreign countries are immune
from most prosecutions in domestic courts, Ontario Superior Court
Justice Randall Echlin wrote in a decision released yesterday.
Making an exemption to Canada's
State Immunity Act would require an act of Parliament, Echlin
said, in granting Jordan's application to dismiss Arar's lawsuit.
Arar launched a lawsuit against
Jordan and Syria in November 2003, a month after he returned
to Canada from a Syrian jail. Arar was detained as a terrorism
suspect by American authorities in New York in September 2002
before being flown to Jordan, where he alleges he was beaten
for several hours before being driven to Damascus. In Syria,
he was held without charge for a year.
Echlin was ruling on Jordan's
application to have the lawsuit against it dismissed. Arar's
attempt to sue Syria is still technically alive. Syria has not
yet responded to his lawsuit.
"The state immunity concept
is founded upon the principle that complaints should be brought
in the international forum and not through lawsuits commenced
in domestic courts," Echlin wrote.
Arar's lawyer, Lorne Waldman,
alleged it was information from the Canadian government that
led to Arar's detention and his treatment was a breach of his
client's constitutional rights.
These factors, Waldman said,
should provide an exemption from the application of the immunity
act, thereby allowing his suit against the foreign governments
to proceed.
"The government of Canada
... should have to seriously consider whether it's acceptable
for Canada to allow regimes that engage in torture of Canadian
citizens to hide behind state immunity," Waldman said last
night.
Yesterday's ruling followed
an Ontario Court of Appeal decision last June concerning a lawsuit
by Houshang Bouzari, who sued Iran, claiming damages for torture.
The suit was dismissed due to state immunity laws. Last month
the Supreme Court of Canada dismissed an application to hear
an appeal.
Echlin also referred to international
law in rendering his decision and noted that Britain's courts
have also upheld state immunity and recently denied a request
by William Sampson (who holds Canadian and British citizenship)
to sue Saudi Arabia for torture while he was detained for two
years.
Mounties
left in dark by U.S. on deportation of Syrian-born Canadian
Terry Pedwell, Canadian
Press(CP PHOTO/Fred Chartrand) November 27, 2004
OTTAWA (CP) - The Mounties
provided information on Maher Arar to American authorities but
were left in the dark when the U.S. deported the Canadian citizen
to Syria, newly released documents show.
More than 1,000 pages, most
of them blacked out for national security reasons, were released
Friday by the commission of inquiry into the Arar case. Arar
was detained in September 2002 in New York as an alleged member
of the al-Qaida terrorist network. He was deported to Syria,
even though he holds a Canadian passport.
Arar, 35, says Syrian officials
tortured him in a grim cell before he was set free several months
later. He denies any involvement in terrorism.
The documents are so vague
they mislead rather than illuminate, Arar said Friday.
"The government is being
very selective in terms of disclosure of those documents,"
he told a news conference.
One document, marked "secret,"
describes how the RCMP believed in October, 2002, that Arar was
to be sent to Canada, only to be told by a foreign affairs official
that it was believed he would be deported to Syria.
"Upon hearing this, the
(officer in charge) of the project and his lead investigators
became concerned," part of the document reads before being
blacked out.
At the time, Arar was caught
up in police investigation dubbed Project A-OCanada - although
the RCMP documents suggest he was "peripheral" and
a "secondary" figure.
There were discussions about
sending investigators to New York to interview Arar. Investigators
sought clarification from U.S. authorities about why Arar was
arrested, and the Mounties also demanded to know whether Arar
would be allowed to proceed to Canada.
No answers were given, according
to a briefing note compiled for the RCMP commissioner.
In fact, it seems Canadian
investigators were never told anything.
"Project A-OCanada investigators
were never given access to Arar," the documents state.
"It is not clear why Arar
was deported to Syria and not elsewhere. Project A-OCanada has
not been informed of Arar's exact whereabouts or his custodial
status in Syria."
Throughout the documents, the
RCMP maintains it had "no role to play in Mr. Arar's initial
detention and subsequent deportation from the United States."
However, investigators acknowledge
passing "contextual information" about Arar to U.S.
authorities at some point prior to his arrest in New York.
"Following Arar's arrest,
authorities in (blank) asked for and received from Project A-OCanada
a brief package of information on Maher Arar," said one
document.
Canadian investigators even
compiled a list of questions U.S. law enforcement officials could
use to interrogate Arar.
After that, however, the Mounties
washed their hands of the Ottawa engineer.
"Once the RCMP has provided
information to its (foreign) partners, the resulting dissemination/actions
concerning this information is beyond our control," said
another briefing note.
Arar wants to see proof that
authorities didn't circumvent Canadian law by sending him to
a country where they knew he might be tortured.
"Canadians want to know
if Canadian agencies are contracting out torture," he said.
"That is really the main
question here."
In late Oct., 2002, Arar's
lawyer, Michael Edelson, submitted a formal request to the Mounties
for assistance in having him released from custody in Syria.
More than two weeks later,
after the request was filtered through several bureaucratic layers
within the RCMP, Edelson was turned down flat.
"The RCMP, as a matter
of course, does not involve itself in subjects of foreign policies,"
wrote the officer in charge of the Mounties' Proceeds of Crime
Section.
Of note, the letter did confirm
that Arar remained the subject of an ongoing RCMP investigation,
even though he had no criminal record in Canada was considered
"peripheral" to the probe.
Arar's co-counsel says the
documents appear to show that investigators repeatedly provided
inaccurate and misleading information to the RCMP commissioner
and to the Solicitor General.
One document said Arar refused
to be interviewed by officers several months before his deportation
and imprisonment in Syria. However, another paper showed Arar
had agreed to questioning with his lawyer present.
"Senior officials and
ministers use the information provided in these memos to make
public statements and important decisions," said Lorne Waldman.
"There can be dire consequences
if they are mislead."
© The Canadian Press 2004
Mounties warned
against release of Arar
By COLIN FREEZE, Globe
and Mail, Nov 27, 2004
The RCMP regarded Maher Arar
as nothing more than a "peripheral" figure or "potential
witness" in their terrorism investigations even as they
warned other government departments not to be too aggressive
in trying to free him from a Syrian jail, according to newly
released documents.
"The lobbyists are pressuring
for quick intervention in an attempt to effect a return prior
to Arar being charged by the Syrians," wrote assistant RCMP
commissioner Richard Proulx, in a 2003 internal memo.
"The potential for embarrassment
exists should the Prime Minister become involved in a similar
fashion to the incident following the Egyptian Embassy bombing
in 1995 in Pakistan," the memo said.
"In that situation the
Prime Minister intervened on behalf of Ahmed Said Khadr, an Egyptian
Canadian who was subsequently released from Pakistani custody.
"Khadr is now recognized
internationally as a high ranking Al-Qaeda member."
The RCMP's fear that Mr. Arar
could emerge as a more serious terrorism suspect led them to
urge bureaucrats and politicians to water down any letters to
Syria that would suggest he had been cleared of all suspicion.
In September, 2002, the 34-year-old
computer engineer from Ottawa was arrested in a New York airport.
Citing information from unspecified foreign agencies, the United
States deemed him an al-Qaeda terrorist and sent him to a Syrian
jail.
He was freed only after growing
public protests and a written appeal from former prime minister
Jean Chrétien to Syria's President.
Nearly 1,000 pages of formerly
secret RCMP documents were released yesterday by the commission
probing Mr. Arar's detention.
The documents were heavily
censored, which angered Mr. Arar, who decried the continued secrecy
and the RCMP's handling of the case. "Is this how our federal
police force should be treating Canadian citizens?" he said.
Those parts of the documents
that were disclosed portray a major terrorism probe that eventually
became an exercise in damage control.
In the records, the Mounties
said it was the United States that deemed Mr. Arar an al-Qaeda
member. "The RCMP had little, if any, control or influence
in this matter," Mr. Proulx wrote in another memo.
He and other Mounties repeatedly
state that they fail to see how their cross-border exchanges
concerning Mr. Arar could have given the Americans grounds for
a deportation.
The questions the Mounties
faxed over included such basic information as "What is your
occupation?" and "Where were you on Sept. 11th?"
although the released version memo blacks out more targeted questions.
After they fell under scrutiny,
the Mounties spoke to a colleague who was trying to piece together
what happened with Mr. Arar.
They described him only as
a "secondary" target, or a "potential witness."
They also denied trying to discourage efforts to free him. "But
did we ever say we don't ever want him released? Absolutely not,"
one unnamed Mountie said.
However, even as public sympathy
for the jailed man built and efforts to obtain his release mounted,
the RCMP issued a sheaf of memos resisting efforts by bureaucrats
seeking their co-operation in clearing his name outright.
In fact, after a top Foreign
Affairs official suggested that the Mounties could write a letter
to the Syrians saying there was no case against him, angry RCMP
officers retorted such a letter would be "highly problematic"
and that it would "shift the responsibility for Mr. Arar's
jailed status squarely on the RCMP."
"We had no role to play,"
the memo said.
Memos show that after Mr. Arar
was freed in the fall of 2003 and came back to Canada to speak
of being tortured, the RCMP's job of hunting terrorism suspects
became even more difficult. - they became consumed with damage
control. They spent much time managing media, plugging leaks,
and coughing up documents to overseers probing the Arar affair.
"Project investigators
have been tasked almost exclusively with tasks and requests in
relation to the issues surrounding Maher Arar," laments
one anonymous investigator in the documents. "No meaningful
progress has been made on the [censored]."
It was not meant to be this
way. While the grounds of the World Trade Center in New York
were still smoking, the Mounties had launched a major probe,
Project O Canada, in the hopes that it would break new ground.
In late September, 2001, the
RMCP outlined how they were about to embark on a "unique"
and "precedent setting" terrorism investigation. The
next month, RCMP members from Toronto and Ottawa met in Newmarket,
Ont., near Toronto, to work out a battle plan.
At that point, the Toronto
team was extremely interested in Ahmad Abou El-Maati, an Arab
truck driver who had lived in Afghanistan. Mr. El-Maati left
Canada that fall and was arrested on arriving in Syria.
Other investigators, meanwhile,
came to look at Mr. Arar, doing basic surveillance on him and
obtaining his 1997 townhouse lease from his former landlord.
It was thought to be a piece of a puzzle because the emergency
contact he wrote down was a major target - Abdullah Almalki,
another Ottawa computer whiz.
In the fall of 2001, Mr. Almalki
- who had years before worked in Afghanistan for a charity connected
to Mr. Khadr, the 1995 bombing suspect - was in Malaysia. He
too would be arrested as he flew to Syria.
Meanwhile, the Mounties sent
out a memo about the Arar-Almalki lease to unnamed parties, possibly
American agencies. In December, 2001, Toronto airport authorities
seized Mr. Arar's computer and looked through it as he passed
through.
This occurred as the Mounties
were stepping up their investigation from intelligence gathering
to "a criminal investigation so that detailed information
can be gathered in a manner suitable for court purposes,"
a newly released memo says.
By January, 2002, the RCMP
executed warrants at residences associated with Mr. Almalki and
Mr. El-Maati and others. Police noted that Islamic societies
in Ottawa complained "of police strong-arm tactics such
as the searching of children by officers."
The RCMP had no warrant to
execute against Mr. Arar, but stopped by his home to ask questions.
They were informed he was abroad. He returned to Canada to tell
the officers he would meet them only with his lawyer present.
The RCMP felt Mr. Arar's lawyer's conditions were too stringent.
No meeting took place.
By August 2002, Mr. El-Maati
had already spent more than half a year in jail in Syria. The
Mounties were dismissive of his complaints of mistreatment, and
discussed "a proactive measure to discuss media lines to
be used when Ahmad El-Maati's allegations about torture"
surface, according to one memo.
"The media attention is
expected to be intense," they said.
Suit alleges
RCMP stonewalling probes
COLIN FREEZE, Globe and
Mail, ,Jan. 30, 2004
Canada's RCMP watchdog has
launched a court action alleging the force's commissioner and
its officers are breaking laws intended to make them accountable.
In court documents, RCMP complaints
chairwoman Shirley Heafey alleges the Mounties have stonewalled
more than one investigation into potential misconduct by unlawfully
editing notes or by refusing to hand over documents as required.
In a dispute that will be heard
in the Federal Court of Canada in Ottawa on Feb. 12, Ms. Heafey
expresses rising frustration, saying that her meetings with RCMP
Commissioner Giuliano Zaccardelli have failed to resolve issues
hampering the Commission for Public Complaints Against the RCMP.
An RCMP spokesman said yesterday
he could not comment on a matter before the courts. But in court
documents Ms. Heafey suggests the Mounties are fighting to guard
sensitive information and the identity of confidential sources.
The Globe and Mail learned
of the legal dispute just one week after the Mounties raided
the home of Ottawa Citizen reporter Juliet O'Neill in an attempt
to discover how she obtained a leaked document from confidential
sources.
In a court-filed application
meant to get at information she says is being kept from her,
Ms. Heafey alleges that the RCMP is not living up to laws meant
to make police accountable. The battle comes at a crucial time,
she argues, because new terrorism laws are empowering the RCMP
to do more searches and detentions than ever before.
The case does not directly
involve Maher Arar -- the Ottawa computer programmer whose complaint
Ms. Heafey had been examining until a public inquiry into his
case was called on Wednesday. Rather, it centres on an anonymous
man who complained that the RCMP used heavy-handed tactics during
a drug raid.
That search, which found nothing,
occurred in 1999. Almost five years later, Ms. Heafey says the
Mounties have yet to cough up the sworn information used to obtain
a search warrant and all the related notes.
"Information from the
notes of the member who applied for the search warrant was removed
. . . prior to delivery of those notes to the commission,"
she says in her court-filed application. She says another Mountie
did the same thing.
The application says she has
made repeated requests for the material, even bringing up the
matter twice in meetings with Commissioner Zaccardelli. "Despite
his statutory obligation to provide all materials under the control
of the RMCP which are relevant to the complaint" he has
refused to do so, the document states.
Ms. Heafey says the case is
not isolated and further alleges the RCMP is stonewalling on
an investigation surrounding a complaint that the force failed
to properly investigate a protest on the Burnt Church reserve
in New Brunswick.
This week, Ms. Heafey also
issued a statement saying that that new national-security laws
made it impossible for her to get to the bottom of the Arar affair.
On Wednesday, Ottawa announced
it would hold a public inquiry looking into possible RCMP involvement
in the deportation of Mr. Arar. He had been a figure of interest
to the Mounties before the decision by the United States to deport
him to Syria, where he was held for 10 months as a suspected
al-Qaeda member.
Ms. Heafey said she will use
her expertise to assist the inquiry.
Ottawa promises inquiry will get to
the bottom of Arar case
CBC Jan 28, 2004
OTTAWA-- A full public inquiry has been called
into why a Canadian citizen was deported by U.S. officials to
Syria, where he was imprisoned for a year.
Public Safety Minister Anne
McLellan announced on Wednesday that Justice Dennis O'Connor
would head the inquiry into the Maher Arar case.
The announcement was welcomed
by Arar and his wife Monia Mazigh. "We are delighted with
the announcement," Mazigh told a news conference.
McLellan said O'Connor would
have all the powers allowed under the Public Inquiries Act, including
the ability to call witnesses and compel testimony.
O'Connor recently led the inquiry
into the tainted water tragedy in Walkerton, Ont. "I am
very pleased that he has agreed to accept this task," said
McLellan.
Prime Minister Paul Martin
has offered to have opposition party leaders who have seats in
Parliament sworn into the Privy Council, so they can see even
the classified sections of the inquiry, McLellan said.
"It's important to remember
why we're here. It's about a man called Maher Arar. It's about
his deportation and detention and it is about the actions of
Canadian officials, if any, in relation to those events,"
said McLellan.
Arar said he was eager to see
the terms of reference for the inquiry, and wants to contribute
to defining them.
Arar's lawyer Lorne Waldman
said Arar would eventually be asking for compensation, but Arar
said that wasn't his main goal.
"The most important thing
is to exonerate myself and to be certain it won't happen to others,"
he said.
McLellan said O'Connor would
also "be asked to make recommendations on an independent,
arm's-length review mechanism for the RCMP's activities with
respect to national security."
Arar has been asking for a
public inquiry since he returned to Montreal in October. He says
he was tortured while he was held in a Syrian jail.
The inquiry is expected to
find out what role Canadian security agencies played in his deportation
and detention.
Conservative justice critic
Vic Toews said the government had been pressured into calling
the inquiry, but noted "It's also the right thing to do."
Toews told CBC Newsworld he was concerned the scope of the inquiry
wouldn't be broad enough.
"Is it going to look at
the relationship between the government and the RCMP?" he
said. "We need to have the RCMP at arm's length to the government."
Arar was arrested in September
2002 while switching planes in New York when he was returning
to Canada from a vacation in Tunisia. After holding him for nearly
two weeks, U.S. officials deported him to Syria where he was
born, despite the fact he was travelling on a Canadian passport.
U.S. authorities said they
had reason to suspect Arar was linked to al-Qaeda. There have
been allegations that they were acting, in part, on information
that came from Canada.
Former prime minister Jean
Chrétien refused to call a public inquiry, but the Security
Intelligence Review Committee announced in December it would
investigate the Canadian Security Intelligence Service's role
in the case.
The Commission for Public Complaints
Against the RCMP is looking into the Mounties' role.
The prime minister has said
the United States has to respect Canadian passports.
Earlier this month, Arar launched
a lawsuit against the U.S. government, alleging the Americans
sent him to Syria knowing he would be tortured there.
Written by CBC News Online
staff
Copyright © 2004 Canadian
Broadcasting Corporation - All Rights Reserved
Documents suggest Canadian
interest in Arar interrogation
CBC, Apr 22, 2005
OTTAWA - Supporters of Maher
Arar say new documents show some Canadian officials actively
encouraged his interrogation in a Syrian prison.
They say questions about Canada's
complicity in Arar's detention and torture are rampant in the
more than 2,000 pages of government e-mail, memos and handwritten
notes released Thursday by the public inquiry into Arar's case.
U.S. officials deported Arar,
a Canadian citizen, to Syria in 2002 as a suspected terrorist.
Maher Arar (CP File photo)
Maher Arar (CP File photo)
He spent a year in prison where he says he was tortured.
The documents released Thursday
suggest senior Canadian officials failed to act to prevent Arar's
deportation, and that once he was in Syria, Canadian authorities
appeared more interested in Arar's interrogation than his treatment.
Among the pages marked "top
secret" and "for Canadian eyes only," the most
provocative were authored by Franco Pillarella, Canada's ambassador
to Syria at the time Arar was deported to Damascus.
Just days after Arar arrived
at a Syrian military prison, Pillarella's memos back to Ottawa
say his Syrian contact has told him that Arar was being interrogated
and had confessed to links with terrorist organizations, alluding
to groups based in Pakistan.
The Syrians, wrote Pillarella,
"promised to pass on to me any information they may gather
on Arar's implication in terrorist activities."
While Pillarella said the Syrians
would allow Arar to have consular visits, nowhere did he note
having asked about Arar's treatment or how the confessions were
obtained.
Instead, on several occasions
Pillarella focused on getting Arar's statements so he could bring
them back to Canada and hand them over to the Canadian Security
Intelligence Service (CSIS) and the RCMP.
Arar's lawyer, Lorne Waldman,
says they were shocked to read Pillarella's memos.
"The Canadian officials
were extremely eager to obtain the fruits of the torture that
was inflicted on Mr. Arar," said Waldman.
There's no indication Pillarella
knew Arar was being tortured and parts of the memos are blacked
out. But Alex Neve, head of Amnesty International in Canada,
says Syria might have taken Pillarella's efforts as encouragement.
"In those early, very
critical days, when Mr. Arar was at the greatest risk when
he was being held incommunicado in detention, when he was being
subjected to torture the ambassador's primary concern seemed
to be to do some contract work for Canada's security agencies."
The material was also widely
distributed to dozens of government officials in Canada, and
some of that material ended up getting leaked to media as part
of a campaign to discredit Arar, according to his lawyer.
The documents also show that
it is possible Arar's deportation could have been thwarted if
Canadian officials had acted on the information they had at the
time.
In a memo written by Canada's
consul in New York while Arar was awaiting deportation, Maureen
Girvan told Ottawa that a U.S. immigration officer informally
advised her that Arar's case was "of a seriousness that
should be taken to the highest level," and suggested Canada's
ambassador to Washington contact the U.S. Department of Justice.
That contact was never made
and within a week Arar had been removed from the United States.
"One would have expected that alarm bells would have rang,
and that the officials would have taken the action that was suggested.
Unfortunately they didn't. And one wonders whether, if they would
have acted at that time, the deportation might have been prevented,"
said Waldman.
Stephen Bindman, the spokesperson
for the government's legal team at the Arar inquiry, has a different
interpretation of the documents.
"Taken as a whole, the
government believes these documents show the extraordinary lengths
to which Foreign Affairs officials, together with other federal
departments and agencies, went to provide consular officials
to Mr. Arar in New York and Syria."
Bindman says the government
won't comment on any of the documents except to say Canadians
should reserve their judgment.
Pillarella, who is now ambassador
to Romania, will appear to testify when the inquiry resumes public
hearings on May 9.
In a memo written by Canada's
consul in New York while Arar was awaiting deportation, Maureen
Girvan told Ottawa that a U.S. immigration officer informally
advised her that Arar's case was "of a seriousness that
should be taken to the highest level," and suggested Canada's
ambassador to Washington contact the U.S. Department of Justice.
That contact was never made
and within a week Arar had been removed from the United States.
"One would have expected that alarm bells would have rang,
and that the officials would have taken the action that was suggested.
Unfortunately they didn't. And one wonders whether, if they would
have acted at that time, the deportation might have been prevented,"
said Waldman.
Stephen Bindman, the spokesperson
for the government's legal team at the Arar inquiry, has a different
interpretation of the documents.
"Taken as a whole, the
government believes these documents show the extraordinary lengths
to which Foreign Affairs officials, together with other federal
departments and agencies, went to provide consular officials
to Mr. Arar in New York and Syria."
Bindman says the government
won't comment on any of the documents except to say Canadians
should reserve their judgment.
Pillarella, who is now ambassador
to Romania, will appear to testify when the inquiry resumes public
hearings on May 9.
|
Truth can never be
told so as to be understood, and not be believ'd. William Blake, The Proverbs of Hell