Justice O'Connor releases Arar Report, Part Two

By Faisal Kutty

Toronto Star – Sep. 18, 2006 — Since the tragic events of 9/11, many Muslims and Arabs have been living in a climate of fear and uncertainty. The draconian and hastily enacted Anti-Terrorism Act and questionable national security practices have had a profound effect on their psyche.

Arguably, times have changed. One of the most pressing contemporary debates in liberal democracies today is whether to trade off rights for greater security. Seems neutral in theory, but all members of society do not equally bear this burden. Canadian Muslims/Arabs are increasingly realizing that trading off rights mean, more specifically, forfeiting their rights.

“I received a lot of complaints from members of the Muslim community,” says Shirley Heafey, a former chair of the RCMP complaints commission and former member of the CSIS review committee. “They had all kinds of stories but most were too afraid to lodge formal complaints.”

Indeed, she said, fully half of those at a community event she addressed in London during her tenure, had been approached, questioned or harassed by the RCMP or CSIS.

Showing up at homes and workplaces unannounced at odd hours; speaking with employers; offering money and favours for “information”; intimidating and threatening newcomers; questioning about specific institutions and individuals; inquiring about one’s religiosity and discouraging them from consulting lawyers are some of the recurring themes that we have come across.

The fear is becoming all the more widespread given allegations by at least nine Canadians — Maher Arar, Abdullah Almalki, Ahmad Almaati, Muayyed Nureddin, Dr. Aly Hindy, Helmy Elsherief, Arward Al-Boushi, Kassim Mohamed and Dr. Mahboob Khawaja — that they were detained, questioned and, in some cases, even tortured abroad at the request of, or with, Canadian complicity.

After much public pressure, the Liberals finally appointed Justice Dennis O’Connor to look into the allegations by Arar, who was deported to Syria in 2002 during a transit stop in New York.

The commission, which featured heated verbal sparring between commission counsel and government lawyers intent on disclosing as little as possible, is set to release its findings today.

“The evidence suggests that what happened to Maher Arar may very well have been part of something wider, something deliberate,” says , secretary-general of Amnesty Canada. The evidence reveals too much of a pattern to be explained away as coincidence. Moreover, the evidence disclosed errors of omission and commission by Canadian authorities.

Almalki and Almaati joined human rights groups last week to insist that the commission should go as far as the evidence allows in determining whether what happened to them and Arar was part of a policy of having citizens interrogated abroad, even in countries known to practise torture.

Many of the interveners have cautioned that it would be unfair and inappropriate for the commission to make a conclusive finding that there is no pattern. This is particularly so given that Almalki, Almaati and Nureddin were only given limited standing at the hearings and neither they nor the interveners or the public were given the opportunity to see, hear or question the bulk of the government’s case.

Barbara Jackman, a prominent national security lawyer, has suggested the RCMP and CSIS are working around the prohibition of using security certificates to detain citizens.

Jackman says both agencies are “opportunistically taking advantage” of citizens travelling abroad by providing information to foreign governments who then detain and question them. If this is true, in effect Canadian intelligence has quietly adopted a form of extraordinary rendition — getting foreign governments to do, in the words of Jackman, the “dirty work.”

Disturbingly, sharing of intelligence on citizens with other nations, including those with questionable human rights records, has been a recurring theme over the years. In fact, Michel Juneau-Katsuya, a former CSIS agent, has gone on record a number of times with this very claim.

These cases, along with that of Mohammed Mansour Jabbarah — a 23-year-old Canadian who was arrested in Oman, repatriated to Canada and then secretly handed over by CSIS or RCMP officials to Americans at the Niagara Falls border without any due process — raise more than enough concerns about how our security agencies operate.

Even given that Jabbarah pleaded guilty to a number of terrorism charges in a secret trial in 2004, the fact remains that guilt or innocence is not the issue, but rather the treatment and rights of Canadians. Why not charge, arrest and prosecute them in Canada to the full extent of the law or use the extradition process?

Such practices seriously undermine the value of citizenship and our democratic ethos, namely the rule of law and due process. To demand anything less than a full and complete investigation into these claims would be irresponsible.

This is particularly so given that even the incomplete evidence — due to national security claims — adduced publicly at the commission pointed to a pattern of outsourcing interrogations hidden from public scrutiny.

Arguably, the Arar commission had a limited mandate, but given the evidence and prevalence of allegations of wrongdoing, its findings should be just the beginning of a more comprehensive look at how our security agencies operate.

These cases have seriously eroded the confidence and trust of Canadian Muslims/Arabs. If intelligence agencies believe they can win a war against extremists by undermining these communities then they better think again about the growing Muslim/Arab alienation, distrust and questioning of what is seen as their second-class citizenship.

Their resulting silence will not serve the intelligence community or our country.

Note: Faisal Kutty, a lawyer with Kutty, Syed & Mohamed, is counsel to the Canadian Council on American Islamic Relations, an intervener in the Maher Arar Inquiry, and in the more recently constituted Air India Inquiry.

Tags: Alex Neve, Arar Commission, Barbara Jackman, CSIS, Dennis O'Connor, Maher Arar, RCMP, Shirley Heafey

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