It began in 2007 after a lengthy, expensive and mostly closed-door inquiry the led to a $10.5 million payoff to Maher Arar. Arar was a joint Canadian-Syrian citizen under pre-9/11 investigation by the RCMP and others regarding his activities and associations related to Islamist terrorism.
Despite being aware of the investigation, Arar left Canada in 2002 for extended international travel and was detained when he flew into New York. He then was transferred by U.S. officials to Syria. He subsequently claimed he was tortured because of information provided by Canadian officials.
Canadians learned last month that their government awarded $31.25 million to three of Arar's associates who were also under RCMP and U.S. terrorism investigations – Abdullak Almalki, Abou el Maati and Muayyed Nurredin – to settle their civil lawsuit. Like Arar, the essence of their complaint was alleged misconduct or inaction by Canadian authorities after they had chosen to travel abroad and were detained and interrogated by Syrian, and in El Maati's case, Egyptian authorities. Also like Arar, they claimed to have been tortured, and alleged their mistreatment was aided by inappropriate information sharing by Canadian officials with their foreign counterparts. A subsequent mostly-closed door judicial inquiry found instances of their Charter rights being violated by the actions or inactions of Canadian officials.
In July, the Canadian government announced it settled a civil suit brought by convicted Islamist terrorist Omar Khadr. His claim appears to have been based on Canadian officials interviewing him twice in 2002 while at Guantanamo Bay after having been captured following a deadly firefight in Afghanistan. Khadr also complained that Canadian officials provided copies of his interviews to U.S. officials even though it is now clear that the U.S. had already recorded the conversations.
In all three of these cases, the Canadian government provided no clear factual rationale as to why it chose to settle the cases behind closed doors. There has also been no explanation as to whether the Canadian security officials had a factual justification for their actions. In fact, both judicial inquiries expressly chose not to examine the conduct of the terror suspects involved and whether it may explain their overseas detention and interrogation. Also, none of the individuals were subjected to cross-examination, which is not exactly the best way to achieve a properly informed outcome.
Given this, it's not surprising that more "victims" are emerging. Djamel Ameziane, an Algerian resident who was a bogus refugee claimant linked to would-be Millennium bomber Ahmad Ressam, was removed from Canada in 2000. He was captured by U.S. forces in Pakistan after 9/11 and held in Guantanamo Bay, where he became friends with Omar Khadr. His complaint against Canada was that, like Khadr, he was interviewed by Canadian officials twice. By remarkable coincidence, Ameziane has filed a civil lawsuit against Canada from Algeria where he now safely resides, and he is represented by one of Omar Khadr's lawyers. I wonder if Omar got a finder's fee?
Late last month, CBC News reported that former Calgary residents Yacine Meziane and Abderrahmane Ghanem have publicly complained that CSIS ripped up their lives by providing Middle Eastern officials with information about their undisputed association with several young men who left Canada to join ISIS in Syria. Both were detained and interrogated and are now back in Canada airing their complaints.
Add to that the case of Abdulrahman El Bahnasawy, the 19-year-old Canadian awaiting sentencing for a foiled terrorist plot in New York City. He too has just retained one of Omar Khadr's lawyers. Are civil suits against Canada for damages on the horizon in these cases?
Add to this the current reality of the UK resident, with dual UK and Canadian citizenship, "Jihad Jack" (Letts) and the three Canadian young women who have been captured and detained in Syria and Iraq following the collapse of ISIS, where local officials allege they were supporting the terrorist group. There already are calls for Canadian intervention and thus it is necessary to ask what the appropriate and required actions by Canadian officials are in these cases and what will, no doubt, be others that will follow.
Canada urgently needs an effective strategy to clarify how its national security enforcement and intelligence officials deal with foreign governments relating to Canadians, or persons linked to Canada, who are involved in terrorism related investigations. This will be no easy task because the scope of activities involved ranges from information sharing to travel alerts to foreign post arrest involvement and intervention. Further, as the nature of the terrorist threat evolves, so do the necessary counter terrorism actions, including interactions with foreign governments and agencies, for which there is no single model.
The above noted court and inquiry and closed-door government civil settlements/payoffs where Charter violations and civil liability have been admitted also demonstrate the need for a modernized strategy to avoid the after the fact, politicized approach currently in place.
These various decisions and actions have created a maze of potentially conflicting 'do's' and 'don'ts' for our national security, intelligence and diplomatic officials. The federal government's repeated refusal to fight the lawsuits and instead throw its officials under the bus is also dangerous, as it can create a risk aversion culture within these organizations for people who are literally on the front lines of protecting Canadian national security.
So, what's needed?
First, there needs to be express statutory authorization for defined interactions and information sharing by designated Canadian officials on terrorism cases with international entities. Public Safety Minister Ralph Goodale appeared to recognize this need during his recent testimony before committee, which is encouraging.
Second, there should be a statutory approval process in advance, including restrictions and required reporting after the fact. This is a function that specially designated federal court justices could perform. A recent Supreme Court of Canada ruling in a case involving warrantless seizure of internet data confirms that advanced judicial authorization can convert what would otherwise be a Charter breach into a Charter compliant activity. This model needs to be followed.
Targeted amendments to Bill C-59, which is currently before Parliament, could be the vehicle for this result to be achieved.
The fall of ISIS on the battlefield means a likelihood of both returning Canadian jihadis and Canadian jihadis arrested and detained abroad. Accordingly, Canada needs a comprehensive strategy of options for international interactions where Canadians are detained abroad on terrorism investigations or charges. This should include:
· Expanding the use of post-conviction transfers back to Canada under the International Transfer of Offenders Act (used in Omar Khadr case) to allow the imposed sentence to be served in Canada and subject to Canadian law;
· Expanding the possibility of extraditing more people back to Canada for prosecution pursuant to the Extradition Act while concurrently ensuring that admissible evidence for prosecution in Canada can be obtained;
· Establishing a process for Canadians detained abroad to access specially approved Canadian legal counsel to protect detainee's rights and ensure that statements given to support repatriation are admissible in case resolution on return is achieved; and
· Promoting repatriation of detainees by foreign governments without criminal prosecution in appropriate cases, upon agreement to enter into s. 810.011 supervision orders on return to Canada.
These are complex issues that require an operationally informed proactive strategy that will be effective and Charter compliant. While this won't be easy, the current government needs to make it a priority because the problems are not going away. And cutting checks is not the answer.
Scott Newark is a former Alberta Crown Prosecutor who has also served as Executive Officer of the Canadian Police Association, Vice Chair of the Ontario Office for Victims of Crime, Director of Operations for Investigative Project on Terrorism and as a Security Policy Advisor to the governments of Ontario and Canada. He is currently an Adjunct Professor in the TRSS Program in the School of Criminology at Simon Fraser University.