The Liberal government has taken up the former Conservative government’s legal fight against an apology and compensation for three Canadians tortured in the Middle East, despite voting in favour of the former detainees’ cause while they sat in opposition.
As well, in aggressively defending the actions of CSIS and trying to prevent the release of thousands of unredacted documents that a judge is now poring over, the Liberals are going further than their Conservative predecessors did to protect CSIS sources.
Lawyers for Prime Minister Justin Trudeau’s Liberal government are seeking retroactive blanket anonymity for spies and their sources and have filed an appeal in a civil lawsuit launched by the three men with that goal in mind. A Conservative bill last year, C-44, which enacted source protection, was not made retroactive.
Put together, the two moves have stunned a team of lawyers at Toronto’s Stockwoods firm that took up the cause of Abdullah Almalki, Muayyed Nureddin and Ahmad El Maati, as well as others who closely follow developments in security law.
“It’s a continuation of this incredibly litigious no-holds-barred scorched-earth defence strategy which we’ve been experiencing for 10 years under the Harper government,” said lawyer Phil Tunley, who is leading the team suing the federal government on behalf of the men.
“I fear that in this case, the current government is at risk of simply letting its litigation team roll along paths ordained by the prior government, without asking whether the interests of justice are served by devoting still more taxpayers’ money to fighting meritorious claims,” said University of Ottawa law professor Craig Forcese. He and the University of Toronto’s Kent Roach are authors of False Security: The Radicalization of Canadian Anti-Terrorism, an authoritative analysis of the current slate of security laws in Canada.
Almalki, Nureddin and El Maati filed a civil claim against the Canadian government seeking $100 million in damages for their detainment and torture overseas, but the lawsuit was put on hold during a federally appointed inquiry into their ordeals.
Their stories were eerily similar to the Maher Arar scandal that unfolded in the post-9/11 anti-terror push by national security agencies in Canada and the U.S. The three men weren’t deported to torture, but they were arrested upon arrival in Syria, interrogated and tortured at the same Syrian military prison as Arar.
A judicial inquiry into Arar’s torture and imprisonment found missteps by Canadian border agents and the RCMP “very likely” led Americans to deport the Syrian-born Canadian to Jordan and then Syria, where he was tortured. The Arar inquiry recommended a separate probe into the cases of the other three men.
The government of prime minister Stephen Harper apologized to Arar and paid $10.5 million in compensation plus $1 million in legal fees to settle Arar’s civil lawsuit.
Meanwhile, retired Supreme Court justice Frank Iacobucci led the second inquiry, conducted in secret and under a narrower mandate.
In the end, Iacobucci concluded the actions of Canadian officials indirectly contributed to their detention (except for Almalki’s initial arrest) and to the torture of all three at the hands of Mideast jailers. One, El Maati, was transferred from Syria to Egypt where he was also tortured, Iacobucci said.
Still, the former Conservative government long resisted a settlement to the men’s claims, despite Iacobucci’s findings. His 455-page report became the basis for a recommendation by the Commons standing committee on public safety that the government offer an apology and compensation to the men “as reparation for the suffering they endured and the difficulties they encountered.”
At the time, in 2008’s Conservative minority Parliament, the NDP and the Liberals formed a voting majority on the committee.
When the committee’s report was brought to Parliament the Liberals again voted in support of an apology, compensation and a recommendation that the Government of Canada “do everything necessary to correct misinformation that may exist in records administered by national security agencies in Canada or abroad with respect to” the men and their families.
Now, if successful in its appeal of a ruling on source protection by Federal Court Justice Richard Mosley, the Liberal government, which has promised more accountability for national security agencies and to repeal some of the more draconian security measures enacted by the Conservatives, will go further than did the Conservatives.
Mosley ruled the federal government’s claim that C-44 should apply to CSIS sources in these cases “would be retrospective, and creates a new privilege” altogether that negatively affects the plaintiff’s rights.
Mosley said they have “a vested right to disclosure of human source identifying information in order to support” their civil claim, and that the risks of disclosure should instead be weighed under the Canada Evidence Act, “to consider whether release of the information would cause injury to one of the protected national interests and, if so, whether the risk of that harm outweighs the public interest in disclosure.”
The judge said the men contend they already know the names of at least six CSIS employees “because they had interactions with those employees, and further, that those names are in the public domain (on social media and in a book published about their experiences).” And it was CSIS’s own policy at the time for CSIS agents to identify themselves as employees of the service.
The former Conservative government introduced blanket CSIS source protection under Bill C-44 but did not make the new law retroactive. It was a bill brought in after CSIS had lost a bid for such anonymity at the Supreme Court of Canada and had been found in another case to have misled a court on CSIS’s use of foreign intelligence sources.
When C-44 was studied, the Liberals argued source protection should be decided on a case-by-case basis, as it has been for years by the courts. But when it came to a vote in Parliament, the Liberals, including current Public Safety Minister Ralph Goodale, voted for C-44. Trudeau was absent for that vote.
The Liberal election platform promised only to repeal troubling elements of another security law, Bill C-51 — changes that are not due until next fall. But C-44 looks to remain untouched.
Goodale declined comment when asked about the case by the Star, saying he wanted to check further into the facts. Later, Goodale’s spokesman, Scott Bardsley, replied by email.
“The CSIS Act includes a clear prohibition on disclosing the identities of CSIS human sources in legal proceedings, subject to exceptions to ensure compliance with the Charter. Protecting the identities of CSIS human sources is of fundamental importance to the work of our security community. As such, we are requesting that a higher court review the Federal Court decision” of Justice Mosley, Bardsley wrote.
“As this issue is currently before the courts, it would be inappropriate to comment further on this matter.”
But lawyer Phil Tunley, who is leading the team of counsel to the men, is shocked by the moves of a Liberal government that explicitly promised to bring accountability to the nation’s national security regime.
“The case is about accountability,” Tunley said in an interview.
“If you remove the courts from the oversight of CSIS management of its human sources and you basically say no court can ever look behind and see whether a source really is a confidential source or if they’re telling the truth . . . there’s no accountability in the courts. It’s an extraordinarily draconian measure.”
Tunley said Parliament can choose to make a law retroactive by saying so in legislation. However, in the case of CSIS source anonymity, the Conservative government did not move to do so. He said Ottawa’s appeal now is almost certain to delay the decade-long litigation further.
Given the mandate letters Trudeau gave his ministers, Tunley wondered “does anything the prime minister is saying, does any of the instruction he’s giving to his ministers have any impact?”
Roach, a University of Toronto law professor who was the research director for the Air India inquiry, said the CSIS informer privilege “was one of the worst features of the 2015 Conservative terror laws.” And he said the Federal Court’s decision that it couldn’t have retroactive application in this case “is well reasoned and recognizes that the new CSIS informer privilege can adversely affect those who are confronted with secrecy claims. The only exception is when innocence is at stake in a criminal trial.”
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