Justice Simon Noel delivers key ruling in Arar affair

A8

Jim Bronskill
THE CANADIAN PRESS

Stumble Upon

del.icio.us

Digg

Facebook

Print

Email

1 Comment(s)

OTTAWA - A federal judge says national security laws are not intended to shield intelligence agencies from embarrassment.

In his reasons for delivering a key ruling in the Maher Arar affair, Federal Court Justice Simon Noel said there is a "genuine public interest" in openly dealing with the subject of torture of detainees, and the use of information gathered through force.

"Protection from embarrassment is not covered in our security laws," Noel wrote.

The long-awaited reasons for a judgment Noel handed down almost two years ago explain why the judge approved release of disputed sections of a 2006 inquiry report into the overseas torture of Arar, an Ottawa electronics engineer.

In the same vein, the delay in publication of Noel's reasons resulted from lengthy deliberations over what portions of his top-secret explanation could be disclosed. Portions of the judge's July 2007 reasons remain blacked out.

It's the latest chapter in the long-running saga of Arar, a Syrian-born Canadian who was detained at a New York airport in September 2002 and subsequently bundled aboard a private jet by U.S. authorities. He was flown to Jordan and driven across the border to Damascus, ending up in a crypt-like cell where he gave false confessions under torture about terrorist links.

An inquiry led by Justice Dennis O'Connor concluded in September 2006 that the RCMP passed misleading, inaccurate and unfair information to the Americans that very likely led to Arar's arrest and transfer to Syria.

In early 2007 the Canadian government apologized to Arar and gave him $10.5 million in compensation. Months later, as a result of Noel's ruling, additional passages of O'Connor's report became public over the objections of federal lawyers who argued their release could damage national security, international relations or the defence of Canada.

The new elements revealed that Canada's spy agency suspected, within two days of Arar's deportation, that the U.S. Central Intelligence Agency had shipped him somewhere to face possible torture.

The suspicion within the Canadian Security Intelligence Service was fuelled by knowledge of a pattern of cases in which American authorities would send terrorism suspects abroad for questioning in countries that paid little attention to legal niceties.

Jack Hooper, then deputy director of CSIS, said in an Oct. 10, 2002, memo: "I think the U.S. would like to get Arar to Jordan where they can have their way with him."

In his reasons released Thursday, Noel said he was not persuaded that disclosing Hooper's comments would harm Canada's interests with the U.S.

"Such disclosure might upset some officials but any reasonable person must admit that such a statement reflects the realities of the time. It might embarrass some, but again, such embarrassment in itself does not constitute injury.

"There is a legitimate public interest to inform the public of such knowledge within CSIS, in order to be able to assess the work done by the agency at the time."

Noel ruled that some disputed information, including passages of O'Connor's report referring to CSIS's knowledge and assessment of Arar, should remain secret.

However, because of Noel's judgment it also emerged that O'Connor found the RCMP used information from an unnamed country to help obtain search warrants against several people in January 2002, part of a broader anti-terrorist investigation in Canada.

The Mounties didn't tell the judge who issued the warrants the country had a questionable human rights record, and undertook no analysis of their own to determine if the information had been obtained under torture.