JURIST Special Guest Columnist Faisal Kutty, vice-chair and counsel to the Canadian Council on American Islamic Relations and a doctoral candidate at Osgoode Hall Law School York University in Toronto where he also practices law, says that Canadian Prime Minister Stephen Harper's apology to Maher Arar provides a unique opportunity to address the erosion of civil and human rights in Canada's own "War on Terror"…
"My priority right now is to clear my name,” said Maher Arar during his first public appearance in 2003 upon his return after being tortured for over a year in Syria. The Canadian Arar Commission findings which cleared him and Canadian Prime Minister Stephen Harper’s recent apology — which came after months of negotiations — go a long way in helping Arar fulfill his first wish, even though some believe the apology did not go far enough (Harper apologized “for any role Canadian officials may have played”, while the Commission squarely blamed Canadian and American officials).
The Syrian-born Arar was detained by U.S. authorities on September 26, 2002, during a stopover in New York en route from Tunisia to Canada. The Canadian citizen was subsequently sent to Syria for torture under the controversial American practice of “extraordinary rendition” even though he had repeatedly requested that he be sent to Canada. He was eventually released and returned to Canada in October 2003 after Canada put pressure on Syria.
According to the inquiry called after public outcry in Canada, U.S. Immigration and Naturalization Service agents acted on false and misleading information supplied by the Royal Canadian Mounted Police (RCMP). The comprehensive inquiry which lasted more than two years was headed by Ontario’s Associate Chief Justice and cost the public purse more than $16 million. The Commission findings paved the way for the Prime Minister’s formal apology to Arar on behalf of the Canadian government and an offer of $10.5 million plus legal fees to a settle a lawsuit launched by Arar.
Canada’s top cop, RCMP Commissioner Giuliano Zaccardelli, resigned as a result of the Maher Arar controversy.
Meanwhile, American authorities are refusing Canada’s request to purge Arar’s name from U.S. watch lists. His inclusion on U.S. lists effectively excludes Arar from at least one third of the world’s nations, according to his lawyers. U.S. Senator and chairman of the Senate Judiciary Committee Patrick Leahy has threatened to hold extensive hearings into Arar's case, lambasting the US's removal of Arar to Syria as absurd and outrageous and noting that instead of sending Arar a "couple of hundred miles to Canada and turned over to the Canadian authorities… he was sent thousands of miles away to Syria." He has called for the U.S. to apologize to Arar as well.
Arar and his wife, Monia Mazig, are true champions and will push this matter as far as they can — hopefully getting a “terrorism-free” stamp from U.S. officials through the courts eventually. In addition to the Canadian lawsuit which was just settled, Arar has launched a separate lawsuit against American authorities. The U.S. suit revolves around the practice of his deportation to certain torture.
Yet, the Arar settlement in Canada does not close the book. It only opens a new chapter of a book that is about more than Maher Arar — it is about the erosion of civil and human rights in Canada as a result of the “War on Terror.”
The Arar saga brought into focus the unintended victims of draconian laws and policies hastily enacted post 9/11 in Canada and south of the border. It also shed light on the potential of religious and racial profiling inherent in such laws and practices.
We can only hope that Arar’s second wish which was to “make sure this does not happen to any other Canadian citizens in the future,” will also come true. For this to happen, however, more people must realize that due process and fundamental rights must be respected at all times and more so during times of real or perceived crisis when society has a tendency to overreact.
At the broader level, we hope that this admission of responsibility signifies a renewed interest in addressing the myriad issues emanating from the “War on Terror.” Canadians must demand that the government:
- Speedily implement all of the recommendations made by Justice Dennis O’Connor with respect to National Security, essentially centering around the issues of accountability, transparency, national security oversight, checks on information sharing, etc.
- Ensure that the public inquiry into allegations similar to Arar raised by Canadians, Abdullah Almalki, Ahmed Elmati and Muayed Nuredin moves forward in an open, transparent and public manner in order to have the confidence of the Canadian public.
- Seriously evaluate the impact of Canadian anti-terror laws and policies, but also the impact of U.S. laws and policies on Canadians, particularly those of Muslim and Middle Eastern heritage. The differential treatment of Canadian citizens based on religion and origin at the border must be vociferously opposed or a travel advisory be issued. The government must express strong opposition to the extra-territorial application of American laws effectively forcing Canadian companies on domestic soil to discriminate against citizens based on origin if they wish to contract with the United States. We took a stand against the Arab boycott of companies dealing with Israel — why is this any different? Surely, there are ways to ensure security while upholding the Canadian Charter of Rights and Freedoms.
- Ground the No-Fly list , which will be shared with other countries and to which names will be added, no doubt, based on information from foreign sources before it takes off in the next few weeks. As confirmed by the Arar case, the information may be unreliable and, in fact, may even be obtained through illegal methods. The arrangements and protocols for information sharing with foreign governments and agencies must be reconsidered.
- Reevaluate the ground realities in terms of racial and religious profiling by police and security agencies. As the Canadian Justice Department’s own study concluded two years ago, Canada has fallen behind even the U.S. and Britain in taking steps to combat this “high-profile and pressing issue.” Those are the Justice Department’s words, not mine.
- Stand up for Canadian citizen Omar Khadr, sent to Guantanamo Bay from Afghanistan at the age of 16. Canada should join the other nations, including staunch U.S. allies such as Britain and Australia, who have spoken out for their citizens and even had a number of them released. Khadr’s guilt or innocence is not the issue — he must be treated, charged and tried in accordance with international standards or be released.
- Reexamine the security certificate process under which five Muslim men are detained without charges or even a chance to challenge the “secret” evidence against them — which even a number of Federal Court judges and even a high ranking intelligence officer has questioned and expressed concerns about. The Canadian Supreme Court is set to render its decision soon in three security certificate appeals — but whatever the decision, the government should scrap them as contrary to our notions of fairness and justice.
As Arar said during his press conference upon his return to Canada:
“What is at stake here is the future of our country, the interests of Canadian citizens, and most importantly Canada
's international reputation for being a leader in human rights where citizens from different ethnic groups are treated no different than other Canadians.”
With his apology and settlement, the Prime Minister helped raise Canada’s stature one notch in the eyes of many local and foreign observers. It’s time to continue onto the next chapter in the book.
Faisal Kutty is a Toronto lawyer and doctoral candidate at Osgoode Hall Law School of York University. He is also vice chair and a counsel to the Canadian Council on American Islamic Relations, which was an intervener in the Maher Arar Inquiry. His articles are archived at www.faisalkutty.com.
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