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Inquiry into secret actions a challenge

|Written By Helen Burnett

The public inquiry process developed by the Arar commission, which had to deal with a large amount of in camera evidence while trying to maximize public disclosure, could prove relevant for future cases in other areas, say counsel involved in the inquiry.

Justice Dennis O'Connor, commissioner of the inquiry, released his massive 1,200-page report last week, examining the "factual inquiry" portion of his mandate, which looked at the conduct of Canadian officials in relation to Maher Arar.

Arar, a Canadian citizen, was detained in New York City in 2002 and subsequently sent to Syria, the country of his birth, where he was imprisoned for nearly a year, interrogated, and tortured.

O'Connor's report concluded that the "the RCMP provided American authorities with information about Mr. Arar that was inaccurate, portrayed him in an unfairly negative fashion and overstated his importance in the RCMP investigation."

The report outlined 23 recommendations, ranging from "the RCMP should ensure that its activities in matters relating to national security are properly within its mandate as a law enforcement agency" to "the Government of Canada should assess Mr. Arar's claim for compensation in the light of the findings in this report and respond accordingly."

The report states over 70 government officials were called as witnesses in the inquiry, and over 6,500 documents were entered as exhibits. As O'Connor notes, "a good deal" of the evidence received was also heard in camera, because of national security confidentiality.

While the government received an unredacted version of the report, the public version has entire sections taken out under government orders despite protests from O'Connor.

It's been reported that the government wants certain passages kept under wraps because they could put confidential informants at risk or damage relations with countries that supplied sensitive material to the inquiry.

However, lawyers for the commission have said they will take the government to court to force the release of more information that O'Connor feels should be out in the open because it is in the public interest.

Paul Cavalluzzo, lead commission counsel for the inquiry, says, "This is really the first time in Canada, and indeed in most Western countries, that an independent body has had access to all government documents in relation to a national security investigation, reviewed the conduct of the officials involved, and reached certain conclusions.

"I think that it is a precedent-setting inquiry in that sense, and indeed many foreign countries are interested in the ultimate report of the Arar inquiry because of its extensive review of national security issues."

His sentiments are echoed by Lorne Waldman, one of the senior counsel who represented Arar during the commission of inquiry.

"The process that was devised here, with the commission counsel and the amicus curiae, is a model which I think might be considered in other types of cases, for example, the immigration security certificates," he says.

According to Cavalluzzo, "This particular inquiry was a very difficult and complicated affair because much of the evidence was national security evidence and as a result of that, much of the hearings had to be heard in camera.

"As a result of that, we had to develop a process which attempted to deal with the problem between being a public inquiry on the one hand, trying to maximize public disclosure, and on the other hand, obviously having to hear certain evidence in camera because of its national security nature.

"We had to develop a process that was fair and at the same time was effective in respect of testing the government's evidence."

In O'Connor's report, he notes that "because of the amount of evidence not heard in public and not readily available to the public, I considered it important to prepare a more extensive summary of the evidence than might have been the case in a public inquiry in which all of the hearings were open to the public and all transcripts of evidence are readily available."

Although a portion of the evidence in the report, marked by asterisks in the public version, is blacked out for national security reasons, Cavalluzzo adds that the report does provide answers and shed light on the process for Canadians.

"It is an extensive review of the investigation and it points out many, many defects in the investigation which require improvement so that this does never happen again.

"It was a process where commission counsel had to take a far more active role in respect of cross-examining the evidence of government because Mr. Arar and his counsel were excluded from the in camera hearings because of the top-secret nature of the evidence."

Waldman says that "from the point of view of conducting a public inquiry into something which is shrouded in secrecy was a challenging process, but it had important lessons because the process they developed is one that is relevant to a lot of other areas.

"As we enter into a new era where the intelligence agencies are operating more with greater power and there are all sorts of processes where the government is claiming that information can't be released, it is necessary to devise procedures that ensure fairness within the context of our judicial system," he adds.

"If you asked yourself 'was the process a success?' yes, because the truth came out, and the inquiry examined and found fault and made recommendations to correct the problems and isn't that what a public inquiry is supposed to do, determine what happened and how we can prevent it from happening again?" says Waldman.

The Arar Commission's report is available online at

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