OTTAWA - The parties to the Maher Arar mediation met in the rooms used by Pierre Trudeau and the provincial premiers to craft the Constitution in November 1981.
On one side of the table in a boardroom of the Government Conference Centre near Parliament Hill sat Toronto lawyer Julian Falconer and the four members of his team representing Arar.
Across the table for two days of meetings Dec. 14 and15 were Robert MacKinnon, senior counsel to the Department of Justice, and his boss, Associate Deputy Minister Will McDowell. Former Ontario Superior Court justice George Adams, one of the country’s top mediation scholars, sat between them.
Two days earlier, Dennis R. O’Connor, the associate chief justice of Ontario, had released his final report on the seizure of Arar by U.S. authorities at New York’s JFK Airport and his deportation to Syria in 2002.
Arar spent more than 10 months in a tiny cell in Syria’s notorious Far’Falastin Prison and was tortured into confessing that he was a terrorist. Information from these “confessions” was later leaked, probably by Canadian authorities, to the Ottawa Citizen, which published the material as proof that Arar was a member of an al Qaeda cell operating here.
O’Connor placed part of the blame for Arar’s arrest and torture on Canadian authorities, noted Arar’s career as a computer consultant was shattered, and his reputation irreparably tainted. He recommended compensation.
Falconer, acting as Arar’s civil counsel (Marlys Edwardh represented Arar at the O’Connor inquiry), had already filed a claim for $400 million against the Canadian government. The litigation was adjourned by Ottawa judge Lynn Ratushny on consent of the parties until the O'Connor commission could finish and release it's first report. The parties agreed that within 90 days of the report's release they would enter a mediation to settle the matter.
All parties to the mediation have respected their confidentiality agreements. Law Times, however, has learned the Arar mediation sessions were often emotional, punctuated by events that, some participants believe, were deliberate attempts to shut the process down. Several times the mediation reportedly came close to being derailed.
For example, on the second day of the mediation, U.S. Ambassador David Wilkins issued a statement saying his government had information that justified keeping Arar on its no-fly list.
“It all came into the room. It took all of George Adams’s formidable skills as a mediator to keep everyone at the table,” one participant said. “It was very, very close sometimes.”
“The dynamics operating outside the mediation and the quantums involved in the mediation made it the challenge of a lifetime,” said Falconer.
“For instance, for the first time in the history of the RCMP, the head of the RCMP had to resign. That happened just before the mediation began. Then, while it was under way, there was the public statement of the U.S. ambassador saying that Maher Arar was still a threat to U.S. security.
“I think it’s reasonable to assume that these public announcements were made to disrupt negotiations. It was public knowledge that the mediation was going on,” Falconer said.
“My antennae were never more attuned to my client’s concerns about the actions of intelligence agencies. They could not be cast off as paranoia. It was certainly in the interests of foreign intelligence agencies to disrupt the mediation,” he said.
And, Falconer said, he could never be sure that the RCMP and intelligence agency officials who stayed near the mediation weren’t involved in the smearing of his client to U.S. authorities and Canadian journalists.
“The persons who the O’Connor commission identified as leakers, government officials engaged in leaks of classified information to slander Mr. Arar, covered their tracks and have yet to be identified. They may still be in high government circles giving instructions,” Falconer said.
The RCMP continues its investigation into whether its officers are responsible for the leaks but so far nothing has come of it.
Arar and the government were far apart when the mediation began, despite days of intense negotiations between the release of O’Connor’s report and the beginning of the Ottawa session.
Justice Department sources say Prime Minister Stephen Harper and his national security advisor, Margaret Bloodworth, were “in the loop” in the negotiations, as was then-Justice minister Vic Toews.
By the time mediation began, Arar’s claims had been pared back to less than $40 million. Eventually, the parties agreed on $10.5 million in compensation for Arar, his wife Monia Mazigh, and five brothers, and $1 million in legal fees.
Falconer said Arar would not let go of the idea of a suit against the government, and refused to give in to government pressure to delay his action.
“Our client controls a lawsuit. He does not control the proceedings of the Royal Commission, much of which was held behind closed doors,” Falconer said.
Determining a settlement that could be accepted by Arar and defended by the government consumed much of the mediation.
Falconer said his written briefs were “exhaustive and detailed.” They analyzed Arar’s ability to find employment, the loss in value of the consulting company he owned, and the impact of the publicity of the case on Mazigh, who holds a PhD in economics from McGill University. Neither has held a full-time job in their areas of expertise since Arar’s arrest.
The mediation also assessed the damages suffered by Arar’s five brothers.
“This case is at intersection between the issues of state accountability and personal injury litigation,” Falconer said. “Personal injury counsel are well suited to properly do assessment of injuries and the values associated with them. My partner [personal injury lawyer Theodore Charney] had a very important role in this. As we catch up to the U.S. style of civil rights litigation, it’s important for counsel to develop personal injury law skills,” he said.
Justice Department sources say they knew the government would take some criticism for the size of the settlement.
“We could have gone to court and spent millions to come out with a huge award against the government for actual and punitive damages,” said a Justice Department lawyer. “Would there have been any chance that the government could have saved money? No. We were looking at what is arguably the worst case of defamation in Canadian history.
“Brian Mulroney received $2 million because the RCMP wrote a letter and sent it to another police force. Mulroney was still able to make a very good living. So what is 10 months in a Syrian torture chamber and a ruined career worth?”
Arar’s civil suit against the U.S. government is now before an appeals court, after a trial judge refused to hear the case, citing “national security.”