By HUGH WINSOR
Monday, January 24, 2005
Negotiations this week in Ottawa may signal whether the government, which agreed only reluctantly to a judicial inquiry into the case of Syrian-Canadian Maher Arar, will attempt to stall the inquiry into irrelevancy by tying it up in lengthy legal proceedings.
Just before Christmas, the commissioner, Mr. Justice Dennis O'Conner revealed (through commission counsel Paul Cavalluzzo) that the Department of Justice had severely censored a summary of in camera testimony he planned to release, as well as blacking out large chunks of the ruling he made about how he planned to handle information that could have an impact on national security or international relations.
The government followed up with an application to the Federal Court that not only took issue with the contents of the summary but also asked the court to declare the commissioner had acted beyond his mandate.
The inference was clear. Although the government has asked Judge O'Connor to conduct a public inquiry, it seems determined to retain control over what information will be made public about Mr. Arar, especially as it relates to the activities of the Canadian Security Intelligence Service and the RCMP.
Taken to its logical conclusion, it indicates the government might try to use the Federal Court as a way of nullifying the impact of the inquiry that Public Safety Minister Anne McLellan, CSIS and the RCMP were dead set against having in the first place. Prime Minister Paul Martin overruled them because of the high profile the Arar case had acquired and the widespread public sympathy for him.
This week Judge O'Connor will respond to the application and there is every indication he plans to argue strongly that his mandate allows him to decide what information should be kept secret to protect national security.
Federal Court Chief Justice Allan Lutfy, however, would prefer his court doesn't get caught in the middle. So he has asked the commission and the Justice Department to go back to the table and attempt to negotiate their differences to avoid a difficult court process.
But the differences between the commission and the government go far beyond some nips and tucks in a summary of secret evidence. It boils down to who has control over what the inquiry eventually says.
Indeed, the inquiry mandate makes references to the possible resort to the Federal Court. It also requires Judge O'Connor to give advance notice of anything he plans to release that could have an impact on national security. But for those who don't read the fine print, there was no indication the government planned to keep Judge O'Connor on a tight leash when the inquiry was announced.
In his partially censored ruling, Judge O'Connor agrees he must protect national security and foreign relations, but claims it is his responsibility to make the call. He also says there may be information that impinges on national security, but that fairness to Mr. Arar and the public's right to know override those concerns.
In the Arar case, much of what happened is already in the public domain, Judge O'Connor argues, and any damage to national security or international relations has already happened. But the government side says Judge O'Connor should wait until he hears all the evidence before he decides what needs to be made public.
CSIS does not want any official sanction of information about its Arar investigation, even if it is already well-known, because it thinks this will impair future co-operation, especially from U.S. intelligence agencies. The RCMP is also concerned that divulging sensitive material will harm ongoing or future investigations. Judge O'Connor has no intention of backing down in the negotiations Chief Justice Lutfy has requested. If the government doesn't soften its stand, we may well be headed for months of court proceedings. And at the end of the day, under anti-terrorism legislation passed after 9/11, even if the commissioner wins at Federal Court or even at the Supreme Court, the government could still censor Judge O'Connor including his final report.