Iacobucci on the State, our Citizens and Torture

Last week former Supreme Court of Canada Justice Frank Iacobucci released the 544 page final report from his commission of inquiry into the jailing and alleged torture of three Canadians: Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin. Justice Iacobucci was charged with reviewing the nature of Canadian intelligence sharing with countries including the U.S., Syria and Egypt. The commission also sought to determine if Canadian officials were complicit in preventing the alleged abuse.

The Mandate of the Iacobucci Commission of Inquiry

Justice Iacobucci eloquently described the work of the commission in his opening statement:

At its core, this Inquiry involves the appropriate response of our democracy in Canada to the pernicious phenomenon of terrorism, and ensuring that, in protecting the security of our country, we respect the human rights that so many have fought to achieve.

The work of the commission focused on the treatment of three Canadian citizens by Canadian Officals. This is the second time the Canada has held an inquiry into the treatment of Canadian Citizens who were falsely accused terrorists by their own government. The previous inquiry related to Maher Arar, who was subjected to torture overseas as a result of the Canadian government’s extradition. Mr. Arar was exonerated in an inquiry chaired by Justice Dennis O’Connor which also awarded Mr. Arar $10 million in compensation.

The official Terms of Reference of the commission included the following three questions:

1. whether the detention of Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin in Syria or Egypt resulted, directly or indirectly, from actions of Canadian officials, particularly in relation to the sharing of information with foreign countries and, if so, whether those actions were deficient in the circumstances,

2. whether there were deficiencies in the actions taken by Canadian officials to provide consular services to Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin while they were detained in Syria or Egypt, and

3. whether any mistreatment of Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin in Syria or Egypt resulted, directly or indirectly, from actions of Canadian officials, particularly in relation to the sharing of information with foreign countries and, if so, whether those actions were deficient in the circumstances;

Findings contained in the Commission’s Final Report

Justice Iacobucci separated his findings for each of the three men. He did not find that the treatment of Ahmad Abou-Elmaati, Abdullah Almalki or Muayyed Nureddin “resulted directly from any action of Canadian officials.”

But the actions of the Canadian government were by no means exonerated.

In 2001 Mr. Elmaati traveled to Syria to be married and was subsequently held for two months in Syria and two years in Egypt. Justice Iacobucci found that Mr. Elmaati’s mistreatment while in the custody of foreign officials resulted indirectly from several actions of the Canadian government. These actions included the failure of government officials to warn consular staff overseas of Mr. Elmaati’s detention, submission of interrogation questions to foreign agencies by CSIS and the RCMP’s sharing of information.

Abdullah Almalki travelled to Syria from Malaysia in May 2002 to visit his grandmother who was ill at the time. Upon arrival, he was taken into custody by Syrian officials and was subjected to “degrading and inhumane” conditions for 22 months. The commission held Mr. Almalki’s mistreatment arose indirectly from two actions of Canadian Officials:

(1) in April 2002, the RCMP shared its Supertext database, which contained a considerable amount of information regarding Mr. Almalki, with U.S. agencies; and (2) in January 2003, the RCMP sent Syrian officials questions to be posed to Mr. Almalki while in Syrian detention.

Muayyed Nureddin traveled to Syria in December 2003 on his way home to Toronto. He was immediately detained by Syrian officials for 33 days and also subjected to degrading and inhumane conditions, interrogated and mistreated.” Justice Iacobucci found the sharing of information that likely contributed to Mr. Nureddin’s detention Syria also likely contributed to his mistreatment while there.

The provision of consular services by Canadian officials overseas was found deficient for Mr. Elmaati and Mr. Almalki but not for Mr. Nureddin.

Responses to the Commission of Inquiry’s Final Report

Broadly speaking, Justice Iacobucci found the Canadian government was not directly responsible for the torture of Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin. Nevertheless, it is still troubling that their mistreatment arose indirectly from the actions of Canadian officials. This is especially true as all of the impugned detentions were likely the result of information shared by the Canadian government.

The appropriate modus operandi for information sharing between the Canadian government and another state with a reputation for torturing was outlined in a recent editorial in the National Post: “When Canadian intelligence agents know a country practices torture, they must be particularly stingy with the information about Canadian citizens they share with their counterparts in those countries.” The editorial goes on to suggest that sharing information with countries like the U.S. who engage in rendition, sending suspects overseas to be tortured, is also problematic.

Putting the fairly measured reaction to the Commission’s report featured in the Post into sharp relief, were several reader responses to an article in the Toronto Star. The article’s main point is that the commission’s most disturbing findings were limited by Justice Iacobucci’s narrow interpretation of his mandate and subsequent media simplification of the issues. The Star subsequently received a phone message from a reader, which it summarized as follows:

“More Muslims faking it,” hissed the man. “Are you actually suggesting that each of these three guys get another $10 million like we wasted on Arar? You f—— Muslims!

“These are not Canadians. They are not born in this country …

“No one gives a s— about this 544-page report. What that cost the Canadian taxpayers? More money wasted on f——, bad immigrants.

“Why don’t you go back to the hole-in-the-wall country that you came from and take all these other fake people, claiming to have been tortured, that no Canadian citizen gives a f— about.”

Obviously, and thankfully, this caller does not represent the majority opinion of Canadians.

All too often however, mention of terrorism and the torture of Arab Canadians elicit such incendiary remarks. These men were returning to Canada after visiting their spouses and family. They did nothing deserving of the racial animus contained in the comments above. Regardless of the ethnic or religious background of any Canadian citizen, the government of Canada has both a legal and a moral obligation not to condone the torture of its citizens, whether directly and indirectly.

In a rare moment of agreement between the right and left banks of Canada’s mainstream media, the National Post captured this sentiment best: “if we are a country that condemns torture,” the Post remarked, “then we have an obligation to defend our citizens – all our citizens – against such barbarism. Period.”