Submissions to Commissioner O’Connor Commission of Inquiry into the Actions of Canadian Officialsin relation to Maher Arar I. INTRODUCTION 1. This inquiry is about Maher Arar, a Canadian citizen, a husband, a father of two young children, an engineer with a promising professional career whose life was dramatically and irrevocably changed due to circumstances which were completely outside of his control. On September 26, 2002, Mr. Arar was detained at John F. Kennedy airport in New York on his way back to Canada. Unbeknownst to him, Mr. Arar had become a person of interest in a national security investigation conducted by the RCMP because of a casual meeting with an acquaintance Abdullah Almalki. Based upon information which came from the RCMP, Mr. Arar had been put on a US terrorist lookout list. Prior to his arrival at JFK airport, the American officials made the decision that they were going to refuse Mr. Arar admission to United States based upon information that had been provided to them by the Canadians. 2. Before Mr. Arar arrived in the United States, an American official advised the RCMP of this decision and asked that they be provided with a list of questions for the purposes of interrogating Mr. Arar. The RCMP complied with this request, submitting the questions that they had compiled in preparation for an interview with Mr. Arar in Canada, an interview that did not take place because the investigators were unwilling to accept the conditions set by Mr. Arar’s lawyer. −2− 3. Mr. Arar was detained in the United States from September 26 to October 8, 2002. Although the treatment in the United States and the conduct of US officials is not before the Commission, there is clear evidence that Mr. Arar was detained in extremely harsh conditions and his access to counsel, to consular officials, and to contact with his family was extremely restricted. 4. On October 8, 2002, despite his protestations that he would be tortured, Mr. Arar was deported to Syria. For the next 10 months 10 days, Mr. Arar lived in the most deplorable conditions. He was held in darkness in a cell measuring 3 feet by 6 feet by 7 feet (3 x 6 x 7). During the first two weeks of his detention, he was brutally tortured and subjected to cruel interrogations and during the remaining period of his detention he was subjected to psychological torture and inhumane and deplorable conditions of confinement. 5. The entire experience has had a profound emotional and psychological impact on Mr. Arar. He suffers serious physical and emotional sequellae as a result of the torture and detention. It has affected his family life and the emotional well being of his wife, children and extended family. He has found it impossible to obtain employment. This in conjunction with the year he spent in detention when he was unable to work has significantly altered his family’s economic well being. 6. While this inquiry raises issues of national and international importance we would urge the Commissioner to not lose sight of the fact that this inquiry is first and foremost about a man, husband and father who was subjected to horrific experiences. Before his −3− detention in the US, Mr. Arar was unaware that he was the subject of any investigation. He has never even been charged with, let alone convicted of, any criminal offence. Although it will be for the Commissioner to determine the degree of responsibility of Canadian officials in Mr. Arar’s detention and deportation, there is no doubt that, had it not been for his causal meeting with Abdullah Almalki on October 12, 2001 and the subsequent decision of the RCMP to commence an investigation into Mr. Arar and to share information about him with US authorities, Mr. Arar would never have been deported to the Syria and subjected to the horrible treatment that he endured there. 7. However, the issues involved in this case transcend what happened to Mr. Arar. From his very first public statement he has maintained that he will never rest until he had done everything in his power to determine which officials were responsible for his treatment and to ensure that this never happens to anyone else. The national and, indeed, international attention that his case has received is testimony to the importance of this case. 8. The difficulty that Mr. Arar’s counsel have in presenting these submissions emanate, first, from the terms of reference. The terms of reference require the Commissioner to only look at the role of Canadian officials in relation to Mr. Arar’s detention in the United States, his deportation to Syria via Jordan, his imprisonment and treatment in Syria and his return to Canada. However, paragraph I-(v) permits the Commissioner to investigate and report on the actions of Canadian officials in respect of "any of the circumstance directly related to Mr. Arar that the Commissioner considers relevant to fulfilling his mandate." While it is −4− conceded that the terms of reference do not expressly invite the Commission to examine the actions of Canadian officials after Mr. Arar returned to Canada, it is submitted that these actions, particular in regard to the leaks of information to the Media, are matters that the Commissioner ought to inquire into and report on. The numerous leaks in this case show that some institutions of government, particularly the RCMP and perhaps CSIS were engaged in active efforts to discredit Maher Arar, turn the public mind against him by allegations of involvement in terrorist activities, undermine the public discussion as to the benefits of a public inquiry and ultimately deflect criticism that might be levelled at them. This conduct, on the part of some public officials, is evidence of both a clear disregard for their legal obligations under the Security of Information Act and a willingness to cause further significant psychological harm to Mr. Arar. In this context, the pattern of leaks is highly relevant in assessing the overall actions of Canadian officials and should clearly come within the Commissioner's mandate under paragraph I-(v) of the terms of reference. Terms of Reference, para. I-(v) 9. Mr. Arar has yet to testify. The Commission owes Mr. Arar a duty of procedural fairness which in this case includes the obligation to provide him with as much disclosure of information relevant to his proposed testimony as possible. This duty arises because "his reputation and interests could be significantly affected positively or otherwise by the evidence called at the public hearings and possibly" the Commissioner's report. Whether this duty can ever be discharged with respect to Mr. Arar will have to await the release of the Commissioner's Interim Report. Technically the decision as to whether and when Mr. Arar will testify has been deferred by the Commissioner. However, the decision to defer his −5− testimony because of the inability to provide procedural fairness to Mr. Arar, does have an impact on the findings that can be made in the Interim Report. For example, Mr. Leo Martel, the Canadian Consul who visited Mr. Arar in Damascus, has made certain statements about when and what Mr. Arar said during consular visits, particularly the visit of August 14, 2003, and after his release from Syria when they travelled together back to Canada. It is submitted that one of the consequences of having ruled that Mr. Arar could not yet be called upon to testify is that no finding of fact can be made about whether Mr. Arar said or did not say that he was tortured or beaten during the early part of his detention in Syria during the August 14, 2003 consular visit. Until the Commissioner has heard Mr. Arar in respect of the discussions he had with Mr. Martel on August 14, 2003 and thereafter on the journey back to Canada, it would be unfair to Mr. Arar to make any finding accepting Mr. Martel's version of the conversations. Ruling on Process and Procedural Issues, May 9, 2005 10. The Commissioner did rule, however, that the treatment Mr. Arar received in Syria and Jordan ought to be matters that he receives information about from Mr. Arar. In order to accommodate the concerns of procedural fairness and in recognition of the fact that this inquiry was called because of Mr. Arar's allegations of mistreatment and the shock Canadians felt, the Commissioner ruled that he would appoint a fact finder to report to the Commissioner about his treatment in Jordan and Syria. Unfortunately, the report of the fact finder will not be presented to the Commission and made available to Mr. Arar and his counsel prior to the date that these submissions must be filed. However, in light of the testimony of Leo Martel, the Consular official who saw Mr. Arar, and who stated that he −6− accepted Mr. Arar's description of his treatment in Syria as truthful, we are preparing these submissions on the stated assumption that while Mr. Arar was detained in Syria, he was a victim of abuse and torture during the first two weeks of his detention. His treatment by Syrian officials conforms to a pattern of treatment of other detainees that has been publicly documented. As a result, our submissions will proceed on the factual foundation that this misconduct occurred. As well, our submissions will assume as a fact that Mr. Arar faced conditions of confinement that were inhumane, degrading and which inflicted psychological torture upon him for the vast majority of time he was held by the Syrians. Ruling on Process and Procedural Issues, May 9, 2005, p.