Finding the Truth Beneath the Secrets: A 12-Year Retrospective on the Maher Arar Affair —

On September 26, 2002, a Canadian, Maher Arar, was returning home to Canada from a trip abroad when he was apprehended by American authorities during a layover in the United States. The American officials deported him to Syria and handed him over to the Syrian authorities on suspicions that Arar was Al Qaeda-affiliated. True to its notorious human rights record, the Syrian government subjected Arar to harsh interrogation and torture for almost a year. On October 5, 2003, Arar was finally released and allowed to return home to Canada. He was never charged with any crimes by the United States or Syria.

The Canadian Government’s Role in the Arar Affair

In 2004, the Canadian government established the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar. The Inquiry revealed that Arar’s arrest, deportation, and torture would not have occurred if not for the improper actions of the RCMP and CSIS.

The 2006 report from the Commission of Inquiry (the “Report”) found that CSIS and the RCMP had provided false and improperly vetted information about Arar – including unfounded allegations that he had ties to Islamist extremists – to the American authorities and failed to take adequate action to prevent Arar’s deportation to Syria or to repatriate him. The Report also identified two other Canadians, Abdullah Almaki and Ahmad Abou-Elmaati, who were similarly deported, imprisoned, and tortured in Syria during the same time period, again due to faulty information sharing by CSIS and the RCMP. These three stories are most likely only the tip of the iceberg. In all likelihood, there are many other victims of the so-called War on Terror that was instituted in the aftermath of 9/11. Racial profiling and Islamophobia doubtlessly played an important role in the Canadian government’s mistreatment of these individuals.

The mere fact that the Canadian government was not directly responsible for the human rights abuses perpetrated against Arar, Almaki, and Abou-Elmaati does not necessarily exonerate it. According to the Supreme Court in Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, if:

1. Canada’s participation is a necessary precondition for a human rights abuse, and
2. the human rights abuse is an entirely foreseeable consequence of Canada’s participation,

then Canada can be held responsible for a breach of a person’s constitutional right to life, liberty, and security of the person – even if the breach is carried out by a foreign entity.

National Security and Intelligence Review Agency

One of the major recommendations coming out of the Report was to establish a “new review mechanism” for the national security activities of the RCMP with the power to investigate and report on complaints as well as to conduct self-initiated reviews to ensure that the RCMP’s national security activities comply with domestic and international law. According to the Report, this mechanism should be allowed to “obtain all of the information and evidence necessary to conduct thorough and complete reviews and complaint investigations”, including the power to “subpoena documents and compel testimony from any federal, provincial, municipal, or private sector person or entity.”

Based on this recommendation, Parliament enacted the National Security and Intelligence Review Agency Act, which established the National Security and Intelligence Review Agency (“NSIRA”) whose powerful mandate is to review and investigate all of the Canadian government’s national security and intelligence activities to ensure that they are “lawful, reasonable, and necessary”. The agencies that are subject to the NSIRA’s oversight include the RCMP, CSIS, and the Communications Security Establishment.

The NSIRA is a one-of-a-kind arms-length organization with powers to access national security and privileged information that would have never seen the light of day due to its confidential and sensitive nature. To ensure that the NSIRA can be entrusted with such information, each member of the NSIRA must maintain a Top Secret security clearance and swear an oath of confidentiality. The NSIRA is chaired by former Supreme Court justice Marie Deschamps and its investigators are distinguished experts in national security policy and law from various backgrounds.

While the NSIRA does not have the power to make orders that are binding upon the agencies it investigates and reviews, it serves an indispensable public role in uncovering the truth and, in doing so, achieving a measure of accountability for victims of government wrongdoing. No other entity has the NSIRA’s authority to, on its own initiative, access such a broad array of classified documents to critically evaluate the decisions of the Canadian national security apparatus made under its usual cloak of secrecy.

The Need for Accountability

National security investigations and operations and international diplomacy are obviously sensitive matters that require a high degree of confidentiality. Further, no agency can be held to a standard of perfection, as many of their investigatory and operational decisions are complex and made under time and informational constraints. That said, in a democracy, confidentiality should not preclude the state from being held to account for grossly incompetent, discriminatory, abusive, or bad faith conduct.

By granting national security agencies highly intrusive – and potentially deadly – powers to carry out their mandates, the Canadian public has already invested a lot of implicit trust into these organizations. Sometimes this trust is breached, as can be seen in the cases of Arar, Almaki, and Elmaati who have since received official apologies and compensation from the Canadian government. We need meaningful avenues to seek accountability, including NSIRA investigations and reviews, and it is important that these avenues not be thwarted by bureaucracy and delay. More than this, we need a culture of accountability and transparency: our national security agencies should want to learn from past mistakes and do better.

Arar, Almaki, and Elmaati have lost years of their lives, including some of their children’s formative years, and suffered deep physical and psychological trauma as a direct result of the failures of Canada’s national security apparatus. As Canadians, we need assurances that our government institutions are acting above reproach and not harming the very people they are purporting to protect.