Dear Readers,
Paul Champ is the Ottawa-based lawyer representing Abousfian Abdelrazik in his legal case for damages arising from his claims that his charter rights were violated by the Crown and the then-Minister of Foreign Affairs, Lawrence Cannon. The case is finally coming to trial next month, having been instigated 15 years ago.
Mr. Champ is a well-known lawyer who specializes in civil liberties and human rights cases. He studied law at UBC and McGill University and also obtained a journalism degree from Carleton. He started his legal career with the Saskatchewan Department of Justice as a prosecutor, and later worked on labour law cases in Ottawa. He established his own law firm in 2009.
Paul is the lawyer representing Zexi Li in her class action lawsuit against the principals in the Freedom Convoy protests in Ottawa. That lawsuit is ongoing. https://ottawaconvoyclassaction.ca
I asked Mr. Champ if he would answer some questions about the Abdelrazik case and he kindly agreed. What follows is the verbatim transcript of our Q and A. I am grateful to Paul Champ for his willingness to take part in this exchange.
Can you remind us who Abousfian Abdelrazik is?
Mr Abdelrazik is a 62-year-old Canadian citizen who was detained without charge in Sudan for three years from 2003 to 2006. On his release in July 2006, he was told he was on a UN no-fly list and prevented from returning to his children and home in Montreal. In 2008, he was fearful of re-arrest by the Sudanese National Intelligence Security Service and entered the Canadian Embassy in Khartoum to claim safe haven and diplomatic protection.
Mr Abdelrazik lived in the Canadian Embassy for over a year until the Federal Court ruled in June 2009 that Canada had violated his Charter of Rights and Freedoms and ordered Canada to repatriate him to Montreal. He returned to Montreal in July 2009 and commenced a claim for damages later that year. That case is the one going to trial this fall. He continues to live in Montreal with his family.
2. How did you come to be Mr. Abdelrazik’s lawyer?
I was contacted in early 2008 by his lawyer at the time for advice on the UN no-fly regime and Charter rights for Canadians outside of territorial Canada. I assisted and was part of the legal team in the Federal Court who argued successfully for his repatriation.
I was in the room in July 2009 when Mr Abdelrazik was reunited with his children in Montreal. It was a moment I’ll never forget. When he later asked if I would help to bring a claim for damages for these egregious violations of his rights, I agreed. I didn’t imagine I would still be fighting this case over 15 years later.
3. What is known about Canadian counter-terrorism investigations regarding Mr. Abdelrazik between 1996 and 2003?
CSIS started looking into Mr Abdelrazik in 1996 because of his association with other individuals who were on their radar. Initially, it was a Montreal man named Fateh Kamel. Later, Mr Abdelrazik was known to associate with Adil Charkaoui and Ahmed Ressam, the man arrested in 1999 and convicted in the US for a terrorism plot and who is known as “the Millenium Bomber.”
Mr Abdelrazik also made trips abroad that CSIS viewed as suspicious. He travelled to Bosnia, Pakistan and Georgia in the late 1990s.
The RCMP conducted an investigation into Mr Abdelrazik from 2000 to 2002 based on a CSIS report about a conversation that allegedly took place in June 2000 between Mr Abdelrazik and Mr Charkaoui. CSIS alleged the conversation was potentially about an airplane hijack plot but acknowledged the recording was garbled. After a two year investigation by the RCMP , no evidence was found of any crime or plot.
CSIS continued to investigate Mr Abdelrazik as a potential threat to the security of Canada for many years, including visits by CSIS to his home in Montreal. The last visit was in February 2003 when CSIS advised him that they knew he would be travelling soon and said he would regret not co-operating with them.
After Mr Abdelrazik’s departure to Sudan in March 2003 to visit family, CSIS communicated with foreign intelligence agencies about this trip. Mr Abdelrazik was detained by Sudanese intelligence in September 2003 before he could return to Canada. CSIS was informed of his arrest within hours and sent a list of questions that they wanted the Sudanese intelligence to put to him. In October 2003, CSIS sent two officers to interrogate Mr. Abdelrazik while in the custody of Sudanese intelligence.
In November 2007, CSIS (and RCMP) confirmed that they had no current information that suggested Mr Abdelrazik was a threat. Mr Abdelrazik has never been charged with a crime in any country and has always maintained his innocence. As a father and citizen, he views terrorism as abhorrent.
4. What is known about Mr. Abdelrazik’s detention in Sudan between September 2003 and his eventual return to Canada in 2009?
Mr Abdelrazik was arrested in September 2003 by Sudanese intelligence. He was detained for almost three years, spending time in some of Sudan’s most notorious prisons. He was never charged with any crime and never saw a judge. For prolonged periods, he was denied access to any kind of visits or access to legal counsel. He was tortured in three different prisons.
Mr Abdelrazik was interrogated by Sudanese intelligence about his activities and associations in Canada. CSIS officers travelled to Khartoum and interrogated him in Sudanese custody. At times when the Sudanese considered releasing Mr Abdelrazik, CSIS would return to Khartoum and speak to Sudanese intelligence and his detention would continue.
Sudanese officials repeatedly told Canadian diplomats that Mr Abdelrazik was detained at the request of CSIS and that they viewed him as an innocent man. This included Sudanese intelligence, Sudan’s State Attorney, and Sudan’s Ambassador to Canada. CSIS has maintained that they did not request Mr Abdelrazik’s detention.
Once Mr Abdelrazik was released unconditionally by the Sudanese in July 2006, he remained trapped in that country because he had been placed on the United Nations 1267 “no fly” list. Canadian officials told him they could not give him an emergency passport unless he could provide a paid itinerary from an airline willing to carry him.
Mr Abdelrazik continued his efforts to return to Canada, regularly visiting the Canadian embassy in Khartoum, speaking to human rights groups and eventually giving an interview to the Globe and Mail. After his interview with the Globe, the Sudanese intelligence threatened him with re-arrest. Fearful of being detained again, he entered the Canadian embassy in April 2008, claiming safe haven and diplomaticprotection. Canadian diplomats assessed that he was at risk of detention and torture, so he was allowed to stay and live in the embassy. He remained there until June 2009 when the Federal Court ruled that Canada had violated his rights and ordered Canada to repatriate him. (1) He returned to Montreal and was finally reunited with his children in July 2009, nearly six years after he left.
5. Can you explain the significance and workings of the UN 1267 list and its impact on Mr. Abdelrazik?
The United Nations Security Council adopted Resolution 1267 in 1999. The resolution authorized the Security Council to create a list of individuals who are alleged to be associated with the Taliban, Osama Bin Laden or Al Qaida. Under the 1267 regime, States are required to restrict the liberties of listed individuals, including freezing any funds, resources or assets owned by an individual and prohibiting listed individuals from travelling internationally.
Individuals are not given any notice that they are being placed on the list and have no right to make representations. At the time, individuals were also given no reasons for the listing and there was no independent review or appeal mechanism to challenge one’s listing. In order to be removed from the list, an individual must petition the Security Council’s “1267 Committee” and make arguments guessing why they were listed. When Mr Abdelrazik was on the list, an individual could only be removed if all members agreed. In other words, any State could veto the individual’s removal.
For Mr Abdelrazik, being placed on the 1267 List meant that Canada would not give him a passport and most airlines would not give him a seat to travel internationally. The List does have an exemption for international travel to a person’s country of citizenship, but Canada maintained that this only applied to contiguous states. (It has been confirmed that the US originally placed him on the 1267 list.)
In March 2009, Etihad Airlines agreed to give Mr Abdelrazik a plane ticket on the basis of the exemption for travel to the country of one’s citizenship ‒ in this case, Canada.
Despite repeated promises from Canada that he would be given an emergency passport if he obtained a paid itinerary, then Minister of Foreign Affairs Lawrence Cannon denied Mr Abdelrazik an emergency travel document which resulted in Mr Abdelrazik being unable to board the plane and continuing his stay in the Canadian Embassy. (The Federal Court accepted in June 2009 that Mr Abdelrazik could travel to Canada despite being on the list, and he was able to return to Canada by commercial airlines in July 2009.)
Mr Abdelrazik’s March 2009 plane ticket was paid for by donations from Canadians across the country. Under the 1267 regime, as implemented in Canada by the United Nations Al-Qaida and Taliban Regulations, it was an offence to give Mr Abdelrazik funds for any purpose. Arguably, these brave Canadians risked being charged and facing imprisonment under the United Nations Act for donating these funds.
Once Mr Abdelrazik returned to Canada, he remained on the 1267 List, which meant it was an offence for anyone to give him money, whether as a gift, donations, or wages for work performed. He also could not open a bank account. Canada did secure an exemption from the UN 1267 Committee for Mr Abdelrazik to receive a subsistence amount of money from the pension of his previous wife who died from cancer.
In September 2011, the UN 1267 Committee removed Mr Abdelrazik from the list.
6. The Federal court determined in June 2009 that Mr. Abdelrazik’s charter rights had been infringed. What was the significance of this ruling?
Abdelrazik v. Canada (Minister of Foreign Affairs), 2009 FC 580 was a significant ruling in many ways. Aside from paving the way for his return to Canada after six years, it established a precedent for the meaning of section 6 of the Charter of Rights and Freedoms, being the constitutional right to enter, remain in or leave Canada. The Federal Court ruled that Canada had a positive duty to provide a travel document to Canadian citizens abroad, allowing them to return to Canada. This did not guarantee a right to a passport, but the Court ruled that only exceptional circumstances could justify denying a Canadian an emergency travel document to return to Canada.
This judgment was cited by the Supreme Court of Canada in Divito v. Canada (PublicSafety and Emergency Preparedness), 2013 SCC 47, the leading case on s. 6 of the Charter. Abdelrazik has also had in impact on international jurisprudence, being cited favourably in the UK Supreme Court (2) , the European Court of Human Rights, (3) and many UN human rights bodies.
7. What is the nature of the current case before the Federal Court? Why has it taken so long to come to trial? Why is Lawrence Cannon, a former Conservative Minister of Foreign Affairs, a defendant in the action brought by Mr. Abdelrazik?
The current case is a claim for damages against the Crown and Mr Cannon for the breach of Mr Abdelrazik’s Charter rights. The claim alleges that Canada was directly or indirectly responsible for Mr Abdelrazik’s arbitrary detention in Sudan, which included prolonged periods of solitary confinement and torture. Canada also violated his rights to return to Canada by sharing information with the United States which led in part to him being placed on the 1267 List and by refusing to provide him with an emergency passport.
Mr Cannon is being sued personally because he deliberately violated Mr Abdelrazik’s right to an emergency passport in April 2008, despite knowing Mr Abdelrazik had been promised the passport repeatedly if he received a paid itinerary. Canadian officials from different departments all advised Mr Cannon that he had to issue Mr Abdelrazik the emergency passport, but he nevertheless decided against it. (Before making that decision, Mr Cannon asked Citizenship and Immigration to review Mr Abdelrazik’s refugee and citizenship files from many years previous to see if there were grounds to revoke his citizenship. The Department reported back that there were no signs of misrepresentation or other grounds to revoke Mr Abdelrazik’s citizenship.)
8. The Crown is arguing that parts of the trial should be held in camera. What is the nature of their argument?
The Crown argues that Canadian security officials may inadvertently mention highly classified information in open court during cross examination. The Crown argues that, even if these witnesses are prepared, they could make a mistake and information would be made public. The Crown wants the security officials to testify in camera, with transcripts being released to the public only after they have been vetted. This is the same procedure that was approved by the court in the R. v Ortis criminal trial.
9. What witnesses do you expect to appear at the trial?
In addition to Mr Abdelrazik and one of his daughters, the Court will hear from Canadian officials from CSIS, RCMP, Foreign Affairs, Privy Council, Transport Canada and Passport Canada. This will include retired CSIS Director David Vigneault, retired National Security Advisor Margaret Bloodworth, and former Foreign Affairs Deputy Minister and current Senator Peter Harder. There will also be former politicians, including Maxime Bernier, Lawrence Cannon and Senator Mobina Jaffer.
The parties are also calling a number of experts.
10. Why is this case significant?
Mr Abdelrazik’s case alleges the most serious and extreme violations of rights and freedoms perpetrated by the Canadian government against a citizen to ever go to trial.
Mr Abdelrazik was the victim of a series of gross injustices attributable directly or indirectly to Canadian state actors, including arbitrary and illegal detention, prolonged solitary confinement, torture, and forced exile and separation from his home and young children. These breaches of Mr Abdelrazik’s fundamental human rights were flagrant, extreme and continuous over a period of six years. He is demanding $27-million in damages, which would be the highest award of damages ever ordered for the violation of the rights of an individual. (4)
Wrongful imprisonment has long been regarded in Canada as the most serious harm that the state can perpetrate on a citizen. But Mr Abdelrazik’s case is not simply about wrongful imprisonment. It involves complicity in serious violations of fundamental human rights, including the right to be free from torture and prolongedarbitrary detention. His case falls within an unfortunate new category in Canada: terrorism suspects becoming victims of illegal detention and torture abroad with thedirect or indirect complicity of Canadian state actors. These exceptional cases are widely known: Arar, Khadr, Almalki, El-Maati, and Nurredin.
Mr Abdelrazik’s case will be the first one to go to trial.
Notes:
Abdelrazik v. Canada (Minister of Foreign Affairs), 2009 FC 5804
2 . HM Treasury v Ahmed, [2010] UKSC 2
Nada v Switzerland, Case no 15093/08, (September 12, 2012)5
There are many famous settlements, but the highest award by a Canadian court is $8-million to Ivan Henry, who was wrongfully imprisoned for 27 years due to the violation of his Charter rights: Henry v. British Columbia, 2016 BCSC 1038. (The Court would have awarded more damages to Henry, but discounted it because he was a known recidivist who was likely to have ended up in prison anyway.)
What a twisted tale this is – one which may, once again, illuminate the difference between what minions in government believe or suspect to be true, and what they can actually prove to be true.
Or put differently: the difference between (a) the “cautionary principle”, that is applied in the exercise of a governmental discretions, where things are uncertain and (b) the more formal legal standards that are imposed on decision makers, when they are empowered to determine, or to curtail, actual “legal rights”. A standard that distinguishes suspicion from fact and evidence.
.
Especially in respect of “Charter Rights”, which cannot be easily suspended by legislative fiat; and certainly not “quietly”.
That said, I suspect that there is a good chance that the public will not hear very much about how all of these events unfolded; moreover, the more the proceeding is required to be “open”, the more pressure there will be on the government to quietly settle the case.
Just like in the “Admiral’s case”, where probing into what was “really going on”, eventually prompted the Crown to fold its tent.
Or the hue and cry over Senator Duffy – Fraud! Deceit! and Bribery! – that all came to nothing, there consuming 58 hearing days and producing a Court decision of over 500 pages.
Nevertheless (and of course knowing absolutely nothing at all about the details of the case), it still seems to me that the government may quietly settle the matter.
After all, its only public money.
And burying embarrassment and avoiding “bad precedents” are both good reasons for doing so.
Especially if errors in judgement can be partially ascribed to a former government or to civil servants long departed.
Be that as it may, thanks again for this peak into the twilight world that is otherwise only accessible through spy fiction.
Thanks for the info Mr. Champs but I sincerely hope you lose the case.