J’Accuse: The Abdelrazik trial draws to a close
Or, it took 16 years
**I am grateful to Mr. Abdelrazik’s lawyer, Paul Champ, for sharing a copy of his closing submissions with me. My narrative of the events in this case draws from Mr. Champs’ 168- page submission, though I do not take a position on the claims made in that submission. That work is best left to the Federal Court judge in the case. I do not have access to the Crown’s closing submissions. Mr. Champ has argued that the evidence at trial be placed on the public record. I hope he succeeds in that regard.
One of the most consequential criminal proceedings relating to the conduct of Canadian counter-terrorism in the post 9/11 period is drawing to a close, with final submissions from the Plaintiff, Abousfian Abdelrazik, and the Defendants, the Crown and a former Foreign Affairs Minister, Lawrence Cannon, due to be heard in court January 29-31.
Mr. Abdelrazik is a Canadian citizen of Sudanese descent. He came to Canada from Sudan in 1990, was granted refugee status, settled in Montreal, had a family, and became a Canadian citizen in 1995.
The case revolves around a six-year period, from 2003 to 2009. During that time, Mr. Abdelrazik, who had returned for a visit to Susan to see his ailing mother and take care of some family property business, was alternately detained by the Sudanese intelligence service in Sudanese prisons or lived under close supervision in the Canadian mission in Khartoum, in order to escape further imprisonment. Mr. Abdelrazik was never charged with any offense while in Sudan. He claims, with great plausibility, that he was tortured while in the hands of the Sudanese authorities.
But at the heart of his case is not his treatment by Sudan, a notorious human-rights abuser, but his treatment by Canada. Mr. Abdelrazik was only allowed to return to Canada as a result of a federal court order in 2009. For the six years of his incarceration, in one form or another, in Sudan, his lawyer, Paul Champ, argues that the Canadian authorities were responsible for his treatment, for putting obstacles in the way of his return, and for the gross deprivation of his Charter rights.
Mr. Champ alleges on his client’s behalf, four key charges:
1. That Mr. Abdelrazik’s arrest in Sudan can be attributed to CSIS
2. The Canadian authorities, including CSIS, made clear to Sudan and other foreign countries that it preferred that Mr. Abdelrazik remain detained in Sudan and not be allowed to return to Canada
3. That Mr. Abdelrazik was placed on no-fly lists and the UN’s 1267 sanctions list “in whole or in part based on information shared by Canada with foreign partners.”
4. That Canadian authorities were or should have been aware that Mr. Abdelrazik was likely to be subject to torture and mistreatment while imprisoned in Sudan
(submission p. 97)
The case bears some striking resemblances to that of Maher Arar, who was subject to a process of ‘extraordinary rendition’ to Syria by the US authorities based on wrong-headed information shared openly by the RCMP regarding Arar’s alleged status as a leading Al Qaeda operative. Mr. Arar was detained in a notorious Syrian military intelligence jail, was tortured, and was released after a period of one year thanks to high-level entreaties from Canada, including from the Prime Minister. Following his return to Canada in 2003 his story was featured in the Canadian media and ultimately led to the creation of a public inquiry regarding the role played by Canadian officials in his saga, presided over by Justice O’Connor. The Abdelrazik story has never, at least until now, had anything like the same profile.
When the Canadian head of mission in Sudan advanced the suggestion that the Abdelrazik case might hold disturbing echoes of the Arar affair, he was roundly slapped down by the then-head of the Department of Foreign Affairs (now GAC) intelligence bureau, John de Gangi ( submission, p. 60). It was clearly a touchy reference.
CSIS had long had Mr. Abdelrazik in its sights, starting in 1996 and elevating its surveillance through court warrants from 1999 until his departure for Sudan in March 2003. Why? Because of his associations with figures like Ahmed Ressam, the so-called “millennial bomber,” who was arrested in December 1999 at the Canada-US border with explosive materials in his car, destined for a bomb attack at Los Angeles International airport. Abdelrazik had also come to know another Algerian immigrant to Montreal, Fateh Kamel, who was convicted in France in 1999 of efforts to support terrorism, and the Moroccan-born Adil Charkaoui, a controversial Montreal imam who was subject to arrest under security certificate proceedings in 2003. In addition to these associations, there were questions about Mr. Abdelrazik’s international travel to conflict zones and the possibility that he might have trained at a terrorist camp in Afghanistan.
In the post-9/11 period CSIS focused additional attention on Abdelrazik. The RCMP also got involved, launching a national security criminal investigation called “Project Consequence.” It led to no charges against Mr. Abdelrazik. It appears that CSIS, for its part, while disappointed that the RCMP could not lay charges, had concluded by August 2002 that Abdelrazik was an “Islamic extremist.” They passed this assessment on to a foreign intelligence partner, likely the CIA, and kept this counterpart agency informed of plans by Abdelrazik to travel to Sudan. With that, the stage was set for Mr. Abdelrazik’s troubles in Sudan.
About six months after arriving in Sudan, Mr. Abdelrazik was lured to a Khartoum mosque and detained by members of the Sudanese National Intelligence and Security Service (NISS). The detention provided an opportunity for CSIS, which is not a foreign intelligence service, to continue its investigations into Abdelrazik from afar. A week after Abdelrazik’s detention, CSIS sent questions, mostly focused on Abdelrazik’s activities in Montreal, through an unnamed foreign agency, that it wanted the NISS to pose to its captive. A couple of weeks later they sent additional questions. CSIS then took the extraordinary step of sending two of its officers to Khartoum, where they conducted the kind of interrogation which would not have been allowed in Canada, for two nights, October 29 and 30, 2003. The interrogation took place in the presence of three Sudanese intelligence officers. These CSIS officers, apparently wholly unaware of Sudan’s human rights record or the practices of its secret service painted a rosy picture of the circumstances—just a friendly discussion in which the captive was served slices of cake and CSIS came out on top by catching out Abdelrazik in lies. Abdelrazik’s own testimony cast the interrogation in a much more sinister light, stating that the Sudanese intelligence officials present told him in Arabic that “he would be skinned like a slaughtered animal if he did not tell the truth.”
CSIS’s determinative outlook on Abdelrazik as an Islamist extremist and legitimate target for extra-judicial interrogation created a dilemma for the Department of Foreign Affairs, riven between a desire on the part of its intelligence bureau to play along with a national security investigation, and the distinct consular mission—to assist Canadian citizens in trouble abroad--held by the Department. The dilemma only heightened when Canadian diplomats were told the bombshell news by Sudanese officials that Abdelrazik was being held at the request of Canadian authorities, something that CSIS denied.
This tension would continue to play out and determine Mr. Abdelrazik’a fate for the next six years. One gambit occurred in December 2003, when yet another CSIS official made a visit to Khartoum and gave a report to the Sudanese NISS, with the hope that Sudan would lay charges against Abdelrazik. No charges were ever forthcoming. Instead the Sudanese government prepared to release Mr. Abdelrazik and DFAIT officials made plans to facilitate his return to Canada in July 2004.
It never happened. Instead, the US put the hammer down, indicating that Abdelrazik was on a no-fly list (he had been placed on it in 2002) and putting some pressure on the German government not to allow a German carrier to transport him home. The then National Security Adviser, Rob Wright, was told in a CSIS briefing note that the US government considers Abdelrazik “a serious security risk and would not wish to see him back in North America.” DFAIT, for a time, looked for a way around this roadblock, then stopped. The process of decision-making around assistance or otherwise to Abdelrazik took place in senior level inter-departmental meetings, that left few recorded notes behind and, at trial, no memories on the part of key participants.
Mr. Abdeklrazik remained stranded in Sudan for another five years. Jail and detention became a revolving door. He was released in August 2005, then re-arrested by the NISS in October 2005. That period of incarceration ended in July 2006 and Abdelrazik hoped to return then to Canada. But no, he was placed on the UN ‘1267’ counter-terrorism sanctions list which impeded his travel and livelihood. In April 2008, following an interview he gave to the Globe and Mail’s Paul Koring, he feared re-arrest and asked for asylum in the Canadian mission in Khartoum. There he stayed (Canadian diplomats reminded him that it wasn’t a hotel and kept him under close supervision) for over a year.
The final step in the Abdelrazik saga came in April 2009. By then he had managed to arrange a flight from Sudan to Canada that avoided US airspace; a plane ticket had been funded by his supporters (who flouted the UN 1267 regime). All he needed was an emergency passport, which he had been promised. He learned at the eleventh hour through his lawyer that the Minister of Foreign Affairs, Lawrence Cannon, had denied the request, apparently on the basis of a briefing he had received from CSIS (for which there are no records). Abdelrazik remained stranded until the Federal Court swung into very fast action, hearing the case and issuing a decision on June 4, 2009, based on breaches of his Charter rights, that required the government to ensure Mr. Abdelrazik return to Canada within 30 days. He returned to Montreal on June 27, 2009 and launched his lawsuit against the government and Mr. Cannon.
There are no heroes in this story, other than the Federal Court, which upheld the law back in 2009 by requiring that the government stop placing obstacles in the way of Mr. Abdelrazik’s right to return to Canada.
One of the few substantive published accounts of the affair was written by Daniel Livermore, a Foreign Affairs official who was the Director-General of the department’s intelligence bureau (from 2002 to 2007). Livermore points the finger at CSIS and the CIA, certainly plausible villains, while giving his own department a pass and failing to offer any analysis of the role or outlook of the intelligence unit which he headed for much of the time when Abdelrazik was detained in Sudan. [1]
Another source of insights was provided by the Security and Intelligence Review Committee (SIRC), which at the time was responsible for the independent review of CSIS activities. In 2013, following an unprecedented direct request from the Director of CSIS ( Dick Fadden), SIRC issued a report on the Service’s handling of the Abdelrazik affair. [2] The released version of the report is heavily redacted. But in its conclusion and findings three things stood out.
One concerned the nature of CSIS intelligence reporting on Abdelrazik. SIRC stated:
“That CSIS produced [redacted] assessments based on incorrect and exaggerated information on the target should be of concern, as should the fact that despite existing policy and senior management direction, classified information was shared [redacted].”
SIRC also found “no indication that CSIS ever directly requested or recommended to [redacted] that Abdelrazik should be detailed should he leave Canada.” The key word here is, of course, “directly.” The redacted portion clearly concerns a foreign intelligence agency. SIRC also found through its investigation that there was no indication that CSIS asked Sudanese authorities to arrest Abdelrazik.
SIRC was also critical of the failure by CSIS to work together with the Department of Foreign Affairs especially on consular matters.
But the review body was hamstrung in fully investigating the Abdelrazik affair because of the legislation that restricted its investigations to CSIS alone. SIRC was well aware that “a raft of other agencies—and governments—wrestled over his fate” but it had no mandate to pursue these threads. The demise of SIRC was predicated in part on its narrow mandate. It was replaced, in 2019, by the National Security and Intelligence Review Agency which has taken over SIRC’s job of reviewing CSIS for lawfulness, along with all other elements of the Canadian intelligence community. The struggle of SIRC to fully understand what went on in the Abdelkrazik case helped contribute to this better outcome. One small, silver lining.
The Federal Court judge in the Abdelrazik case, Patrick Gleeson, will be asked to adjudicate the competing arguments of Mr. Abdelrazik and the Crown and former Minister Cannon. Recall the four claims advanced by Mr. Abdelrazik’s lawyer about Canada’s, especially CSIS’s, complicity in his detention and mistreatment. The judge may uphold all, part, or even none of these claims. Any damages awarded to Mr. Abdelrazik will depend on how Justice Gleeson rules on these claims.
What damages are being claimed? They are record-breaking. $20 million in damages from the Crown; $3 million in damages from ex-Minister Cannon (by comparison, Arar was awarded $11.5 million in 2007).
No doubt Justice Gleeson will take his time to issue his decision. When issued it will mark the end of one of the most troubling stories of Canadian counter-terrorism in the post 9/11 period.
[1] Daniel Livermore, Detained: Islamic Fundamentalist Extremism and the War on Terror in Canada (McGill-Queen’s University Press, 2018), chapter 11 on Abdelrazik.
[2] Security Intelligence Review Committee, “The Role of CSIS in the matter of Abousfian Abdelrazik,” SIRC Study 2011-04, May 28, 2013, classified Top Secret. Released version available at: http://www.sirc-csars.gc.ca/opbapb/lsrlse/2011/2011-04-eng.pdf