B.C. Civil Liberties Association

Proposed Terms of Reference for a
Public Inquiry into Canadian Officials’ Activities respecting

the Imprisonment and Torture of Maher Arar

(Revised draft -- December 16, 2003)

  1. A public inquiry, headed by a Commissioner, shall be held to inquire into the activities of Canadian government officials, including law enforcement, security intelligence, military, and foreign affairs officials, in relation to (a) the detention and imprisonment of Maher Arar in the United States in September 2002 for alleged involvement in terrorist activities or planning, (b) his subsequent deportation to Syria via Jordan, (c) his imprisonment and torture in Syria, (d) his release and return to Canada in October 2003, and (e) public allegations that were made during his detention and imprisonment and after his return to Canada that he was or is involved in terrorist activities or plans.

  2. In conducting the inquiry into the events in question, the Commissioner shall be empowered to ask any questions which he or she may consider as necessarily incidental or ancillary to a complete understanding of these events.

  3. For the purposes of providing fair notice to those individuals who may be required to attend and give evidence, without infringing on the Commissioner’s discretion in conducting the inquiry in accordance with the terms of reference stated herein, the inquiry shall determine:


    i)     what information about Mr. Arar was shared with the United States and Syria, including information or advice about the nature and level of terrorist threat that    he posed;

    ii) the nature and extent of involvement, if any, of Canadian officials in assisting Mr. Arar’s detention in the United States and his subsequent deportation to Syria via    Jordan;

    iii)     whether Canadian officials acted appropriately at all times to ensure the due process and other rights of Mr. Arar were safeguarded while he was in custody in the United States and thereafter;

    iv)     why Canadian officials were not able to secure Mr. Arar’s release to Canada from the United States;

    v)      the nature and extent of activities of Canadian officials, if any, in assisting or contributing to Mr. Arar’s interrogation and mistreatment by Syrian officials;

    vi)     the involvement, if any, of Canadian officials in public disclosure of allegations of Mr. Arar’s involvement in terrorist activities or planning;

    vii)      the nature and extent, if any, of Mr. Arar’s involvement in terrorist activities or planning;

    viii)     whether Canadian officials received information from the Syrian government that had been obtained by the Syrian government from Mr. Arar while he was subjected to torture and if such information was received the extent to which it has been relied upon by Canadian officials; and

    ix)     whether Canadian officials provided this information to the media in Canada.
  1.  The Commissioner shall perform his or her duties without expressing any conclusion or recommendation regarding the civil or criminal liability of any person or organization. The Commissioner, in the conduct of the inquiry, shall ensure that it does not interfere with any ongoing criminal investigation or criminal proceedings, if any, relating to these matters.

  2. The Commissioner shall complete his or her work in two phases, as described below.
    (a)  During the first phase, the Commissioner will inquire into and make findings, conclusions and recommendations respecting the events involving Mr. Arar,  as described above. It is anticipated that the first phase will commence forthwith and that the Commissioner will present his or her report within six months  of  the commencement of the first phase.

    (b)     During the second phase, the Commissioner will inquire into the broader issues of public policy that arise in connection with national security investigations      and shall hear from the public and experts as to how to achieve an appropriate balance between the interests in conducting such investigations and the need to protect individuals against grave violations of their rights. The Commissioner shall make such recommendations, including proposals for legislative reform, as he or she deems appropriate as a result of the second phase of the inquiry, including recommendations regarding  the following:

    i)     the handling by Canadian officials of security-intelligence information respecting Canadian citizens;

    ii)      the provision of such information to other states;

    iii)     the diplomatic and other measures that should be taken to ensure that the rights of Canadian citizens are protected while they are in custody in foreign countries; and

    iv)     any internal mechanisms of accountability that should be adopted to ensure that Canadian officials act appropriately in their investigations in Canada and that the rights of Canadian citizens who are detained or imprisoned in foreign countries are respected.

  3. The inquiry shall hear public submissions from interested parties, including public interest groups.

 

Remarks on Process

We recognize that due to the sensitive nature of some of the evidence that may need to be disclosed to the inquiry, it may be appropriate to hold some of the inquiry’s hearings in camera. However, the presumption should always be that the inquiry’s investigations will be held publicly. This presumption can only be overturned on the basis of compelling arguments that it is not in the public interest, due to national security concerns or concern about the safety of individuals, to hear certain evidence in public.

We also recognize that the inquiry will have no power to subpoena U.S. consular staff or witnesses who are not living in Canada.