Chief counsel at Arar inquiry wants new model for deportations

OTTAWA -- The government and its intelligence officers can't be trusted to always get it right when they claim somebody is a national-security risk, the chief counsel at the Arar inquiry said yesterday, proposing a system for independent lawyers to vigorously challenge evidence at secret deportation hearings. Paul Cavalluzzo, who has been grilling RCMP and CSIS witnesses in both public and secret hearings in the case of Ottawa software engineer Maher Arar, said the procedures adopted by the inquiry could serve as a model for the way courts deal with attempts by the government to deport individuals as security threats. Current deportation proceedings -- secret court hearings closed to the individuals and their lawyers -- do not adequately protect the rights of people who can be kicked out of the country on flimsy evidence, Mr. Cavalluzzo told a news conference.Mr. Cavalluzzo's remarks were made as the government was scrambling to cobble together a response to an embarrassing new disclosure about an attempt by the Canadian Security Intelligence Service to "purposefully mislead" its oversight body, the Security Intelligence Review Committee. The committee found CSIS officers hyped their evidence and then destroyed their notes in a security-clearance investigation of newly appointed diplomat Bhupinder Liddar.

Mr. Liddar lost his appointment. But there could be far more serious consequences for someone who is deported to a hostile country on the basis of inaccurate or misleading intelligence. An individual's very liberty is at risk, Mr. Cavalluzzo said.

The Supreme Court of Canada recently agreed to review the constitutionality of the current law in the case of Adil Charkaoui, an immigrant from Morocco who has been ordered deported on the basis of evidence he cannot see because the government claims its disclosure would hurt national security.

Mr. Charkaoui, a Montreal resident, is one of five Muslim men currently facing deportation under the same legal provisions, known as security certificates.

Mr. Cavalluzzo said that as a lawyer he is disturbed by the inherent unfairness of a system in which a person is not allowed to see the evidence she or he is facing and does not have an advocate in a position to challenge the government's case.

The commission of inquiry, under Mr. Justice Dennis O'Connor, deals with this by having an independent commission counsel who sees all of the documentation, including top-secret records, hears all of the testimony and can question all of the government's witnesses.

The inquiry, which hopes to issue its report by the end of March, was set up by Prime Minister Paul Martin to determine what role CSIS, the RCMP, the Department of Foreign Affairs and other federal bodies may have played in Mr. Arar's deportation to Syria. He was arrested in New York in 2002 and deported to the Middle East where he says he was tortured until he made a false "confession" about alleged involvement in terrorism.

Mr. Cavalluzzo said the commission recognizes there are some legitimate national-security concerns raised by the government, such as wanting to protect the identity of sources.

But lawyers can be cleared to see this kind of information so that they can argue fully the case for people facing deportation even in a closed hearing, he said.

It's the kind of basic advocacy work that is so fundamental to the justice system that the law societies in each of the provinces would have no trouble getting panels of lawyers to volunteer to take on these duties, he added.

Mr. Arar has not testified at the commission of inquiry because there is still considerable evidence that neither he nor his lawyers have been allowed to see because of national-security concerns. Judge O'Connor has said it would be unfair to Mr. Arar to have him testify, and be subject to cross-examination by government lawyers, in such circumstances.

But Mr. Arar might still testify after the publication of the commission's interim report.

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