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Arar Inquiry

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BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION APPLICATION FOR STANDING AND FUNDING

Memorandum of Argument

1. The British Columbia Civil Liberties Association (“BCCLA”) has a substantial and direct interest in the subject matter of these proceedings and respectfully requests full standing at both the factual and policy stages of the hearing and, as well, seeks funding in accordance with Treasury Board Guidelines to pay the legal fees and disbursements of its counsel.

2. It is essential that this Inquiry be full and complete. The importance of this Inquiry to all Canadians can not be overstated. While focus of the Inquiry will be on the actions of Canadian officials in relation to Maher Arar such an inquiry, by its very nature, requires an examination of not only what happened but, perhaps even more importantly, why. This in turn will require an examination of whether there exist systemic or other reasons that if left uncorrected may result in other Canadians being treated in a manner similar to that of Mr Arar. Indeed in the process of this Inquiry there may be revealed other instances of past injustices to Canadians in the name of national security. The Policy Review Stage of this Inquiry underlies the fact that its purpose is not only investigative but preventative as well. As Canada’s oldest active and, we submit, foremost civil liberties association, the BCCLA has a direct and substantial interest in every aspect of this Inquiry.

3. We respectfully submit that the rules governing standing ought to be interpreted liberally so as to ensure that the Commissioner is able to hear and consider all relevant information and as many different perspectives as possible. The perspective that the BCCLA brings to this Inquiry will be one of its guiding principles, namely that restrictions on fundamental rights and freedoms – even in the name of national security – can only be justified to the extent that they are necessary ultimately for the sake of those very same rights and freedoms.

Some Relevant Jurisprudence

Public Inquiries

4. In his Ruling on Standing and Funding in the Walkerton Inquiry (Appendix E (II)), Commissioner O’Connor said:

My first criterion has been to ensure the Inquiry is thorough. When in doubt, I have opted in favour of inclusion. In doing so, I recognize there will be overlapping positions and a potential for duplication.

Ontario, Parliamentary Inquiry, Report of the Walkerton Inquiry, Ontario: Queen’s Printer, 2002)

5. The Kaufman Commission on Proceedings Involving Guy Paul Morin, was charged with inquiring

… into the Aconduct of the investigation into the death of Christine Jessop, the conduct of the Centre of Forensic Sciences in relation to the maintenance, security and preservation of forensic evidence, and into the criminal proceedings involving the charge that Guy Paul Morin murdered Christine Jessop. The Commission shall report its findings, and make such recommendations as it considers advisable relating to the administration of criminal justice in the province.

The Commissioner considered that the mandate of the Commission was threefold: investigative, advisory and educational. To assist with this mandate, he granted standing to organizations such as the Association in Defence of the Wrongly Convicted, the Criminal Lawyers Association, the Ontario Crown Attorneys’ Association, the Canadian Bar Association, the Law Union, and various police associations. These organizations were granted standing because of their substantial and direct interest in the systemic component of the subject matter of the inquiry.

Ontario, Parliamentary Inquiry, Report of the Kaufman Commission on Proceedings Involving Guy Paul Morin (Ontario: Queens Printer, 1998).

6. Similarly, Commissioner Cory granted standing to the Association in Defence of the Wrongly Convicted and other organizations in the Inquiry Regarding Thomas Sophonow.

Manitoba, Parliamentary Inquiry, Inquiry Regarding Thomas Sophonow (Manitoba: Queens Printer, 2001)

Coroners Inquests

7. Some of the jurisprudence dealing with standing in coroners inquests is helpful in interpreting “substantial and direct interest in the subject matter”. In Faber v. R., [1976] 2 S.C.R. 9 de Grandpre J described the function of a coroners inquest as follows:

At the present time the coroner’s inquest may be taken to have at least the following functions, apart from the investigation of crime:

(a) Identification of the exact circumstances surrounding a death serves to check public imagination, and prevents it from becoming irresponsible;

(b) Examination of the specific circumstances of a death and regular analysis of a number of cases enables the community to be aware of the factors which put human life at risk in given circumstances;

(c) the care taken by the authorities to inquire into the circumstances, every time a death is not clearly natural or accidental, reassures the public and makes it aware that the government is acting to ensure that the guarantees relating to human life are duly respected

8. The Ontario Coroners Act, R.S.O. 1990, c. C.37, states that a person who applies shall be designated as having standing before an inquest if the person “is substantially and directly interested in the inquest.” In Re Black Action Defence Committee and Huxter, Coroner, [1992] O.J. No. 2741, the Ontario Divisional Court overturned the decision of the coroner to deny standing to the Urban Alliance on Race Relations for Metropolitan Toronto. The court held that a coroner must have regard to the preventative role of an inquest and its role in allaying public concerns. The Alliance had a “unique expertise” in cross-cultural sensitivity as it relates to mental health issues and had the clear confidence of many visible minority groups including the black community.

9. In Re Pham, [2004] A.J. No. 245, the Alberta Provincial Court considered an application by the CBC for standing at a public fatality inquiry. The wording of the relevant legislation was very different. Nonetheless, the court canvassed much of the case law relating to standing, including cases requiring that a person be “substantially and directly interested” and concluded that

It is obvious from the cases that at Coroner’s inquests in the province of Ontario, the trend is towards granting standing to individuals or groups who may, by virtue of their expertise or their larger public interest be able to contribute to the preventative function of a fatality inquiry.

Notwithstanding the obvious difference in wording between the relevant sections, i.e. a person “substantially and directly interested in the inquest” (Ontario) and “an interested person” (Alberta), the cases are applicable to the present application for standing. The cases demonstrate a continuing commitment to the principle that fatality inquiries must remain public. As well, the cases also demonstrate that the preventative function of a fatality inquiry is now becoming as important as the investigative function. Standing is becoming more inclusive. Disparate groups with no obvious connection to the event are being given standing on the basis of a public interest and/or an expertise in areas that in some instances are peripheral to the matter under inquiry….

Application of the Substantial and Direct Interest Test to this Inquiry

10. The Factual Inquiry must be taken to include investigative, preventative and public confidence components. The subject matter of the Inquiry is not merely to find out what happened. It is to find out why it happened with a view to preventing future incidents and reassuring the public that the fundamental rights and freedoms of Canadian citizens are being respected and protected.

11. The BCCLA’s longstanding concern, involvement and influence in national security, intelligence and policing issues in Canada and its acknowledged expertise in these areas means it has a direct and substantial interest in the rights of not only one citizen such as Maher Arar, but all or any citizens whose rights and freedoms are similarly at risk. Indeed the BCCLA’s specific and persistent call for this very inquiry with terms of reference that match very closely with what has ultimately been ordered demonstrates that it cares deeply, not only about Mr. Arar, but about ensuring that such a tragedy never happens again to any Canadian citizen or permanent resident.

12. In this respect, the BCCLA represents the civil liberty interests of all Canadians. It has a unique interest in ensuring that Canadian legislation, institutions, policies and practices are designed to protect those civil liberties and to prevent failures such as those that would appear to have occurred in this case. This interest is broader than that of any one individual or of any specific constituent group. Yet it is different from and perhaps narrower than the broad and somewhat amorphous “public interest” that is the responsibility of the Commission.

13. The BCCLA also has a substantial and direct interest in the Factual Inquiry in that information resulting from this Inquiry will be directly relevant to the work that the BCCLA does in assisting individuals with complaints about CSIS, the RCMP, and other security-intelligence agencies.

14. It is impossible however to entirely separate the Factual Inquiry from policy concerns. As is apparent from the affidavit of Mr. Russell, the BCCLA plays a significant and constructive role in developing and critiquing national security, anti-terrorism, and police accountability policy in this country. They do not do this work in a vacuum. They do it in the light of the ways in which the exercise of civil liberties are actually important to Canadian citizens, and of real and threatened restrictions on such liberties. Good policy depends on an accurate and complete factual background. In these circumstances, the substantial and direct interest of the BCCLA in policy implies that they also have a substantial and direct interest in the Factual Inquiry.

15. The result of interpreting the subject matter of the Inquiry more narrowly, would be that the only person to have a substantial and direct interest would be Mr. Arar himself. Clearly this would result in a paucity of perspective that would not be in the interest of a full and complete Inquiry.

Proposals to Contribute to the Factual Inquiry

16. The BCCLA will contribute to the Factual Inquiry by assisting Commission counsel in presenting all the evidence and asking all appropriate questions to ensure that the Commissioner is able to fulfil his mandate. The role of the Commission counsel is neither to be partisan nor adversarial. The BCCLA has the right and duty to vigorously assert the civil liberty interests of all Canadians.

17. The BCCLA has significant expertise in Canada’s security agencies and the legislation under which they operate. More importantly it has a unique perspective and expertise on the ways in which the powers of those agencies may be open to abuse. The work that the BCCLA has done regarding CSIS and RCMP accountability, both with complainants directly and with oversight agencies, has given the BCCLA a great deal of information that may be useful to the Commission in its efforts to determine the facts regarding Mr. Arar.

18. The BCCLA has the confidence of the Muslim community, at least in B.C., and, in the event that the Commission allows for the accounts of other victims of abuse, the BCCLA will serve a useful role in facilitating that evidence.

19. The Rules of Procedure and Practice anticipate that parties with standing will make written submissions to the Commissioner regarding evidence to be heard in camera. The BCCLA’s expertise in this area, as described in para. 13 of Mr. Russell’s affidavit, will be an asset to the Commission. As well, the BCCLA anticipates that it will make submissions regarding the Rules for these in camera hearings and anticipates making suggestions and recommendations to enhance public confidence in the Commission.

20. The BCCLA’s guiding principle will provide an important lens through which to examine the circumstances surrounding Mr. Arar’s case. The principle that restrictions on fundamental rights and freedoms can only be justified if they are necessary ultimately for the sake of those very same rights and freedoms provides a touchstone for evaluating all of the evidence and will inform all of its submissions.

Funding

21. The BCCLA respectfully requests that it receive funding to pay the legal fees and disbursements of its counsel. Without such funding the BCCLA will not be able to participate in the Factual Inquiry (Russell Affidavit, para. 15).

22. The BCCLA seeks funding for one senior and one junior counsel.

23. The BCCLA also seeks funding for the legal fees and disbursements in preparing for and attending upon this Application.

All of which is respectfully submitted

_________________________

Joseph J. Arvay Q.C.

Counsel for the BCCLA

Victoria, B.C.

April 20, 2004

 

Application for Intervention – Affidavit

Argument