If I were the lawyers for the three I would seriously consider not participating in the inquiry at all. There is no chance for them to question or even see most of the evidence that will be brought forth by the intelligence agencies. As Iacobucci notes in his rulings, he sees the inquiry as primarily inquisitorial not one where lawyers are in a combatorial role. There are no sides apparently but just the GRAND INQUISITOR Iacobucci from Torys LLP and TorStar impartially uncovering the TRUTH.
The whole of Iacobucci's decision is available in PDF format at the inquiry website.
Torture probe lawyers barred from hearings
May 31, 2007 08:12 PM
OTTAWA – Lawyers for three Canadians accused of terrorist ties will not be privy to closed-door hearings into their clients' arrest and imprisonment abroad.
The idea of giving special security clearances to counsel was rejected Thursday by former Supreme Court judge Frank Iacobucci, who has been appointed to examine the cases of Abdullah Almalki, Ahmad El Maati and Muayyed Nureddin.
The three men claim flawed intelligence from the RCMP and CSIS led to their torture in Syria and Egypt as terrorism suspects.
In a key ruling on how the inquiry will unfold, Iacobucci said he could not see how providing the lawyers with security-cleared access would be helpful to their clients or the inquiry.
He concluded that given the extraordinary sensitivity of the matters under discussion, the lawyers would effectively be forbidden from discussing anything about the hearings with the three men.
"Even something as innocuous as a request for a document or for clarification of a fact could trigger questions from colleagues and clients that might result in disclosure of information subject to national security confidentiality," Iacobucci said in his decision.
The government argued at an April hearing that nearly all future proceedings should be held behind closed doors – not just to protect national security but also to speed up the investigation.
An earlier inquiry into the case of Maher Arar, an Ottawa engineer tortured in a Syrian prison, repeatedly became bogged down in squabbling over how much information could be made public.
In his ruling Thursday, Iacobucci said he will be "continually sensitive to having public hearings when they can be held."
However, he clearly indicated most of the inquiry will be held behind closed doors, believing that to be consistent with both the original terms of reference for the probe outlined by the government and the federal Inquiries Act.
"In my view, there is nothing in the Act to prevent a public inquiry being held in part or all in private."
Jasminka Kalajdzic, a lawyer for Almalki, expressed disappointment.
"We don't believe that the terms of reference absolutely required that the bulk of the work of the inquiry be conducted in secret," she said.
"We do have concerns about the extent to which the public can have confidence in the secret process, especially when the issue is torture – one which we think all Canadians have an interest in being dealt with openly and publicly."
Kalajdzic said counsel for the men would weigh Iacobucci's ruling before deciding how to proceed: "We're discussing our options with our clients, and we'll have to make a decision very soon about that."
Ottawa awarded Arar $10.5 million in compensation after an inquiry concluded faulty information passed by the RCMP to American officials likely led to his deportation to Syria.
In light of similarities to Arar's ordeal, advocates for Almalki, El Maati and Nureddin want to know whether Ottawa orchestrated their overseas interrogations in co-operation with foreign allies.
El Maati, a Toronto truck driver, was arrested in Syria on a visit in 2001, then sent to Egypt in early 2002. He was imprisoned there for almost two years.
Almalki, an Ottawa electronics engineer, was detained in Syria in 2002 and held for 22 months.
Nureddin, a Toronto geologist, was held for 34 days in Syria in late 2003 and early 2004.
Iacobucci said the inquiry would take a broad look at how the men were treated to determine the role played by Canadian officials. That will include further inquiry into claims the men were tortured, building on an independent fact-finding report carried out for the Arar inquiry.
Iacobucci said he has asked inquiry counsel to consult with lawyers for the three "concerning the most appropriate means of inquiring into the allegations of torture."
Next month the inquiry plans to begin interviewing current and former officials from the Canadian Security Intelligence Service, the RCMP and Foreign Affairs.