Thursday, May 31, 2007

New Release: Iacobucci Inquiry

As expected Iacobucci ,in keeping with the description of the inquiry as primarily private and internal in the terms of reference, has decided that most of the hearings will be in private (in camera and ex parte). However, he also has turned down the lawyers for the three: Almaki, El-Maati, and Nureddin that they (the lawyers) be security cleared and allowed to attend the hearings. They will only be able to present documents and suggest questions etc. It is not clear what information they will be given about the hearings if any. In fact I just wonder what if anything the public will hear as the hearings are ongoing. All in all the hearings may be transparent to the elite group from Torys LLP who will be present at the hearings but to no one else. Just trust the creme de la creme to inform us of all the shit that goes on in our intelligence services.

Attention News Editors:

Commissioner Frank Iacobucci Issues Key Ruling on Inquiry's Proceedings
OTTAWA, May 31 /CNW Telbec/ - The Honourable Frank Iacobucci, the
Commissioner appointed to conduct the Internal Inquiry into the Actions of
Canadian Officials in Relation to Abdullah Almalki, Ahmad Abou-Elmaati and
Muayyed Nureddin, today released his ruling concerning the manner in which the
Internal Inquiry will proceed.
The ruling addresses a series of questions relating to the Inquiry's
Terms of Reference and draft Rules of Procedure and Practice on which the
Commissioner invited submissions from the individuals and organizations
granted an opportunity to participate in the Inquiry. These submissions were
made at a public hearing last month.


The Inquiry was established following the recommendation in the Arar
Commission Report calling for a review of the cases of Messrs. Almalki,
Elmaati and Nureddin through a different process than a full-scale public
inquiry. The Report observed that there are more appropriate ways to
investigate and report on cases where national security confidentiality must
play a prominent role. The Inquiry's Terms of Reference specifically require
that the Commissioner take all steps necessary to ensure that the Inquiry is
conducted in private, while authorizing him to conduct specific portions of
the Inquiry in public if he is satisfied that it is essential to ensure the
effective conduct of the Inquiry.

Mistreatment and torture

One of the questions that the Terms of Reference mandate the Commissioner
to determine is whether any mistreatment of Messrs. Almalki, Elmaati and
Nureddin in Syria or Egypt resulted, directly or indirectly, from actions of
Canadian officials. The Commissioner asked the participants for submissions on
the meaning of "any mistreatment" and on whether it is necessary, in order for
the Commissioner to carry out his mandate, for him to decide whether, and the
extent to which, Mr. Almalki, Mr. Elmaati and Mr. Nureddin were tortured in
Syria and Egypt.
The Commissioner ruled that the term "any mistreatment" should be
interpreted broadly. He also ruled that "it is proper and appropriate for the
Inquiry to ascertain whether the three individuals were tortured as a specific
aspect of their alleged mistreatment" (para. 66). Making this determination,
he concluded, is necessary in order to assess whether there were deficiencies
in the actions of Canadian officials. It is also important from the standpoint
of the public interest (para. 67).

Conduct of the Inquiry

The Commissioner also asked for submissions on what the Terms of
Reference mean in requiring him to take all steps necessary to ensure that the
Inquiry is conducted in private, and on how he should exercise his authority
to conduct specific portions of the Inquiry in public if he is satisfied that
doing so is essential to ensure the effective conduct of the Inquiry.
The Commissioner ruled, taking into account the requirements of the Terms
of Reference, the need to protect national security confidentiality and
considerations of workability and practicality, that the formal hearings
conducted as part of the Inquiry will as a general rule be conducted in
private, a term that he interpreted to mean, in the context of the Inquiry, in
camera and ex parte (para. 72). This would among other things avoid disputes
over what information can and cannot be disclosed, that "as experience in the
Arar Inquiry demonstrated, cause significant delay and complexity". The
Commissioner stated, "It would serve no one's interest if the process of the
Inquiry impeded it from an expeditious determination of the questions that I
have been mandated to pursue" (para. 60).
However, the Commissioner emphasized that he "will be sensitive to the
potential of overbroad assertions of national security confidentiality and not
let that become a shield to prevent the Inquiry from doing the necessary work
to fulfill its mandate" (para. 45). He noted that the Government is providing
the Inquiry with all relevant documents without any editing for national
security confidentiality, that the Inquiry has the power to subpoena witnesses
and documents to obtain relevant information and that "the requirement in the
Terms of Reference for a report on the completion of the work of the Inquiry
operates to ensure that the Commissioner is accountable to review all the
relevant evidence and to arrive at conclusions that are based on that evidence
in order to successfully complete the role that has been assigned to the
Inquiry" (para. 46). He also stated that his determinations to conduct public
hearings "will be ultimately a discretionary decision, to be made on a
case-by-case basis, influenced by the need for a blending of efficiency and
transparency dictated by the circumstances and the context" (para. 72).


The Commissioner also asked for submissions on how individuals and
organizations and individuals granted status as participants could effectively
participate in the work of the Inquiry if hearings were held in private. The
Commissioner's ruling instructs Inquiry counsel, as was done in the Arar
Inquiry, to maintain regular contact with counsel for the participants,
especially counsel for Messrs. Almalki, Elmaati and Nureddin, and invites and
encourages counsel for the three individuals, in particular, to suggest
questions and lines of inquiry to pursue in interviews and hearings that are
held in private. This will help ensure, the Commissioner stated, that "we are
not leaving any stone unturned as we pursue our mandate" (para. 72).
The Commissioner concluded that it would not be workable to accept the
suggestion of counsel for the three individuals that they be security-cleared
and be permitted to attend any private hearing on giving an undertaking not to
disclose any sensitive information to their clients. The Commissioner added,
"I am not convinced as a practical matter that this arrangement would assist
Messrs. Almalki, Elmaati and Nureddin or the Inquiry in carrying out its work"
(para 58).
While stressing the need to carry out the work of the Inquiry effectively
and expeditiously, the Commissioner also underlined the need for flexibility,
and stated that the ruling should not be seen as cast in stone, but that he
would be prepared to modify it if a fuller understanding of the facts and
background information calls for modification. He thanked counsel for the
participants and intervenors for their submissions on the questions he had
The Inquiry is completing the process of reviewing the thousands of
documents that have been produced to it. It intends to begin interviewing
officials and former officials from the Canadian Security Intelligence
Service, the Royal Canadian Mounted Police and the Department of Foreign
Affairs and International Trade in June. John Laskin, lead counsel to the
Inquiry, stated: "As the Inquiry proceeds to the next phase, we look forward
to continuing to work closely with counsel for the participants, especially
counsel for the three individuals, in helping the Commissioner get to the
bottom of what occurred."
The complete text of the ruling is available on the Inquiry's website,

Established under Part I of the Inquiries Act by the Minister of Public
Safety, the Commissioner's mandate is to determine whether the detention of
these three individuals in Syria or Egypt resulted from actions of Canadian
officials, particularly in relation to the sharing of information with foreign
countries; those actions or the actions of Canadian consular officials were
deficient in these cases and whether any mistreatment of these three
individuals in Syria or Egypt resulted from deficiencies in the actions of
Canadian officials.

For further information: Media: Francine Bastien, Cell: (613) 299-6554,

No comments: