Ottawa's Invisible Inquiry

Iacobucci has now made his ruling. He has decided not to decide right now. He will hold a public hearing on some issues next month though. I post this because it shows some other interesting aspects of the hearing. Even the location of the hearings is secret. However, the strange thing is that Iacobucci is not himself presiding over any of the interviews. Perhaps Iacobucci is busy with other interests such as Torstar!
If the inquiry does not allow any significant input by Almalki et al's lawyers or outside questioning of witnesses, or access to evidence it may have credibility with the government but only a credulous public would give it any credibility. It is even questionable whether the lawyers outside of the charmed circle of Torys LLP should even bother participating because they lend credibility to the inquiry.
The government keeps saying that an open inquiry such as the Arar inquiry is tortuous and time consuming. But it is the government and the agencies being investigated who make sure that is the case. Their obstruction then can be used as a reason not to have a public inquiry!

Ottawa's invisible inquiry
TheStar.com - News - Ottawa's invisible inquiry

Former judge Iacobucci to rule soon on motion to open up private probe into security agencies

November 06, 2007
Tonda MacCharles
Ottawa Bureau

OTTAWA–Somewhere in Ottawa, an inquiry is underway into how Canada's national security agencies conducted themselves in the "troubling" cases of three Muslim Canadian men.

Arrested in Syria, detained and interrogated under torture, Abdullah Almalki, Ahmad Elmaati and Muayyed Nureddin are barred from the independent review into the actions of Canadian officials during their ordeal.

The public is not even allowed to know where the inquiry is doing its work. Not the building, not the street, not the neighbourhood.

All a spokesperson for former Supreme Court of Canada judge Frank Iacobucci – who is leading the inquiry – will say is that the secret interviews are taking place in a boardroom at an undisclosed "secure government location."

The inquiry is being held because Justice Dennis O'Connor, who investigated the Maher Arar affair, found the cases of the other three Muslim Canadians raised "troubling questions about what role Canadian officials may have played in the events that befell them."

But a full public inquiry, he said, with all the battles over what should be secret and what should be heard in the open, could be "tortuous" and time-consuming.

Instead, he urged an "independent and credible process that is able to address the integrated nature of the underlying investigations and inspires public confidence in the outcome."

The result is the Iacobucci inquiry. Iacobucci is to rule some time in the next two weeks on a motion filed by Almalki, Elmaati and Nureddin as well as lawyers for civil liberties groups and national associations representing Muslim and Arab Canadians who were granted "intervener" status.

The men and their supporters want a more open and transparent process. They want access, at the least, to witness lists and federal government documents, and open hearings on issues that don't directly involve national security.

From the end of June to the end of September, lawyers working for Iacobucci interviewed more than 40 witnesses from Canadian Security Intelligence Service (CSIS,) the RCMP and the Department of Foreign Affairs.

Although he is leading the inquiry, and is to deliver a report to the federal government by Jan. 31, Iacobucci did not personally preside over any of those interviews.

Iacobucci's lead counsel John Laskin says the legal team is bound by its "terms of reference," not to duplicate work already done, and is "taking depositions" from witnesses, which could well lead to further questioning by Iacobucci.

"It surprised me a bit when I heard they were doing this," said University of Ottawa law professor Craig Forcese, an expert in national security and administrative law.

The inquiry is indeed pressed for time, he said, and has divided up its tasks, but he points out that "there's a basic principle of administrative law: he or she who hears must decide."

In other words, where evidence is given orally, the decision maker has to be there, a principle Iacobucci, who is an expert in administrative law, is no doubt well aware of.

The federal government brushes off concerns the public will not have confidence in the result of such a closed inquiry. Its legal brief echoes Prime Minister Stephen Harper's comments that Iacobucci is an "eminent jurist" who should be trusted.

"Public confidence in an internal inquiry flows from the credibility of the commissioner himself, which is beyond doubt," the government brief says.

One intervener group, Canadian Coalition for Democracies, sides with the government on keeping it a closed review.

Forcese says while Iacobucci, Laskin and the other inquiry lawyers involved "are very eminent jurists," there is still a fundamental requirement or expectation in our legal system that justice needs "not just to be done, but to be seen to be done."

There are benefits to allowing the public to see some of its workings.

The Arar inquiry, "as long and as tortuous as it was," shifted the government's "culture of secrecy" surrounding how it claims national security confidentiality, says Forcese.

The federal government says the actions of Canadian officials, and not of the three men, are at the heart of the inquiry.

Their reputations are not at issue and they are in no way on trial, so their interests are not the same as they would be in a courtroom proceeding – a response Forcese dismisses.

"To say that these men's interests aren't implicated, that's a technical response. Their reputation is still very much in play."

He points out that the Arar process eliminated the need for a civil trial "because the Arar outcome was so damning, and the settlement that Arar obtained from the government was essentially a settlement for the biggest defamation lawsuit in the history of Canada."

But the federal government says that to try to open the Iacobucci inquiry now is "unworkable and impractical."

Indeed, such an attempt may be for naught because the fact-finding part of the inquiry is nearing an end, Laskin said in an interview.

The inquiry is moving into its concluding stages in an effort to deliver a report to the government by the Jan. 31 deadline. There are tough choices ahead for the men.

Paul Copeland, lawyer for Almalki, said they are discussing whether they should have any further involvement, however peripheral.

There have been "off the record" discussions between their lawyers and commission counsel, but no real input, he said.

Copeland has called for the inquiry to look "at the deficiencies in what Canadians in CSIS and the RCMP did in Almalki's case."

"My position is, and it has been for a long time, that both agencies are incompetent. And if Iacobucci isn't going to look at that aspect of things, I don't know who is."