Abousfian Abdelrazik, Omar Khadr and Suaad Hagi Mohamud all have something in common — they have faced, at one time or another, the federal government’s indifference to their intolerable circumstances.

Our national legal community is not keeping silent. The Canadian Bar Association recently called upon the Harper government to accept the August 14th decision of the Federal Court of Appeal that upheld the ruling of Justice James O’Reilly of the Federal Court of Canada.  Justice O’Reilly had ordered the government to seek Omar Khadr’s repatriation from the U.S. military prison in Guantanamo Bay.

With an abundance of highly publicized cases of Canadian citizens detained abroad and subsequent government inaction on their plight, is it not time for Parliament to legislate a ‘duty to protect’ — a duty for government to protect the interests of Canadians detained in foreign jurisdictions?

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Abandoning duty in the name of security
By Ihsaan Gardee, The Ottawa Citizen

August 4, 2009

The lingering saga of Abousfian Abdelrazik almost seems too hard to believe — a Canadian citizen in virtual exile for six years in a distant land, shadowy involvement of intelligence services and a violation of the rights of a Canadian citizen under the Charter. Coupled with the recent announcement that the Security Intelligence Review Committee (SIRC) will conduct a probe into the role played by CSIS — Canada’s enigmatic intelligence service — in Mr. Abdelrazik’s arrest, imprisonment and alleged torture overseas raises, once again, the thorny issue of balancing civil liberties, human rights and due process with national security.

For many of us, knowing we hold the Canadian passport is more than enough to naively convince ourselves of our inalienable rights as citizens. Yet, for Abdelrazik and those who faced similar ordeals, that reliance was quickly betrayed by the reality that any sense of security conveyed by citizenship is imaginary.

Abdelrazik’s story now joins the ranks of the cautionary tales of Canadian citizens detained abroad and abandoned by their government. Maher Arar was one of them. His ordeal paved the way for a full public inquiry, and Canadians learned about his suffering and the acts and omissions that led to his detention and torture. Not long thereafter surfaced the accounts of Abdullah Almalki, Ahmad El Maati and Muayyed Nureddin that put into question the government’s claim that this was a one-off event and not part of a pattern of systemic failures by government officials and security agencies.

For Abdelrazik, it took a Federal Court order to finally compel the Harper government to bring him home. The government’s delays, obfuscations, and cruel games were finally put to an end.

Now, thanks to intrepid journalism, the commitment of social justice organizations such as those involved in Project Fly Home, and the decision of federal justice Russell Zinn, we know some of the frightening details of Abdelrazik’s ordeal.

We know Canadian security officials operated behind the scenes to have a citizen detained in Sudan without the knowledge of government ministers in Ottawa. Moreover, Canadian diplomats in Khartoum were kept in the dark about Abdelrazik’s detention until three months after his arrest. When Sudanese government representatives ominously warned in March 2006 that military intelligence would create a “permanent solution” for Abdelrazik if Canada did not act to bring him home, Ottawa remained shockingly indifferent.

These troubling revelations all point to a stark deficit in accountability and transparency, and a shirking of responsibility by government and security officials to uphold the rights and safety of a Canadian citizen. They also demonstrate the government’s misuse of the “national security” argument as a means to thwart a citizen’s right to return and right to due process.

The lack of definitive action by the Canadian government illustrates the crux of Abdelrazik’s case and those of other Canadians such as Omar Khadr or Huseyin Celil: the fundamental absence of a governmental duty to protect Canadian citizens detained in a foreign country. Unlike in the United States, a formal duty to protect has not been legislated or enshrined in Canada. It urgently needs to be.

Without such a duty, detained citizens are left at the mercy of foreign jurisdictions even when no evidence exists, as in Abdelrazik’s case, to justify their captivity. The government is then able to rationalize its unwillingness to take the necessary action on a citizen’s detention, as Crown lawyers aptly demonstrated in recently filed arguments with the federal appeals court on the Khadr case.

Similarly, in the case of Celil, a three-month window of opportunity to repatriate him when he was originally detained in March 2006 by Uzbek authorities — prior to being deported to a Chinese prison where he remains in solitary confinement — was ignored or missed by the government. To their credit on this particular file, the government has since been more active in raising the issue of Celil’s detention to their Chinese counterparts.

In 2006, Justice Dennis O’Connor’s report from the Maher Arar inquiry called for critical changes to the way our security agencies and government officials conduct themselves in the arena of national security. The demand for greater accountability and oversight was unmistakably clear. Yet, more than two years after the release of these reports, at a cost of millions of taxpayer dollars, we have only glib general assurances from government that these recommendations have been enacted without any reporting on specific implementations. Meanwhile, over the course of many months, Canadians watched with utter dismay at the treatment meted out to Abdelrazik.

As famed civil liberties advocate Clarence Darrow once said: “True patriotism hates injustice in its own land more than anywhere else.” Indeed, Abdelrazik faced an unconscionable injustice at the hands of his own government that should never have been allowed to transpire.

Perhaps we may never be able to fully undo the damage, but Canada can act now to ensure these sordid events are never repeated again.

Ihsaan Gardee is executive director of the Canadian Council on American-Islamic Relations (CAIR-CAN).