Andrew Mayeda (Ottawa Citizen)
The federal government should not be liable for the detention and torture of Maher Arar because it was not clear that Canadian officials caused or could have foreseen his ordeal, the government argued only weeks before agreeing to pay Mr. Arar and his family $11.5 million in compensation.
The compensation package, which was announced in January and includes about $1 million in legal fees, is the largest granted to an individual in Canadian history.The settlement was widely applauded by newspaper editorialists and human rights activists, but critics questioned whether the government overpaid for injustices carried out by authorities in other countries.
At the time, Prime Minister Stephen Harper apologized to Mr. Arar and his family for “any role Canadian officials may have played in the terrible ordeal.”
Mr. Harper said the settlement was based on a “realistic assessment of what Mr. Arar would have won in a lawsuit.” But neither the government nor Mr. Arar’s lawyers have provided a detailed breakdown of how the figure was calculated.
Newly declassified documents obtained by the Citizen reveal that Justice Department lawyers, while recognizing the suffering that Mr. Arar underwent, were prepared to shoot down many of his claims for compensation.
Mr. Arar, a Canadian citizen born in Syria, was detained by U.S authorities at a New York airport in 2002 and deported to Syria, where he was imprisoned and tortured.
A judicial inquiry led by Justice Dennis O’Connor found that the RCMP falsely characterized him as an Islamic extremist with suspected ties to al-Qaeda. Judge O’Connor concluded that the sharing of that misinformation with U.S. authorities “very likely” led them to deport Mr. Arar.
Mr. Arar and his family launched a civil lawsuit against the federal government, initially demanding $400 million before reducing their claim to $37 million.
The two sides agreed to enter into mediation last year. The Citizen, through the federal access-to-information law, has obtained mediation briefs submitted by both parties in December.
“Maher Arar is the victim of one of the most deplorable examples of civil-liberties violations perpetrated by Canadian authorities in the last half century,” says a brief prepared by Mr. Arar’s lawyers from the firm Falconer Charney Macklin. “It is only natural and right that the compensation to him and his family reflect that reality.”
Mr. Arar claimed damages for a range of offences, including negligence, defamation, false imprisonment, assault and battery, complicity to torture, conspiracy and abuse of public office.
He also alleged the government denied several of his rights under the Charter of Rights and Freedoms.
Mr. Arar’s lawyers claimed the Canadian government should be liable for all damages associated with his torture in Syria. They argued Canada was “uniquely” positioned to seek financial contributions from the U.S. and Syrian governments.
U.S. courts have so far dismissed, on national-security grounds, Mr. Arar’s suit against the U.S. government.
The Canadian government countered that it should only be liable “in proportion to the probability that actions of Canadian officials may have caused or materially contributed to the injury suffered.”
Government lawyers took special aim at Mr. Arar’s core claim of negligence.
Canadian officials could not have “reasonably foreseen” that Mr. Arar would be deported to Syria and tortured, the government contended.
At the time, Canadian authorities “had no knowledge” of the U.S. practice of “rendering” terrorist suspects to countries where torture is permitted, according to the mediation brief.
But that statement has since been contradicted by recently disclosed evidence in the O’Connor inquiry.
According to previously censored evidence released in August, a CSIS officer in Washington said in a report to superiors that “when the CIA or FBI cannot legally hold a terrorist subject, or wish a target questioned in a firm manner, they have them rendered to countries willing to fulfil that role.”
“I think the U.S. would like to get Arar to Jordan where they can have their way with him,” Jack Hooper, then-deputy director of CSIS, added in a memo. Mr. Arar was flown to Jordan before being transferred to Syria.
The government referred to a number of wrongful-conviction cases in assessing the amount of damages claimed by Mr. Arar.
Among others, it cited the case of David Milgaard, who was awarded $10 million after serving 23 years in prison for murder.
Government lawyers noted the Supreme Court placed a cap on damages for pain and suffering in 1978 that would work out to less than $400,000 today.
It is not clear how much the government offered to pay in its mediation brief.
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