Jul. 30, 2004. 01:00 AM
Miro Cernetig 
Graham Fraser 
Richard Gwyn 
Stephen Handelman 
Chantal Hebert 
James Travers 
Ian Urquhart 
Thomas Walkom 
Arar probe evidence to be screened
National security arguments to be heard in private

Judge's ruling delays public testimony until fall


Before any evidence about Canadian involvement in the deportation and detention of Maher Arar is heard publicly at a federal inquiry, it must be vetted privately for national security concerns.

Presiding Justice Dennis O'Connor ruled yesterday that, for the sake of efficiency, federal government lawyers should make their arguments in camera at the beginning of the inquiry — rather than in stages during the proceedings — as to why information should not be disclosed.

The ruling delays the start of the public hearing until late fall.

O'Connor also ruled that information already reported in the media may have a greater chance of being released than other evidence. "The test is always whether disclosure would be injurious to an element of (national security confidentiality); however, it is a matter of common sense that previous disclosure will tend to significantly weaken if not defeat the claim that further disclosure would be injurious," the ruling states.

O'Connor is also dismayed that anti-terrorism measures in the Canada Evidence Act prevent him from making public any ruling to keep documents secret on national security grounds.

Changes to the act following the Sept. 11, 2001, terrorist attacks require such rulings to be withheld unless a Federal Court judge or the attorney-general authorizes its release.

"On their face, the breadth of these provisions clearly detracts from the transparency of the Inquiry. Indeed, the provisions do not appear to sit well with the whole idea of a public inquiry," wrote O'Connor, who has asked the attorney-general to exempt his inquiry from the provisions.

After O'Connor has privately heard the testimony from the Royal Canadian Mounted Police and Canadian Security Intelligence Service and reviewed the government's claims for confidentiality in private hearings slated to begin Sept. 13, he will rule on what can be released. That decision could then be appealed in federal court.

"It makes a lot of sense but it's disappointing," Marlys Edwardh, one of Arar's lawyers, said of O'Connor's ruling.

"It makes absolute sense the commission determine what can be in the public domain before the public hearings start ... it's disappointing because the public inquiry was created in January and it is now July and it will be the end of October, if not November, before any real public hearings can commence."

It was in September, 2002, when Arar was detained in New York during a flight stopover as he tried to return home to Canada and then deported, via Jordan. He returned to Ottawa last October.

The inquiry commission said yesterday that processing thousands of documents required for the hearing has taken longer than anticipated. However, once O'Connor rules on confidentiality, the public hearings should proceed quickly, the commission said.

There have been six days of public testimony so far dealing with contextual evidence such as the organizational structure of the RCMP and CSIS, not specifics about Arar's deportation. Syria has refused to participate in the inquiry while the U.S. has not responded to a request that it take part.

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