Feb. 6, 2004. 06:15 AM
RCMP to face scrutiny at Arar probe
New watchdog for Mounties possible
O'Connor to get `deep access'


OTTAWA—Justice Dennis O'Connor has been given a clear mandate to design a new independent watchdog agency for RCMP spying activities as part of his inquiry into the Maher Arar affair.

And he has been given broad powers to investigate the actions of Canadian officials.

Deputy Prime Minister Anne McLellan said O'Connor will have deep access to classified documents and information, and the power to summon Canadian officials across all governments and departments who have information he deems relevant to his "fact-finding mission."

O'Connor will also have the ability to hear evidence behind closed doors, and to make much of it public.

Under the terms of reference released yesterday, O'Connor is asked to investigate:

The detention of Arar in the United States.

The deportation of Arar to Syria via Jordan.

The imprisonment and "treatment" of Arar in Syria.

The return of Arar to Canada.

"Any other circumstance directly related to Mr. Arar that Justice O'Connor considers relevant to fulfilling this mandate."

Arar, 33, was detained in the U.S. in September, 2002.

The Syrian-born Canadian was changing planes in New York to return home to Ottawa when he was stopped and held. Arar was deported to Syria, where he was kept for nearly a year and interrogated before being released.

In late January McLellan called an inquiry into the incident.

She made it clear the federal government will have the power to challenge in Federal Court any decisions by the inquiry judge to publicly disclose information that Ottawa thinks would be harmful to "international relations, national defence and national security."

"Our goal is to have as much of the fact-finding of Mr. Justice O'Connor made public, as much of it as possible," said McLellan, who is also minister of public safety, responsible for the RCMP and CSIS.

"But we have to act in the public interest, and part of the public interest is to ensure that classified information that deals directly with international relations, national defence, and national security is not released in a way that is harmful to that public interest."

As O'Connor takes on the extraordinary task of recommending a new model of civilian oversight of the RCMP, the federal government has asked him to examine domestic and international models, and assess how a new arm's-length watchdog mechanism would mesh with current agencies now oversee policing and security activities in Canada.

Security intelligence-gathering powers were taken from the RCMP in the mid-1980s when the civilian spy agency CSIS (Canadian Security Intelligence Service) was set up along with its own civilian watchdog agency, the Security Intelligence Review Committee (SIRC).

That oversight agency has broad audit powers to go to CSIS and demand information on how it's conducting spy activities, whether it's adhering to its legislative mandate, and to make its reports public.

But when the Liberal government gave the RCMP new powers to conduct surveillance on Canadian citizens in the aftermath of the Sept. 11, 2001 terror attacks, it rejected arguments that a new oversight body was needed for the national force.

In app earances before public parliamentary committees, RCMP and CSIS officials rarely shed light on how they conduct themselves in the name of "national security."

Whatever recommendations O'Connor makes for overseeing the RCMP are not legally binding on the government, but are considered by Arar and his supporters as key to ensuring no other Canadian lives through a similar nightmare.

"They are recommendations," McLellan said. "But I should think we will take them very, very seriously."

Arar was the subject of RCMP surveillance prior to his sudden detention and deportation.

The so-called "terms of reference" for the judicial inquiry were released late in the day, leaving the Arar family, lawyers and supporters scrambling to understand just how far O'Connor can go in his investigations.

Kerry Pither, an Arar family spokesperson, said last night that Arar and his legal team were poring over details, and would need time before commenting.

The judicial inquiry has not been asked specifically to look into the extent to which systemic racism or racial profiling played a role in Arar's year-long nightmare, nor to recommend compensation — two elements Arar's lawyers said last week were key.

McLellan suggested O'Connor will decide how far he needs to go to accomplish his mandate.

"I suppose if there was anything that happened before that time that Mr. Justice O'Connor felt directly affected the mandate which I've just outlined, he has the discretion to deal with or look at that matter."

The mandate also does not refer to what Arar and his supporters say was a deliberate smear campaign by anonymous government officials to tar his credibility by leaking false information Arar says was obtained by the Syrian authorities who tortured him.

The RCMP itself is now investigating the source of those leaks. But its controversial raid on a journalist's home and office, and seizure of her notes and computer in the name of national security is the subject of a court challenge. Arar wanted O'Connor to have the authority to examine that, too, but it's not part of his job description.

As expected, the inquiry has no power to force witnesses from the U.S., Syria or Jordan to testify, but McLellan said O'Connor can identify which Canadian officials may have "relevant evidence." And she said the U.S. State Department has indicated it may "co-operate in ways ... considered useful and appropriate."

NDP foreign affairs critic Alexa McDonough yesterday criticized the government for omitting the issue of compensation from O'Connor's purview.

"We're talking about a man who was robbed not only of 374 days of his life with the incredible hardship involved to him and his family, but also in the short term, his livelihood and career destroyed and eking out an existence on welfare while he does the public's work on behalf of all Canadians that are concerned about justice."

McDonough also urged O'Connor to address the "whole aspect of systemic racism and religious bigotry that may have underlay some of the actions in dealing with Maher Arar," saying it is "unimaginable" it didn't play a role.

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