Federal Court allows Abousfian Abdelrazik to sue foreign affairs minister

Abousfian Abdelrazik, a portrait, September 2010. © Darren Ell 2010/www.darrenell.com

In a decision that must have added a certain edge to the next Cabinet meeting after it was announced, the Federal Court of Canada on Aug. 30 gave the green light to a $3-million lawsuit brought by Abousfian Abdelrazik against Lawrence Cannon, minister of foreign affairs. Abdelrazik is suing Cannon for misfeasance in public office, intentional infliction of mental suffering and breaches of his charter rights to mobility and to life, liberty and security of the person.

The court also refused to block other elements of Abdelrazik's lawsuit, which claims an additional $24 million in damages from the crown for false imprisonment, torture, negligence, breach of fiduciary duty and breaches of charter rights to mobility, to life, liberty and security, and not to be subjected to any cruel and unusual treatment or punishment.

The court decision was a response to a motion by the government to throw out parts of Abdelrazik's lawsuit. The government's motion, launched last year, was, at least in part, purely obstructionary, as the Federal Court acknowledged: "Such motions are wasteful of the time and resources of the parties, and the Court."

What the suit is about

In 2003, Abdelrazik travelled from Montreal to Sudan, the country he fled after Omar Bashir took power in a military coup. With his Canadian passport and almost 15 years distance from the incidents which caused him to flee, he judged it finally safe to visit his mother, whom he feared was dying. However, he had not factored in interference from the Canadian government.

His visit passed in peace, as he oversaw his mother's return to health. Then, just days before he was due to board the plane home, he was arrested at gunpoint. This arrest, as the Federal Court later confirmed, took place at the request of Canada. Abdelrazik was questioned by his Sudanese jailers not about Sudan, but about his activities and associations in Canada -- based on information clearly provided by a Canadian source. Before the end of October, two CSIS agents arrived to interrogate Abdelrazik in the headquarters of Sudan's notorious National Security Intelligence (NSI), where, as Abdelrazik was acutely aware, he was at risk of abuse, torture or even death.

Over the following years, Abdelrazik lived through a kaleidoscope of state abuse: never charged, he endured years of arbitrary and indefinite detention, beatings and torture, long periods in solitary, inhumane conditions, refusal of medical treatment.

Released from a second spell of prison in 2006, he was informed that his name had been placed on a U.N. Security Council "blacklist" which imposed a complete asset freeze and a travel ban. According to Canadian officials, this prevented Abdelrazik from returning to Canada. The latter was false (a clear exemption exists for travel home), but, for the following three years, it served as a pretext for Canadian officials, including Lawrence Cannon.

Destitute and desperate, Abdelrazik turned to the Canadian public in April 2008, releasing his story to the media. At the same time, fearing reprisals by the Sudanese NSI, he took refuge in the Canadian consulate in Khartoum. Despite the adverse publicity, the Canadian government hunkered down, perhaps hoping the scandal would blow over as the months passed. This left Abdelrazik a virtual prisoner in the consulate for over a year.

By the end of 2008, Foreign Affairs officials were taking the position that they would give Abdelrazik the emergency papers he needed to board a plane home if he presented them with a duly paid for plane ticket. They were fully aware that he was destitute and could no more buy a plane ticket than fly home on his own wings. At the same time, under their interpretation of Canadian legislation implementing the U.N. blacklist, they maintained it was illegal for any Canadian to buy him a ticket.

The government was thus caught off guard when about 200 people from across Canada banded together to buy Abdelrazik a ticket in defiance of the legal constraints. Cornered, Cannon was forced to expose his hand. In a curt letter cruelly delivered the very morning the flight was scheduled, April 3rd, Cannon denied the travel document. On 4 June, 2009, the Federal Court found that Cannon had acted illegally in refusing the travel document and ordered the government to repatriate Abdelrazik within the month.

Outsourcing torture and challenging impunity

None of the officials who set out to have Abdelrazik arrested by the NIS and none who schemed to prevent his return to Canada have apologized, been disciplined, or brought to justice. Many, including Lawrence Cannon, remain in office.

As an isolated incident, this would be cause enough for outrage. As a pattern, it is of broader concern. And the facts do indicate a pattern. Canadian officials were clearly implicated in the interrogation under torture of Maher Arar, Abdallah Almalki, Ahmad El Maati, Muayyed Nureddin and Omar Khadr.

The pattern can be extended to include the security certificate detainees whom the government sought -- and is still seeking in the cases of Harkat, Jaballah and Mahjoub -- to render to situations where they are at risk of torture. In the case of Adil Charkaoui, Radio Canada exposed a hidden arrest warrant in Morocco which set the stage for the coercive interrogation of Charkaoui in the event of his deportation from Canada. Happily, with the help of strong public and legal campaigns, the government was eventually forced to withdraw the certificate against Charkaoui.

Not only has no one been held responsible for these actions, the structures which allow such action to continue -- beyond the narrow compass of the Arar Commission recommendations -- remain in place.

In this light, the full importance of Abdelrazik's lawsuit as a strategy to challenge state impunity becomes apparent. The Federal Court decision will also allow him to attempt to hold Lawrence Cannon personally responsible. This is the best opportunity the current legal framework in Canada affords to bring one of the individuals responsible to justice.

The struggle continues

Unlike the conciliatory approach adopted by the Liberals in the case of Maher Arar, the Conservatives have maintained an attitude of open hostility towards Abdelrazik. They refused to meet him after his return to Canada. No apology has been offered.

Of more immediate significance to Abdelrazik, Lawrence Cannon, as Minster of Foreign Affairs, has refused to lift sanctions imposed on Abdelrazik under the U.N. blacklist, despite an historical precedent for doing so.

Abousfian Abdelrazik arrived penniless in Canada as a refugee. Trained as a machinist, working for much of his life as a manual labourer, he is currently unemployed. Black, Muslim, immigrant and poor, he numbers among the most marginalized in Canada and globally.

The current minister of foreign affairs of Canada, Lawrence Cannon, was born to one of Canada's hereditary ruling class families. White, Canadian of European stock, wielding the power of state and capital, his is the face of the most privileged class in Canada and around the world.

Pitted directly against each other, their battle symbolizes many aspects of the struggle between the global classes they represent. Improbably, Abdelrazik has already won round one against his powerful adversary. The recent court decision could see him on his way to winning a second significant victory, one of great importance to all of us.

Mary Foster is a member of Project Fly Home and an organizer with The People's Commission Network.

For more information, email Project Fly Home at and contact the People's Commission Network by clicking here.

 

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