The Canadian government must act on the Federal Court's decision and take “immediate action” to bring Abousfian Abdelrazik home from Sudan.
Legally speaking, Ottawa could appeal the court's ruling, which determined that the government breached the Charter of Rights and Freedoms in its treatment of Mr. Abdelrazik. It could prolong this process, presenting arguments before the Federal Court of Appeal and perhaps even the Supreme Court of Canada. It could continue to let Mr. Abdelrazik languish.
But there can be no doubt that our government - the government of a democratic country that respects the rule of law and is bound by the Charter - should not go down that path.
The Federal Court's decision is clear in its findings of fact and compelling in its conclusions of law, and the judgment brings shame to this administration.
The ruling called it “disingenuous” for the government to argue that Mr. Abdelrazik, a Canadian citizen who has been stranded in Sudan for six years after being accused of being an al-Qaeda agent, should apply to the United Nations for his removal from its no-fly list of terrorist suspects. It said that there is “no impediment” from the UN resolution to Mr. Abdelrazik's return and that the argument to the contrary “leads to a nonsensical result.”
It concluded that the government made promises of providing a passport to Mr. Abdelrazik - who was cleared by the Canadian Security Intelligence Service and the RCMP - but without any intention of returning him to Canada. The Federal Court also held that, on the basis of the evidence before it, “CSIS was complicit” in the detention of a Canadian by a foreign government.
“Had it been necessary,” the court said, it would have “no hesitation” finding that the government had acted in bad faith. It also stated that “there is no reason to challenge the applicant's assertion in his affidavit that he was tortured while in detention.”
From the start, as the court stated, the process that got Mr. Abdelrazik listed recalls the situation “of Josef K. in Kafka's The Trial , who awakens one morning and, for reasons never revealed to him or the reader, is arrested and prosecuted for an unspecified crime.”
In the end, the court had so little faith in our government that it ordered Mr. Abdelrazik to be physically brought before it, to prove when he is finally on Canadian soil. It declared that “the only reason that Mr. Abdelrazik is not in Canada now is because of the actions of the Minister [of Foreign Affairs] on April 3, 2009.”
After such a judgment, our government has little moral choice. This case is no longer about legal arguments, if it ever was. It is about a Canadian citizen stranded in Sudan and a government that has shown wrongful resolve in keeping him there.
The court has intervened and drawn the line. The government can act inexplicably sometimes, but not when Charter rights are at stake. “It is not sufficient,” as the court explains, “for the minister to say that he has reached this opinion and ‘trust me.'”
If the government agrees with that simple premise - the premise upon which the rule of law is based - then it needs to act now, and bring Mr. Abdelrazik home.
Irwin Cotler is special counsel on human rights and international justice to the Liberal Party and MP for Mount Royal. David Grossman is his special assistant.
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