Even if he was thrown in prison in Sudan at the request of Canadian agents, Abousfian Abdelrazik has no case against the federal government because Canadian law does not protect him overseas, Justice Department lawyers claim.
Despite a Federal Court ruling that it violated his rights by barring his return to Canada for years, the government considers a lawsuit brought by Mr. Abdelrazik mostly frivolous - and rejects his claim that the Canadian Security Intelligence Service knew he would be abused and tortured in Sudan's notorious prisons when it had him arrested in 2003.
It was nearly six years before Mr. Abdelrazik managed to get home, even though he had been cleared by the RCMP and CSIS of any terrorist connection. He is suing the federal government for $27-million, an amount which, if awarded, would dwarf the record payout of $10-million given Maher Arar for Canada's involvement in his rendition to Syria by U.S. agents.
"I expected the government would approach us about an apology and a settlement," said Paul Champ, one of Mr. Abdelrazik's lawyers. "Instead they have been entirely unrepentant."
The government also wants Foreign Minister Lawrence Cannon removed as a defendant, claiming he can't be held personally liable for what the lawsuit alleges was his "offensive and unlawful" role in denying Mr. Abdelrazik a travel document even after repeatedly promising him one if he could get a paid flight home. After hundreds of Canadians bought Mr. Abdelrazik a ticket, Mr. Cannon changed his mind and labelled him a security risk.
Mr. Abdelrazik remains on the so-called terrorist blacklist, a UN Security Council creation co-sponsored by Canada. He was labelled an al-Qaeda operative by the Bush administration in 2006 and was interrogated by Canadian and U.S. agents in Sudanese jails, where he claims he was abused and tortured.
CSIS denies arranging for Mr. Abdelrazik's imprisonment even though classified documents have come to light stamped "CSIS" and stating he was arrested "at our request." It initially demanded an inquiry to clear its name in the case, but will no longer discuss it publicly.
In its court filing, the federal government argues that Mr. Abdelrazik has no claim of false imprisonment because Canada and its agents did not themselves imprison him. "The plaintiff [Abdelrazik]alleges that the Defendant [the government]requested the Government of Sudan to imprison the plaintiff without legal grounds and shared information with the Government of Sudan to facilitate his continued imprisonment," says the eight-page filing. "He does not allege that the defendant directly imprisoned the plaintiff. In the absence of that material fact, there is no cause of action for false imprisonment."
The government is similarly dismissive of Mr. Abdelrazik's other claims, claiming most of the allegations in the lawsuit are frivolous or vexatious.
"This kind of transparent tactic is an attempt to stall," said Mr. Champ, who noted that government lawyers have already said that it will be 18 months before they can assemble the documents needed to proceed with the case.
Supporters of Mr. Abdelrazik, who is now living with his children in Montreal but is still denied employment and has had his assets seized under a Canadian law implementing the UN blacklist, say his treatment by Canadian agents was even more egregious than that suffered by Mr. Arar.
In the Arar case, the RCMP falsely fingered him to U.S. anti-terrorist agents but played no role in his rendition to Syria, where he was imprisoned and tortured. In Mr. Abdelrazik's case, Canadian agents were not only apparently involved in his arrest in Sudan, they interrogated him in prison there. Canadian diplomats, meanwhile, refused his pleas for witnesses when he was interrogated by U.S. agents.
Mr. Abdelrazik's case has already set legal precedent - the government did not appeal the Federal Court ruling that Canada was complicit in his arrest in Sudan and that he had a right to return home - and may further establish the extent of the protections afforded Canadians under the Charter of Rights and Freedoms.
The Supreme Court has already ruled - in the case of Omar Khadr, the Canadian imprisoned at Guantanamo Bay - that CSIS agents could not ignore his Charter rights when they interrogated him. In Mr. Abdelrazik's case, the rights of Canadians abroad when they are pursued by Canadian agents and the constraints, if any, on those agents may be tested.
In addition to denying Mr. Abdelrazik his right to return home, Mr. Champ contends that the government failed in its obligation to prevent a citizen from being tortured. Ottawa "knew or should have known," he said, that Mr. Abdelrazik was likely to be abused in Sudan, a country with a foul human rights record.
Responding to Mr. Abdelrazik's claim that it failed to "prevent torture at the hands of others," the government's court filing states that "no such tort has been recognized in Canadian law."