The Harper government is violating Abousfian Abdelrazik's constitutional rights and must fly him home immediately, a Federal Court judge ruled Thursday in a landmark decision.
Mr. Justice Russel Zinn ordered the government to bring Mr. Abdelrazik home even though the United Nations has listed him as an al-Qaeda operative, finding that ministers and bureaucrats have treated him shabbily and trampled on his rights.
Mr. Abdelrazik, who has been marooned in Sudan for nearly six years, "is as much a victim of international terrorism as the innocent persons whose lives have been taken by recent barbaric acts of terrorists," Judge Zinn said.
In a toughly worded 107-page ruling, Judge Zinn pilloried the government's claims of trying to help Mr. Abdelrazik, concluded that Canadian anti-terrorism agents were implicated in his imprisonment in Sudan, denouncedthe UN terrorist blacklist as an affront to justice and basic human rights and slammed Foreign Minister Lawrence Cannon for high-handedly ignoring due process of law.
"I'm elated, I'm excited, I am very, very happy" Mr. Abdelrazik said in a telephone call from the lobby of the Canadian embassy in Khartoum, where he has been living for 14 months after years of imprisonment and torture in Sudanese jails.
"I want to be optimistic that I will soon see my children" said Mr. Abdelrazik, 47. "But I don't trust this government after my experience with them."
Mr. Abdelrazik has been branded a threat to Canada by Mr. Cannon and denied a passport, though the government has never produced any evidence against him.
"My message to the minister is simple," said Mr. Abdelrazik. "Stop these games. Enough is enough. Now is the time to do the right thing."
Judge Zinn's message was tougher. He ordered Ottawa to "take immediate action so that Mr. Abdelrazik is returned to Canada," requiring the government to issue him an emergency passport, make travel arrangements within 15 days and get him home within 30 days. To drive home the point, Judge Zinn told the government to ensure that Mr. Abdelrazik appears before him no later than July 7.
The government, which has continually placed new obstacles in the way of Mr. Abdelrazik's return, now has few options.
It could simply abide by the ruling. It could obey the court directive to bring Mr. Abdelrazik home while appealing the sweeping findings against government ministers, agencies, bureaucrats and the UN blacklist. Or it could seek a stay of the repatriation order from another Federal Court judge to keep Mr. Abdelrazik out of Canada while the appeal process continues, perhaps for years. Given its implications for due process and the basic rights of Canadian citizens, it could well up in the Supreme Court.
Said Justice Minister Rob Nicholson, under fire in the House of Commons Thursday by NDP MP Libby Davies: "Inasmuch as I have never been a member of the NDP, we will actually read the decision before taking a decision on it."
Successive Liberal and Conservative governments have both equivocated over Mr. Abdelrazik's plight and for years have blocked his return. They have done so while assuring him they were trying to help him and claiming there was nothing they could do because he had been placed on a no-fly list by the UN Security Council at the behest of the former Bush administration.
Judge Zinn found that while it wasn't necessary for him to determine whether the government has acted in bad faith to violate Mr. Abdelrazik's rights and thwart his return, the evidence supports such a conclusion.
"Had it been necessary to determine whether the breach was done in bad faith, I would have had no hesitation making that finding on the basis of the record before me," he wrote. It was a stunning condemnation of the government's treatment of a citizen and the third time in recent months that federal courts have ruled against the government in its handling of security cases.
Judge Zinn was similarly scathing in his denunciation of the UN blacklist, named for Resolution 1267, which Canada co-sponsored when it was last on the Security Council. "I add my name to those who view the 1267 committee regime as a denial of basic legal remedies and as untenable under the principles of international human rights. There is nothing in the listing or de-listing procedure that recognizes the principles of natural justice or that provides for basic procedural fairness," Judge Zinn wrote.
Mr. Cannon has repeatedly said Mr. Abdelrazik needs to get himself off the list before he can have a passport to come home.
Paul Dewar, the NDP MP who has championed Mr. Abdelrazik's case, called it a "great day for justice and a great day for Mr. Abdelrazik - but only if the government allows him to come home. To appeal is to deny justice."
Judge Zinn further found that the Canadian Security Intelligence Service - whose agents interrogated Mr. Abdelrazik in one of Sudan's notorious prisons within weeks of his arrest - was "complicit in the detention of Mr. Abdelrazik by Sudanese authorities in 2003."
CSIS has vehemently denied that it has ever arranged for the arrest, imprisonment or torture of a Canadian citizen overseas.
Judge Zinn rejected Mr. Cannon's unsupported branding of Mr. Abdelrazik as a threat as arbitrary and lacking in due process. "In this case, the refusal of the emergency passport effectively leaves Mr. Abdelrazik as a prisoner in a foreign land, consigned to live the remainder of his life in the Canadian embassy or leave and risk detention and torture," he said.
Mr. Dewar suggested Mr. Cannon's credibility is in tatters after the ruling.
"The person Minister Cannon called 'a threat to national security' is described by court as an innocent victim," he said. "This calls into question the credibility of the minister."