Public Safety Committee on Nov. 23rd, 2006

[The Chair, Conservative, Garry Breitkreuz]

I'd like to bring this meeting to order. This is meeting 22 of the Standing Committee on Public Safety and National Security. We are being televised this morning, and we're dealing with the commission of inquiry on the events relating to Maher Arar.

We have with us this morning witnesses from the Department of Foreign Affairs. Mr. Alan Kessel is the legal adviser.

I believe sir, you have some opening remarks. You can introduce your colleague and maybe explain to us who you are. We'll allow you whatever time you need to make your opening remarks. Then the usual procedure is to begin with the official opposition and ask questions. We're here for one hour.

Go ahead, sir.

[Alan Kessel, Legal Adviser, Department of Foreign Affairs]

Thank you, Mr. Chairman.

Let me initially introduce my colleague Robert Desjardins, who's the director general of our consular bureau in the Department of Foreign Affairs and International Trade. Together, hopefully we'll be able to respond to your questions in due course. I do appreciate the opportunity, Mr. Chairman, to make a few remarks.

I'd like to thank you, Mr. Chairman and the other members of the committee, for the opportunity to provide you with the views of the Department of Foreign Affairs and International Trade on the report of the Arar inquiry commission. Let me say at the outset, Mr. Chairman, on behalf of my colleagues in the department who worked so diligently for Mr. Arar's release, how much we regret what he endured.

Mr. Chairman, I thought it might be useful if I provided the committee with a brief overview of the actions and involvement of the department in this case.

Officials of the department were fully engaged on Mr. Arar's case as soon as we learned of his arrest in New York on September 26, 2002. Staff in the Consulate General in New York took quick action to locate and visit Mr. Arar to help find legal counsel for him and to communicate with his family. Justice O'Connor himself makes clear in his report that officials in New York took reasonable steps to provide Mr. Arar with consular services, including addressing the possibility that he might be sent to Syria.

For their part, officials in Damascus, again in Justice O'Connor's view, did everything reasonably possible to obtain consular access to Mr. Arar throughout his year of imprisonment and exercised good judgment in seeking as much access as possible. Ambassador Franco Pillarella and Consul Léo Martel were persistent and vigorous in managing Mr. Arar's case in the face of significant challenges. It is important to note, for example, that Mr. Arar is a dual citizen of Syria and Canada, a fact that imposed constraints on our actions since the Syrian authorities regarded him as a citizen of their country and would not normally allow Canadian consular access to him. In these circumstances, obtaining and maintaining this access was virtually unprecedented.

Shortly after his return to Canada in October 2003, and to avoid a repetition of the unfortunate events that befell Mr. Arar, departmental officials sought and obtained U.S. concurrence to a process of notification and consultation in cases of involuntary removal to a third country of a Canadian citizen by the United States or an American citizen by Canada. This understanding, the Monterrey Protocol, was concluded on January 13, 2004. I think it's worth noting that the protocol is the only such understanding with another country that the United States has entered into, to my knowledge.

Mr. Chairman, you will recall that Commissioner O'Connor engaged Professor Stephen Toope to prepare a report with respect to allegations of torture in Syria. The finalization of the report allowed the department to bring its findings to the attention of Syrian authorities, and a copy of the report was provided to them on October 27, 2005. We expressed our serious concern with respect to the findings of Professor Toope and asked that the Syrian authorities conduct a thorough investigation. I should note that we have not actually received an adequate response to that request.

As noted by Commissioner O'Connor, departmental officials worked diligently in challenging circumstances to help Mr. Arar throughout his ordeal. Everyone who was engaged on this extremely difficult case was relieved and gratified when our efforts to secure his release succeeded. As recommended by Justice O'Connor, the government has registered its firm objections to the governments of the United States and Syria for their treatment of Mr. Arar.

The government has done this at the most senior levels. In a telephone conversation with President Bush on October 6, the Prime Minister spoke about the Arar case and expressed Canada's objection to the actions of American officials. On the same day, Mr. McKay, the Minister of Foreign Affairs, wrote to the United States Secretary of State and the Syrian Minister of Foreign Affairs to register Canada's objection to their governments' treatment of Mr. Arar.

The minister reminded Secretary Rice that U.S. officials gave no indication and provided no notification to the Canadian consulate in New York that they intended to deport Mr. Arar to Syria, an action that led to his prolonged incarceration. This was inconsistent with the respect for the rule of law that normally characterizes Canadian-U.S. cooperation in judicial and law enforcement activities.

I am pleased to say that Mr. MacKay also secured Secretary Rice's commitment to ensure that all relevant U.S. agencies are aware of the provisions of the Monterrey Protocol, and she recognized the legitimacy of Canada's concerns about the failure of the U.S. authorities to notify our Consulate General of Mr. Arar's removal from New York to Damascus.

In his letter to Syrian Foreign Minister Moallem, Minister MacKay made him aware of Justice O'Connor's conclusions that the Syrian authorities held Mr. Arar incommunicado for almost two weeks in October 2002 and that during this period, Justice O'Connor concluded, Mr. Arar was interrogated and tortured. The minister urged the Syrian authorities to address the vitally important question of torture and related human rights issues in light of its international obligations and of recognized international standards. Our embassy in Damascus remains engaged with the Syrian authorities on this issue.

Mr. Chairman, I now turn briefly to Justice O'Connor's other recommendations, which affect the operations of the department and its cooperation with other departments and agencies. We have acted quickly and decisively to respond, and these recommendations have already been, or are in the process of being, put into practice.

In the area of human rights, for example, the department acted, before the commission reported, to post our embassy's human rights reports on the secure Foreign Affairs website, to which all members of the Canadian security and intelligence community have access.

A one-day workshop on torture is now conducted as a regular part of consular staff training. It has been operating for two years and was developed with input from the Canadian Centre for Victims of Torture. The workshop is being enhanced and made available to an increasing number of front-line staff.

We wholeheartedly endorse Justice O'Connor's recommendation 16. To provide better coordination and coherence, the department and CSIS have discussed a draft protocol to set out the responsibilities of each party in consular cases that have a terrorism or national security dimension. Once this is formalized, we will use it as a model for a protocol with the RCMP.

In the area of consular case management, we are studying the difficult question of dual nationals in cases where an individual finds himself or herself in the country of his or her other nationality and that country does not recognize the person's Canadian status. This is an area that will always complicate providing consular services to Canadian dual nationals. Provisions in international law on this subject are vague and weak. It is not even mentioned in the Vienna Convention on Consular Relations.

Mr. Chairman, let me conclude by saying that the Arar inquiry commission conducted a thorough investigation into the circumstances of Mr. Arar's ordeal. The department cooperated fully and expeditiously with the commission, and we are implementing the recommendations that concern us. Our perspective is forward looking, and we are working to ensure that the recommendations are implemented with vigour and in the spirit of cooperation.

I thank you, Mr. Chairman.

[The Chair, Conservative, Garry Breitkreuz]

Thank you very much, Mr. Kessel.

Before we go to the official opposition, could you clarify one point? You did in your report a little bit. You talked about the Monterrey Protocol. Would you mind clarifying for us what that is, precisely?

[Alan Kessel]

Yes, certainly, Mr. Chairman. I think many of you will recall, and it has been mentioned a number of times, that on January 13, 2004, the then Minister of Foreign Affairs, Mr. Bill Graham, wrote a letter to his counterpart, Mr. Colin Powell, indicating essentially our mutual interest to ensure that this type of activity did not happen again and that we wished to consult on such cases in the future. Mr. Powell then wrote back confirming to Mr. Graham his understanding, and together these two letters form what we consider to be an understanding between the Government of Canada and the United States government, which continues today.

So Mr. Graham, in his foresight, at the time sought to say that, before we even came down with the results of the O'Connor commission, we saw there was a particular issue here with the U.S, and the government of the day felt it could resolve this. Together they produced the Monterrey Protocol, which in fact is being implemented. Officials on both sides, in both administrations, in the current Government of Canada and in the department that Condoleezza Rice now runs, are implementing this Monterrey Protocol.

If the committee would like a copy of it, we do have it here.

[The Chair, Conservative, Garry Breitkreuz]

Yes, that was actually going to be my next question. Could we get a copy of that?

[Alan Kessel]

Absolutely, and if the clerk would like, it's right here.

[The Chair, Conservative, Garry Breitkreuz]

Thank you very much.

We'll now go over to Mr. Holland from the Liberal Party for seven minutes of questions.

[Mark Holland, Liberal, Ajax—Pickering, ON]

Thank you, Mr. Chair.

Thank you to Mr. Kessel for appearing before the committee today, and also to Mr. Desjardins.

I'm wondering if we can start talking about the one voice letter, and specifically the fact that department officials within Foreign Affairs were pushing for there to be a one voice letter. Justice O'Connor in his recommendations discussed a disappointment, obviously, with the fact that this wasn't sent, and indicated that it might have led to a protracted period of time in getting Maher Arar back.

I'd like to start by asking this. What was the basis of the talks between the Department of Foreign Affairs at that time and the RCMP and CSIS? Could you tell us who was involved with those discussions at that point in time?

[Alan Kessel]

Well, perhaps I should say at the outset that I certainly wasn't involved in this process at that time. I wasn't even in Canada at that time; I was posted overseas. What I can say is that it appears that Mr. Justice O'Connor has really canvassed this issue quite considerably, and in going through the report, I think it's quite clear what the process was and how the recommendations that came out of that indicated that we should find a way to improve the communication between departments.

So I think perhaps we are best able to respond to the recommendations that have come out of the report--simply to indicate that this particular issue, which was of concern to the Department of Foreign Affairs, as you will know when you read the full report, as it was our initiative to produce that one voice letter.... We are gratified that the commissioner has come out with the suggestions he has.

In fact, I may turn to my colleague Robert Desjardins, because he is particularly implicated in resolving that recommendation.

Could I ask you, Robert, to speak about some of the things--

[Mark Holland, Liberal, Ajax—Pickering, ON]

I don't mean to interrupt the witness, but I'm aware of some of the actions the department is taking on a go-forward basis, and this committee is going to be looking at it in more detail. What I'm concerned with right now is the fact that we have conflicting information about who knew what and when they knew it; and specifically, we have problems knowing what was going on with the discussions of the one voice letter.

I don't agree with your conclusion that it's clear. In fact, I think it's quite unclear as to what the positions of both CSIS and the RCMP were at that point in time. So I'm asking for your assistance, I guess, as the department that was advocating for a one voice letter, in understanding what the objections of CSIS and the RCMP were.

[Alan Kessel]

Mr. Chairman, I can't add anything more than Commissioner O'Connor has described in his very lengthy report. I'm afraid I'm not able to provide more than Justice O'Connor has provided in that.

What I can say is that given the concerns that were raised and given the very long explanation of the yinning and yanging between the various departments, rather than dwelling on who did what and when, what we have decided to do is fix the problem.

If I could pass my chalice over to Mr. Desjardins, I would like him to explain just how we're going to fix that problem.

[Mark Holland, Liberal, Ajax—Pickering, ON]

There may be somebody who asks a question on that, and I would welcome that question and be interested in it. I'll tell you exactly why it's important. There has been no accountability taken for this affair at this point at all. In fact, the government has not yet issued an apology. Your minister has not issued an apology. I think it is imperative that we understand what exactly went wrong, and that the individuals who are responsible for this be held to account. I think that it's partially the responsibility of this committee, through this process, to undertake that.

If you cannot answer the question because you were not involved at that period of time, is there somebody who could tell this committee, from within your department, what happened with the one voice letter? What were the specific objections of the RCMP at that period of time? What were the objections of CSIS that were occurring? Again, if you can't answer it, who could we turn to, as a committee, to find out that answer?

[Alan Kessel]

Mr. Chairman, quite frankly, the reason I'm here is that we were looking forward, and the reason I'm here is to show what the department is doing in response to the recommendations. I think it's entirely up to the department to determine who to send for that purpose.

I think the department's view was that the issues that Mr. Holland is asking about were extensively covered in the entire process of the O'Connor commission. It went on for many months, with a very large report that lists in detail who said what to whom and when they said it. I think the objective from this government's point of view--and it certainly was the objective of the previous government--is that we find solutions to the various problems. I think the previous government's view and the government's view today is that we actually deal with that problem.

I would suggest you may want to go through the report again in detail, because it does elucidate quite a bit of that debate. Maybe if we can move to the solution part of it, if there are follow-up questions and you wish to continue that, it's entirely up to the chair to determine how best to have a response. For the moment, the best response I can give you is the one I have now.

[Mark Holland, Liberal, Ajax—Pickering, ON]

With respect, you didn't answer the question.

The problem I have is that the O'Connor report detailed a massive intelligence failure; t he O'Connor report did not detail a slight problem that we should just resolve with some minor changes. This was a massive intelligence failure, for which at this point there has been no accountability. I certainly believe it's imperative for us to understand what went wrong. If this is simply taken in such a way that we're going to make some changes and move forward and no one is held to account for what occurred, then how can we have any expectation that things will meaningfully change?

The O'Connor report and the testimony we've had before this committee have indicated that particularly with, in my opinion, the RCMP and the RCMP commissioner there are major discrepancies in the information that was put before us. I am getting extremely frustrated in trying to reconcile those. I ask the question again: where can I find information about the one voice letter with your department?

[The Chair, Conservative, Garry Breitkreuz]

Please give a brief response, and then we'll go to Monsieur Ménard.

[Alan Kessel]

Thank you, Mr. Chairman.

I really do want to hear from Mr. Desjardins, because I believe that forward looking is good. I think it's useful to say that the previous government--but both governments that were involved in this process--had a very strong commitment to ensuring that the areas of concern in terms of communication between departments be corrected. I think the previous government was very conscious of a need to put in place a process that would allow this not to happen again. I think the strong will of the previous government was carried through into the current government. The current government has taken up that torch and has indicated strongly to departments—I'm sure you've had the opportunity to chat with departments other than ours—to ensure that this thing is corrected.

I would ask, with your indulgence, Mr. Chairman, if we could actually take a look at what was done. If we do need to come back at your discretion to explain things further, then I'm sure we can arrange that. But I think we should look a little bit forward, from Mr. Desjardins.

Thank you.

[The Chair, Conservative, Garry Breitkreuz]

We'll probably have an opportunity at some point.

We will go to Mr. Ménard.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Thank you for joining us, Mr. Kessel.

I had time to read your statement. When the Arar case was first brought to your attention, did you know why he had been removed to Syria?

[Alan Kessel]

Thank you, Mr. Chairman. If I may, I'll answer that question in English.

I have to resort again to the report, because quite frankly, I think this whole area has been carefully and articulately enunciated by the commissioner. The chain of events is very clear on when our consular officials were advised. That was very early on in Mr. Arar's dealings with American authorities, and we engaged very quickly with Maureen Girvan, who was our consul official at the time in New York.

The department is extremely satisfied with the conduct of our consular officials. In fact, so is the commissioner. It's rather interesting, because I was trying to go through this very process that you have just mentioned, and in looking at what Maureen Girvan was doing and at what some of our other officials were doing in New York, it is quite clear, certainly from the extensive response in the report, that the commissioner was entirely satisfied with the work done by our staff.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Mr. Kessel, you've already taken up two of the seven minutes allotted to me for questions. Yet, I asked you a simple question. Did you know why Mr. Arar had been removed to Syria?

[Alan Kessel]

Our officials did not know.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Thank you. You see, you didn't need two minutes to answer the question.

Did you attempt to find out why he had been removed to Syria?

[Alan Kessel]

The officials at the time, as you will have seen in the report, were surprised and shocked at the treatment that Mr. Arar received from U.S. officials. We had never experienced something like that in the history of our relationship with the U.S. The normal process would have been that if there were an immigration issue, the individual would be returned either to the point of origin, which in this case, I guess, was Zurich, if he was coming in to the U.S., or to Canada, as Mr. Arar had indicated that he wished to be returned to Canada.

We were taken aback by the decision of the U.S., without informing us, to remove Mr. Arar to Syria.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Again, I don't know whether your answer is yes or no. My question was as follows: Did you attempt to find out why Mr. Arar was removed to Syria?

[Alan Kessel]

Maybe I'm not understanding the question, but I can tell you that the individuals dealing with Mr. Arar on the ground did not know why he was being sent to Syria.