Arar Report: What's Missing?

On Monday, Justice Dennis O'Connor released his report on Canada's involvement in the detention, deportation and torture of Maher Arar.

The thousand-plus page, three-volume tome details a devastating litany of screw-ups, cover-ups and malicious leaks by Canadian officials.

The RCMP took particularly heavy fire: first for passing unconfirmed and, as it turns out, completely wrong, information about Arar to U.S. officials, and, later for trying to cover it up.

Not surprisingly, Canada's collective punditry have piled on all week.

The Globe and Mail's John Ibbitson wrote Tuesday, "No one, today, should have any confidence in the ability or integrity of the national police force."

His former colleague at the National Post, Andrew Coyne, called the debacle "Canada's Dreyfus Affair." While the Globe's editorial board, among others, has called for RCMP commissioner Giuliano Zaccardelli to quit or be fired.

The only person who comes off blameless in the whole thing is Arar himself. O'Connor found no evidence that the man, who now lives with his family in Kamloops, had any terrorist ties.

From cover to cover the Arar report is chock full of damning evidence and devastating conclusions; enough of both to prompt front page stories across Canada and the United States.

But buried deep, in most stories at least, is what the public isn't seeing. Sprinkled throughout the public version of the report are more than 50 sets of three asterisks. Each set represents an omission -- a decision by the government that the hidden words could damage Canada's national security or foreign relations.

And those are only the visible cuts. O'Connor had already stripped the public report of any material he thought represented a threat to national security. That material was bundled together with the public report to create a second, private-eyes only, document.

But the government demanded O'Connor go further. Before the public document was released, officials made 53 additional cuts.

Challenge in court?

"There are really now three reports," Lorne Waldman, one of Arar's lawyers, said Thursday. "We have no idea what was held out."

The commission can appeal the government omissions to the Federal Court. And the chief council has hinted in the press that they might. But, according to one legal expert, their odds of success are poor at best.

The Commission of Inquiry was governed by section 38 of the Canada Evidence Act, Jason Gratl, the president of the B.C. Civil Liberties Association, told The Tyee. The act gives the government broad leeway to declare classified material it thinks could harm Canada's national security or international relations, an area where the Federal Court tends to be sympathetic to government claims.

"The Federal Court has proven itself very prepared to show extreme deference to the government on matters of national security," Gratl said.

If the commission lost at the federal level, it could appeal to the Supreme Court. But even a victory there would not ensure the material goes public. Because of changes made to the act after Sept. 11, the government would still have the last word on whether to release the material.

Shirley Heafey, a former RCMP complaints commissioner, has been involved in the Arar case almost from the beginning. As commissioner, she lodged a complaint about the case before the O'Connor's inquiry was struck. She also made extensive submissions to the investigators once the their work began.

After her term as commissioner ended in October 2005, Heafey stayed involved as a board member of the B.C. Civil Liberties Association. The BCCLA have intervener status in the case. And when the report was released Monday, Heafey was in the media lockdown representing the group.

Heafey was not surprised by how much the government held back. "Anytime you're working in national security it has to be analyzed to death," Heafey told The Tyee from her home in Ottawa. "A lot of people working in that field become convinced that everything is national security."

'Unacceptable in a democracy'

But while Heafey said she was not surprised that parts of the public report were redacted, she did find the way it was done disturbing. In most cases, when a document is censored, the offensive phrases are blacked out. But in the Arar report, they was removed entirely and replaced by asterisks.

That means no one, outside the government censors and the commissioners themselves, knows how much is missing.

One legal expert compared the practice unfavourably to censorship in South Africa. In an e-mail to The Tyee, the expert wrote that at least there, newspapers could print blank pages showing how much was missing.

An official with the department of public safety said the asterisks insure no one could determine what was deleted by figuring out the exact length of missing words.

But Shirley Heafey isn't buying it. "People should be allowed to know [how much was removed]," she said. "This is unacceptable in a democracy."

Of course, even if Canada's government did, in the end, hold out some material, at least they were there. When asked what was missing from the Arar report, Jason Gratl from the BCCLA immediately pointed to those who would not attend.

"Syria didn't participate," he said. "The United States didn't participate. We're missing lots of documents."

Richard Warnica is a senior editor at The Tyee.

Related Tyee stories:

• Canada's Retreat from Laws of War
• Aiding Torture
• Harsh 'Road to Guantanamo'