Crown wants closed hearings in lawsuit alleging federal government aided torture of Canadians

After years of delays, a Canadian man’s lawsuit accusing the federal government of contributing to his detention and torture abroad is finally going to trial this fall.

But before the case can proceed, a judge must decide whether intelligence officials will be allowed to testify behind closed doors.

Abousfian Abdelrazik was arrested while visiting his mother in Sudan in 2003. He spent the next six years in prison or in forced exile in the Canadian embassy in Khartoum, as his attempts to return to Canada were continually rebuffed by the federal government. He has never been charged.

According to an agreed statement of facts, Canadian Security Intelligence Service officers questioned Abdelrazik while he was in custody about suspected extremist ties. Abdelrazik has denied any involvement in terrorism.

CSIS denies asking Sudanese authorities to arrest Abdelrazik. However, court records show Sudanese officials told Canadian diplomats that CSIS had requested Abdelrazik’s arrest.

Abdelrazik returned to Canada in 2009 after a federal court judge ruled that his constitutional rights had been violated and ordered his return.

The Montreal father filed a lawsuit that same year seeking $27 million in damages, alleging in his claim that he was tortured in Sudanese custody and that the federal government violated his constitutional right to return home.

After waiting nine years to get his case before a judge, Abdelrazik was scheduled to hear the case in 2018. That hearing was postponed to give court officials time to review and redact hundreds of pages of documents, including emails and memos, under the Canada Evidence Act.

Last summer, the court ordered 1,469 documents to be redacted, but the controlled summaries can still be made public.

The trial date is scheduled for next month, but one final hurdle must be cleared before the case can be heard.

Close the doors to protect national security: Crown

Last month, the prosecution filed a motion requesting that six witnesses testify behind closed doors, “to avoid prejudice to international relations, national defence and/or national security of Canada.” The witnesses in question are current and former members of CSIS, the RCMP and Global Affairs Canada.

Government lawyers argue in their motion that the public and the media should be excluded from the courtroom during the officials’ testimony to prevent “inadvertent disclosure” of protected secrets. Disclosure of certain protected information, they argue, “would endanger the lives of current and former CSIS employees, their colleagues, their families, and adversely impact CSIS’s ability to operate.”

The motion proposes to make the transcripts of the testimonies of these witnesses public, if necessary with editing.

The Crown notes that an Ontario Supreme Court judge allowed certain witnesses to testify behind closed doors last year during the trial of former RCMP officer Cameron Ortis, who was convicted of violating the Security of Information Act.

The prosecution is also seeking an order to shield CSIS witnesses, either by having them testify behind a screen or by using technology to alter their voices.

Abdelrazik’s legal team opposes the motion, arguing that such an exceptional order is unnecessary.

In his written statement, Abdelrazik’s lawyer Paul Champ claims the witnesses are “highly experienced in dealing with highly confidential matters” and calls the suggestion they could reveal classified information “speculative at best.”

“The principle of public trial is particularly important in this case, as it concerns allegations of misconduct and complicity in serious human rights violations by senior government officials,” he wrote.

“There is a strong public interest in the public hearing in which government witnesses defend their actions in this case.”

CBC News is seeking to intervene in the case, arguing that the Crown’s motion “would unjustifiably restrict the principle of open government and infringe on freedom of expression and the press.”

The Federal Court will hear arguments on the motion on Wednesday afternoon.