Lawyers Defending Canadians Abroad
Paul Champ expects that any day he will no longer be able to travel to the United States.
The 43-year-old, Regina-born, Ottawa-based litigator doesn’t have a criminal record or appears on a no-fly list that would prevent him from entering the U.S. His bulls-eye is the nature of the cases he takes on.
Champ represents detainees in foreign countries, whether they’re prisoners held in the custody of the Canadian military in Afghanistan or such high-profile cases as that of Abousfian Abdelrazik, a Sudanese-born Canadian dual citizen who was tortured during two post-9/11 periods of detention in his native country as an alleged terrorist and who is now suing the federal government for $24 million and former foreign affairs minister Lawrence Cannon for $3 million in failing to protect his constitutional rights.
Champ also represents Benamar Benatta. The Algerian-born pilot came to Canada seeking refugee status on Sept. 5, 2001 and was handed over to U.S. officials on Sept. 12, 2001 as a 9/11 suspect and spent five years in the high-security wing of the infamous Metropolitan Detention Centre in Brooklyn – where Maher Arar was also held – and was physically abused by guards, according to a United Nations report on his case.
Benatta is seeking $25 million in damages from the federal government for the alleged unlawful transfer to the U.S. and a trial is set for December. He is now a Canadian citizen living in Toronto.
By law, Champ, as counsel, fights to protect and uphold the human and civil rights of his clients. But in so doing, he also knows he’s on the radar of law-enforcement and security officials south of the border where homeland protection since the Sept. 11, 2001 terrorists attacks has often superseded a lawyer’s ability to do his or her work.
Consequently, Champ takes precautions.
“I’m very careful now what I take across the border into the U.S.,” he explains. “I don’t take my laptop – ever.”
Champ’s concern is that it would likely be confiscated once examined.
“The U.S. has demonstrated on a lot of occasions that it doesn’t have respect for concepts like solicitor-client privilege,” he says.
“It’s one thing to have client documents on a computer that involves some kind of business deal. It’s another situation when you have documents about someone imprisoned in a foreign country, or potentially because of involvement of the United States and you have communications with that person’s family. It could really have a detrimental impact on your client.”
Yavar Hameed, who served as co-counsel with Champ to Abdelrazik, has so far not been subjected to any border-related harassment despite regularly travelling to the U.S.
The 42-year-old, Edmonton-born human rights lawyer, also based in Ottawa, could in some circles be considered a target for additional security.
He has a foreign-sounding name (Hameed’s ethnicity is Indian), he’s a Muslim and has acted for many fellow Muslims in Toronto, Montreal and Ottawa – explaining to them their rights as Canadian citizens or attending CSIS interviews with them – in the wake of 9/11. But nothing “untoward” has happened to him at the U.S. border. Hameed’s challenges have happened at home while attempting to seek justice for his clients.
“It’s not always clear whether the Canadian government is your adversary or is there to help you.”
For instance, he spent two years fighting for Abdelrazik’s repatriation to Canada, which occurred in 2009 – but only after the Federal Court ordered the federal government to return the man to Canada.
So, the courts can help – as can some legislation.
“In cases involving a permanent resident or Canadian citizen, we have the advantage of using access to information and personal information requests to get details on what the Canadian government may be or has been doing on a detainee file, and has not been forthcoming with the individual or the family for whatever reason – usually identified as a national security issue,” Hameed explains. “You don’t often get the straight goods about what’s happening to a person, why a person is detained, or things Canada has done. So having access tools are something you can use as leverage or to hold the government to account for information as to what Canada has done or should have been doing in a specific case.”
For example, the federal government denied that it had requested Abdelrazik’s detention in Sudan. However, Hameed obtained documents indicating that CSIS had made such a request and that its agents participated in Abdelrazik’s interrogation. It was also revealed that Canadian embassy staff in Khartoum was instructed to not monitor U.S. officials’ interrogation of Abdelrazik as he had requested.
Champ recalls a case where his client was arrested with an American in another country. “The U.S. secured the release of my client when the Canadian embassy officials were completely ineffective or unresponsive,” he says. “The Americans are very aggressive when U.S. citizens are arrested in a foreign country, but Canada unfortunately is not. At best, you can get a consular official to visit a person in detention – and maybe give a letter to the person – but that’s about it.”
“In terms of aggressively trying to put pressure on a foreign government to release a Canadian national, that’s something Foreign Affairs doesn’t do.”
Constitutional and public law litigator Nicolas Rouleau, who serves as executive director of the Toronto-based Council for the Protection of Canadians Abroad, says the challenge lawyers like Hameed and Champ face is one of “clarity and transparency – what the federal government is and isn’t willing to do.”
“If you’re lucky, the Crown will help you, but will do so behind the scenes. There are no clear criteria in terms of how to deal with foreign detainees. It’s done on a case-by-case basis, and in my mind, that’s the wrong way to approach a user-based service since Canadians are paying a $25-fee for consular services when they buy a passport.”
However as he explains, Canadians don’t know how much of that consular-services fee is allocated to help Canadians abroad; what services are offered; and what Canadians in distress abroad are entitled to receive from their country. “And some Canadians seem to get better representation from the government than others, so it’s very difficult to deal with a foreign-detention case when a lawyer doesn’t know whether his or her client is one of these privileged Canadians who get the full exertion of government effort” adds
Rouleau, who mentions such recent high-profile cases as those of well-known Toronto filmmaker John Greyson and Tarek Loubani, an emergency physician in London, Ont., who spent seven weeks last year in an Egyptian prison without being charged but who also benefited from a widespread public campaign – including supportive comments from Prime Minister Stephen Harper – which publicly called for their release.
“Then you have some clients who aren’t as media-savvy to push the right political buttons and might not end up getting as useful or as forceful protection from the government,” says Rouleau.
“The squeaky wheel gets the grease.”
Champ, who obtained an undergraduate degree in journalism from Carleton University prior to pursuing a career in law, understands that concept.
“Public shaming” of government inaction on a case can draw attention from the media as well as opposition – and sometimes government – MPs to both raise its profile and possibly spur action. “It’s about crafting a compelling narrative about your client’s circumstance that journalists and politicians can emotionally respond to,” he says. “Sometimes, that’s the only chance you have.”
Hameed agrees.
“When dealing with these cases in the shadows, they’re less known – especially if they’re not before the courts. So there is more of a prospect of being strong-armed by CSIS or the RCMP who can send very direct messages to you about what your role should be or what you should not be doing,” he explains.
“Once your case gets public attention or is brought before the courts, CSIS and the RCMP generally cease having any line of communication with you and you’re directly dealing primarily with Department of Justice lawyers.”
Adds Hameed: “You can also rely on some of the notoriety of the case to maintain your safety to some degree.”
Public support can also boost a case.
For instance on the Abdelrazik file, Foreign Affairs initially indicated in August 2008 that he would be issued travel documents to leave Sudan. But a month later, Ottawa changed its mind.
Nearly six months passed when 115 supporters purchased a flight ticket for Abdelrazik, because the federal government said he needed one to return to Canada. Trouble was that any Canadian (a group in this case that included former federal Liberal solicitor-general Warren Allmand) who contributed money toward the ticket’s purchase could face charges under Canada’s anti-terrorism legislation since Abdelrazik was – at the time – the only Canadian on the United Nations Security Council’s anti-terrorism 1267 blacklist as an al Qaeda supporter.
“Canadians from across the country basically put themselves on the line by making those donations. When the public steps forward like that, you’re not so isolated as being the only person sticking your neck out for the cause of your client,” explains Hameed, who travelled to Sudan to accompany Abdelrazik, who now lives in Montreal, back to Canada.
Time is also important.
“If you’re being called frantically by family because a husband or brother or son has been arrested in a foreign country, there are a lot of things you can do if you move very quickly,” says Champ.
“It’s usually in the first weeks or days or hours after someone is arrested that they’re most likely to be tortured and it’s when a determination as to what happens with that person is going to take place. So if you intervene early and act very quickly and aggressively before positions get hardened, you might be able to get that person released early.”
If that doesn’t work, pressure is placed on the Canadian government to “take forceful action” to get the person released, he explains.
Champ says there are also other cases, such as Abdelrazik’s, where Canada has been complicit or responsible, directly or indirectly, for a Canadian’s foreign detention.
“But suing the federal government for damages can be very difficult because it litigates those cases very vigorously and throws all of its resources to fight those cases.”
“It’s rare those cases settle out of court, and your client is most often financially devastated – and if abused while in custody, often psychologically very vulnerable as well.”
He’s had many sleepless nights worrying about clients detained overseas. “It can be terrifying and very stressful if you haven’t heard from them or a local contact within a day.”
“No prison anywhere is a holiday, but someone imprisoned in some countries like Lebanon or Syria or Sudan faces absolutely atrocious conditions where the cell is sometimes not much bigger than a closet, the food is terrible and, if your client has a medical condition, you can often forget about access to medicine.”
Hameed says that in Sudan, Abdelrazik was held in isolation and tortured through beatings, by being subjected to extreme temperatures and kept in “excruciating positions,” such as suspending him by his arms in a prone position.
Says Champ: “In some cases, prisoners can be or are abused whether to elicit a confession or sometimes because casual brutality is the norm, which can be very devastating for the individual and extremely difficult for the family back home.”
Often, the family becomes the lawyer’s client because they’re often the first point of contact prior to receiving the formal authorization from the person detained, explains Hameed, who was approached by Abdelrazik’s now-former wife to take on his case.
“The strength of the relationship between you and the family in Canada vis-à-vis their loved one abroad is vital to how successful the case is going to be.”
He refers to the case of Maher Arar, with which he was not involved, where Ara’s wife, Monia Mazigh, tirelessly pushed for her husband’s release. Says Hameed: “A detainee’s family plays a pivotal role, especially if you have a spokesperson like Arar’s wife who can articulate interest in the case.”
That type of a support is also hugely motivating for lawyers like Hameed, who pursue such cases out of a commitment for social justice and human rights along with a desire to shine a light on systemic injustices, such as the “double standard” Muslims and Arabs have faced post-9/11 regarding security issues.
However, knowing some of the “egregious” conditions someone has undergone in detention is most poignant.
“These are difficult cases, but there is the potential that you can do something to address an injustice regarding a person’s liberty and security,” says Hameed, who also represents Mohamed Zeki Mahjoub, arrested 14 years ago on an immigration security certificate, held for seven years and ultimately released in 2009.
Representing people “who are so completely vulnerable and at the mercy of the state” motivates Champ. “Someone in prison has very few rights. But when they’re in a foreign prison, they have almost no rights.”
“It’s about helping someone in a very desperate situation and not like some cases where you’re just suing for money. You’re sometimes suing for freedom to get someone released from prison.”
Driving him is the belief that the federal government’s actions or inaction regarding detained Canadians are often “morally wrong” if not “legally wrong” too – and he doesn’t shy away from sharing that opinion.
“I’ve been in the odd social situation where someone makes some pretty strong comments about my cases and I generally don’t mind that because I’m a lawyer and I like debates and discussions,” says Champ, who regularly acts as counsel to such organizations as Amnesty International Canada and the British Columbia Civil Liberties Association.
“It’s also a bit of a sounding board for me on how people are perceiving a case.”
He explains that when he represented Afghan detainees that resulted in a 2007 Federal Court ruling that approved a requested judicial review of their treatment by members of the Canadian Forces, there was no public support or sympathy for the plight of the Afghans. “It took a couple of years of not only legal work but work in the media to develop an understanding of Canada having a responsibility for prisoners in a foreign country and not knowingly handing them over to be tortured.”
Although Champ has never been threatened or feared for his own safety, he has received hate mail.
“People assume someone in prison abroad must have done something wrong and sympathy for them in Canada is at an all-time low,” he explains. “Cases where someone imprisoned abroad might be a dual national or a different race or religion than the majority of Canadians can be a real lightning rod for different unsavoury elements in Canadian society.”
Hameed points out that foreign-detainee cases are “lauded” within the legal profession for highlighting human rights and constitutional issues, but lawyers involved with them have no access to legal aid. “The expectation is that if a case is really important, lawyers are just going to step up and do it, which is unfortunate. But it’s what we’re forced to do as lawyers who have strong convictions for these cases.”
Both Champ and Hameed also face long hours of work, often on a pro bono basis.
“My law practice is not a highly lucrative one,” says Hameed, who has spent the past decade also working on cases involving civil litigation, administrative and immigration law, and criminal law regarding freedom-of-expression issues.
He explains that he can only handle a few detainee cases at a time, since they’re time-consuming, and of course, he needs to earn a living. “You hope at some point that you win in which case there’s some return in terms of costs. You also have to look for innovative ways to defray some of the costs where public-sector unions or other groups step up to pay disbursements.”
Champ has turned down many cases because of the sheer workload involved – from filing motions to fighting with the feds over documents in litigation that can last for years.
The work is often personally gruelling too.
“It’s difficult assisting families. They can be very irrational and demanding both your time and the results they want to see,” says Champ, who also practices in the areas of employment, labour and national security law.
“I dealt with one woman whose husband was imprisoned in Iran. It was very challenging to help her because she was so devastated and could be emotionally needy and difficult to get instructions from. But you have to push on because if you don’t, you know the individual in prison will be completely abandoned with no recourse.”
He says that representing foreign detainees involves a lot of personal sacrifice where the work doesn’t provide a significant income but also takes a considerable emotional toll over time and threatens a lawyer’s work-life balance. “The work becomes your hobby and you become a little obsessed with getting justice for your clients at times that forces out other aspects of your life.”
Champ, who is married with three young children, says it’s important that lawyers with this challenging practice area have strong support from family and friends – “or they’re not going to be able to do it for very long.”
He adds that living close to work – which he does in downtown Ottawa – helps too.
“I’ve made a commitment that I’m home for supper up to bedtime for the kids, and often back to work afterward. But if I had to regularly commute to the office an hour each way that wouldn’t be feasible,” explains Champ, who concedes that he’s had to interrupt family vacations due to work and delay home-repair projects when revenue flow has been slow.
Hameed, who is partnered, says it’s crucial to have emotional and ideological family support, which at times is expressed as concern.
“I have an aunt who is sometimes worried about me if I’m making critical statements publicly about the government,” he says.
“But my family sees that I’m trying to do something to protect basic human rights because we believe in social justice and protecting people who are oppressed.”
Champ says he would find it impossible to pull off late nights if he were just working on a business deal. “I couldn’t be motivated by it.”
The payoff, he says, is in helping people in desperate situations.
“I have never had a more rewarding moment in my life than when Abdelrazik walked into a hotel room after he had returned to Canada and saw his daughters for the first time in six years.”
“That moment can lift you up and carry you for a very long time.”
About the Author
Christopher Guly is an Ottawa-based journalist and member of the Canadian Parliamentary Press Gallery who regularly writes about the law.