Trial preparation, client management and Charter claims for some of the worst human rights abuses ever litigated in Canada.  

In 2008, a commission of inquiry led by retired Superior Court of Canada Justice Frank Iacobucci concluded that Canadian officials had contributed to the overseas torture of three Muslim Canadian men, Ahmad Elmaati, Muayyed Nureddin and Abdullah Almalki. The officials had provided foreign agencies in Syria with unfounded information linking the men to extremism, for which the men were detained and tortured.

Following the inquiry, Elmaati, Nureddin and Almalki filed lawsuits against the Government of Canada, alleging that the Government had facilitated their "arbitrary detention, torture, false imprisonment and assault and battery."

The plaintiffs’ months-long trial was set to begin before the Supreme Court’s Honourable Justice Lederer when, this past February, a settlement was announced.

Phil Tunley is a senior litigator and partner at Stockwoods LLP, which represented all three plaintiffs in this case. In an interview with lawyer Saba Ahmad, he shares his experience and insights about trial preparation, client management and advancing Charter claims in the context of some of the worst human rights abuses ever litigated in Canada.  

 

I understand your firm represented three victims of torture: Misters Almalki, Elmaati and Nureddin, in respect of their unlawful detention and torture overseas. Why were they suing Canada when they were tortured abroad?

The case was based on a number of actions of Canadian officials that led to, caused, or contributed to their mistreatment abroad in Syria and Egypt. Those actions included Canadian officials providing inaccurate information that mislabeled our clients as terrorists. They included providing assistance, in terms of identifying them, to foreign countries, especially Syria – the provision of their travel itineraries and passport information. The actions included participation in their detention. And it included actions that contributed to their mistreatment in these facilities abroad, including their torture.

We claimed Canada was responsible for those actions. 1% responsibility or fault under the Negligence Act entitles our clients to recover full damages for their suffering. 

 

What can you say about the settlement?

I have no comment on the terms of the settlement.

 

What happened to your clients overseas?

The stories are slightly different. The common features are that on arrival, generally in Syria, they were detained at the airport or border crossing. They were taken to a notorious prison, called the Palestine Branch, or Far Falastin, in Damascus. They were interrogated, using information provided by Canadian authorities, and in the course of that interrogation, tortured.

The torture consisted of, in all cases, being doused with cold water and the use of an electric cable (a black, foot-long, one inch thick cable) to powerfully beat the soles of their feet, back, legs and other vulnerable areas of the body.

 

What else happened?

The purpose of the treatment was to extract information.  In some cases, they were made to sign documents they did not read. In all cases, they were kept in cells that were infested with cockroaches – given poor, if any, food. In two cases, they were kept in solitary confinement in a cell about the size of a tomb, which had many characteristics of a tomb

In Elmaati’s case, the detention took place in both Syria and later in Egypt over a period of 26 months.

In Almalki’s case it was 22 months.

In Nureddin’s case, it was 33 days – mercifully short. 

All of them suffer today from Post Traumatic Stress Disorder (PTSD) and other disturbances related to that experience.

 

What Charter rights, do you say, were violated?

There are a number of dimensions to the Charter arguments. S. 7 is the primary one in terms of the torture and mistreatment that occurred. We also alleged that the investigations themselves were tainted with racial profiling and other actions contrary to s. 15 of the Charter.  We alleged that the rights infringed included the rights of the plaintiffs to remain in and return to Canada pursuant to s. 6 of the Charter. We alleged breaches of the rights to be free from cruel and unusual punishment in s. 12, and infringement of the rights to privacy through intercepts and other warrant applications contrary to s. 8 of the Charter, and other matters.

 

Many, many Charter breaches . . .

Alleged Charter breaches.

Obviously we are dealing very much with the use of what many would regard as traditional criminal law powers for a national security investigation. What’s clear about that, and it emerges from the inquiries, is that essentially, criminal law powers are being used not for prosecution purposes, but for purposes of disruption and prevention. The powers were used to interfere with activities believed to be related to the conduct or support of terrorist activity.

 

Does the Charter provide a remedy?

Case law clearly enables s. 24 of the Charter to be used as a basis for awarding damages, which can include compensation. It’s quite clear from case law from the Supreme Court and from lower courts, an award of damages under s. 24 includes denunciation of the conduct that was committed in breach of the Charter. Such award are designed to deter and prevent similar breaches in future.

It is the plaintiffs’ perspective that what occurred post-9/11, the conduct they were the victims of, should – indeed must – never happen again to Canadian citizens at the hands of the RCMP or CSIS. The only way to ensure that in our legal system is for the courts to register sufficient disapprobation through an award of Charter damages.

 

Are there many precedents dealing with damages under s. 24 of the Charter or are you breaking new ground here?

There’s always new ground to be broken. That’s why these cases are more interesting than the average slip and fall. But the fact of the matter is that the case law is pretty mature. A recent decision of the British Columbia Supreme Court – in a case called R. v. Henry – is probably the most recent and fullest exploration of Charter damages in the context of a wrongful conviction. 

So wrongful convictions are part of what occurred in our clients’ cases, in the sense that they were wrongfully alleged to be involved in illegal activity and, as a result, they were detained and incarcerated. But they weren’t just incarcerated in a Canadian institution.  They were detained in some of the most notorious and horrific prisons in the world – and were subjected to treatment that is unimaginable to most people in Canada, including lawyers.

 

You said Canada provided information that led to their detention.  What information was that?

Two of these individuals came to the attention of CSIS and RCMP prior to 9/11 and one afterwards. In each case, the information provided was based on superficial investigation of their stated backgrounds and alleged connections. Yet Canada shared information, which was stated in categorical terms. The information was inaccurate, inflammatory and was not supported by investigative evidence.

There have been two inquiries. The first was about Maher Arar, who is the fourth Canadian suffering from the same experience. And the second was an internal inquiry by former Supreme Court Justice Iacobucci about these three plaintiffs.

 

So who shared the information that led to their detentions?

In each case it was either members of CSIS or members of the RCMP investigation set up after 9/11, based on information provided by CSIS.

 

And to whom did they give that information?

Initially to United States agencies: the CIA and the FBI.  But eventually, directly to Syrian and Egyptian authorities.

 

So you’re saying the evidence is that the RCMP or CSIS gave information directly to Syrian authorities?

Yes. That’s been discussed at length in both of the two inquiries. It’s important to know as well that in order to have an intelligence-sharing relationship with Syria or Egypt, the RCMP or CSIS required ministerial authorization and approval, which had not been obtained at the time of the events. Both countries were known to practice torture and, as a result, policies (that were not followed in these cases) required CSIS and RCMP to seek approval before establishing an intelligence-sharing relationship.

 

What remedies did you seek?

The claims were for a variety of relief. Damages, obviously, was the primary relief. There were also administrative remedies sought in terms of clearing their names, clearing Canadian information systems of misinformation that’s been created about the plaintiffs.  The plaintiffs also sought an apology, as was given to Mr. Arar in 2007.

 

Do you have information or theories to suggest why Arar received an apology in 2007 and your clients did not for a long time thereafter?

No. There was no apparent reason for that, as far as the public record would show.  A settlement based on the Arar principles was recommended by the House of Commons Committee on Public Safety in 2009. It was also urged by UN Committee Against Torture, which reviewed Canada’s actions in 2012. As far as we know there was no reason for not following those recommendations. None has certainly been advanced by the government as to why those recommendations have not been followed.

 

Any important differences between the Arar case and your cases?

Mainly, the misconduct by Canadian officials was much more serious in our cases. You’ll recall in the circumstances of Mr. Arar’s case, he was actually detained and deported by the United States and the only contributing actions of Canadians officials in his case seemed to be sharing of information – mislabeling – which also occurred in the cases of Misters Almalki, Elmaati and Nureddin. In these plaintiffs’ cases, there was also sharing of travel information, active participation in arrangements surrounding the detentions of the three individuals, participation by sending questions to be asked once they were in detention, and other conduct amounting to, we said, complicity in the secret detention and torture of the three men.

 

You alleged the Canadian government was complicit in the secret detention and torture of your clients. Isn’t that a bit strong?

No. I don’t think so.  The Supreme Court of Canada, in a recent case, has considered the principles surrounding complicity in torture and recognized that civil consequences can flow from complicity.  They’ve described an approach in a case called Ezokola, dealing with a Congolese official who was seeking refugee status in Canada.  So the law’s certainly there to support the allegations. 

The Supreme Court specifically encourages the use of international law precedents – and as I’d indicated, one of the chief international law bodies responsible, the UN Committee Against Torture, has concluded in its Report about Canada’s conduct that Canadian officials were complicit in the torture of these three men, based on the findings of our own Iacobucci Inquiry.

 

Did you sue any individual defendants?

When we took over the cases from counsel who initially commenced these actions – a large number of individuals were named.  We immediately arranged to let many of them out of the actions.  We let out a number of senior officials and others remotely involved.  We also struck an agreement with the lawyers on behalf of Canada to allow others to be let out or no longer named individually based on an agreement that the government of Canada would accept vicarious liability for them and that they would be produced in the discovery process in the ongoing litigation.

 

Who did the government produce for discovery?

I think that’s a long list.  

It included about twelve individuals from the RCMP, six people from DFAIT, and the discoveries of CSIS individuals – I think there were about four named.  Given the nature of the information that we were allowed and not allowed to see about CSIS activities– the discoveries were very difficult and not entirely worthwhile.

The important point at this stage of the action is that Canada’s liability did not depend on the individual liability of any one person.  Canada’s liability involved a combination of events, and knowledge and circumstances involving all of the people who were involved, including some people who were never named as defendants individually in the actions. 

 

Didn’t you sue an ambassador?

More than one. 

 

Oh, I recalled about Pillarella. More than one?

Yes. Ambassador Pillarella at the time was the Canadian ambassador to Syria, headquartered at the Embassy in Damascus. He was named individually and was examined for discovery. 

Ambassador Salaberry was the Canadian Ambassador to Egypt at the time in Mr. Elmaati’s case, stationed in Cairo. 

 

What did you say Ambassador Pillarella did?

A Canadian ambassador has a number of different roles in relation to Canada’s relationship to the host country. They have consular responsibilities towards Canadian citizens, including these three individuals who were Canadian citizens at the time of the events. They also are involved in political and other relationships between Canada and the host country – and they have a role in supporting other Canadian departments in relation to their activities in the country to which they are assigned. So they have a composite role.

We said Ambassador Pillarella provided very material support to CSIS and the RCMP, which has been discussed in the Iacobucci Inquiry. That support was explored further in the discovery process. So there was certainly a basis to name him individually.  But again, his involvement, ultimately, was as a representative of the Canadian government.  He was one of several people who were involved in dealings between Canadian investigators and Syrian Military Intelligence – a notoriously brutal intelligence agency, known internationally for the routine use of torture against its own citizens and other detainees.

 

How did Ambassador Pillarella provide support and cooperate with Syrian Military Intelligence?

I can only talk about the details that emerged from the public report of the Iacobucci Inquiry and the Arar Inquiry. I want to be careful not to discuss matters that were the subject of discovery. But even from the public sources, it’s clear he was involved in arranging and attending meetings with senior officials both with the foreign ministry of Syria and with military intelligence officials. He did that at the request of the RCMP and CSIS. He delivered questions that were to be put to one or more of the individuals while in custody in Syria – questions that were to be asked on behalf of Canadian investigators – and I’d better leave it at that just in case I get into details that I shouldn’t.

 

There was a documentary by The Fifth Estate suggesting even more involvement than that – can you comment on that?

Obviously I’m aware of the CBC documentary. It was the result of a great deal of work reviewing public filings in both the Federal Court and the Superior Court of Justice about the case. Our clients were interviewed – and to the extent documents in the litigation have been made public but were not already available to the Arar Inquiry and the Iacobucci Inquiry or made public in the Inquiry reports, the CBC had access and commented on those and displayed some of them on the program.

 

You said discovery was ongoing in the run-up to the trial. What steps were involved before the trial?

The cases were set down to begin originally in September 2016 by the case management judge, Justice Perell, supervising the discovery process. He did that in 2013. The parties had been working hard to complete the discovery process to meet the timetable. The trial was put off to January of 2017 at the request of the parties a year or so prior.  A trial judge was assigned – Mr. Justice Thomas Lederer – who met with the parties to ensure the case was properly prepared for trial – to organize the details to arrange for the trial.  He eventually directed that the trial would start Feb 27, 2017.

 

How long would the trial have lasted?

You can never be sure.

However, the anticipation of both parties was that it would be at least 6 months for the case on liability

 

How many witnesses?

There are three cases. A preliminary list of witnesses showed there would be – I’m going to say more than 50 and less than 100. 

As is sensible and as is required, the parties were trying to work together and the judge was applying appropriate pressure to try to reduce the number of witnesses.  We tried to get admissions of facts that were not in issue, to shorten the trial and focus on disputed facts.  But, as I’m sure you can imagine in cases like these, there are lots of important background facts that are really not disputed.  To the extent that one or more of the witnesses was involved in only undisputed facts, that was a good reason to try to shorten their evidence or agree on the facts that would be elicited.

 

How many lawyers does it take to prepare for that many witnesses?

Both parties had a team of counsel who were to be involved at trial.  It’s not sensible to try and actually run a trial over a six-month period with only one counsel involved. It’s normal and probably necessary to have more than one. We had a team of four or five lawyers, depending on the outcome of efforts to shorten and streamline the trial – and that’s about right for the number of witnesses and the duration of the trial. I’m pretty sure the Attorney General had about the same. As I’m sure you can appreciate, not all of the counsel would be familiar with all aspects of the trial.

 

How many documents would the trial judge have been asked to review?

One of the questions the trial judge asks in case management meetings is exactly that.  We started with total produced population of about 35,000 documents.  The parties wanted to get to a joint book of agreed documents that are necessary for the trial – so that number was reduced radically.  Our approach got us to about 700 that remained in consideration as possible exhibits at trial.  But that was only our estimate.  It didn’t necessarily take into account the views of the Attorney General.  They may have had an interest in other documents.  Any trial judge, you can bet, will pressure both parties to keep global number down as low as possible.

 

How about experts?

The cases were about negligent investigation.  Recent case law requires that there be expert evidence about the standard of care in national security investigations. This was to be the first trial in Canada addressing that standard of care, I think.  In addition to liability, there are issues about the consequences for the plaintiffs and their families in terms of travel restrictions – their ability to travel internationally, freely without interference.  And, of course, there were experts to speak to the psychiatric and psychological impacts of the experiences on the principal plaintiffs.  There were claims for defamation so there would be evidence about reputation. Claims for damages require proof of income loss – so there would have been the usual kind of evidence about the losses of income that each of the three plaintiffs experienced.

But as you know the Charter cases – and this was a case in part claiming damages for breach of Charter rights – in those cases a slightly broader approach is taken to damages.  In addition to the traditional personal injury-type damages that were being assembled by the plaintiffs – and rebuttal reports prepared by defendants –  it’s fair to say the evidence on damages was expected go beyond that and to involve consideration of Charter values and Charter matters – about the nature of the investigations and so on.

 

You filed the statement of claim in 2009? 

In Nurredin’s case, his original counsel filed in ’04 and re-filed in ’06. When we took over the cases from former counsel in 2008 or 2009, we substantially amended and filed fresh Statements of Claim in all three cases.

 

What’s happened since 2009?  What took so long to get through discoveries?

One of the complexities of cases involving national security, of any kind, is claims by the federal government of national security privilege pursuant to s. 38 of the Canada Evidence Act. Unlike a normal discovery, in these cases you’re faced with a bifurcated process.  You conduct all your normal Superior Court discoveries in accordance with the normal Rules - but you have to process all the claims for, and rebuttals of, national security privilege in the Federal Court. So since 2010, we had been involved in parallel proceedings before a designated judge in the Federal Court – initially reviewing a sample of 300 documents – and eventually a full batch of almost 5,000 documents, which were heavily redacted, for national security privilege. 

There were two amici appointed by the court to represent the interests of our clients in reviewing those documents.  Much of the review takes place in camera – and that process had been ongoing since 2011.  We did not yet have – even on the steps of trial – a decision of the Federal Court dealing with many of the claims of privilege asserted by the federal government.  So that had been ongoing throughout the six-year period we were involved.  And we had been actively involved in that. At the same time, document production went forward. We conducted many days of discovery – many witnesses from three departments of government, including the formerly individually named parties.  Our clients were extensively examined for discovery.  We’ve had motions before the Superior Court of Justice, before Justice Perell.

 

What motions are those?

The most significant in my view was a motion originally framed as a motion to strike the Statement of Defence of the Attorney General, and to proceed to a trial on damages – but also in the alternative a motion for production.  What we obtained in July 2013 was about 18,000 pages of documents – heavily redacted – of the transcripts of witnesses before the Iacobucci and O’Connor inquiries, which had previously been entirely secret, in camera, and not available to the public in any form.

We had amicus counsel in Federal Court who were permitted to see the secret documents and authorized to agree to redactions or accepting summaries of information.  The amount of information we were dealing with was unprecedented by many fold – the Federal Court had never had to deal with this volume of information in any case in the past.

A lot of what you have described would require your clients to have trust – trust in you and trust in the legal process. Was that hard for torture victims?

One of the consequence of being betrayed by your own government and being subjected to brutal torture over any period of time, is a loss of trust.  It’s always an issue – not just in this case, but especially in this kind of case, I would think.  We’ve had to gain the trust of our clients – that’s been the first step.  But then, our relationship with the amici and our trust in their skill and abilities at doing what they’re doing – I think has been very important for our clients in making the decisions they’ve made.

 

How are these three men doing?

It’s not over until it’s over.  I was amazed at their resilience and worried that that it might ultimately mistakenly be held against them. They have made progress. They have been receiving treatment. They have supportive family situations – all of them, which is a great help. 

But the reality is that their lives have been shattered. They cannot move forward with any kind of employment because of the stigma that attaches based on – the continued shadow of allegations that were made by Canadian investigators.  And also because of their medical conditions. PTSD is a disabling condition and the combination of factors that relate to those two things made our clients essentially unemployable since their release in 2004.

 

How about their families?

The families of all three men were plaintiffs in the actions in their own right. They have been subjected to their own indignities in terms of being stopped, questioned, and searched on a targeted basis. No basis, other than association. Repeatedly. They experienced the same problems in terms of their names – in terms of their reputations by association. But, as I say, in all three cases, close family ties are a source of support. That’s a good thing.

 

Why did your clients settle?

These cases raised all the usual, compelling reasons for both sides to settle, in spades: particularly, in order to avoid the cost, trauma, and uncertainties of a lengthy trial, involving many novel issues of law, many factual complexities, and significant evidentiary challenges for both sides.  

 

Does this settlement bring needed closure to your clients?

Indeed, our clients are particularly gratified to have received an apology from the highest level of the Canadian Government. They and their families are pleased that their long legal ordeal is over.

 

How does a lawyer in cases like these handle media coverage? Is that something you can try to control?

In a case like this it begins the other way around.  The media were used by Canadian investigators as part of their methodology to disrupt the lives of these individuals and their families – to brand them as terrorists – to cause them to travel outside Canada for various reasons.  The government has a powerful connection to media. They are very capable of feeding stories to the media – and that’s how our clients’ problems started in many instances.

When we become involved as their lawyers, after the fact, obviously restoring their reputations is important.  There’s a duty to mitigate. The actions are for defamation – for loss of reputation. And part of their responsibility legally, and our jobs as lawyers, is to find ways of restoring the balance in terms of better appreciation of who they are and the reputations that they should have.

So using media in that sense is not optional.  It’s necessary. The question is how you do it.

 

And how do you engage the media?

Our consistent approach has been to not seek media attention about the lawyers involved. Rather, whenever there is media attention available – to make sure that its about the plaintiffs, their circumstances, and their families and the injustices that have been committed against them. 

Obviously the biggest problem in engaging media in a case like this is that most of the information at a given time is subject to the deemed undertaking rule. There are things that we as lawyers have to do, and we have done scrupulously, to ensure we honour our obligations. There is nothing worse for this kind of case than to find yourself offside the legal rules when you’re engaged in involving the media in any way. 

When you look at our Rules of Professional Conduct, they speak to the responsibilities lawyers have to not only engage media where it’s of assistance to the client –but also to educate the public through the media about these cases and the issues in our justice system. These cases have obviously had a lot of public attention. Two public inquiries. There has been great deal of public interest.  And that’s another reason why it’s essential for a lawyer who gets involved to seriously consider when and how to engage the media in respect of the case.

I think trial judges and judges of the court are generally rightly cautious about media attention – they don’t like to see it on their breakfast tables when they’re involved in an adjudicative capacity. That’s understandable.  They shouldn’t have to read it – perhaps shouldn’t read it. However, that doesn’t mean it’s not a legitimate part of acting on behalf of a client in this case. I think it absolutely is. It’s how you do it. Not whether.

 

How about Amnesty International or other non-governmental organizations – how have they been involved?

Amnesty International in particular has had an interest throughout these cases – and I mean back during the detentions of the three individuals. As information about their circumstances came to light, those organizations were involved. That involvement continues today. They’ve been strong advocates for our clients’ interests – strong advocates both for the policy changes that are necessary, arising out of the lessons we’ve learned, and also advocates for the fair resolution of these cases.

 

So we’ve talked about a documentary, the work of an NGO, and two inquiries. We haven’t mentioned the book by Kerry Pither, Dark Days.  Any other publicity angles I’m missing?

If you Google the names of any of the principal plaintiffs you will see a host of articles. These cases touch upon a lot of different aspects of our society. They’ve been of interest from a large number of points of view and they’ve been discussed from a large number of points of view. So yeah, there’s been a lot of public attention. Rightly so, in my view. It’s not often (fortunately) that Canada is alleged to be complicit in the torture of its own citizens.   

 

Have any policies been changed?

Yes, a lot. A lot of recommendations have been made. There were a string of recommendations out of the Arar Inquiry, which reported in 2006 and another string of recommendations arising out of the Iacobucci Inquiry in 2008. Those were considered by the House of Commons Committee on Public Safety in 2009. I think it’s fair to say that progress in acting on those recommendations – and those from other inquiries such as the Air India Inquiry – has been slow. Generally the direction of policy has been in favour of more power to national security investigators rather than more consideration for the human rights consequences of national security investigations. But I think that tide is changing. That’s currently a debate that Canadians are engaged in, in relation to what used to be known as Bill C-51, and now is the subject of government green paper. I’m ever hopeful.

 

Thanks so much for your time.

Thank you.

 

About the Interviewer

Saba Ahmad is a civil litigator working primarily on commercial and estate matters in Toronto. She advises non-profits and is an officer and board member of an environmental charity, as well as co-editor of the CCLHR's newsletter. Saba is licensed to practise law in the Province of Ontario and in the State of New York.

[1] Available at:  https://www.canada.ca/content/canadasite/en/public-safety-canada/news/2017/03/statement_of_apologytomralmalkimrabou-elmaatimrnureddin.html 

[2] Phil Tunley is a senior litigator and partner at Stockwoods LLP.  His practice covers a wide range of commercial and public law litigation, with special expertise in disputes involving Aboriginal peoples and their rights, Crown liability, white-collar crime, and a variety of other regulatory, administrative and constitutional litigation.  He serves as a Director of Canadian Journalists for Free Expression, a non-profit advocacy and service group.