The Crown wants at least six current and former security officials to testify behind closed doors in the lawsuit of a Montreal man who was detained in Sudan—a move the man’s lawyer calls a serious infringement of the open court principle.
In a notice of motion filed in Federal Court, government lawyers propose the public and media be excluded from the courtroom during the officials’ testimony to “prevent inadvertent disclosure” of sensitive secrets.
It is the latest twist in the protracted case of Abousfian Abdelrazik, who is suing the Canadian government for $27 million over his detention abroad.
Abdelrazik, 62, arrived in Canada as a refugee in 1990. He became a Canadian citizen five years later.
He was arrested during a 2003 visit to Sudan to see family. In custody, Abdelrazik was interrogated by CSIS about suspected extremist links. He says he was tortured by Sudanese intelligence officials during two periods of detention.
Federal lawyers reject suggestions the Crown breached any duty of care owed to Abdelrazik or that any such breach contributed to his alleged false imprisonment, torture and abuse.
Abdelrazik denies involvement in terrorism, and his long-delayed action against the government is slated for this fall in Federal Court.
The trial had been set to begin in 2018, but was adjourned pending a review of emails, memos and other documentation related to the case under the Canada Evidence Act.
In August last year, the court issued an order under the act confirming redactions to 1,469 documents produced by the defendants and authorizing the issuance of summaries of protected information.
In its motion, the Crown asks that six current or former members of the Canadian Security Intelligence Service, the RCMP and Global Affairs Canada be allowed to testify in camera, without the public or media present, as they will be discussing matters “closely linked” to information protected by the order.
The motion indicates the proposed arrangement could apply to other witnesses whose testimony involves sensitive details.
Transcripts of these witnesses’ testimony would be made available publicly following review and redaction by the Crown to ensure they comply with the Canada Evidence Act order.
The motion says the measures are necessary because the “fluid and dynamic nature of a trial makes it difficult to identify and prevent inadvertent disclosure of information” protected by the order in real time.
It notes an Ontario Superior Court judge allowed the same practice for certain witnesses in the trial last year of Cameron Jay Ortis, who was convicted of violating the Security of Information Act.
In their submission to the Federal Court opposing the motion, lawyers for Abdelrazik say there are no special circumstances that would suggest such an exceptional order is necessary.
“The witnesses at issue are all current or former government officials who are presumably very experienced dealing with highly confidential matters,” says the submission, adding the risk that they will inadvertently disclose protected information “is speculative at best.”
“There is a strong public interest in the public hearing government witnesses defend their actions in this case.”
Paul Champ, counsel for Abdelrazik, said in an interview the government is “trying to normalize these kinds of secret trials in Canada” as well as minimize the spotlight on actions of Canada’s intelligence service in the case.
Champ said the public and media should be able to observe the witnesses’ body language and hear the intonation of their voices. “It’s so much different when you can see the person and how they respond.”
The Crown is also seeking an order designating the four current or former CSIS employees as protected witnesses, allowing them to testify using a pseudonym and take steps to protect their physical appearance.
They would swear an oath or affirm with their real names only in the presence of a judicial officer, and be permitted to enter and leave the court building via an alternate entrance.
Abdelrazik’s lawyers generally agree with the measures, but oppose the idea of the witnesses testifing behind a screen that would shield them from the plaintiff and his counsel.
They also disagree with the possible use of software to alter the witnesses’ voices, saying it would interfere with Abdelrazik’s ability to assess the testimony.
The Federal Court is expected to hear arguments on the matters early next month.
