INDEPTH: MAHER ARAR
Police, state secrets and media
CBC News Online | Updated Oct. 19, 2006
On Jan. 21, 2004, 10 RCMP officers raided the home of Ottawa Citizen reporter Juliet O'Neill, and then the offices of the newspaper itself. The purpose of the raid was to learn how the reporter obtained secret documents relating to Maher Arar, a Syrian-born Canadian arrested in the United States as a suspected terrorist.
The Mounties executed search warrants issued under the new Security of Information Act, Canada's response to the terrorist attacks on the World Trade Center and Pentagon on Sept. 11, 2001. The new act replaced the old Official Secrets Act, but its so-called leakage provisions were drawn directly from the old act, which had been criticized as archaic and poorly written.
However, in October 2006, the Ontario Superior Court struck down the leakage sections of the act and rendered those warrants null and void.
"It's a tremendous affirmation of the importance of freedom of the press and freedom of expression," said O'Neill's lawyer, David Paciocco.
"This is also an ultimate vindication of Ms. O'Neill," he said.
O'Neill's legal team argued the Security of Information Act provisions used to obtain the RCMP search warrants violated the Charter of Rights and Freedoms.
If the decision is not appealed to the Supreme Court of Canada, it would pave the way for the return of O'Neill's seized papers, notebooks, contact listings and computer files.
Klaus Poehl, who teaches media law at Carleton University's School of Journalism, told CBC News Online that the raids on O'Neill's home and the Citizen are the first instance of police acting on the Security of Information Act. Poehl said the RCMP used Section 4 of the new act to go on a "fishing expedition" to find documents that might explain information leaked to the reporter.
Section 4 (1) begins:
Every person is guilty of an offence under this Act who, having in his possession or control any secret official code word, password, sketch, plan, model, article, note, document or information that relates to or is used in a prohibited place, or that has been made or obtained in contravention of this Act, or that has been entrusted in confidence to him by any person holding office under Her Majesty…
Poehl says a provision that might allow police raids such as those on O'Neill existed under the old Officials Secrets Act and was only used once. It involved a raid on The Toronto Sun in 1978, after the paper reported on a "top secret" document. The case was thrown out when a judge ruled the information was in the public domain, having been discussed in the House of Commons.
O'Neill's report in the Citizen on Nov. 8, 2003, says "security officials" she mentions the RCMP and the Canadian Security Intelligence Service (CSIS) "leaked allegations" about Arar "in the weeks leading to his return to Canada."
Poehl of Carleton University's School of Journalism says one of the roots of the controversy about the raid on O'Neill's home goes back to the debate in the House of Commons on the new Security of Information Act, which he says was passed with not a murmur from the watchdogs of media freedom.
- According to the report, the RCMP's main target was Abdullah Almalki, whom the RCMP saw talking to Arar in the pouring rain, supposedly to avoid eavesdroppers.
- Almalki now is in prison "abroad" with other members of "an alleged al-Qaeda logistical support group" from Ottawa.
- As for security officials leaking documents that discredit Arar, the report cites a "security source" who said this explains "why the Canadian government is so fiercely opposed to a public inquiry into the case of Mr. Arar."
- The Citizen report cites "Canadian security documents" that said Arar told Syrian military intelligence authorities when he was incarcerated in Damascus he had trained at the Khalden terrorist training camp in Afghanistan and named specific instructors who taught him tactics and how to use firearms.
Poehl said if people had paid attention and carefully examined the new security act they'd have discovered the new law was "so vague" it could be used to justify just about any intrusion into rights and freedoms of Canadians, including the raid on O'Neill's home and the offices of The Ottawa Citizen.