Judge rejects Crown's attempt to have CSIS, RCMP testify behind closed doors in lawsuit

Canadian intelligence and security officials won't be able to testify behind closed doors when Abousfian Abdelrazik's long-delayed lawsuit accusing the federal government of contributing to his detention and torture abroad finally goes to court next month.

Last month, the Crown moved a motion asking that six of its witnesses be allowed to testify behind closed doors when hearings officially start on Oct. 21 "to avoid injury to Canada's international relations, national defence and/or national security."

The witnesses in question are current and former employees of the Canadian Security Intelligence Service, the RCMP and Global Affairs Canada.

Government lawyers argued that the public and media should be excluded from the courtroom during those officials' testimony to "prevent inadvertent disclosure" of protected secrets.

In a decision released Tuesday, Federal Court Justice Patrick Gleeson dismissed the Crown's request.

"The defendant Crown has advanced little evidence to establish the likelihood of the risk of inadvertent disclosure," Gleeson wrote.

"They instead rely on the fluid and unpredictable nature of trial proceedings and the volume of information subject to protection to argue a serious risk of inadvertent disclosure."

The decision is a win for Abdelrazik, who has waited more than a decade for his day in court.

Abdelrazik claims CSIS contributed to his detention

The Sudanese-born Canadian was arrested in Sudan during a 2003 visit. He was interrogated in custody by CSIS about suspected extremist links. Abdelrazik has denied any involvement with terrorism.

He spent the next six years in prison or in forced exile at the Canadian embassy in Khartoum as his attempts to return to Canada were rejected by the federal government.

In 2009, a Federal Court justice found his charter rights had been violated and ordered his return.

The Montreal father launched a lawsuit that year seeking $27 million in compensation, alleging that he was tortured in Sudanese custody and accusing the federal government of violating his constitutional right to come home. He also alleges that CSIS officials asked Sudan to arrest and detain him without charge and then interrogate him about his activities and associates in Canada.

CSIS has denied asking Sudanese authorities to detain Abdelrazik — but court records suggest Sudanese officials told Canadian diplomats that CSIS asked for Abdelrazik's arrest.

The case was scheduled to go to trial in 2018 but was delayed to give court officials time to review and redact hundreds of pages of documents, including emails and memos, under the Canada Evidence Act.

Abdelrazik's legal team fought the Crown's in-camera motion, arguing the order was unnecessary and would violate a key principle of Canada's justice system.

"The open court principle is especially important in this case because it involves allegations of malfeasance and complicity in serious human rights abuses by senior government officials," lawyer Paul Champ wrote in his submissions. 

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

CBC News also intervened in the case, arguing the Crown's motion "would unjustifiably limit the open court principle and infringe upon the freedoms of expression and of the press."

Gleeson wrote that his dismissal of this motion does not prevent the Crown from asking to move in-camera at any point in the course of the trial, and he'll weigh the arguments if and when that happens.

In a separate decision, released Wednesday, Gleeson agreed to another request from the Crown to protect the identities of four of the former and current CSIS witnesses on their list.

According to the order, the witnesses will be identified only by pseudonyms in open court and unclassified court documents, and steps will taken to conceal their physical appearance. Those steps could include a screen or the use of voice modulation software.