Crown seeks closed-door hearings for lawsuit claiming feds contributed to Canadian's torture

After years of delays, a Canadian man's lawsuit accusing the federal government of contributing to his detention and torture abroad is finally going before a court this fall.

But before the case can proceed, a judge needs to decide if intelligence officials can testify behind closed doors.

Abousfian Abdelrazik was arrested during a 2003 visit to his mother in Sudan. 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 continuously rejected by the federal government. He was never charged. 

According to an agreed statement of facts, officials from the Canadian Security Intelligence Service interrogated Abdelrazik while he was in custody about suspected extremist links. Abdelrazik has denied any involvement with terrorism.

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.

Abdelrazik came back to Canada in 2009 after a Federal Court justice found his charter rights had been violated and ordered his return.

The Montreal father filed a lawsuit seeking $27 million in compensation that same year. He alleges in his statement of claim that he was tortured in Sudanese custody and the federal government violated his constitutional right to come home.

After Abdelrazik waited nine years to get his case before a judge, the case was scheduled to go ahead in 2018. That court date was postponed to give court officials time to review and redact hundreds of pages of documents, including emails and memos, under the Canada Evidence Act.

The court issued an order last summer redacting 1,469 documents but is allowing vetted summaries be disclosed.

A trial date is set for next month — but there's a final hurdle to clear before the case can be heard.

Close the doors to protect national security: Crown

Last month, the Crown filed a motion asking that six of its witnesses be allowed to testify behind closed doors "to avoid injury to Canada's international relations, national defence and/or national security." The witnesses in question are current and former members of  CSIS, the RCMP and Global Affairs Canada.

Government lawyers argue in their motion that the public and media should be excluded from the courtroom during those officials' testimony to "prevent inadvertent disclosure" of protected secrets. Disclosure of certain protected information, they argue, "would endanger the lives of current and former CSIS employees, their colleagues, their families, and negatively impact CSIS's capacity to operate."

The motion suggests transcripts of these witnesses' testimony would be made available publicly, with redactions if necessary. 

The Crown notes that an Ontario Superior Court judge allowed certain witnesses to testify in-camera during the trial last year of former RCMP official Cameron Ortis, who was convicted of violating the Security of Information Act.

The Crown is also seeking an order to shield the CSIS witnesses by allowing them to testify behind a screen, or by using technology to alter their voices.

Abdelrazik's legal team is fighting the motion, arguing such an exceptional order is unnecessary.

In his written representation, Abdelrazik's lawyer Paul Champ argues the witnesses are "very experienced dealing with highly confidential matters" and calls the suggestion that they might blurt out classified information "speculative at best."

"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," he writes.

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

CBC News is seeking to intervene 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."

Lawyers for all three parties made their arguments in Federal Court Wednesday afternoon.

Justice Patrick Gleeson reserved his decision but promised to release one soon, reflecting the fact that the trial is set to start on Oct. 21.