POLITICS

Supreme Court to decide whether to hear Syria, Egypt torture cases

01/18/2012 04:47 EST | Updated 03/19/2012 05:12 EDT
OTTAWA - The Ontario Superior Court of Justice. The Federal Court of Canada. The Federal Court of Appeal. A federal commission of inquiry.

And now, the Supreme Court of Canada.

Abdullah Almalki just hopes this latest milestone lasts longer than a few short seconds. On Thursday, Almalki and two other men, who were tortured in Syria and Egypt, find out whether Canada's highest court will hear their appeal.

Almalki, Ahmad El Maati and Muayyed Nureddin are suing the federal government for complicity in their detention and torture in Syria and Egypt, cases that now date back more than a decade.

The men accuse the government of hiding behind Section 38 of the Canada Evidence Act, which allows the government to withhold sensitive information to protect national security.

They are appealing a ruling by the Federal Court of Appeal that sided with the government in keeping information about their cases from being released.

"It is very important for our society because we need to hold our government officials to account in a democracy. They keep on trying to hide from us, the terrible policies, the horrible practices they were engaged in," Almalki said in an interview on the eve of the high court's decision.

"It's critical for us to know this, if we want to hold public servants to account."

The government held a commission of inquiry, headed by former Supreme Court justice Frank Iacobucci, which concluded in 2008 that Canadian officials were likely partly to blame for the torture of the three men. Iacobucci's report concluded the officials shared unfounded information with foreign governments that the men were extremists.

The men deny they are terrorists. All were abused by Syrian captors, while El Maati was tortured in Egypt as well.

In Almalki's case, Iacobucci found that Canadian officials passed on information about him that was "inflammatory, inaccurate, and lacking investigative foundation."

The lawyers for the three men urge the Supreme Court to hear the case in order to make a determination on the scope of the secret hearings that are permitted under Section 38, which are designed to protect from the disclosure of sensitive information in a terrorist case.

"This Court has never determined the permissible scope of secret ex parte representations in an appeal under s. 38," the applicants' lawyers argue in their submission.

"The public importance of these issues is enhanced because they cannot be reviewed except through an appeal of this court."

In its decision last summer, the Federal Court of Appeal overturned the Federal Court judge who originally ruled in favour of the three men, and ordered the disclosure of sensitive documents.

The appeal court ruled that the judge gave "undue weight to the public interest in disclosure of the information" and did not give adequate weight to "evidence of injury" that disclosing the information might cause.

On Thursday, the Supreme Court will simply decide whether it will hear arguments. As is usual, it won't give reasons, or issue a formal decision.

If it grants leave to appeal, then it will hear arguments from the lawyers representing Almalki, El Maati and Nureddin and the Justice Department.

The hearing would likely occur next fall.

By then, Almalki will have already marked the 10-year anniversary of his May 2, 2002, capture and torture in Syria.